Delhi District Court
Scj No. 613262/16 Lajwanti vs Bhateri Devi 1/13 on 5 April, 2019
IN THE COURT OF MS. RICHA SHARMA, CIVIL JUDGE-01 (WEST),
TIS HAZARI COURTS, DELHI
SCJ No. 613262/16
Date of institution of suit : 30.09.2016
Date of reservation of Judgement : 27.03.2019
Date of passing of Judgement : 05.04.2019
1. Smt. Lajwanti @ Lali & Ors.
W/o Sh. Satyawan
2. Baby Pooja (Minor)
D/o Smt. Lajwanti @ Lali
3. Master Aman (Minor)
S/o Smt. Lajwanti @ Lali
4. Baby Arti ( Minor )
D/o Smt. Lajwanti @ Lali
All minor through their
natural guardian
Smt. Lajwanti @ Lali
All R/o T517
D60, 2nd Floor
Hill Marg, Baljeet Nagar
New Delhi08
5. Smt. Kiran
W/o Sh. Sombir
6. Master Sandeep ( minor)
SCJ No. 613262/16 Lajwanti vs Bhateri Devi 1/13
S/o Smt. Kiran
7. Master Deepak (minor)
S/o Smt. Kiran
8. Baby Tapasya (minor)
D/o Smt. Kiran
All minor through their
natural guardian
Smt. Kiran
All R/o T517/D60, Ground Floor
Hill Marg, Baljeet nagar
New Delhi11008.
................Plaintiffs
Vs.
1. Smt. Bhateri Devi
W/o Late Sh. Balbir Singh
2. Smt. Sangeeta
W/o Sh. Rahul Sharma
D/o late Sh. Balbir Singh
3. Smt. Rekha Rani
W/o Sh. Devi Lal
D/o Late Sh. Balbir Singh
4. Smt. Neetu
W/o Sh. Varun Sharma
D/o Late Sh. Balbir Singh
5. Smt. Suman
SCJ No. 613262/16 Lajwanti vs Bhateri Devi 2/13
W/o Sh. Akash
D/o Late Sh. Balbir Singh
All R/o T517/D60
Hill Marg, Baljeet Nagar
New Delhi110008
6. Sh. Satyawan Singh
S/o Late Sh. Balbir Singh
R/o T517/D60, 2nd Floor
Hill Marg, Baljeet Nagar
New Delhi110008
7. Sh. Ombir
S/o Late Sh. Balbir Singh
R/o T517/D60, Ground Floor
Hill Marg, Baljeet Nagar
New Delhi110008.
........... Defendants
SUIT FOR PERMANENT AND MANDATORY INJUNCTION
JUDGMENT
1. Briefly the facts of the case as per plaint are that defendant no.1 is the mother in law of plaintiff no.1 and 5 and also grandmother of plaintiff no. 2 to 4 and 6 to 8. Defendant no.2 to 5 are sister in law of plaintiff no.1 and 5 and aunt (Bua) of plaintiff no.2 to 4 and 6 to 8. Defendant no. 6 and 7 are husband of plaintiff no. 1 and 5 respectively and fathers of plaintiffs no.2 to 4 and 6 to 8.
SCJ No. 613262/16 Lajwanti vs Bhateri Devi 3/13
2. It is further stated that marriage of plaintiff no.1 with defendant no 6 and marriage of plaintiff no. 5 with defendant no.7 was solemnized on 14.05.1992, at their native place Jahajgarh, Jhajjar, Haryana. After marriage, the plaintiffs have been residing at the property bearing no. T517/D60, Hill Marg, Baljeet Nagar, New Delhi08 (hereinafter referred to as the 'suit property').
3. It is further stated that father in law of the plaintiff no.1 and 5 namely Late Sh. Balbir Singh who is also the grand father of plaintiff no. 2 to 4 and 6 to 8 was alive at the time of above said marriage and expired on 12.12.2008. It is further stated that Sh. Balbir Singh was employed in Indian Army and the suit property measuring 55 Sq. yards was gifted to him by his deceased brother in law ( jija) namely, Sardar Singh, Son of Late Sh. Jglal and later on Sh. Balbir Singh had constructed the above suit property upto 1 st floor, consisting of three rooms, kitchen, latrine and bathroom on temporary basis.
4. It is further stated that all the minor plaintiffs were born at the suit property. It is further stated that after the marriage of plaintiff no.1 and 5, the behaviour and conduct of defendant no.1 was very rough and odd towards them and defendant no.1 never gave them attention, love and care. It is further stated that defendant no.1 is a greedy and selfish woman and she can go to any limit to satisfy her greed. It is further stated that the plaintiffs were accommodating the suit property but after sometime, defendant no.1 kept many tenants in the suit property due to which there was paucity of accommodation for the plaintiffs. Thereafter, plaintiffs informed about the giving of rooms on tenancy in the suit property to their father in law Late Sh. Balbir Singh, who showed his inability to interfere with acts of defendant no.1.
5. It is further stated that Sh. Balbir Singh was getting his pension SCJ No. 613262/16 Lajwanti vs Bhateri Devi 4/13 after the retirement of his service since the year 1991 but all the amount of pension of Sh. Balbir Singh was snatched by defendant no.1 to fulfill her unnecessary requirement. It is further stated that the enquiry was made by plaintiff no.1 and 5 about the rooms being given on tenancy by defendant no.1 and then defendant no.1 said that if the plaintiffs want accommodation and space in the suit property then they will have to earn money for construction of their separate accommodation.
6. It is further stated that defendant no.1 induced plaintiffs no.1 and 5 to earn the money for the construction of suit property and for that purpose defendant no.1 took them to her native place for doing labour work in the agriculture field of the other persons. It is further stated that at that time the wages of labour was Rs. 40/ per day and the same was earned by the abovesaid plaintiffs and same was handed over to defendant no.1 on account of construction of the suit property. After some time, plaintiffs no.1 and 5 got employed with Richa Export Company, Mansarover Garden, and were earning Rs.4,000/ to Rs. 5,000/ p.m. and the said amount was also handed over to defendant no.1 on account of construction of suit property. It is further stated that the plaintiffs were working in the house for some time for the tenants and were doing cutting/chopping of vegetables and other house hold chores and all the earned money by doing this work was also taken by the defendant no.1 on account of cosntruction of abovesaid suit property. It is further stated that defendant no.1 also demanded all ornaments of plaintiffs no.1 and 5 for the construction of suit property and plaintiff no.1 and 5 had given the same to defendant no.1.
7. It is further stated that suit property was constructed upto 3 rd floor consisting of three rooms, kitchen, laterine and bathroom with the help of SCJ No. 613262/16 Lajwanti vs Bhateri Devi 5/13 money earned by the plaintiffs. After construction was completed, the attitude of defendant no.1 changed and only one room and common latrine bathroom was provided by defendant no.1 to the plaintiffs and when plaintiffs asked for the more space, it was refused by defendant no.1 and all the other rooms were let out on rent by defendant no.1 and further plaintiffs were not given any share in the amount of rent as earlier promised by defendant no.1.
8. It is further alleged that defendants used to quarrel with plaintiffs and did not allow them (plaintiffs) to take water and to use latrine and bathroom in the suit property and a written complaint regarding the same, was also made to concerned police station on 16.07.2011 vide DD No. 17 A and a complaint in CAW Cell, Vikas Bhawan, Indraprastha Estate, New Delhi on dated 10.07.2011 against defendants by plaintiffs. It is further stated that recently, plaintiffs came to know that defendants were trying to sell the suit property. Hence this suit has been filed by them.
9. By way of present suit, plaintiffs have prayed for the following reliefs :
a) A decree of mandatory injunction in favour of plaintiffs and against defendants thereby directing defendants to remove the complete illegal and unauthorized construction on the 3rd floor of the suit property bearing no. T 517/D60, Hill Marg, Baljeet Nagar, New Delhi08 measuring 55 Sq. Yards, and not to dispossess to the plaintiffs forcefully and without due process of law and also further not to create any third party interest in the suit property.
b) A decree of permanent injunction in favour of plaintiffs and against defendants thereby restraining the defendants, their heirs, representative, associates, assignees etc from raising any type of illegal unauthorized construction and without proper permission from the concerned department on SCJ No. 613262/16 Lajwanti vs Bhateri Devi 6/13 the IIIrd floor of the suit property bearing no. T517/D60, Hill Marg, Baljeet Nagar, New Delhi08 measuring 55 Sq. Yards and also from creating any type of hindrance, abstraction, interfering for going to the roof of the top floor of the suit property, and not to dispossess to the plaintiffs forcefully and without due process of law and also further not to create any third party interest in the suit property.
c) Any other relief.
10. Vide Order dated 03.7.2017 of Ld. Predecessor of this court, the opportunity to file W.S was closed as no W.S was filed by defendants despite opportunity being given to them in this regard and accordingly and the matter was listed for PE.
11. During PE, plaintiff no.1 examined herself as PW1 and tendered in evidence her duly sworn in affidavit which is exhibited as Ex.PW1/A, reiterating the contents of the plaint.
12. Besides plaintiff no.1, plaintiff no.5 has also examined herself as PW2 who tendered in evidence her duly sworn in affidavit which is exhibited as Ex. PW 2/A. She tendered in her evidence her voter I card which is Ex.
PW 2/1.
13. Plaintiffs were crossexamined by ld. counsel for defendant. Thereafter vide statement made by Ld. counsel for plaintiffs, PE was closed on 20.09.2018.
14. At outset it is pertinent to mention that vide order dated 03.7.2017, defendant's right to file W.S was closed and defendant no.1 was given only limited right to crossexamine the witness and further she was not permitted to put forth her defence by way of crossexamination. However, perusal of the record shows that inadvertently despite W.S not being taken on record, DW1 SCJ No. 613262/16 Lajwanti vs Bhateri Devi 7/13 has been examined in chief as well as crossexamined but in light of the order dated 03.7.2017 her defence is not being read for the purpose of present suit.
15. Before proceeding with the adjudication of the present case it is apposite to state that the plaintiff has primarily prayed for two reliefs one being that of mandatory injunction whereby plaintiff has prayed that the defendants be directed to remove the illegal and unauthorized construction on the third floor of the suit property and the second relief prayed for is that of permanent injunction whereby plaintiffs have prayed that the defendants be restrained from raising any illegal unauthorized construction, without proper permission from the concerned department on the third floor of the suit property and further defendant be restrained from hindrance in plaintiffs' access to the roof of the top floor of the suit property, and in addition to this defendants be also restrained from dispossessing plaintiffs from suit property forcefully and without due process of law.
16. All the above reliefs being prayed for are being dealt one by one. The first and foremost relief for restraining the defendant from raising any illegal and unauthorized construction primarily made it incumbent upon the plaintiff to have in the first place impleaded necessary parties i.e DDA/MCD to throw light on the aspect of illegal and unauthorized construction in the suit property. It is a matter of record that neither have any of these parties being impleaded in the present suit nor have they been summoned as witness of the plaintiff in order to substantiate the averments of the plaintiff regarding the illegal and unauthorized construction being done by the defendant on the third floor of the suit property. Even otherwise it becomes apposite to state that the plaintiffs have miserably failed to place on record the sanction plan in accordance to which the construction had to be done or undertaken and have SCJ No. 613262/16 Lajwanti vs Bhateri Devi 8/13 further not placed on record any relevant document to show any kind of deviation from the sanction construction/lay out plan. Therefore, in the absence of the relevant authorities being impleaded as parties and also not been examined as witness and further in the absence of any material document being placed on record to show the actual unauthorized and illegal construction, the plaintiff has miserably failed to prove on the scale of preponderance of probabilities that the defendants have actually carried out any kind of illegal and unauthorized construction over the third floor of the suit property.
17. Moreover the said relief is actually in contradiction to the averments made by the plaintiff in the plaint as it is averred by them that the said alleged construction on the third floor of the suit property was done at their instance and using their money and moreover, pursuant to the said construction they also were in occupation of the portion of the same and so being the case, plaintiffs themselves were actually parties to the said alleged construction, further plaintiffs are blowing hot and cold at the same time as on one hand they themselves got the said construction done and on the other hand by virtue of present suit seeking the demolition of the same and this speaks for itself that plaintiffs are trying to conceal something and have not approached the court with clean hands.
18. It is a well known legal maxim and settled proposition of law that one must approach the court with clean hands. This legal maxim had its origin in equity courts and it tests the quality of litigants each time they pray for a particular relief in common law courts. The notion that one must approach the court with clean hands has been so indoctrinated in the common law system that all courts right from the trial court up to the Supreme Court, are endowed with the responsibility to follow this principle so as to avoid the vexatious claim before it.
SCJ No. 613262/16 Lajwanti vs Bhateri Devi 9/13 This principle has been time and again reaffirmed by Hon'ble Apex Court and it is a settled law that a person who approaches the court for grants of relief equitable or otherwise is under a solemn obligation to candidly disclose all the material/important facts which have bearing on the adjudication of issues raised in the case. If he is found guilty of concealment of material facts or making an attempt to pollute the pure stream of justice, the court not only has the right but a duty to deny relief to such person. It has been time and again reiterated that a person who does not disclose all material facts has no right to be heard on merits of his grievance (State of Haryana V/s Karnal Distillery Co. Ltd., 1977 2SCC 431, Vijay Kumar Kathuria V/s State of Haryana, 1983 3SCC 333; K.D. Sharma V/s SAIL & Others, 2008 12SCC 481; Dalip Singh V/s State of UP & Others, CA No.5239/2002 decided on 03/12/09). It was held in Dalip V/s State of UP & Others decided on 03/12/09, by Hon'ble Apex Court that for many centuries, Indian Society challenged two basic values of life i.e. "Satya" (Truth) and "Ahinsa" (nonviolence) and truth constituted an integral part of justice delivery system. The materialism has over shadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of false hood, misrepresentation and suppression of facts in the court proceedings. It was further observed in the said case that it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands is not entitled to any relief. It was further observed in the later decision of the Hon'ble Supreme Court in Ramjas Foundation Vs. Union of India, that the principle that a person who does not come to the court with clean hands is not entitled to be heard on the merits of his grievance and in any case, such person is not entitled to any relief, and the principle is applicable not only to the writ petitions filed but also to the cases instituted in other courts and judicial forums.
SCJ No. 613262/16 Lajwanti vs Bhateri Devi 10/13
19. In this eventuality in the considered opinion of this court, plaintiff in the absence of any cogent evidence and merely on the basis of bald averments, is not entitled to the relief of mandatory injunction.
20. As far as the reliefs of permanent injunction is concerned, to the effect that the defendants be restrained from creating any third party interest in the suit property, the plaintiffs have based their claim on the ground that the suit property was gifted to their father in law by one Sh. Sardar Singh being the jija of the father in law. In essence, the premise of their claim is that their husband also have a share in the suit property being ancestral property as the same belonged to their father in law. However, to assert their claim with respect to the suit property being ancestral property , nothing has been placed on record to show as to how the father in law of plaintiffs became owner of the suit property. The alleged gift deed is also not placed on record to substantiate the averment that the suit property was gifted to Late Sh. Balbir Singh, father in law of plaintiff no.1 and 5 by his deceased brother in law namely Sh. Sardar Singh. The father in law as well as brother in law have expired and no witnesses to the gift deed were examined by the plaintiff in their evidence. The plaintiffs have failed in establishing that their father in law was the owner of the suit property. Considering the abovesaid, it can be safely staed that the plaintiffs have miserably failed in establishing their claim in respect of the suit property being ancestral property.
21. In view of the aforesaid, the defendants cannot be restrained from creating any third party interest in the suit property if they are otherwise legally entitled to do so. Further it is apropos to highlight that it is admitted by PW1 in her crossexamination that it is correct that the suit property was SCJ No. 613262/16 Lajwanti vs Bhateri Devi 11/13 constructed upto 3rd floor by the defendant no.1 i.e mother in law by her own funds. However subsequently PW1 stated in her crossexamination that defendant no.1 i.e her mother in law did not get the suit property constructed uptil third floor as she was not earning her and her condition was not such that she would have the same get constructed. This aspect speaks for itself that the stand of the plaintiff is not constant with regard to the construction being carried out using the funds of the plaintiffs only. Further plaintiffs have not placed on record any document/ receipt/pay slip to show that they had actually undertaken some kind of work for which they were being paid. It is further the case of plaintiffs that they were also rendering service who are tenants of certain portion of the suit property and so being the case, it was possible for them to have summoned those witnesses in order to throw light on the aspect that they were being paid by the occupants of the suit property on account of services being rendered by them but no documentary or oral evidence has been placed on record of the court by the plaintiffs to substantiate in the first place that there was any kind of earnings of plaintiffs and merely on the basis of bald averments the relief of permanent injunction qua restrainng the defendants from creating any third party interest in the suit property cannot be granted and the same is hereby declined.
22. As regard the relief of permanent injunction to the effect that defendants be restrained from dispossessing the plaintiffs forcefully and without due process of law, is concerned, it is apposite to mention that the plaintiffs are in the possession of the suit property and as such the said possession is not disputed by defendant no.1.
23. The factum of possession of the plaintiff stands proved as the defendants have not challenged the same during the crossexamination of SCJ No. 613262/16 Lajwanti vs Bhateri Devi 12/13 plaintiff.
24. Defendant no.1 may proceed within her rights to evict the plaintiffs if she is otherwise so entitled to do so, however, defendant no.1 shall not dispossess plaintiffs forcefully and without due process of law.
25. In view of the aforesaid, the relief of permanent injunction to the effect that the defendants be restrained from dispossessing plaintiffs illegally and without due process of law stands allowed.
26. To conclude and clarify it is stated that the suit of the plaintiffs stands partly decreed to the effect that the defendants be restrained from dispossessing the plaintiffs illegally or without due process of law from the suit property.
Decree sheet be prepared accordingly.
File be consigned to Record Room after due compliance.
RICHA Digitally signed by RICHA
SHARMA
SHARMA Date: 2019.04.05 14:22:34
+0530
Pronounced in the open court (Richa Sharma)
today on 05.4.2019 Civil Judge01 (West)/Delhi
SCJ No. 613262/16 Lajwanti vs Bhateri Devi 13/13