Delhi District Court
Nisha Shah vs Mcd And Others on 22 August, 2024
IN THE COURT OF DR. SHIRISH AGGARWAL: DISTRICT
JUDGE - 03: NEW DELHI DISTRICT: PATIALA HOUSE
COURTS : NEW DELHI
CS No. 89/19
CNR No. DLND01-001611-2019
1. Nisha Shah (now represented by)
Shri O.P. Goyal
Son of Late R.L. Goyal,
A-39 Ground Floor,
Inderpuri, New Delhi - 110012
2. Dr. U.K. Behera
Son of Shri Chintamani Behera
A-39 (2nd Floor),
Inderpuri, New Delhi - 110012
...Plaintiffs
Versus
1. Municipal Corporation of Delhi
(through its Commissioner)
Town Hall Building
Chandni Chowk,
Delhi - 110006
2. M/s Engineering & Industrial Corporation Pvt. Ltd.
(through its Managing Director/Principal Officer)
29, South Patel Nagar,
New Delhi - 110008.
...Defendants
CS No. 89/19 Nisha Shah Vs. MCD & Ors. Pages No. 1 of 41
Date of institution : 10.01.1990
Date on which reserved for judgment : 25.07.2024
Date of decision : 22.08.2024
JUDGMENT
1. By this judgment, I will be deciding the suit for permanent injunction and declaration.
Plaint/Plaintiff's version
2. It is the case of the plaintiff that she had purchased property bearing no. A-39, Inderpuri, New Delhi on 05.04.1989 and since that day, she is in possession of this property. It is pleaded that the construction at the property was old and therefore, the plaintiff got the property demolished. Thereafter, the plaintiff got the plan sanctioned from the Municipal Corporation of Delhi on 06.10.1989.
3. It is pleaded that the plaintiff has almost completed the construction as per the sanctioned plan.
4. It is stated that on one side of the property i.e. the side shown as AB in the site plan is a road which is marked GH. It is submitted that the defendant no. 1 is handing over possession of the road to the defendant no. 2. It is stated that the road is in existence since the year 1953 and below the road is a sewer line of the colony.
5. It is stated that there are 18 windows, 2 doors, 6 ventilations and stairs for entry in the property on the side CS No. 89/19 Nisha Shah Vs. MCD & Ors. Pages No. 2 of 41 marked AB in the site plan. It is pleaded that the plaintiff is having entry and access to the property only from the AB side from the roadside portion marked GH.
6. It is stated that the plaintiff is getting light and air from the side of the portion marked AB in the property and in case the defendant no. 1 is allowed to handover possession of the road to defendant no. 2, the easement right of the plaintiff will be violated and public utility service and drainage system below the road will be affected. It is submitted that street electricity poles are also there on the GH side shown in the site plan.
7. It is submitted that the plaintiff had purchased the property as a three side open property.
8. It is stated that M/s Engineering and Industrial Corporation Pvt. Ltd. (defendant no. 2 herein) has obtained a decree in a suit for permanent injunction against MCD (defendant no. 1 herein), which was infact in the nature of possession decree. It is submitted that in the suit for permanent injunction, defendant no. 2 has got a decree in the form of mandatory injunction.
9. It is submitted that for setting aside of the decree, the plaintiff will be filing objections in the Court where the defendant no. 2 herein is trying to execute the decree.
10. It is stated that if the decree is allowed to be executed, it will seriously affect the rights of the plaintiff since she has already spent around Rs.10 lakhs on the construction.
CS No. 89/19 Nisha Shah Vs. MCD & Ors. Pages No. 3 of 41
11. It is submitted that defendant no. 2 has obtained the decree by misrepresentation and fraud and in connivance with the defendant no. 1 and its employees. It is submitted that the decree is a nullity and has been passed without jurisdiction.
12. It is pleaded that if defendant no. 1 hands over possession of the property to defendant no. 2, the defendant no. 2 will block the road for raising construction and this will seriously affect the rights of the plaintiff who is getting light, air and right of passage from the GH side which the occupants of property no. A-39, Inderpuri have been getting for the last more than 30 years.
13. It is submitted that the defendant no. 1 cannot be allowed to handover the public utility service portion including electric poles to the defendant no. 2 as it will cause loss of several lakhs of rupees to defendant no. 1 Corporation since it will have to again install electricity poles and reconstruct sewerage system.
14. It is submitted that the only access that the plaintiff has to her property bearing no. A-39, Inderpuri is from the side of GH road portion which belongs to defendant no. 1 Corporation. It is stated that there is no other way to approach the property of the plaintiff except the portion marked GH from road side.
15. It is stated that before the defendant no. 1 Corporation sanctions a plan, it sends the file to the Town Planner for comments. It is pleaded that the department seeks clearance from the Town Planner to see whether the property to be constructed CS No. 89/19 Nisha Shah Vs. MCD & Ors. Pages No. 4 of 41 violates or infringes any right or interest of the Corporation and if it affects any public utility service.
16. It is averred that the decree dated 15.02.1986 passed by Sh. S.K. Kaushik, Sub-Judge, Delhi cannot be executed against defendant no. 1 since it will affect the rights of the plaintiff. It is submitted that the plaintiff has every right to challenge the decree, even though the plaintiff was not a party to the litigation between the defendants.
17. It is prayed that a decree be passed in favour of the plaintiff and against the defendants restraining the defendant no. 1 from handing over the portion marked GH to the defendant no. 2 and from dismantling the electricity pole near GH in the site plan.
18. It is further prayed that the defendants be restrained from interfering in the peaceful construction work of the plaintiff going on at A-39, Inderpuri, New Delhi.
19. It is also prayed that a declaratory decree be passed declaring that the decree obtained by the defendant no. 2 against defendant no. 1 cannot be executed since it has been obtained by fraud and collusion.
Written statement of defendant no. 1
20. Summons of the suit were served upon the defendant no. 1 Corporation. Written statement has been filed. It is stated in the written statement that the plaintiff has raised unauthorized CS No. 89/19 Nisha Shah Vs. MCD & Ors. Pages No. 5 of 41 construction which is against the sanctioned building plan. It is pleaded that the defendant no. 1 corporation has already initiated appropriate action by booking the unauthorized construction.
21. It is pleaded that the plaintiff cannot be allowed to take advantage of her own wrongs since the plaintiff raised major unauthorized construction.
22. It is admitted by defendant no. 1 that there is a 30 ft. wide road on the eastern side of the property of the plaintiff.
23. It is admitted that the sewage system of the colony is beneath the road and electricity poles are also there.
24. It is further admitted that the mandatory decree granted by the Court of Sh. Bhola Dutt could not have been granted in a suit for injunction. It is prayed that the suit of plaintiff be dismissed.
Written statement of defendant no. 2
25. It is stated by the defendant no. 2 that the plaintiff does not have cause of action and locus standi to institute the suit since she purchased the property only on 05.04.1989 and changes in the layout of the colony took place in the year 1957. It is pleaded that the plaintiff does not have any right to question the same.
26. It is submitted that the revised layout of the colony had been sanctioned in the year 1957 by the DD (P) A and later adopted and sanctioned by the MCD. It is stated that it was questioned by the Inderpuri Sudhar Sabha in an injunction suit CS No. 89/19 Nisha Shah Vs. MCD & Ors. Pages No. 6 of 41 against the MCD and others which was dismissed on 21.02.1975. It is pleaded that the appeal was also dismissed on 06.04.1978. It is stated that the question of the alleged road has become final and cannot be raised by the plaintiff.
27. It is stated that the judgment dated 15.02.1986 passed by Sh. S.K. Kaushal restraining the MCD from interfering with and enjoyment of possession of plots no. A-57A, A-39A, B-65A and B-49 A became final and binding on the MCD. Therefore, there was no question of the MCD sanctioning the building plan of the plaintiff wherein the plaintiff had shown eastern side of her plot, as a road, even though as per the above judgment dated 15.02.1986, there is no such road. The sanctioning of building plan of plaintiff's property by the MCD does not confer any right on the plaintiff to invade or encroach upon the defendant's rights over the plot no. A-39A.
28. It is stated that the alleged grounds of attack against the judgment and decree dated 15.02.1986 are baseless and an afterthought. It is pleaded that the grounds are vague and general allegations have been made. It is stated that no particulars and details have been disclosed.
29. It is stated that false claim has been made by the plaintiff that he only has access to the property from the side of GH road. It is pleaded that like other plots of A Block, the property of the plaintiff has its own road.
CS No. 89/19 Nisha Shah Vs. MCD & Ors. Pages No. 7 of 41
30. It is pleaded that the defendant no. 2 had promoted and developed the Inderpuri Colony in 1951-52 and a lay-out of the colony was got prepared. The layout of the colony was approved by the West Delhi Municipality in the year 1952 and had to be revised because of the coming into force of the ordinance known as Delhi (Control of Building Operations) Ordnance 1955, promulgated to check the haphazard growth of Delhi. An authority known as the Delhi Development (Provisional) Authority was set up and notwithstanding the previous sanction, it became obligatory for the defendants to have their layout approved from the said authority. Accordingly, the layout was submitted to the authority for sanction. However, the same was not approved and the defendant no. 2 had to prepare and submit a revised layout of the colony providing for schools, park, etc. The number of building plot were reduced, but one of the outer roads was eliminated (the alleged road in the suit) as being unnecessary. The revised layout was sanctioned by the authority in October, 1957. It is pleaded that this was later adopted by the MCD and has been in force since then.
31. It is stated that the land was freehold and property of the defendants. It is submitted that on account of elimination of the road, the defendants carved out six new plots in the revised and sanctioned layout, namely, plots no. A-57A, A-39A, B-65A, B- 49A, B-17A and B-33A. One of these plots i.e. B-33A was sold to one Mr. M.M. Arora who got his building plan approved from CS No. 89/19 Nisha Shah Vs. MCD & Ors. Pages No. 8 of 41 the MCD and started construction. However, the owners of the adjoining plots filed a suit for injunction and declaration under the name of Inderpuri Sudhar Sabha (regd.) against the MCD, these defendants and Mr. Arora that the road in question had been illegally closed and Mr. Arora did not have any right to raise construction on his alleged plot. The suit was contested by the MCD and the other two defendants. The suit was decided by Sh. V.B. Gupta by his judgment dated 21.02.1975, nearly after 10 years of long contest. The appeal against this judgment was also dismissed. It is stated that both the Courts held that the revised layout plan of the colony as sanctioned by DD(P) A and later adopted by MCD has been duly sanctioned and cannot be questioned in any Court. It is stated that the Town Planner of the MCD had appeared as a witness in the case and had testified that building plans of the colony were being sanctioned on the basis of the revised and sanctioned layout under which there was no outer road.
32. It is stated that notwithstanding the judgments, the MCD started reconstruction of the road in April, 1978. Therefore, the defendant no. 2 filed a suit for injunction against the MCD and after nearly around 10 years, a decree for injunction was passed against the MCD by Mr. S.K. Kaushik by his judgment dated 15.02.1986. It is stated that even in this case, the Town Planner of the MCD appeared as a witness and stated that the MCD was still following the revised layout plan.
CS No. 89/19 Nisha Shah Vs. MCD & Ors. Pages No. 9 of 41
33. It is submitted that therefore, the MCD had no right or authority to sanction any building plan as alleged by the plaintiff.
34. It is stated that the grounds raised by the plaintiff were also raised in the previous suits.
35. The sanction of the building plan appears to have been obtained by the plaintiff from the MCD by misrepresentation of true facts.
36. It is prayed that the suit of the plaintiff be dismissed.
Replication to the written statement of defendant no. 1
37. In the replication to the written statement of defendant no. 1, the plaintiff has stated that she did not raise any unauthorized construction against the sanctioned building plan. It is pleaded that the construction of the plaintiff has no concern with the road which the defendant no. 1 wants to handover to defendant no. 2. It is submitted that by alleging unauthorized construction by the plaintiff, the defendant no. 1 is trying to divert from the main issue.
38. It is stated that defendant no. 1 has admitted that there exists sewage system below the road. It is submitted that defendant no. 1 has also admitted that a decree for mandatory injunction could not have been granted in a suit for injunction. It is pointed out that defendant no. 1 has also admitted the existence of electricity poles on the road in question.
CS No. 89/19 Nisha Shah Vs. MCD & Ors. Pages No. 10 of 41
39. It is prayed that the suit of the plaintiff be decreed as prayed for.
Replication to the written statement of defendant no. 2
40. In the replication to the written statement of defendant no. 2, it is stated by the plaintiff that she has continuing cause of action because the defendant no. 2 is trying to grab the land on which the plaintiff's right has accrued after purchase.
41. It is stated that defendant no. 2 be put to strict proof that the layout of the colony took place in the year 1957.
42. It is stated that the defendants have not approached the Court when the plaintiff was constructing the property.
43. It is pleaded that in case the defendant no. 2 is allowed to take possession of the road, the plaintiff will suffer because the windows and entrance are opening on the side of the road which was sanctioned by the MCD.
44. It is stated that what transpired between defendant no. 1 and Inderpuri Sudhar Sabha is not within the notice and knowledge of the plaintiff and the defendant no. 2 be put to strict proof of the same.
45. It is pleaded that the land which is meant for installation of street lights and under which is the sewerage line cannot be handed over to the defendant no.2. It is submitted that public utility services cannot be handed over to defendant no. 2.
CS No. 89/19 Nisha Shah Vs. MCD & Ors. Pages No. 11 of 41
46. It is stated that the plaintiff is challenging the decree of Sh. S.K. Kaushal because the suit was not hotly contested by the MCD.
47. It is stated that there is another passage for entrance to the ground floor of the property, however, for upper two floors, there is no entry other than on the side of the road of which the defendant no. 2 wants to take possession. It is submitted that for the first and second floors and the basement, the only entry available is from the disputed site.
48. It is stated that the plaintiff had purchased the property knowing that she is getting the property which is open from the side of the alleged property of defendant no. 2.
49. It is denied that a revised plan was sanctioned by the defendant no. 1. It is stated that if this would have been done, the defendant no. 1 would not have sanctioned the building plan of the plaintiff.
50. It is stated that the plaintiff is entitled to the relief claimed.
Admission and denial of documents
51. The parties did not file affidavits of admission and denial of documents. Counsels for the parties stated before the Court on 04.10.1991 and 14.01.1992 that there is no requirement for admission and denial of documents.
CS No. 89/19 Nisha Shah Vs. MCD & Ors. Pages No. 12 of 41 Issues
52. On the basis of pleadings of the parties, following issues were framed by order dated 07.04.1992:
Issue No. 1: Whether the suit has been correctly valued for the purposes of court fee and jurisdiction? Issue No. 2: Whether the suit of the plaintiff is barred under the provisions of Order 9 Rule 9 CPC as alleged in para 2 of the preliminary objections of written statement of defendant no. 2? Issue No. 3: Whether the plaintiff has any cause of action or locus standi to file the present suit?
Issue No. 4: Whether the plaintiff is the owner of plot No.A-39, Inderpuri Colony, New Delhi?
Issue No. 5: Whether the lay out plan of Inderpuri was not approved/DDPA in October, 1957 and was sanctioned by the MCD in July, 1965?
Issue No. 6: Whether the building plan of the plaintiff sanctioned by MCD is illegal, invalid as alleged in the written statement? Issue No. 7: Whether the decree obtained by defendant no. 2 against the defendant no. 1 for permanent/mandatory injunction in suit no.347/1983 dated 15.02.1986 from the Court of Shri S.K. Kaushik, Sub Judge, Delhi was obtained by misrepresentation, fraud and collusion and is not binding upon defendant no.1? Issue No. 8: Whether the plaint lacks material particulars in respect of misrepresentation and fraud? If so its effect?
CS No. 89/19 Nisha Shah Vs. MCD & Ors. Pages No. 13 of 41 Issue No. 9: Whether the plaintiff has no other approach road as alleged in the plaint?
Issue No. 10: Whether the plaintiff will suffer irreparable loss and injury in case defendant no. 1 is allowed to handover the possession of the road to defendant no. 2 as alleged in para 11 of the plaint? If so to what effect?
Issue No. 11: To what relief the plaintiff is entitled to?
Plaintiff's evidence
53. To prove her case, plaintiff examined Mr. Om Prakash Goyal as PW-1. He tendered his evidence by way of affidavit as Ex. PW-1/A and relied upon the following documents:-
(i). Ex. PW1/2A is the original sale deed
54. Documents raised in the cross-examination of PW-1 are as follows:
(i) Ex. PW1/D2/1 is the sanctioned lay out plan of Inder Puri Colony.
(ii) Ex.PW1/D2/2 is the lay out plan of Inder Puri, passed by resolution dated 09.10.1957.
(iii) Ex.PW2/D2/1 is the certified copy of suit for a permanent mandatory injunction.
(iv) Ex.JP2 is the certified copy of judgment passed by Sh. S.K. Kaushik, the then Ld. Sub Judge, Delhi.
(v) Ex.PW1/D3 is the certified copy of the written statement of the MCD.
CS No. 89/19 Nisha Shah Vs. MCD & Ors. Pages No. 14 of 41
(vi) Ex.PW1/D4 is the certified copy of the statement of Mr. Deen Dayal Mathur, Town Planner, Delhi.
(vii) Ex.PW1/D5 is the certified copy of the suit filed by Mr. V.K. Behl.
(viii) Ex.JP4 is the certified copy of order passed by Sh. Rakesh Kumar, Ld. ADJ, Delhi dated 30.07.2008.
55. PW-1 was cross-examined at length and was discharged.
56. The plaintiff also examined Mr. V.K. Bahl as PW-2. He tendered his evidence by way of affidavit as Ex. PW-2/A.
57. Documents raised in the cross-examination of PW-2 are as follows:
(i) Ex.PJ/1 is the certified copy of judgment passed dated 06.04.1978 by Sh. O.P. Singhla, ADJ.
(ii) Ex.PW1/D5 is the certified copy of reply filed by the MCD.
58. PW-2 was cross-examined and discharged.
59. The plaintiff also examined Mr. Mokhtar Mahto from the office of Sub-Registrar as PW-3. The said witness produced and proved the sale deed dated 05.04.1989 as Ex.PW-3/1. This witness was cross-examined and discharged.
60. The plaintiff examined Mr. Mahinder Kumar from the NDPL office as PW-4. This witness produced the summoned CS No. 89/19 Nisha Shah Vs. MCD & Ors. Pages No. 15 of 41 record and proved the plan prepared Ex.PW-4/1. The witness was cross-examined and discharged.
61. The plaintiff examined Ms. Brahmjot Kaur, Assistant Town Planner as PW-5. This witness proved the layout plan as Ex.PW-5/1.
62. Mr. Biresh Kumar Shah from MCD was examined as PW-6. This witness produced the sanctioned plan which has been marked as Mark-X and Mark-X1. The witness was not cross- examined despite opportunity and was discharged.
Evidence of Defendant no. 1 (MCD)
63. In its defence, the defendant no. 1 examined Mr. A.K. Jain, Assistant Engineer, Town & Planning Department, MCD as D1/DW-1. He tendered his evidence by way of affidavit as Ex. D1-DW1/A and relied upon the layout plan of Inderpuri Colony proved as Ex.PW1/D2/1. The witness was cross-examined and discharged.
64. The defendant no. 1 also examined Mr. Rajiv Jain, Assistant Engineer, Building, Karol Bagh Zone, MCD as D1/DW-2. He tendered his evidence by way of affidavit as Ex.D1/DW2/A. The witness was cross-examined and discharged.
Evidence of Defendant no. 2
65. Defendant no. 2 examined its Director Mr. Prem Narain Dutt as DW2. He tendered his evidence by way of affidavit CS No. 89/19 Nisha Shah Vs. MCD & Ors. Pages No. 16 of 41 which is Ex.DW-2/A. He was cross-examined and was discharged.
Findings
66. I have heard arguments and considered the record carefully.
67. On 25.07.2024, it was jointly submitted by the Ld. Counsels for the parties that issues no. 1, 2, 4 and 6 need not be decided since these issues do not relate to the matters in issue. In view of this joint submission, the Court directed that these issues will not be decided.
68. The issue-wise findings on the remaining issues is as follows:
69. Issue No. 5: Whether the lay out plan of Inderpuri was not approved/DDPA in October, 1957 and was sanctioned by the MCD in July, 1965?
70. It is the case of the defendant no. 2 that the layout plan of Inderpuri Colony was revised in the year 1957. The revised layout plan was put to PW-1 Mr. Om Prakash Goyal during his cross-examination. He admitted that the document Ex.PW1/D2/1 is the revised sanctioned layout plan of Inderpuri Colony. He admitted that it was passed by the resolution dated 09.10.1957 which is Ex.PW1/D2/2. He further admitted that the revised CS No. 89/19 Nisha Shah Vs. MCD & Ors. Pages No. 17 of 41 layout plan Ex.PW1/D2/1 was sanctioned by the MCD by its resolution no.303 dated 14.06.1965.
71. During cross-examination, PW-2 Mr. V.K. Bahl admitted that MCD had amended the layout plan in the year 1965 by carving out certain additional plots.
72. Section 58 of the Indian Evidence Act provides that facts admitted need not be proved. In view of the admissions of PW-1 and PW-2, it stands proved that layout plan of Inderpuri was approved in October, 1957 and was sanctioned by the MCD in July, 1965. This issue is accordingly decided.
73. Issue No. 7: Whether the decree obtained by defendant no. 2 against the defendant no. 1 for permanent/mandatory injunction in suit no.347/1983 dated 15.02.1986 from the Court of Shri S.K. Kaushik, Sub Judge, Delhi was obtained by misrepresentation, fraud and collusion and is not binding upon defendant no.1? And
74. Issue No. 8: Whether the plaint lacks material particulars in respect of misrepresentation and fraud? If so its effect?
75. The findings of the Court on the above two issues are intertwined and therefore, both these issues will be decided together.
76. No evidence has been led by the plaintiff to establish that the judgment dated 15.02.1986 was obtained by CS No. 89/19 Nisha Shah Vs. MCD & Ors. Pages No. 18 of 41 misrepresentation, fraud and collusion. No details have been provided in the plaint as to how the judgment was obtained by misrepresentation, fraud and collusion. A bald and vague submission has been made that the judgment was obtained by misrepresentation, fraud and collusion.
77. During cross-examination, PW-1 stated that he does not even know the grounds on which the suit was filed. He stated that the judgment was obtained in collusion. However, he clarified that he does not have any personal knowledge about it and it is on the basis of information available that he is stating that it was obtained in collusion with the MCD.
78. PW-1 further deposed that he has not seen the plaint, written statement, evidence, documents and judgment passed in the suit no.347/83. He stated that he does not know whether the judgment was delivered as per the sanctioned layout plan and evidence.
79. If anyone claims that a judgment has been obtained by collusion and fraud, he has to prove it affirmatively. However, in the present case, no evidence has been led by the plaintiff which establishes that the judgment dated 15.02.1986 was obtained by misrepresentation, fraud and collusion. Infact, PW-1 who is the only witness of the plaintiff who deposed that the decree obtained by the defendant no. 2 against defendant no. 1 was by misrepresentation, fraud and collusion, is not even aware of the judgment and merits of the case. His knowledge about the case CS No. 89/19 Nisha Shah Vs. MCD & Ors. Pages No. 19 of 41 having been filed in collusion is based on "information available". He has not clarified where this information is available.
80. The suit no.347/1983 remained pending for around 8 years. In the evidence by way of affidavit of DW-2, he has deposed that it was instituted on 30.08.1978 and was decreed on 15.02.1986. He has deposed that issues were framed and evidence was led by the parties. He has denied that the decree was obtained by misrepresentation, fraud or collusion.
81. If there was indeed collusion between the defendant no. 1 and defendant no. 2, the suit no. 347/1983 would not have taken eight years for decision. Moreover, in the written statement of defendant no. 1 filed in the present case, the defendant no. 1 has made averments against the defendant no. 2 which indicates that there is no collusion between both the defendants.
82. In these circumstances, it is evident that the plaint lacks material particulars in respect of the allegation of misrepresentation and fraud on the basis of which the decree was purportedly passed.
83. The plaintiff has failed to prove that the decree was obtained by misrepresentation, fraud and collusion.
84. The second part of issue no. 7 is whether the decree dated 15.02.1986 is binding on defendant no. 1. Since the plaintiff has failed to prove that the decree dated 15.02.1986 was obtained by CS No. 89/19 Nisha Shah Vs. MCD & Ors. Pages No. 20 of 41 misrepresentation, fraud or collusion, it remains binding on the defendant no. 1.
85. With these observations, issues no. 7 and 8 are decided.
86. Issue No. 9: Whether the plaintiff has no other approach road as alleged in the plaint?
87. The plaintiff is owner of property no. A-39, Inderpuri, New Delhi which has been a three-side open plot. On the eastern side of this plot was a road as per the layout plan approved by the West Delhi Municipal Corporation in 1952. However, in the year 1957, a revised layout plan was sanctioned and adopted by the MCD. As per this new revised layout plan, the road which was on the GH side of plot no. A-39 was converted into a plot.
88. PW-1 is the owner of the half front portion of the ground floor of property no. A-39, Inderpuri. He has proved the sale deed executed in his favour as Ex.PW-1/2A. As per the sale deed, the original plaintiff Ms. Nisha Shah had purchased the property on 05.04.1989 and had constructed a multi-storied building thereon.
89. As per the evidence by way of affidavit of PW-1, sanction for construction on the property was granted on 06.10.1989 and thereafter, a basement, ground floor, first floor and barsati floor were constructed. The present suit was instituted on 08.01.1990. Therefore, it is evident that within three months from 06.10.1989, the original plaintiff Ms. Nisha Shah managed to raise CS No. 89/19 Nisha Shah Vs. MCD & Ors. Pages No. 21 of 41 construction of the building comprising of basement, ground floor, first floor and barsati floor after getting its plan sanctioned from the MCD.
90. Even though PW-1 has stated in his evidence by way of affidavit that the plaintiff is having entry and access to her property no. A-39 only from GH side (eastern side), during cross-examination dated 22.02.2010, he admitted that on the southern side of the plot, there is a 30 ft. wide road and on the back side, there is a 10 ft. wide service lane.
91. Even as per his own sale deed proved as Ex.PW-1/2A, there is a service lane on the north side of the plot, 30 ft. wide roads on the southern and eastern side and another person's plot on the west side.
92. Even as per the replication filed by the plaintiff, there is another passage/roof from which the plaintiff can have entry to the ground floor, but for upper two floors, there is no entry other than from the eastern side.
93. There is no evidence led by the defendants which establishes that there is alternative approach/access/entry to the first and barsati floors.
94. In view of the above, it is held that the plaintiff's plot has two approach roads which are on the southern and eastern side of the plot, besides having a service lane on the north side. However, it is clarified that for the first and barsati floors, the CS No. 89/19 Nisha Shah Vs. MCD & Ors. Pages No. 22 of 41 plaintiff does not have any other access other than from the GH side shown in the site plan. This issue is accordingly decided.
95. Issue No. 10: Whether the plaintiff will suffer irreparable loss and injury in case defendant no. 1 is allowed to handover the possession of the road to defendant no. 2 as alleged in para 11 of the plaint? If so to what effect?
96. As per the second amended memo of parties dated 05.02.2014, the plaintiff Ms. Nisha Shah is now represented by Mr. O.P. Goyal and Dr. U.K. Behera.
97. As per the testimony of PW-1, Ms. Nisha Shah has sold the constructed portion on plot no. A-39 to different people. Since Ms. Nisha Shah has sold the property no. A-39, Inderpuri, she will not suffer irreparable loss and injury if defendant no. 1 is allowed to handover possession of the road to defendant no. 2.
98. Mr. O.P. Goyal who has examined himself as PW-1 is the owner of the front portion of the ground floor of the property. In view of the admission made in the replication, the ground floor of the property has entrance on the southern side. No evidence has been led by the plaintiff to establish that there are windows on the eastern side of the portion which is now owned by PW-1. Therefore, if the defendant no. 1 is allowed to handover possession of the road to the defendant no. 2, it will not cause any loss or injury to Mr. O.P. Goyal.
CS No. 89/19 Nisha Shah Vs. MCD & Ors. Pages No. 23 of 41
99. No evidence has been led by the plaintiff which establishes that Dr. U.K. Behera will suffer any loss or injury if the defendant no. 1 is allowed to handover possession of the road to defendant no. 2. Dr. U.K. Behera has not even stepped into the witness box and examined himself to prove that he will suffer loss and injury if the defendant no. 1 is allowed to handover possession of the road to the defendant no. 2.
100. During cross-examination of PW-1, he was asked if any building constructed on plot no. A-39 would get light, air etc. from the southern side of the plot which has 30 ft. wide road and northern side which has 10 ft. wide sewage line. In response, PW-1 testified that residents of A-39 "also" get light, air, etc. from the eastern side of the plot. Even in view of this testimony, it can be inferred that the plaintiff will not suffer irreparable loss and injury if the defendant no. 1 is allowed to handover the possession of the road to the defendant no. 2 since the eastern side is not the only side from which occupants of A-39 get light, air etc.
101. In view of the above, it is held that neither the plaintiff Ms. Nisha Shah nor her successors-in-interest Mr. O.P. Goyal and Dr. U.K. Behera will suffer irreparable loss and injury if the defendant no. 1 is allowed to handover possession of the road to the defendant no. 2.
102. Issue No. 3: Whether the plaintiff has any cause of action or locus standi to file the present suit?
CS No. 89/19 Nisha Shah Vs. MCD & Ors. Pages No. 24 of 41 And
103. Issue No. 11: To what relief the plaintiff is entitled to?
104. The findings of the Court on the above two issues are intertwined and therefore, both these issues will be decided together. The suit has been instituted and reliefs have been sought on the grounds that the plaintiff has easement rights over the land on the eastern/GH side of property no. A-39, Inderpuri, there are public utility services on and below this land and that the judgment obtained by the defendant no. 2 against defendant no. 1 in the suit for injunction is null and void. These grounds will be dealt with hereinafter:
Easement rights of the plaintiff:
105. It is the case of the plaintiff that she has easement rights of way, air and light over the road/plot no. A-39A. It is stated in the plaint that the plaintiff only has entry and access to her property from the portion marked GH in the site plan. It is further stated that that the road has been in existence since several years and the occupants of the property A-39 have been using it as easement right. It is the case of the plaintiff that the road is owned by the State/defendant no. 1.
106. With regard to the claim of having easement of necessity, it is noted that contradictory and false assertions have been made by the plaintiff and the witness examined (PW-1) on behalf of the plaintiff. In the plaint and evidence by way of affidavit of PW-1, it is claimed that the only access to the property no. A-39, CS No. 89/19 Nisha Shah Vs. MCD & Ors. Pages No. 25 of 41 Inderpuri is from the GH side. It is claimed that there is no other way to approach the property except the portion marked GH from road side. However, this is in contradiction to the admission made in paragraph no. 5 of the replication in which it is stated that there is another passage/route for accessing the ground floor of the property.
107. DW-2 has proved that the layout plan of Inderpuri Colony was modified in the year 1957 and the said plan was later on adopted and sanctioned by the MCD in the year 1967. This modification done in the layout plan of Inderpuri Colony was challenged and discussed in various cases instituted by the other residents of Inderpuri Colony. These suits were dismissed. A suit was instituted by the defendant no. 2 against the defendant no. 1 herein regarding the land/road in question in the present suit. This case went on for eight years and was decided on 15.02.1986. Soon after that, in the year 1989, the plaintiff purchased the property bearing no. A-39.
108. As per the evidence by way of affidavit of PW-1, sanction for construction on the property no. A-39 was granted on 06.10.1989 and thereafter, a basement, ground floor, first floor and barsati floor were constructed. The present suit was instituted on 08.01.1990. Therefore, it is evident that within three months from 06.10.1989, the original plaintiff Ms. Nisha Shah managed to raise construction of the building comprising of basement, CS No. 89/19 Nisha Shah Vs. MCD & Ors. Pages No. 26 of 41 ground floor, first floor and barsati floor after getting its plan sanctioned from the MCD.
109. Despite filing of various cases challenging the modification of layout of Inderpuri Colony and passing of judgment specifically concerning the suit property in the year 1986, the plaintiff chose to buy the affected property bearing no. A-39 and carried out construction providing for windows and entrance towards the GH/eastern side. Now the plaintiff cannot claim irreparable loss after opening windows and entrance towards the property of another person.
110. As per Section 25 of the Limitation Act, a person gets easement rights by prescription when he has enjoyed those rights peaceably and openly, without interruption for 30 years.
111. In support of the plea of having easement by prescription, all that is stated in the plaint is that the plaintiff is getting light and air from the GH side of the property and has right of passage on the road since the occupants of the property A-39 have been using the road/passage since the last more than 30 years. It is pertinent to note that the plaintiff had purchased the property no. A-39 in the year 1989. The Court is of the view that the averment that the occupants have been using the road as a passage since more than 30 years is a vague and ipse dixit statement. The plaintiff had to expressly state in the plaint as to when the occupants of the property started getting light, air and way from the adjoining road. There is no pleading in this regard.
CS No. 89/19 Nisha Shah Vs. MCD & Ors. Pages No. 27 of 41
112. The Hon'ble Supreme Court in the case of Maria Margadia Sequeria Vs. Erasmo Jack De Sequeria (D) decided on 21.03.2012 in Civil Appeal No. 2968 of 2012 (Arising out of SLP (C) No. 15382 of 2009) held the following:
"68. In order to do justice, it is necessary to direct the parties to give all details of pleadings with particulars. Once the title is prima facie established, it is for the person who is resisting the title holder's claim to possession to plead with sufficient particularity on the basis of history claim to remain in possession and place before the Court all such documents as in the ordinary course of human affairs are expected to be there.
Only if the pleadings are sufficient, would an issue be struck and the matter sent to trial, where the onus will be on him to prove the averred facts and documents.
69. The person averring a right to continue in possession shall, as far as possible, give a detailed particularized specific pleading alongwith documents to support his claim and details of subsequent conduct which establish his possession.
70. It would be imperative that one who claims possession must give all such details as enumerated hereunder. They are only illustrative and not exhaustive.
(a) who is or are the owner or owners of the property;
(b) title of the property; (c) who is in possession of the title documents (d) identity of the claimant or claimants to possession; (e) the date of entry into possession; (f) how he came into possession -
whether he purchased the property or inherited or got the same in gift or by any other method; (g) in case he purchased the property, what is the consideration; if he has taken it on rent, how much is the rent, license CS No. 89/19 Nisha Shah Vs. MCD & Ors. Pages No. 28 of 41 fee or lease amount; (h) If taken on rent, license fee or lease-then insist on rent deed, license deed or lease deed; (i) who are the persons in possession/occupation or otherwise living with him, in what capacity; as family members, friends or servants etc.; (j) subsequent conduct, i.e., any event which might have extinguished his entitlement to possession or caused shift therein ; and (k) basis of his claim that not to deliver possession but continue in possession."
113. In the case of Hansraj V/s Jagminder Singh & Ors. 2017 (8) AD (Delhi) 483, the Hon'ble High Court of Delhi after relying upon several decisions of the Hon'ble Supreme Court held the following:
"Adverse possession has to be proved by clear cut evidence showing when the adverse possession commences i.e. the date, month and year or at least the month and year and adverse possession has to be proved to be nec vi, nec clam, nec precario. Wrong possession is not automatically an adverse possession. Also for commencement of adverse possession, it should be brought to the notice of the true owner the claim of adverse possession so that the true owner can take all steps in accordance with law."
114. In view of the above decisions, this Court is of the opinion that the plaintiff had to disclose atleast the month and year from which the occupants of A-39 started enjoying the air, light and passage from the adjoining land. Without bringing on record the date from when the occupants of plot no. A-39 started enjoying air, light and way, this Court is unable to give a finding that the occupants were indeed enjoying these easements peaceably and without interruption for a period of 30 years. The plaintiff has CS No. 89/19 Nisha Shah Vs. MCD & Ors. Pages No. 29 of 41 failed to even allege the aforesaid necessary requirements for establishing her absolute and indefeasible rights of easement.
115. In the present case, the plaintiff has not given the details about her easement rights. She has not disclosed the details which as per the Hon'ble Supreme Court ought to have been disclosed by her.
116. Section 106 of the Indian Evidence Act provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Therefore, as per Section 106 of the Indian Evidence Act, it was incumbent upon the plaintiff to prove as to when they started using light, air and way.
117. Section 60 of the Indian Evidence Act provides that in all cases, oral evidence must be direct. It provides that if it refers to a fact which could be seen, it must be the evidence of a witness who says that he saw it. It further provides that if it refers to a fact which could be heard, it must be the evidence of a witness who says that he heard it. In view of this provision, it becomes mandatory to have evidence of the persons who themselves enjoyed the easement rights over the adjoining land for the period of 30 years or atleast saw it being used for 30 years. However, the plaintiff did not examine any such person.
118. The original plaintiff Ms. Nisha Shah who claimed acquisition of easement by prescription did not even examine herself to depose about the number of years since light, air and CS No. 89/19 Nisha Shah Vs. MCD & Ors. Pages No. 30 of 41 way over the adjoining land were being used and the period from which it commenced. Neither Ms. Nisha Shah nor her predecessors-in-interest in the property no. A-39 have been examined. Since Ms. Nisha Shah and her predecessors-in-interest did not step into the witness box, the defendants did not get an opportunity of cross-examining them for eliciting the truth with regard to the number of years for which light, air and way was being enjoyed.
119. During cross-examination, PW-1 deposed that before he purchased part of the ground floor of property no. A-39 in the year 1992, he was residing in Naraina with his family. Even though he deposed that he used to regularly visit Inderpuri, he clarified that he came in contact with property no. A-39 sometime from 1992. From this part of his testimony, it is evident that PW-1's evidence with regard to the period from which light, air and way were used is not direct and therefore, inadmissible. He has stated in paragraph no. 16 of his evidence by way of affidavit that the plaintiff is getting light, air and passage from the adjoining land on the eastern side since the last more than 40 years. The source of his knowledge of this information has not been disclosed. This part of his testimony is mere heresay and not admissible. During cross-examination, he could not answer many questions about the properties in Inderpuri Colony on the ground that he purchased the property only in the year 1992. He did not know who had sold the property to Smt. Harsaran Kaur, the CS No. 89/19 Nisha Shah Vs. MCD & Ors. Pages No. 31 of 41 predecessor-in-interest of Ms. Nisha Shah. If PW-1 was not aware the facts relating to property no. A-39 etc., it is not clear how he could depose about the existence of easement rights since more than 40 years.
120. It was in the year 1989 that Ms. Nisha Shah had purchased the property no. A-39 by sale deed proved as Ex.PW-3/1. Therefore, it is the previous occupants and owners of this property whose evidence was relevant and important for proving the previous structure of the property no. A-39. However, they have not been examined.
121. The structure of the construction which existed prior to Ms. Nisha Shah demolishing it in the year 1989 is relevant because only if doors and windows existed on the eastern side even in the previous structure that it can be held that the occupants were using air, light and way from the adjoining land on the eastern side. No evidence has been led by the plaintiff for proving the previous structure of the building in plot no. A-39.
122. The structure of the built-up property which existed prior to purchase by Ms. Nisha Shah has not even been proved by other modes. The structure has not been disclosed in the sale deed Ex.PW3/1. Even though it is stated in the sale deed that even the easement rights are being transferred to Ms. Nisha Shah, the easement rights have not been disclosed in the sale deed or in the testimony of any of the witnesses. The sale deed executed in CS No. 89/19 Nisha Shah Vs. MCD & Ors. Pages No. 32 of 41 favour of Mr. O.P. Goyal examined as PW-1 has been proved as Ex.PW-1/2. It is evident from this document that Ms. Nisha Shah had sold the property to Ms. Sheela Khandelwal and Ms. Sheela Khandelwal sold it to Mr. O.P. Goyal. Even though there is no specific statement in the sale deed that easement rights are also being transferred, in the sale deed executed in favour of Mr. O.P. Goyal, it is stated that the vendor is transferring all her rights of ownership and all interests. However, it has not been proved that Ms. Nisha Shah had also transferred easement rights to Ms. Sheela Khandelwal, which she transferred to Mr. O.P. Goyal. The sale deed in favour of Dr. U.K. Behera has not even been proved and therefore, it cannot be held that easement rights were transferred to Dr. U.K. Behera.
123. It is the previous owners and occupants of property no. A-39 whose evidence would have been direct for proving the easement rights, the period from which it commenced and the structure of the building. However, they have not been examined. In view of Section 60 of the Indian Evidence Act, it was for the previous occupants to depose that they were staying in the property, the description of the construction and specifically how they were enjoying light and air from the eastern side. PW-1 and the other witnesses examined by the plaintiff are not competent to have deposed on these aspects. Testimony of PW-1 on these aspects is heresay.
CS No. 89/19 Nisha Shah Vs. MCD & Ors. Pages No. 33 of 41
124. PW-1 is owner of the front portion of the ground floor of property no. A-39. Access to his portion is from the southern side of the plot and not from the eastern/GH side. Therefore, he is not even the affected party. In paragraph no. 20 of his evidence by way of affidavit, he has deposed that "there are door window and stairs leading to first floor and barsati floor". It has not been proved that there are windows on his share of the ground floor on the eastern/GH side.
125. For establishing rights of easement by prescription on the portion of the land on the GH side of plot no. A-39, the plaintiff had to prove that she peaceably and openly enjoyed the rights without interruption and for a period of 30 years.
126. Having concealed the previous structure of the building and having failed to prove or even aver the time since the occupants enjoyed the easement rights, the plaintiff cannot be said to have an absolute and indefeasible right of easement on the adjoining property at the eastern side.
127. The judgment in the case of Dr. S. Kumar Vs. S. Ramalingam (2020) 16 SCC 553 relied upon by Ld. Counsel for the plaintiff does not apply to the facts of the present case. In the said case, it was the same person who sold two adjoining plots to two different persons. The sale deeds of both the persons provided that one of them has the right of way to the land of the other person. Since the sale deed of the servient owner provided CS No. 89/19 Nisha Shah Vs. MCD & Ors. Pages No. 34 of 41 that the dominant owner will have right of way, the servient owner could not have later denied it. Moreover, the right of access was reserved in the sale deed of the dominant owner which was prior in time to the sale deed of the servient owner. The facts of the present case are entirely different.
128. Even the judgment passed by the Hon'ble Supreme Court in the case of Joy Auto Works Vs. Sumer Builders Pvt. Ltd. (2009) 4 SCC 691 does not apply to the facts of the present case since in the said case before the Hon'ble Supreme Court, the plot of the claimant easementary rights was landlocked and therefore, he had no other access than through the property of the other party, which he was using since more than 35 years. In the present case, plaintiff has failed to prove the usage of easementary rights for the period of atleast 30 years.
129. The judgments in the cases of K Durairaj Vs. Secretary Writ Petition No. 34395 of 2007 decided by the Hon'ble High Court of Madras on 18.07.2019 and Okhla Industrial Estate Association Vs. MCD Writ Petition (Civil) No. 10618 of 2006 decided by the Hon'ble High Court of Delhi on 28.07.2006 were relied upon by the Ld. Counsel for the plaintiff. He argued that it was held in these two judgments that land meant for public purposes cannot be converted for use of commercial purposes. This Court is of the view that these judgments do not apply to the facts of the present case. These were passed in writ petitions. In the present suit, this Court cannot give a finding that the land on the eastern side of CS No. 89/19 Nisha Shah Vs. MCD & Ors. Pages No. 35 of 41 plot no. A-39 could not have been converted from being a road to a residential plot. This would require this Court to declare that the revised layout plan of Inderpuri Colony of the year 1957 is illegal. No such declaration has been sought. The plaintiff has failed to prove that the judgment dated 15.02.1986 was obtained by misrepresentation, fraud and collusion.
Pubic Utility Services on Land on Eastern side of A-39, Inderpuri
130. It is the case of the plaintiff that since there is a sewer line and electricity poles on the land/road on the eastern side of property no. A-39, the defendant no. 1 cannot be permitted to handover possession of its property to defendant no. 2. Evidence has been led by the plaintiff for establishing that there is sewage line/drainage system of the colony and electricity poles on the land on the eastern side of A-39. On the other hand, the defendant no. 2 has tried to establish that these public utility services do not exist on or below that land.
131. This Court is of the opinion that even if such public utility services exists at or below the adjoining land, it cannot stop the defendant no. 2 from obtaining its possession if it has title over it. It is for the utility service provider to make alternative arrangements for the colony if it is using the land of defendant no. 2 for providing these services to the public.
CS No. 89/19 Nisha Shah Vs. MCD & Ors. Pages No. 36 of 41 Judgment dated 15.02.1986 in favour of defendant no. 2
132. It is the case of the plaintiff that the judgment dated 15.02.1986 is illegal since it was obtained by fraud, misrepresentation and collusion. It is also the case of the plaintiff that the judgment is in the nature of a possession decree passed in a suit for permanent injunction, which is not permissible.
133. The issue no. 7 has already been decided against the plaintiff since the plaintiff failed to prove that the judgment was obtained by misrepresentation, fraud and collusion.
134. Having failed to prove that the judgment was obtained by misrepresentation, fraud and collusion, the plaintiff does not have any locus to claim that the Court could not have passed the decree in a suit for permanent injunction. The judgment has attained finality and the plaintiff cannot reopen the issue of whether the adjoining land on the eastern side is owned by the MCD/State or the defendant no. 2. Even though PW-2 has deposed that the land in question is owned by the Delhi Cantonment Board, the present case cannot be converted into a suit for title between the Cantonment Board and the defendant no. 2 merely due to the testimony of PW-2, which is beyond pleadings. The Cantonment Board has not come forward to lay any claim to the property.
135. PW-2 has testified that the Standing Committee of MCD has passed a resolution in the year 1987 by which it was decided that CS No. 89/19 Nisha Shah Vs. MCD & Ors. Pages No. 37 of 41 plot no. A-39A will be removed from the layout plan of Inderpuri Colony. Firstly, this ground was not taken in the plaint and replication and is therefore beyond pleadings. As such, if cannot be raised later on by the plaintiff during the course of evidence since the defendants did not have an adequate opportunity to respond to the same.
136. PW-2 was cross-examined on 31.07.2012 on this aspect of resolution of the MCD. It was put to the witness that the removal of plot no. A-39A was merely an agenda of the MCD and that no such proposal has been implemented. In response, PW-2 stated that as far as he remembers, "may be" a decision was taken by the MCD that the alleged plots be acquired. He admitted that the standing Committee of the MCD sent the matter back to the Commissioner for his report. He further admitted that the Commissioner gave a report that since the matter is in the Court, action cannot be taken as per the agenda. In view of these admissions made by PW-2 during his cross-examination, it stands established that the resolution dated 22.05.1987 was not implemented. Therefore, the status of the road on the eastern side of plot no. A-39, Inderpuri is to be considered in accordance with the revised layout plan of the colony sanctioned in the year 1987.
137. It is the case of the plaintiff that had the road on the eastern side of property no. A-39 been sanctioned to be a residential plot, the defendant no. 1 Corporation would not have approved the building plan which provided for entrance and windows on CS No. 89/19 Nisha Shah Vs. MCD & Ors. Pages No. 38 of 41 eastern side. PW-1 has deposed in his evidence by way of affidavit that before the defendant no. 1 Corporation sanctions the plan, the file is sent for comments of the Town Planner.
138. However, this Court is of the view that the sanction granted by defendant no. 1 Corporation to the building plan of the plaintiff is in violation of the layout plan of Inderpuri Colony sanctioned in the year 1957 and of the judgment dated 15.02.1986 passed in the suit filed by the defendant no. 2 against defendant no. 1. The illegal sanctioning of the building plan of the plaintiff's property by the MCD does not confer any right to the plaintiff to invade or encroach upon the right of defendant no. 2 over its plot no. A-39A.
139. Since the layout plan of the colony sanctioned in the year 1957 is in force and in view of the judgment dated 15.02.1986, the defendant no. 1 Corporation could not have sanctioned the building plan which provided entrance and windows on the eastern side of plot no. A-39. The plaintiff has alleged that the defendants no. 1 and 2 are in collusion. The fact that the defendant no. 1 sanctioned the building plan of the plaintiff which provided windows and entrance on the eastern side indicates that it is the plaintiff who may have been in collusion with the defendant no. 1 Corporation.
140. Since the plaintiff has not been able to establish any right over the land/road on the eastern side/GH side of property no. A- 39, Inderpuri, the plaintiff cannot be granted a relief of injunction CS No. 89/19 Nisha Shah Vs. MCD & Ors. Pages No. 39 of 41 of restraining the defendant no. 1 from handing over the land on the GH side to the defendant no. 2 and from dismantling the electricity poles.
141. This decision is based on an old principle of law -
"Damnum sine injuria", which provides that no action will lie even if there is actual loss or damage, if there has been no infringement of legal right.
Injunction to restrain the defendant no. 1 from interfering in the peaceful construction work at property no. A-39, Inder Puri.
142. On page no. 8 of the replication, the plaintiff has admitted that the plaintiff has already completed the construction and the building has been occupied by different persons. Since construction of the property has been completed, the prayer to restrain the defendant no. 1 from interfering in the construction work is now infructuous.
143. Even otherwise, no evidence has been led by the plaintiff which establishes that the defendant no. 1 illegally interfered in the construction at plot no. A-39, Inderpuri.
144. In view of the above, the plaintiff is not entitled to injunction restraining the defendant no. 1 from interfering in the construction work at property no. A-39, Inderpuri, New Delhi.
145. Since the plaintiff has failed to prove that the decree dated 15.02.1986 was obtained by the defendant no. 2 against CS No. 89/19 Nisha Shah Vs. MCD & Ors. Pages No. 40 of 41 defendant no. 1 by misrepresentation, fraud and collusion, the plaintiff is not entitled to a declaration that the decree cannot be executed and is liable to be set aside.
146. In view of the above findings, it is held that the plaintiff did not have any valid cause of action or locus to institute the present suit. Plaintiff is not entitled to any relief. With these observations, issues no. 3 and 11 are decided. The suit is dismissed.
147. Decree sheet be prepared accordingly.
148. File be consigned to the Record Room after due compliance.
(Announced in the open Court on 22.08.2024) (Dr. Shirish Aggarwal) District Judge-03, New Delhi District, Patiala House Courts, New Delhi CS No. 89/19 Nisha Shah Vs. MCD & Ors. Pages No. 41 of 41