Delhi District Court
Inder Siingh vs Pritam on 21 December, 2023
IN THE COURT OF MS. DEEPIKA THAKRAN
CIVIL JUDGE-II, SOUTH WEST DISTRICT
DWARKA COURT
CS No. 987/21
CNR No. DLSW03-001909-2021
IN RE:
Inder Singh
S/o Sh. Fateh Singh,
R/o: Plot No. A-12, Raju Extn.,
Near Old Palam Road, Kakrolla,
Delhi-78. .....Plaintiff
Vs.
Pritam
R/o: A-25, Raju Extn.,
Near M.B.D. School, Kakrola,
New Delhi-78 .....Defendant
SUIT FOR MANDATORY AND PROHIBITORY
PERMANENT INJUNCTION
Date of Institution : 21.09.2021.
Date of reserving judgment : 18.12.2023.
Date of judgment : 21.12.2023.
Final Judgment : Dismissed.
JUDGMENT
1. The present suit has been filed for seeking mandatory and prohibitory permanent injunction. The facts as mentioned in the CS No. 987/21 Inder Singh Vs. Pritam Page no.1/14 plaint are that plaintiff had purchased the plot No. 12-A ad measuring 40 sq. yds. out of khasra No. 16/23 situated in village Kakrola, Delhi, colony known as Raju Extension Palam Road, Kakrola, Delhi (hereinafter referred to as 'suit property') on 28.10.2023 from his hard earned money and since its purchase is residing with his family in the suit property. The copy of Aadhar Card of plaintiff, Ration Card, Electricity connection annexed. The photographs of the suit property showing old construction in Annexure-6 and new construction in Annexure-7 also annexed. The defendant was residing at house A-25, Raju Extension, near M.B.D School, Kakrola, New Delhi, the defendant has East side 25 feet road to his house and the plaintiff's house is on South side, 10 feet street of the defendant house. The defendant's house is 100 sq. yds. and is on the East side 25 feet road previously from last 30 years. The plaintiff has his house door on the South side 10 feet road of the defendant's house. The street in front of the street of plaintiff is of 10 feet, the plaintiff has no other road except the 10 feet street to enter into the suit property or his house. The plaintiff has 10 feet road in his property document of his house. The defendant has 25 feet street in his documents in East side and he don't have 10 feet street in South side of his house. The defendant previously had only door in the East side of his house but now he has opened door in South Side in front of plaintiff's house. The defendant had no chhajja in South street 10 feet street in front of plaintiff's house. The defendant had demolished his house and started new construction in the month of April, 2021 and defendant has raised construction in the street approximately 1 feet and has encroached the 10 feet road of plaintiff's house by force and despite resistance he didn't stopped CS No. 987/21 Inder Singh Vs. Pritam Page no.2/14 and qua the same complaint was made to MCD and SHO PS Dwarka, SDM and other authorities. Copy of complaint made to MCD on 27.04.2021, 22.06.2021 & copy of complaint made to SDM on 05.07.2021, copy of complaint made to Special Task on 08.05.2021 annexed. It is averred that defendant has opened his door/gate in front of plaintiff's house and has constructed chhajja also. The defendant has constructed his house 4 feet in height from the road and now he will construct stair case also for entering his house which will cause hindrance to the plaintiff in entering his house and no one will be able to go from the street. Further mentioned that defendant is into making earthen/soil/clay pots in his house and has installed a bhatti for the same which causes smoke and causing inconvenience to the plaintiff as the smoke gets filled in the house of the plaintiff causing difficulty in his living in his property and breathing issues. It is averred that defendant has no right to open gate in 10 feet street South side and has no right to open the door in front of the house of the plaintiff and cannot encroach 1 feet road of South side of his house and has no right to open window in front of the plaintiff's house and has no right to construct chhajja etc as the same hinders access to sunlight and air of the plaintiff and his family. It is alleged that defendant and his wife both quarreled with the plaintiff and threatened to kill the plaintiff, on 29.06.2021, defendant and his wife came to the plaintiff's house to kill him and quarreled with the plaintiff and his wife. The plaintiff made complaint to the police station but all in vain. The defendant has also called the gangster Bittoo on 10.092021 who came with 5-7 gunda elements and 3 ladies but the plaintiff in order to save himself and family members closed the door and went inside.
CS No. 987/21Inder Singh Vs. Pritam Page no.3/14 The said persons used abusive language to the 16 year old daughter of the plaintiff and threatened to kidnap her and other dire consequences. On this cause of action the present suit has been filed in the territorial jurisdiction of this court seeking the relief of mandatory injunction directing the defendant to close the door opening in front of the plaintiff's house, directing him to remove the chhajja and closed the window and remove the encroachment in the street as shown in site plan and further prohibitory injunction directing the defendant not to construct stair case in front of plaintiff's house, decree of damages of Rs. 500/- per day and further permanent injunction w.r.t. the aforesaid reliefs.
2. The suit has been contested by filing written statement on behalf of defendant stating that the plaintiff has concealed material facts from the court and baseless allegations has been levelled against the defendant. There is no dispute of property or possession in the present suit however the plaintiff and the defendant shares a common passage or gali which is 10 meters wide at one side of plaintiff's house and defendant has renovated his house and opened a window and a gate in that common passage which is not acceptable by the plaintiff. The defendant has been in possession and residing at this address since 2000. It is averred that the plaintiff boast about the gali to be his private property however several houses situated in the gali have their entry and exist therefrom and are using the gali as common passage. It is admitted that the defendant's house also has 25 feet road in East and 10 feet road in South where the plaintiff has his house. It is averred that the plaintiff is jealous from the defendant CS No. 987/21 Inder Singh Vs. Pritam Page no.4/14 and is unable to digest the use of common passage by the defendant and somehow intends to stop the defendant from renovating his house and restricting the defendant from using the common passage of 10 feet. It is averred that due to hostility with the defendant the plaintiff doesn't want defendant to construct his house and keeps on disturbing the defendant someway or other. It is denied that defendant is using bhatti and making earthen/clay pots in his house and due to which smoke is bothering the plaintiff and his family. Plaintiff is only making mountain of a mole as defendant long ago left the business of making clay pots and that is the another reason defendant has renovated his house and since long there is no use of any fire bhatti. It is denied that due to balcony of defendant's house in South plaintiff is unable to get air, water, light, privacy etc. It is alleged that plaintiff is misusing the law from his own personal gain out of vengeance and vendetta as his last straw. Plaintiff is making contradictory statements, at one hand he says police and MCD officials requested the defendant to stop the encroachment etc and on the other side he says defendant is influential person and has good connections with MCD/police staff etc. Denied that any threat of any nature at any point of time was given. Remaining averments are denied and with this prayer for dismissal of the suit has been made.
3.Replication/rejoinder reiterating the facts mentioned in the plaint and denying those mentioned in the written statement has also been filed.
CS No. 987/21Inder Singh Vs. Pritam Page no.5/14
4. On the basis of the pleadings following issues were framed on 23.02.2023 which are:-
I) Whether the plaintiff is entitled to relief of mandatory injunction as prayed for ? OPP. II) Whether the plaintiff is entitled to relief of mandatory injunction as prayed for ? OPP. III) Whether the plaintiff is entitled to permanent prohibitory injunction as prayed for ? OPP. IV) Whether the plaintiff is entitled to relief of damages/mesne profits as prayed for ? OPP.
V) Relief.
5. In order to prove his case plaintiff has examined himself only as PW-1 and has tendered his evidence by way of affidavit Ex.
PW-1/1 bearing his signature at point "A" & "B" and relied upon following documents :-
S. Documents Exhibited as
No.
1 Copy of GPA (one page only) dated Ex PW-1/A (OSR)
28/10/2003
2 Copy of Aadhar Card Ex PW-1/B
3 Copy of Ration Card Ex PW-1/C (OSR)
4 Copy of Electricity bill Mark A
5 Photographs Ex PW-1/D (colly 1
to 3)
6 Copy of police complaint dated Mark B
01/07/2021
7 Copy of police complaint dated Ex PW-1/E (OSR)
22/06/2021
8 Copy of SDM complaint dated Ex PW-1/F (OSR)
05/07/2021
9 Copy of Postal Receipts for Ex PW-1/G (OSR)
CS No. 987/21
Inder Singh Vs. Pritam Page no.6/14
complaint made to MCD Office
dated 25/08/2021
10 Copy of complaint made to Special Mark C
Task Force dated 08/05/2021
11 Copy of complaint made to MCD Mark D
Najafgarh dated 27/04/2021
12 Copy of complaint to MCD, Dhasa Mark E
stand
During cross-examination stated that he has studied till 8th standard. His evidence affidavit has been prepared at his instructions and same was explained to him by his counsel in Hindi. Admitted that there is no property dispute between him and defendant. There is 10 feet wide street between his house and defendant's house. Admitted that he has constructed a ramp and stairs in that street in front of his house which is 2 to 3 feet long. There are five other houses, inhabitants of which are using the street. His house is constructed in area measuring 40 yards. The street outside is excluding the area of his house. He is acquainted with the defendant since 2003. admitted that he has a door in the passage which is opposite to the door of the defendant's house. He has constructed the ramp in that public street as everybody does the same. The door of the defendant is in south direction of his house. Admitted that the defendant has constructed the Projection (chajja) which is approx 2.5 feet wide and 10 feet in height from the ground and because of that he is not able to get any air and light. The defendant is in work of making of soil/ clay pots. Denied that defendant does not have bhatti in his house. Admitted that the defendant has made the soil/ clay pots on the occasion of Diwali, 2023 in his house. Denied that the smoke of bhatti does not come in his house from the house of defendant.
CS No. 987/21Inder Singh Vs. Pritam Page no.7/14 He resides along with four other family members in his house. Admitted that he has gone to ESI Hospital 10 years ago along with his daughter for the treatment of her eyes. Nobody is suffering from any respiratory issues in his family. Denied that he levelled false allegations that light and air are restricted due to the defendant's house and further that smoke comes from his house. He said that defendant has no right to construct the ramp/ stairs in the said street for entry and exit purpose in his house. Admitted that the said street is public street which is used by public for entry and exit purpose in their respective houses. He has paid for 40 sq. yds. only and not for any extra area, volunteered in his property documents 10 feet street is mentioned and in defendant's documents, the said 10 feet street is not mentioned. He has not purchased the said street but he has easement right therein. If the defendant constructs the staircase/ ramp in front of his house then it would cost hindrance to him in entry and exit in his property. The house of the defendant was constructed in 2021 which is 2/2.5 feet above the ground level. Denied that police complaint made by him is based on false and frivolous allegations. Denied that he has not received any threat of kidnapping his daughter and wife. Denied that he has not made any complaint to MCD or PCR. Denied that he has no easement rights or he has filed the present suit on baseless and false allegations just to harass and extort money from the defendant. Denied deposing falsely.
6. In order to rebut the case of plaintiff, defendant has examined himself only as DW-1 and has tendered his evidence affidavit Ex.
CS No. 987/21Inder Singh Vs. Pritam Page no.8/14 DW1-/1 bearing his signatures at point A & B. He has relied upon the following documents:-
S. Documents Exhibited as No. 1 Site Plan of Raju Extension DW1/2
2. Photographs of the common street DW1/3 (Colly) showing the ramp of the plaintiff During cross-examination stated that he studied upto 8 th class. He has purchased this plot in 1995. Admitted that he has reconstructed / renovated his house in the year 2021. admitted that prior to reconstruction he had only one main entry and exit gate in his house facing 20 feet road. Asked 'Is it correct that in year 1995, when you constructed your house for the first time there was only one road of 20 feet wide and the other road which is 10 feet wide was actually not a road but a vacant plot at that time', to which witness replied - It is incorrect that it was the vacant plot, however, people used to use it as a common passage.
Admitted that the property papers of his house does not mention any passage which is ten feet wide in the south side. Admitted that the owner of the said vacant plot in his south side did the plotting after leaving ten feet wide road as the passage for the people who resides/ purchase in those plots. Admitted that after the reconstruction I left open one entry and exit gate of his house opposite to the entry and exit gate of the plaintiff. He has not constructed any ramp or staircase outside his house in ten foot passage. The height of his house from the ground is around one and a half feet. Denied that because of his gate opened in ten feet road, the plaintiff is facing hardship in entering and exiting CS No. 987/21 Inder Singh Vs. Pritam Page no.9/14 his house or the plaintiff is not getting sunlight and clean air due to the obstruction created by him by reconstructing his house. Asked "will you construct ramp or staircase in ten foot road in future", to which witness replied - That depends on my requirements in future.
Admitted that no gate and chhajja was constructed in the ten feet road before reconstruction of his house in year 2021. However, there was one window facing the vacant plot before 2021. Admitted that he was involved in the business of making clay pots before year 2020, volunteered now he does not manufacture the clay pots but used to deals in readymade clay pots. The size of his house is 18X40 feet. Admitted that plaintiff has only one entry/ exit gate at 10 feet road. Denied that smoke use to enter the house of plaintiff at the times when he used to make clay pots, volunteered he does not have any furnace/ bhatti in his house. Denied that he still use the furnace/ bhatti. Admitted that when he opened the windows and chajja at 10 feet road, the plaintiff objected the same and later objected again after he opened the entry/ exit gate at 10 feet road. Admitted that plaintiff called the police. Denied that he ever tried to threaten or kill plaintiff and his family. Denied that he called the person namely Bittoo along with other persons to help him in his fight with plaintiff. Denied that there is no other entry or exit gate except mine in the ten feet road, volunteered there is one more gate towards his side but he could not remember the name of that person residing there. Denied deposing falsely.
7. Both the Ld. Counsels has argued their case and I have perused the record carefully.
CS No. 987/21Inder Singh Vs. Pritam Page no.10/14 8.Issue No. 1 to 4 All the issues are taken up together as being interconnected. By way of present suit the plaintiff seeks mandatory and permanent injunction against the defendant from raising construction of chhajja (projection), restraining the defendant from opening door, window towards the house of the plaintiff in the street, further restraining from constructing any stair cases in the street etc. In order to substantiate his claim he has filed copy of GPA Ex. PW- 1/A (OSR) showing him to be owner in possession of the suit property, electricity bill Mark A, complaint made to PS Sector 10, Dwarka, MCD and to Ld. SDM dated 05.07.2021 Mark B, Ex. PW-1/F, Ex. PW-1/E, Mark D, Mark E etc and postal receipt thereof Ex. PW-1/G (OSR). Certain photographs of the construction being raised by the defendant Ex. PW-1/D, Ex. PW- 1/G (Colly) has also been filed which shows the projection of approx. 2-2.5 feet towards the street. The plaintiff alleges that due to the encroachment done by the defendant, plaintiff and his family is suffering and the same is creating hindrance in the entry and exit of the plaintiff and his family members in the house and not only this the defendant makes earthen/soil/clay pots in his house which emits smoke causing inconvenience to the plaintiff and his family and their health in their peaceful enjoyment of their property. In this regard, when plaintiff was cross-examined he admitted that he has also constructed ramp and staircase in that street in front of his house which is 2-3 feets long, he further admitted that he has a door in the passage which is opposite to the door of the defendant's house. On one side he is asking for a restraining order against the defendant qua the aforesaid things CS No. 987/21 Inder Singh Vs. Pritam Page no.11/14 and on the other side he admits having constructed the same towards the street or in the street. As to the ramp in the public street he stated that - yes he has constructed the same as everybody does the same. When questioned about the size of projection/chhajja raised by the defendant, it was revealed that the said projection is approx. 2.5 feet wide and 10 feet in height from the ground, plaintiff has testified that it is causing hindrance in his air and light, the plaintiff has not filed any substantial proof to that effect on record and therefore nothing can be assumed or presumed. When questioned about the inconvenience caused due to the alleged smoke the plaintiff clearly testified that no one is suffering from any respiratory issues in his family, here the question is not whether actual damage has been caused to someone in the family of plaintiff or not, the question whether the plaintiff has led any cogent or convincing evidence for proving the averments made by him or not, nothing has been proved. This court is not endorsing any encroachment in the public path/street but is on the point that when one party has not approached the court with clean hands, can the relief be granted to that person, the answer to the same is in negative when plaintiff himself has constructed ramp/staircase etc and has his door opening opposite to the house of the defendant then why the defendant should be restrained from doing the same. The relief of injunction is an equitable relief and the one who seeks equity must do equity and cannot blow hot and cold or reprobate or approbate at the same time. When questioned about the height of the house of the defendant, DW-1 stated that it is one and half feet above the ground which is not much. The plaintiff claims the CS No. 987/21 Inder Singh Vs. Pritam Page no.12/14 contrary that it is approx 4 feet above the ground level, the plaintiff has failed to prove the same.
9. Plaintiff in the plaint has claimed that the street belongs to him and same is mentioned in his property document Ex. PW-1/A (OSR). On perusal thereof, the mention of the gali 10 feet wide on the North side is there but there is no such mention that the said street belongs exclusively to the plaintiff. In order to show the correct position site plan and photograph of the common street showing the ramp of the plaintiff Ex. DW-1/2 & Ex. DW- 1/3 has been filed by the defendant which shows that sufficient space the plaintiff himself has encroached in the said gali/street. As far as claiming ownership of the street by the plaintiff is concerned, the plaintiff himself in his evidence stated that there are 5 other houses, inhabitants of which are using the street, on further cross-examination he stated that he has paid the consideration amount for the purchase of his property only and not only for the 10 feet wide street. He also admitted that the said street is public street which is used by public for entry and exit purpose in their respective houses. He further explained that he is not claiming that he has purchased the said street but stated that he is claiming easementary right therein. Firstly, from the above it can be concluded that the said street is a public street and the same is clear from the site plan Ex. DW-1/2 also and secondly the same is being used by all and sundry who are residing there, further when the plaintiff himself has raised construction of his house just opposite to the house of the defendant having entry gate, ramp, windows etc towards the said street then why the defendant should be restrained from doing the same. Therefore, CS No. 987/21 Inder Singh Vs. Pritam Page no.13/14 in view of above, since no cogent and convincing evidence has been adduced, the suit of the plaintiff fails and is accordingly dismissed.
Relief
10. In view of the aforesaid discussion, the suit of the plaintiff is dismissed.
11. Decree sheet be prepared accordingly. No order as to cost.
12. File be consigned to Record Room, after due compliance.
Digitally signed by DEEPIKA DEEPIKA THAKRAN THAKRAN Date:
Announced in the Open Court (Deepika Thakran) 2023.12.21 17:02:33 +0530 on 21.12.2023 Civil Judge- II, Dwarka Courts South West District, New Delhi 21.12.2023.CS No. 987/21
Inder Singh Vs. Pritam Page no.14/14