Delhi District Court
Mr.Saeeduddin vs Mr.Tahir Ahmed on 18 October, 2010
IN THE COURT OF SH. ANAND SWAROOP AGGARWAL,
SENIOR CIVIL JUDGE CUM RC (EAST) : KKD COURTS :
DELHI
Civil Suit No. 1884/06
Unique Case Identification No: 02402C0718692006
Mr.Saeeduddin
S/o Late Shri Zafar
R/o H. No.15A/2
Plot No.251,Khureji Khas
Delhi110051. .............Plaintiff
Versus
1.Mr.Tahir Ahmed
S/o Late Sh.Zafar
2.Mst.Jamila
W/O Late Sh.Zafar
Both R/o 26/29
Plot No.251
Khureji Khas,Delhi110051. ...........Defendants
SUIT FOR PERPETUAL INJUNCTION
AND
Smt. Jamila
W/o Sh. Zafar
R/o 26/29, Khureji Khas
(Brij Puri), Delhi - 51 ........... Counter Claimant / Defendant no. 2
Versus
Mr. Saeeduddin
S/o Late Sh. Zafar
R/o 15A/2, Khureji Khas
Delhi - 51 ...........Respondent / Plaintiff
Anand Swaroop Aggarwal
SCJCumRC:East, Delhi
Suit No. 1884/06 Page 1/19
COUNTER CLAIM FOR MANDATORY INJUNCTION
A. Date of Institution of Suit : 15/12/2006
B. Reserved for Order on : 16/10/2010
C. Date of Order : 18/10/2010
D. Final Order : Suit of the plaintiff decreed as
per relief clause. Counter
claim dismissed.
J U D G M E N T
1. Plaintiff has filed this suit with a prayer that the defendants and their other family members or agents or labourers be restrained from interfering or demolishing any portion shown in yellow colour in site plan Ex. PW1/2 and dispossessing the plaintiff from blue colour portion shown in the site plan Ex. PW1/2 which is part of property No.251,Khureji Khas, Delhi110051 by passing a decree of permanent injunction in favour of plaintiff and against the defendants.
CASE OF PLAINTIFF
2. In brief the case of the plaintiff is that late Shri Zafar was the father of the plaintiff and defendant no.1 and husband of defendant no.2. As alleged, Mr. Zafar was the owner of very big plot bearing No.251,Khureji Khas, Delhi110051 and during his life time Mr.Zafar constructed the said plot and was living on the said plot with his entire other family members till his death on 9.8.1994. As per plaintiff, late Mr. Anand Swaroop Aggarwal SCJCumRC:East, Delhi Suit No. 1884/06 Page 2/19 Zafar divided the abovesaid big property in between his legal heirs during his life time by executing registered Wills on 10.3.1992.
As alleged, as per registered Wills, blue portion shown in the site plan Ex. PW1/2 fell into the share of the plaintiff and, plaintiff and his entire family is residing in the said property from the very beginning till date. The said blue portion, as alleged, is at present two storey building and the said property is also known as 15A in the municipal record built on Plot No.251,Khureji Khas, Delhi110051.
As per Plaintiff, Green Portion shown in the site plan Ex.PW1/2 is in possession of the defendant no.2 and she is residing there after the death of her husband and just behind the green portion, the defendant no.1 and his other family members are residing in a portion shown as MarkA. As alleged, said property of both the defendants is also known as 26/29,Khureji Khas, Delhi situated on plot No.251.
Further case of plaintiff is that there is common pucca stairs shown in yellow colour in site plan Ex. PW1/2 leading from a gali on ground floor to the first floor of the said property and on the first floor after the end of the stairs, there are four different doors leading to the different portions of different parties. One door opens towards the portion of the plaintiff. Another door opens towards the portion of the defendants and other doors are leading towards the portion of late Shri Fariuddin and Shri Jamil Ahmed , the real brothers of the plaintiff and defendant no.1 which are not subject matter of the present suit. As alleged, the portion of the plaintiff and the portion of the defendants are totally different and have no link or connection of any kind whatsoever Anand Swaroop Aggarwal SCJCumRC:East, Delhi Suit No. 1884/06 Page 3/19 from the very beginning and the parties are residing along with their family members in their respective portions. Defendant no.2, as alleged, is also residing with defendant no.1 in her Green portion shown in the site plan Ex. PW1/2.
In this background, the case of the plaintiff is that both the defendants started claiming exclusive rights in the said stairs as well as in the wall shown in Yellow colour in the site plan Ex. PW1/2 for the last few days and they are trying to give illegal threats to demolish the said yellow portion or make additions or alterations in the said yellow portion as shown in the site plan Ex. PW1/2 with malafide intention, despite the fact that the said yellow portion shown in site plan is common in between both the parties of the present suit for the last more than so many decades and both the parties of the present suit never claimed their independent right in the said yellow portion earlier at any time.
As alleged on 10.12.2006 at about 10:00 AM the defendants called the labour and tried to demolish the common wall shown in yellow colour in the site plan Ex PW1/2 , by illegal means and methods but the plaintiff objected the said illegal act of the defendants on that day and did not allow to interfere or demolish the said common /dividing wall as shown in yellow colour in the site plan Ex. PW1/2. Defendants called the police on telephone on that day at the spot and plaintiff was, as alleged, falsely implicated in a case u/s 107/151 Cr.PC by defendants in connivance with the local police. As per plaintiff, defendants are still harassing, humiliating and torturing the plaintiff to vacate his portion shown in blue colour in Ex. PW1/2 and defendant want to encroach the Anand Swaroop Aggarwal SCJCumRC:East, Delhi Suit No. 1884/06 Page 4/19 portion of the plaintiff by illegal means and methods or by blocking the entry of the plaintiff from the common staircase leading from ground floor to his portion. As per plaintiff, plaintiff has no other entry to enter into either on the first floor or on the second floor of his property except the stairs shown in yellow colour in site plan Ex. PW1/2. As alleged, plaintiff requested the defendants not to create any sort of dispute and allow the plaintiff to live there peacefully alongwith his other family members but defendants are adamant to do their illegal activities and compel the plaintiff to leave his portion and also there was a quarrel on 13/12/2006 and further, the said illegal threats from the side of the defendants are still continuing towards the plaintiff. Hence this suit.
CASE OF DEFENDANTS
3. Defendants have contested the suit of the plaintiff by filing a joint contesting Written Statement of Defence. In the WS defendants have taken certain preliminary objections such as that plaintiff has not approached this court with clean hands and has suppressed material facts from this court and therefore, plaintiff is not entitled to equitable relief; that suit of the plaintiff is not maintainable as under the garb of injunction, plaintiff is trying to get declaration regarding the wall within (allegedly mentioned as common) which exclusively belongs to defendant no. 2; that suit of the plaintiff is liable to be dismissed u/o VII rule 11 CPC with heavy cost because no cost of action arose against the defendants; that defendants have not committed any act contrary to rights of the plaintiff and plaintiff has no right to restrain the defendants from enjoying wall which is exclusively part and partial of property of Anand Swaroop Aggarwal SCJCumRC:East, Delhi Suit No. 1884/06 Page 5/19 defendant no. 2 and that suit of the plaintiff is barred u/sec 41 (i) and (j) of the Specific Relief Act keeping in view conduct of the plaintiff in suppressing material facts from this court and having no personal interest in the matter.
On merits, defendants have not disputed the averment of the plaintiff that Late Sh. Zafar was owner of big plot bearing no. 251, Khajuri Khas, Delhi - 51 and that he (Mr. Zafar) had constructed the said plot and was living on the said plot with his entire family member till his death on 9/8/1994. Further, as per defendants as well, the property was divided by Late Sh. Zafar in the name of the plaintiff, defendants and other legal heir during his life time through valid documents. The defendants have denied the averments of the plaintiff that blue portion as shown in the site plan Ex PW1/2 fell into the share of the plaintiff and as per the defendants the portion of the plaintiff is only upto his wall to the other side of the drain which is dividing the portions of the plaintiff and the defendant no. 2. The defendants have alleged that portion of the plaintiff is not upto the wall (alleged as common wall) and the portion of the plaintiff is only upto the other side of the drain. As regards the stairs, stand of the defendants is that stairs fall in the portion of defendant no. 2 but being the mother she allowed her sons to use the stair case and now adays stair case are used commonly by all the legal heirs of Sh. Zafar including the plaintiff and defendants. Further, as per the defendants, one son of Late Sh. Zafar namely Fariduddin has already sold his ground floor portion and is not using the said stairs. Further defendants have alleged that portion of the plaintiff and defendants are different and the Anand Swaroop Aggarwal SCJCumRC:East, Delhi Suit No. 1884/06 Page 6/19 portion of the defendants fall in Brij Puri whereas the portion of the plaintiff fall in illqua Khureji and further the portions of plaintiff and defendant are divided by one drain which flows in between both the portions. As per the defendants, yellow wall is not a common wall and defendants never threatened to demolish the yellow portion of wall with malafide intention. Defendants have also filed one site plan Ex.DW1/A to clarify their version. As per the defendants there is no connection between the portion of plaintiff and defendant no. 2 because both the portion are divided by one Municipal covered drain and there is nothing common between the plaintiff and defendant no. 2.
Further case of the defendants is that on or about 15th October 06, the defendants alongwith their family members had gone to attend a marriage in their relation at Ghaziabad and they remained absent from their house for about threefour days and when they came back after attending the marriage, they were shocked to see that the plaintiff has put Tiron and stone slabs from his wall to the wall of the portion of defendant no. 1 and thereby from first floor plaintiff crossed over the Municipal drain by putting Tiron and stone slabs and upon the same he raised some construction. As alleged, when the defendants raised objection over the same, plaintiff bluntly told that plaintiff will not remove the construction from the wall of the defendant no. 2 and defendant no. 2 can do whatever she likes and further threatened that plaintiff is BC of Khureji area and has links with police. Further defendants have alleged that on 10/12/2006 when defendant no. 2 again requested the plaintiff to remove his construction (Chhajja) from the wall Anand Swaroop Aggarwal SCJCumRC:East, Delhi Suit No. 1884/06 Page 7/19 of defendant no. 2, plaintiff again gave filthy abuses to the defendant no. 2 and his (Plaintiff's ) son Sher Mohd. also joined the plaintiff in giving abuses and quarreling with the defendant no. 2 . Matter was reported to police by defendant no. 2 and plaintiff was booked in a Kalandra U/S 107/151 CPC. As per defendants, plaintiff has no right, title or interest over the wall shown in yellow colour in site plan Ex. PW1/2 and plaintiff has forcibly and with malafide intention raised construction over the same in the absence of the defendants for which defendant no. 2 is filing counter claim against the plaintiff. With this stand defendants have prayed that suit of the plaintiff may kindly be dismissed with heavy costs in the interest of justice.
REPLICATION OF PLAINTIFF
4. Plaintiff has filed replication to the common / joint written statement of defence filed by defendants. In the replication, plaintiff has alleged that the disputed wall is a common wall for the last so many decades and never exclusively belonged to defendant no. 2. As per plaintiff, the photographs filed by defendants are not according to the site and bricks and cement jali shown on the first floor in the photographs of the defendants actually belong to latrin of Zamil Ahmed and the said construction has nothing to do with the plaintiff. Plaintiff has denied the stand of defendants that the portion of the defendants fall in Brij Puri area. As per plaintiff in the Will of Mr. Zafar it is mentioned that the portions which are in possession of the defendants are part and parcel of village Khureji Khas. In the replication plaintiff has denied the stand of defendants regarding their visiting the marriage of some relative and in Anand Swaroop Aggarwal SCJCumRC:East, Delhi Suit No. 1884/06 Page 8/19 their absence, plaintiff raising the alleged construction. As per plaintiff as on 15/10/2006 there was no talk or dispute of any kind between the parties. In the replication, plaintiff has denied the averments of defendants making out their defence and reaffirmed the averments made in the plaint.
5. COUNTER CLAIM OF DEFENDANT NO. 2Defendant no. 2 Smt. Jamila has also filed a counter claim against the plaintiff with a prayer for a decree of mandatory injunction in her favour and against the plaintiff directing the plaintiff to remove his construction from the wall (specifically shown in yellow in the site plan Ex. PW1/2) exclusively belonging to defendant no. 2 which fall in property no. 26/29, Khureji Khas, Brij Puri, Delhi - 51.
Plaintiff has prayed for dismissal of the counter claim of defendant no. 2 with heavy costs. Facts mentioned in counter claim or its reply by plaintiff form the part of pleadings of the parties.
6. Vide order dated 17/11/2007 ld. predecessor of this court had framed the following issues:
1) Whether the plaintiff is entitled to injunction as prayed for ? OPP
2) Whether the defendant is entitled to relief of counter claim as prayed for ? OPD
3) Relief.
7. To substantiate his case on Judicial file, plaintiff himself appeared in the witness box as PW1 Saeeduddin and filed his affidavit as Ex.PW1/A as his examination in chief. Plaintiff also examined one Mr. Udai Narain as PW2 vide affidavit Ex. PW2/A and filed affidavit of Mr. Anand Swaroop Aggarwal SCJCumRC:East, Delhi Suit No. 1884/06 Page 9/19 Fazlu Rehman. But neither Mr. Uday Narain nor Mr. Fazlu Rehman were offered for cross examination by defendant and on 14/7/2009 plaintiff closed his evidence by making a separate statement to that effect.
On the other hand defendant appeared in witness box as DW1 Mr. Tahir Ahmed & filed his affidavit Ex. DW1/A as his examination in chief. Also defendant has examined DW2 Mr. Yunus Khan. DE was closed by ld. counsel for the defendants on 03/04/2010 by making a separate statement to that effect.
8. I have heard Sh. Amarjeet Singh, Advocate for the plaintiff and Sh. K.K. Gambhir, Advocate for the defendants. Ld counsel for the defendants has relied upon following case laws: i) Sri Dasnam Naga Sanyasi and anr. Vs. Allahabad Development Authority, Allahabad & anr. AIR 1995 Allahabad 418 and ii) Nirakar Das Vs. Gourhari Das & ors. AIR 1995 Orissa 270. Both the ld. counsels for the parties argued in terms of respective pleadings of the parties.
9. My issuewise findings are as under: ISSUE NO.1 Whether the plaintiff is entitled to injunction as prayed for?OPP Plaintiff has prayed that defendants and their other family members or agents or labourers may be restrained from interfering or demolishing any portion shown shown in yellow colour in the site plan and dispossessing the plaintiff from the blue colour portion shown in site plan which is part of property no. 251, Khureji Khas, Delhi110051.
Substantially cause of action for the above prayer is coming Anand Swaroop Aggarwal SCJCumRC:East, Delhi Suit No. 1884/06 Page 10/19 from the averments of the plaintiff that on 10/12/2006 at about 10.00 a.m. the defendants called the labour and tried to demolish the common wall shown in yellow colour in the site plan Ex. PW1/2 between the points A to A by illegal means and methods. Besides the above specific averments there are no specific averments giving all details as to the the date, time etc. as to when the defendants tried to dispossess the plaintiff from the blue portion of the site plan or interfered in the user of common stairs by the plaintiff and thus this court will be deciding as to whether plaintiff is entitled to decree of injunction restraining the defendants etc. from demolishing the wall shown in yellow colour in the site plan Ex.PW1/2 from points A to A or not. Even the ld. counsel for the plaintiff in the course of arguments concentrated on this aspect only. The wall in question shown in yellow colour from points A to A on site plan Ex.PW1/2 is also visible in Photograph Ex. DW1/P1. As regards photograph Ex. DW1/P1, DW1 Mr. Tahir Ahmed in his cross examination has admitted that in the photograph Ex. DW1/P1 his door is shown at point X and that of plaintiff is at point Y. Further DW1 Mr. Tahir Ahmed has admitted that at point A on photograph Ex.DW1/P1 there is toilet used by plaintiff. Further DW1 Mr. Tahir Ahmed has admitted that toilet and door of plaintiff is constructed upon Nala and that the plaintiff is assessing his portion from the roof constructed upon the Nala through the stairs.
Also DW1 Mr. Tahir Ahmed, in consonance with the version of the plaintiff, in his cross examination has deposed that: " ......................My father has constructed the Anand Swaroop Aggarwal SCJCumRC:East, Delhi Suit No. 1884/06 Page 11/19 stairs. It is correct that the stairs are from ground to first floor only. It is correct that the stairs are used by all brothers to access the first floor. It is correct that the stairs opens to four separate doors on the first floor and each door opens to separate portion of each brother."
It being so, the theory of defendants that portion of plaintiff was only upto the other side of the municipal drain flowing between the portions of plaintiff and defendants, and separating such portions does not appeal good to judicial mind.
Also DW2 Mr. Yunus Khan in his crossexamination has deposed as under: ...................... I know the Khasra number of the property bearing no. 26/32 and property no. 251. The total area of the said property is 500 to 600 sq yards. The plaintiff is the owner of 100 sq yards of the property. Tahir Ahmed is the owner of 100 sq yards. Smt. Zameela Begum is also owner of 100 sq yards of the property. All they have double storey houses since the lifetime of Late Sh. Zafar. It is correct that the entire property was constructed by Late Sh. Zafar during his lifetime. I have seen the house of the plaintiff from inside. The plaintiff is residing on the first floor of his portion. It is correct that on the first floor there is one hall room, one verandah, one courtyard and latrine. All construction was made by Late Sh.
Zafar during his lifetime...................." The above details of construction at first floor (that is, one hall room, one varandah, one courtyard and latrine) do find mention in the Will Ex. PW1/1. Thus it can be said that even on the date of the Will Anand Swaroop Aggarwal SCJCumRC:East, Delhi Suit No. 1884/06 Page 12/19 Ex.PW1/1, situation at the site was the one as shown in photograph Ex. DW1/P1. This also falsify the abovesaid theory of the defendants.
In para. 10 of the plaint, plaintiff has specifically alleged that plaintiff has no other entry to enter into either the first floor or the second floor of his property except the stairs shown in yellow colour in the site plan. This specific stand of plaintiff has not been specifically denied by the defendants in the corresponding paragraph of the WS. Even in the crossexamination of PW1 Mr. Saeeduddin it has not been suggested that plaintiff is having other entry into the first floor or the second floor. But in this regard, DW1 Mr. Tahir Ahmed in his cross examination has volunteered that " Vol. However, it is wrong that there is no other way to use the plaintiff' s portion on the first floor, plaintiff has not let out the above area and in turn is using my passage to access his portion. I had mentioned this fact in my WS."
As already observed, there is no such mention in the WS. Rather it has come in the crossexamination of DW1 Mr. Tahir Ahmed that stairs are being used by all brothers to access the first floor. If it is so the possibility of municipal drain separating the portions of plaintiff and defendants is the least. This also suggest that at the site position is as it depicted in photograph Ex. DW1/P1 or in site plan Ex.PW1/2. The stand of defendants that copy of site plan prepared by father of defendant no.1 was given to all the children and that copy of the site plan is on the record as Ex. DW1/A does not inspire confidence in the facts and circumstances of this case. There is no mention in the WS that the site plan being relied upon by the defendants is the one which was prepared Anand Swaroop Aggarwal SCJCumRC:East, Delhi Suit No. 1884/06 Page 13/19 by father of defendant no.1. Further despite opportunity given, DW1 Mr. Tahir Ahmed has not brought on record the writing made by Mr. Zafar regarding dividation of property.
In view of the above discussion, it is evident that wall between the points A to A shown in yellow colour on the site plan Ex.PW1/2 is a common wall between portion X and Y as depicted in photograph Ex. DW1/P1 which even existed on the date of Will Ex.PW1/1. This being the factual position, to my mind, failure of plaintiff to seek a declaration to the effect that the wall in question is a common wall is to no effect in the facts and circumstances of this case. Case law relied upon by ld. counsel for defendants reported as AIR 1995 Allahabad 418 has no application in the facts and circumstances of this case. This being so defendant has no right to demolish the yellow wall in question by illegal means and methods. Such demolition of the wall in question amounts to intrusion on the rights of the plaintiff. It has not even been specifically suggested to plaintiff in his cross examination that on 10/12/2006 defendants did not try to demolish the common wall. However regarding incident dated 10/12/2006 plaintiff has been made to depose that " I did not lodge any complaint with the police or the area Magistrate relating to the incident of 10/12/2006." This failure on the part of plaintiff does not in any way affect the credibility of plaintiff regarding the incident dated 10/12/2006.
In the facts and circumstances of this case, it cannot be said that plaintiff has no personal interest in the subject matter of the suit. Further in the facts and circumstances of this case it cannot be said that Anand Swaroop Aggarwal SCJCumRC:East, Delhi Suit No. 1884/06 Page 14/19 plaintiff is guilty of suppression of material facts so as to disentitle him from the equitable discretionary relief of injunction. In the totality of facts and circumstances of this case, I find no reason to disallow the relief of injunction to the plaintiff. In my considered opinion, in the facts and circumstances of this case as are made out on the basis of material available on judicial file, plaintiff is entitled to an injunction order restraining the defendants, their agents, other family members, labourers etc. from demolishing the wall shown in yellow colour between the points A to A on site plan Ex.PW1/2 by illegal means and methods.
ISSUE NO. 2Whether the defendant is entitled to relief of counter claim as prayed for?OPD Defendant in the counter claim has prayer for a decree of mandatory injunction directing the plaintiff to remove his construction from the wall (specifically shown in yellow colour in the site plan) exclusively belonging to the defendant no. 2 which fall in property no. 26/29, Khureji Khas, Brij Puri, Delhi51.
The portion from which the construction is sought/prayed to be removed has been shown in red colour on the site plan Ex. DW1/A filed by the defendants. Ld. counsel for defendants in the course of arguments indicated that the said portion has been shown in photograph Mark X/Ex. DW1/D with a arrow mark, on front portion of the photograph. Further ld. counsel for defendants has submitted that except the portion where there is arrow mark, entire area which is seen in the photograph has been plastered which shows that construction around the Anand Swaroop Aggarwal SCJCumRC:East, Delhi Suit No. 1884/06 Page 15/19 arrow mark is new construction.
A careful comparison of both the site plans, photographs Mark X/Ex. DW1/D and photograph Ex. DW1/P1 without any doubt concludes that red portion in Ex. DW1/A and arrow mark portion on photograph mark X/DW1/D is not the one and the same portion.
The arrow marked portion on photograph Mark X/Ex.DW1/D starts with the start of the stairs but red portion on Ex.DW1/A lies between the blue and green portion on the site plan Ex.DW1/A. In the exhibit DW1/A entire portion starting from the start of the stairs has not been shown in red colour as the portion where, as alleged, construction has been made by plaintiff. Further, as the photograph EX. DW1/P1 suggest, it is not the case herein that the construction which started from the arrow marked portion on photograph Mark X/Ex. DW1/D continued uptil the point A on the site plan Ex.DW1/A. Furthermore, as per site plans Ex. PW1/2 and Ex. DW1/A the portion where there exist arrow marked portion on photograph Mark X/Ex.DW1/D falls to the share of Mohd. Zamil Ahmed as has been specifically pleaded by plaintiff in the replication in para. 34.
Also case of the defendants is that on or about 15/10/2006 the defendants alongwith their family members had gone to attend a marriage in their relation at Ghaziabad and they remained absent from their house for about threefour days and when they came back, after attending the marriage, they was shocked to see that that plaintiff has put Tiron and stone slabs from his wall to the wall of the portion of the defendant no.2 and thereby from the first floor, plaintiff crossed over the Anand Swaroop Aggarwal SCJCumRC:East, Delhi Suit No. 1884/06 Page 16/19 municipal drain by putting Tiron and stone slab and upon the same he raised some construction.
Here what is pertinent to note is that defendants have not given the exact nature of construction allegedly raised by plaintiff on or about 15/10/06. Even in the complaint Mark X dated 16/12/2006 made by defendant no. 2 to DCP Shalimar Park, East District, Shahdara, the construction raised by plaintiff has been mentioned as Chhajja and one wall. The exact nature of construction sought to be removed has not been detailed even in the counter claim filed by defendant no.2. As regards the nature of the construction allegedly raised by plaintiff on or about 15/10/06, for the first time it has been put to PW1 Saeeduddin in his crossexamination that plaintiff constructed a latrine and bathroom at the disputed site around 15/10/006 taking advantage of the absence of the defendants and Shahida Begum who had gone Ghaziabad to attend a marriage. Plaintiff has denied the said suggestion and further volunteered that entire construction in the suit property exists since 1970. Further PW1 Mr. Saeeduddin deposed that photograph Mark X does not correctly depict the site in dispute and rightly so in the facts and circumstances of this case.
Except the bald depositions of defendant appearing as DW1 Mr.Tahir Ahmed there is nothing on record that on 15/10/2006, defendants alongwith their entire family had gone to attend a marriage at Ghaziabad. The details of the persons being married, their marriage card, exact relation of defendants with the persons being married etc. has not been brought on record by the defendants. Photographs of marriage Anand Swaroop Aggarwal SCJCumRC:East, Delhi Suit No. 1884/06 Page 17/19 showing the presence of all the family members of defendants at the marriage has not been brought on record. Defendants have been not given the details of all their family members as on 15/10/06. There is no explanation as to why defendants did not report the matter of construction raised by plaintiff on or about 15/10/06 to concerned authorities immediately after their arrival from the marriage alleged attended by them. Even in the affidavit Ex. DW1/1 and Ex. DW2/1, exact details of construction allegedly raised by plaintiff has not been detailed. Also DW2 Mr. Yunus Khan in his cross examination has deposed as under: " I have not seen at anytime the plaintiff was raising any construction at the spot. I have never seen Tiron or slab being put in my presence on the said property by the plaintiff at any time."
In view of above detailed discussion, to my mind, it can be safely concluded that stand of the defendants regarding plaintiff raising construction on or about 1510/2006 does not call for any credence and relief claimed in the counter claim cannot be granted to defendant no.2/counter claimant. Issue stands decided accordingly. RELIEF?
In View of my findings on the above issues, a decree of permanent injunction is hereby passed in favour of the plaintiff and against the defendants thereby restraining the defendants, their agents, their family members or labouers etc. from demolishing the common wall between point A to A shown in yellow colour in site plan Ex. PW1/2 by illegal means and methods. Prayer for mandatory injunction Anand Swaroop Aggarwal SCJCumRC:East, Delhi Suit No. 1884/06 Page 18/19 made in counter claim filed by defendant no. 2 is declined. Parties to bear their own cost. It is clarified that this decree of permanent injunction will operate interse the parties to the suit or their agents etc. and will not come in the way of any Govt./ statutory authority taking any action as per law and will not amount to conferring any right/title/interest in the parties qua the land around the wall in question. It is being so observed because there is nothing on record to show that late Mr. Zafar owned the properties which were subject matter of his Will. Decree sheet be prepared accordingly. File be consigned to Record Room.
Pronounced in the open court.
18/10/2010 ANAND SWAROOP AGGARWAL
SCJ CUM RC EAST, KKD COURTS,
DELHI
Anand Swaroop Aggarwal
SCJCumRC:East, Delhi
Suit No. 1884/06 Page 19/19
Suit NO. 1884/06
18/10/10
Present:
Vide separate detailed judgment, the suit of the plaintiff is decreed. The defendants, their agents, their family members or labouers etc. are restrained from demolishing the common wall between point A to A shown in yellow colour in site plan Ex. PW1/2 by illegal means and methods. Prayer for mandatory injunction made in counter claim filed by defendant no. 2 is declined. Parties to bear their own cost. Decree sheet be prepared. File be consigned to Record Room.
ANAND SWAROOP AGGARWAL SCJ CUM RC EAST, KKD COURTS, DELHI Anand Swaroop Aggarwal SCJCumRC:East, Delhi Suit No. 1884/06 Page 20/19