Delhi District Court
Inder Singh vs Krishan @ Nikke on 15 July, 2023
IN THE COURT OF SH. SANTOSH KUMAR SINGH
SENIOR CIVIL JUDGE-CUM-RENT CONTROLLER,
(SOUTH DISTRICT), SAKET COURTS, NEW DELHI
CS SCJ 83379/2016
CNR No. DLST03-000418-2015
In the matter of:
Inder Singh
S/o Late Sh. Banarasi Dass
R/o 705-B/1, Ward No. 3,
Mehrauli,
New Delhi - 110030
............Plaintiff
Versus
1. Krishan @ Nikke
S/o Late Sh. Nanak Chand
R/o H. No. 999, Ward No. 7,
Mehrauli,
New Delhi - 110030
2. South Municipal Corporation of Delhi
Through its Commissioner,
Green Park,
New Delhi
3. S.H.O.
P.S., Mehrauli,
New Delhi - 110030
...........Defendants
SUIT FOR PERMANENT AND MANDATORY
INJUNCTION
Date of Institution of the suit : 25.03.2015
Date of Pronouncement of Judgment : 15.07.2023
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JUDGMENT
1. Vide this judgment, I shall dispose off the present suit having been filed by the plaintiff for permanent and mandatory injunction against the defendants.
2.1 Brief factual facts are that the plaintiff is the co-owner of property bearing no. 999, Ward No. 7, Mehrauli, New Delhi - 110030, which was purchased by his father vide Registered Sale Deed dated 30.12.1963. The father of the defendant no.1 was inducted as a tenant in the part of the property bearing no. 999, Ward No. 7, Mehrauli, New Delhi - 110030 (hereinafter referred to as suit property) as shown in red colour in the site plan annexed with the plaint. On being informed the factum of death of plaintiff's father, the father of the defendant no.1 started paying rent to him (plaintiff). Further, after the death of defendant no.1's father, defendant no.1 became the tenant in the suit property and started paying rent to the plaintiff and the last paid rent was Rs.100/- per month. Rent was also received in cash by the plaintiff who used to issue rent receipts but he (plaintiff) did not keep counterfoils with himself.
2.2 Since the rent was very meagre so the plaintiff occasionally visited the suit property. But, in the first week of March 2015, the plaintiff was shocked to see that the defendant no. 1 had demolished the entire structure of suit property without getting the permission or consent from him (plaintiff) and had also raised unauthorized and illegal construction over there. When the same was objected to by the plaintiff by stating that he (defendant no.1), being a tenant, has no right to do so, despite CS SCJ 83379/2016 Inder Singh Vs. Krishan @ Nikke & Ors. Page no.2 of25 that defendant no.1 and his associates did not stop but continued to raise the illegal and unauthorized construction. Defendant no.1 stated that he would create third party interest in the suit property. Also, defendant no.1 and his associates had threatened the plaintiff of dire consequences in case he raised any objection or voice.
2.3 Plaintiff had made many requests to the defendant no. 1 to demolish the entire illegal and unauthorized construction made by him over the suit property and to hand over the possession of the same to the plaintiff. The plaintiff had made complaint to defendants no.2 and 3 regarding the illegal and unauthorized construction being raised by the defendant no. 1 without obtaining sanction from defendant no. 2. However, no action was taken by defendants no.2 and 3 upon the complaints because officials of defendants no.2 and 3 were hand in gloves with the defendant no.1. The defendant no.1 had caused substantial damage to the suit property and had also violated legal rights of the plaintiff. Defendant no.1 had also encroached upon government land by raising projections in the form of chajjas.
3. Having aggrieved by the acts of defendants and not seeing any other efficacious remedy, the plaintiff has filed the present suit.
4. Summons were directed to be issued to all the defendants and accordingly summons were served upon them.
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5. It is pertinent to mention here that defendant no. 1 had filed the Written Statement on 28.04.2015. However, later on, he had filed an Application under Order VI Rule 17 CPC for amendment in his Written Statement alongwith the Amended Written Statement. The said application was allowed and the Amended Written Statement was taken on record on 18.05.2015.
Written Statement was filed by defendant no. 1 6.1 In Written Statement, it is averred by defendant no. 1 that the plaintiff has not approached the court with clean hands and has suppressed material facts. Under the garb of the present suit, the plaintiff seeks a declaration for validation of his bogus Sale Deed. The suit of the plaintiff is bad for non-joinder of necessary parties as also barred by limitation. He has denied that the plaintiff is a co-owner of property bearing no. 999, Ward No. 7, Mehrauli, New Delhi - 110030 and has also denied that his (plaintiff) father had purchased the said property because as per the Sale Deed dated 31.12.1963, the entire single storied house was in demolished condition. However, the said Sale Deed does not bear the name of alleged tenants, their respective tenanted portion and details of rent as the same was in demolished condition. Therefore, the claim of the plaintiff is that he is the co- owner of property bearing no. 999, Ward No. 7, Mehrauli, New Delhi - 110030 is wrong. He has denied that his father was ever inducted as tenant in the suit property because no date of induction/creation of tenancy is mentioned in the sale deed. The alleged site plan dated 25.03.2015 filed by the plaintiff is silent about the area of the suit property and directions. He has denied CS SCJ 83379/2016 Inder Singh Vs. Krishan @ Nikke & Ors. Page no.4 of25 that the plaintiff had intimated the factum of death of his father to the father of defendant no.1 through AD. It is denied that his father thereafter started paying rent to the plaintiff. He denied that after his father's death, he (defendant no.1) became the tenant of the suit property under the plaintiff and started paying rent to the plaintiff. It is stated since his father was not a tenant of the father of plaintiff, there is no question of paying any rent to the plaintiff @ Rs.100/- per month. It is denied that the alleged rent was received in cash by the plaintiff who used to issue rent receipts and it is also denied that the alleged rent was received by the plaintiff for 2-3 years at once on account of meager amount prior to 2012 or even thereafter. He has denied that he had demolished the entire structure and started raising unauthorized and illegal construction over the suit property upto ground floor and first floor as alleged by the plaintiff when he visited the suit property in the first week of March. He denied that the plaintiff had objected to the said construction at any point of time. He denied that plaintiff had informed him (defendant no.1) that he, being a tenant under his (plaintiff) tenancy, has no right to raise any construction over the suit property.
6.2 It is submitted that he (defendant no.1) is the owner and is in possession of the suit property which he acquired from his father and as such plaintiff has no right, title or interest in the suit property. He denied that he had threatened the plaintiff of dire consequences rather son of the plaintiff, Sh. Chirag had trespassed in the house of defendant no. 1 on 04.04.2015 at about 09:00 am and criminally assaulted the wife of defendant no.1. Thereafter, a DD No. 16-A was registered in the PS Mehrauli. He CS SCJ 83379/2016 Inder Singh Vs. Krishan @ Nikke & Ors. Page no.5 of25 denied that the plaintiff has complained the defendants no.2 and 3 about the illegal acts of defendant no. 1. It is submitted that no illegal and unauthorized construction was ever made by him (defendant no.1), therefore, there is no question of obtaining any sanction plan from defendant no.2. There is no apprehension of collapse of house of defendant no.1, therefore, there is no question of loss of life to the neighbourers. He denied that any substantial damage has been caused to the suit property or he has encroached upon the government land infringing the legal rights of plaintiff. It is stated that the suit of the plaintiff is liable to be dismissed.
Reply/Status Reports dated 13.04.2015 and 28.04.2015 filed by defendant no. 2/MCD
7. In Status Reports, it is stated that the property bearing no. 999, Ward No. 7, Mehrauli, New Delhi was found consisted upto First Floor including ground floor and the same was occupied. Neither was construction activity found in progress during the inspection nor was the property booked under Section 343/344 of the DMC Act in the name of Sh. Krishan.
Status Report dated 30.04.2015 filed by defendant no. 3/SHO
8. In Status Report, it is submitted that the beat staff of PS Mehrauli had noticed the construction work was going on at the said premises i.e. property bearing no. 999, Ward No. 7, Mehrauli, New Delhi and Deputy Commissioner, MCD, Green Park, New Delhi was informed in due time regarding the said CS SCJ 83379/2016 Inder Singh Vs. Krishan @ Nikke & Ors. Page no.6 of25 construction vide no. 1246/R-SHO/PS Mehrauli dated 17.03.2015. However, no construction is going on in the said property at present. It is further stated that on 10.03.2015, when the plaintiff went to stop the said illegal construction over the suit property, the plaintiff was threatened by the defendants but no PCR call/ complaint was made in the PS. Further, on 04.04.2015, the plaintiff had gone to take the photographs of the suit property and during this, some issue between the plaintiff and defendant no.1 arose. Smt. Santosh Kumari W/o Sh. Krishan i.e. defendant no.1 gave a complaint in PS Mehrauli vide DD No. 16-A dated 04.04.2015 which is under enquiry.
9. No replication was filed by the plaintiff despite giving undertaking in the court on 09.08.2016 at the time of framing of issues.
ISSUES
10. Upon completion of pleadings, following issues were framed:
"1. Whether the plaintiff has not approached the Court with clean hands? OPD-1
2. Whether the suit of the plaintiff is barred in view of the Indian Limitation Act? OPD-1
3. Whether the plaintiff is entitled to a decree of permanent injunction as prayed for in prayer clause
(a) of the plaint? OPP CS SCJ 83379/2016 Inder Singh Vs. Krishan @ Nikke & Ors. Page no.7 of25
4. Whether the plaintiff is entitled to a decree of permanent injunction as prayed for in prayer clause
(b) of the plaint? OPP
5. Whether the plaintiff is entitled to a decree of mandatory injunction as prayed for in prayer clause
(c) of the plaint? OPP
6. Relief."
PLAINTIFF'S EVIDENCE:
11. In order to prove his case, the plaintiff examined four witnesses as PW1 himself, PW2/Sh. Naveen Gandas, Record Lifter (summoned witness), PW3/Sh. Hitesh Kumar, draftsman (summoned witness) and PW4/Sh. Lakshman Rao, translator (summoned witness).
12. PW-1/Sh. Inder Singh/plaintiff tendered his evidence which is exhibited as Ex.PW1/A relying upon the following documents i.e.
(i) Copy of sale deed dated 30.12.1963 as Mark-A.
(ii) Translated copy of Sale Deed dated 30.12.1963 as Mark-B (later on exhibited as Ex.PW4/A).
(iii) Site Plan as Ex.PW1/3.
(iv) Copy of Legal Notice dated 12.09.1979 as Mark-C. (later on exhibited as Ex.PW1/9).
(v) Copy of Postal Receipt as Mark-D (later on exhibited as Ex.PW1/10).
(vi) The acknowledgement slip as Mark-E (later on exhibited as Ex.PW1/11).
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(vii) Photographs as Mark-F(colly).
(viii) Original newspaper which has been mentioned as Ex.PW1/8 is not on record of the judicial file.
(ix) Copy of site plan showing the position of H. No. 999, 1001/2 & 1001/3 as Mark-G (2 pages).
(x) Original Rent receipt dated 04.10.1963 (Urdu) and its translated copy in english is exhibited as Ex.PW1/12.
(xi) Original Rent receipt dated 02.11.1963 (Urdu) and its translated copy in english is exhibited as Ex.PW1/13. This witness was cross-examined by the Ld. Counsels for defendants and was discharged.
13. PW2/Sh. Naveen Gandas, Record Lifter was a summoned witness. He had brought the summoned record containing the record of original sale deed registered on 31.12.1963 which is Mark-A. The copy of the relevant entry of in respect of sale deed is exhibited as Ex.PW2/A (OSR).
This witness was cross-examined by the Ld. Counsels for defendants and was discharged.
14. PW3/Sh. Hitesh Kumar, Draftsman was a summoned witness. He had seen the original site plan which is Ex.PW1/3 and stated that the same was prepared by him and it also bears his seal and signature.
This witness was cross-examined by the Ld. Counsels for defendants and was discharged.
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15. PW4/Sh. Laxman Rao, Translator was a summoned witness. He had seen the translated copy in English Language of Sale Deed which was already marked as Mark-B and the same was then exhibited as Ex.PW4/A. He stated that the translated copy in English language was prepared by him and it was a correct translated copy of Urdu Sale Deed. The translated copy of sale deed also bears his signature and seal.
This witness was cross-examined by the Ld. Counsels for defendants and was discharged.
16. PE was closed on 13.07.2018 and thereafter, the matter was listed for DE.
DEFENDANT'S EVIDENCE
17. D1W1/Sh. Ravi Kumar Sachdeva, son of defendant no. 1 (Attorney Holder of defendant no. 1) tendered his evidence as Ex.DW1/4. He also relied on the following documents i.e.
(i) Copy of SPA as Ex.DW1/1(OSR) (running into 03 pages).
(ii) Copy of complaint dated 04.04.2015 as Mark-A.
(iii) Copy of medical record of defendant no. 1 as Mark-B (colly).
This witness was cross-examined by the Ld. Counsel for plaintiff and was discharged.
18. DW2/Ms. Anita Tiru, Teacher was a summoned witness and had brought the summoned record i.e. Admission Register CS SCJ 83379/2016 Inder Singh Vs. Krishan @ Nikke & Ors. Page no.10 of25 for the year 1961 and 1963 which shows the relevant entries on page no. 37, Sr. No. 515 namely Sh. Krishan Kumar S/o Late Sh. Nanak Chand and on page no. 52, Sr. No. 717 namely Ashok Kumar S/o Late Sh. Nanak Chand. Copies of the same was exhibited as Ex.DW2/1 & Ex.DW2/2 (OSR).
This witness was cross-examined by the Ld. Counsel for plaintiff and was discharged.
19. DW3/Sh. Sanjay Sachdeva tendered his evidence as Ex.DW3/A. He also relied on the following documents i.e.
(i) Ration Card as Ex.DW3/3 (OSR).
(ii) Death Certificate as Ex.DW3/4 (OSR).
This witness was cross-examined by the Ld. Counsel for plaintiff and was discharged.
20. DW4/Sh. Amitabh Shrivastav, Sr. Manager, BSES was a summoned witnness and he had brought confirmation electricity connection and electricity bill which is in the name of Sh. Rajesh Sachdev. The same was exhibited as Ex.DW4/A and Ex.DW4/B respectively.
This witness was discharged without being cross- examined.
21. DE was closed on 30.03.2022 and thereafter, the matter was listed for final arguments.
FINAL ARGUMENTS:
22. Final arguments were addressed by Sh. Amit Gupta, Ld. Counsel for the plaintiff, Sh. Ashok Kumar Soni, Ld. Counsel for CS SCJ 83379/2016 Inder Singh Vs. Krishan @ Nikke & Ors. Page no.11 of25 defendant no. 1 and Sh. Anand Kumar, Ld. Counsel for defendant no. 2/MCD. Written Submission have been filed by plaintiff as well as defendant no. 1.
FINDINGS:
Issue no. 1 :-
23. I shall first deal with the issue no. 1 as under:-
"1. Whether the plaintiff has not approached the Court with clean hands? OPD-1"
24. The onus to prove this issue is upon the defendant no. 1. It is a settled law that the relief of injunction is an equitable relief. He who seeks equity must do equity. Thus, conduct of the parties involved in the case is a relevant fact in a suit for injunction. It has been alleged by the defendant no. 1 that the plaintiff has not approached the court with clean hands because he has suppressed material facts.
25. It is deposed by the plaintiff/PW1 that he is the co-owner of the property bearing no. 999, Ward No. 7, Mehrauli, New Delhi - 110030 which was purchased by his father vide Registered Sale Deed dated 30.12.1963 in Urdu of which the translated copy was later on exhibited as Ex.PW4/A which depicts that the single storied building was entirely in demolished condition according to annexed map shown in red colour, Sr. No. 999, 1001/1, 1001/2 and 1001/3, Ward No. 7 situated at Village Mehrauli alongwith the land underneath CS SCJ 83379/2016 Inder Singh Vs. Krishan @ Nikke & Ors. Page no.12 of25 admeasuring 420 and half sq. yard or whatsoever surrounded with its four boundaries. Document Mark-G shows the dimension of the property as 64 X 80 ft i.e. 568.88 sq. yard. but that does not show property bearing no. 1001/2. Also, PW2/Sh. Naveen Gandas deposed that there is no site plan in the original book brought by him as the same is not on record. Therefore, the question arises as to how the father of the plaintiff had purchased the property in demolished condition alongwith the tenants.
26. In this regard, reliance is placed on the judgment of the Hon'ble Apex Court in the case of 'Ramjas Foundation & Anr. Vs. Union of India & Ors.' [2010 (14) SCC 38], wherein it was held that:
"(i) 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 is applicable not only to the petitions filed under Articles 32, 223 and 136 of the Constitution but also to the cases instituted in others courts and judicial forums. The object underlying the principle is that every court is not only entitled but is duty bound to protect itself from unscrupulous litigants who do not have any respect for truth and who try to pollute the stream of justice by resorting to falsehood or by making misstatement or by suppressing facts which have a bearing on adjudication of the issue(s) arising in the case.
(ii) In Dalglish v. Jarvie, Mac & G at p. 238, Lord Langdale and Rolfe, B. observe: (ER p. 89) "It is the duty of a party asking for an injunction to bring under the notice of the court all facts material to the determination of his right to that injunction; and it is no excuse for him to say that he was not aware of the importance of any fact CS SCJ 83379/2016 Inder Singh Vs. Krishan @ Nikke & Ors. Page no.13 of25 which he has omitted to bring forward."
27. Applying this law in the instant case, the burden is upon the defendant no. 1 to prove that the plaintiff has approached the court with unclean hands by suppressing material facts. It is the duty of the defendant no. 1 to disclose as to what material facts have been concealed by the plaintiff. The main contention of the defendant no. 1 is that the measurement of the property, as mentioned in the Sale Deed, is 420 and half sq. yards whereas the plaintiff has admitted the same to be 450 sq. yards. Further, no correct site plan of the suit property has been filed on record which was annexed with the Sale Deed Ex.PW4/A when it was got registered. This fact has also been admitted by PW2 and has produced the copy of relevant entry which is Ex.PW2/A in this regard.
28. On perusal of Sale Deed Ex.PW4/A, it reveals that it talks about demolished condition of single stroried building as shown in red colour, Sr. No. 999, 1001/1, 1001/2 and 1001/3, Ward No. 7, Village Mehrauli, New Delhi alongwith the land underneath admeasuring 420 and half sq. yards or whatsoever surrounded by its four walls. Therefore, the Sale Deed is very much clear that it separates the 420 and half sq. yards from the demolished area. Hence, there is no ambiguity or concealment on the part of the plaintiff. As regards the area of 420 and half or 450 is concerned, there is no ambiguity because the Sale Deed states that 420 and half sq. yards or whatsoever which means that it may be more or less in area. Moreover, the CS SCJ 83379/2016 Inder Singh Vs. Krishan @ Nikke & Ors. Page no.14 of25 plaintiff is not the maker of the Sale Deed, therefore, it cannot be said that he has concealed some material fact.
29. As regard the site plan annexed with the original Sale Deed is concerned, the testimony of PW2 is very much clear that there was no site plan was found on record or brought by him in the court. Therefore, it cannot be said that the plaintiff has concealed this fact. Rather, the conduct of the plaintiff is very much clear and whatever documents he possesses, has filed the same on record.
30. In view of the above discussion, the defendant no. 1 has miserably failed to prove as to what material facts have been concealed by the plaintiff and hence, the plaintiff has approached the court with clean hands. Therefore, this issue is decided against defendant no. 1 and in favour of the plaintiff.
Issue no. 2 :-
31. I shall deal with the issue no. 2 as under:-
"2. Whether the suit of the plaintiff is barred in view of the Indian Limitation Act? OPD-1"
32. The onus to prove this issue is upon the defendant no. 1. As per Section 101 of Indian Evidence Act, the burden of proof lies upon a person a party who asserts a fact. It is alleged by the defendant no. 1 that the present suit is liable to be dismissed being barred by law of limitation. As per the plaint, the cause of action arose in the first week of March, 2015 when the CS SCJ 83379/2016 Inder Singh Vs. Krishan @ Nikke & Ors. Page no.15 of25 plaintiff had visited the suit property and found alleged illegal construction being raised by the defendant no. 1 to which he objected to. Further, the cause of action arose on 10.03.2015 when defendant no. 1 alongwith his associates threatened the plaintiff. It further arose when the plaintiff made complaints to the defendant no. 2/MCD and defendant no. 3/SHO which is still continuing.
33. As per the law of limitation, a suit for injunction in respect of suit property can be filed within 3 years from the date of right to sue accrues to the plaintiff.
34. Perusal of entire material on record reveals that present suit was filed on 25.03.2015 soon after the visit of plaintiff at the suit property. Moreover, the defendant had failed to lead any evidence in this regard. Therefore, there is no question of limitation. Hence, in view of the above discussion, this issue is decided against defendant no. 1 and in favour of the plaintiff.
Issues no. 3 and 4 :-
35. I shall deal with the issues no. 3 and 4 together being inter-connected as under:-
"3. Whether the plaintiff is entitled to a decree of permanent injunction as prayed for in prayer clause (a) of the plaint? OPP
4. Whether the plaintiff is entitled to a decree of permanent injunction as prayed for in prayer clause (b) of the plaint? OPP"
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36. The onus to prove these issues is upon the plaintiff to the extent that defendant no. 1, his agents, servants, legal heirs, associates, attorney, assignees, administrator or any other person on his behalf be restrained from raising illegal and unauthorized construction over the suit property and further creating third party interest therein.
37. Since the plaintiff has averred in his pleadings that his father was the owner as well as the landlord of the suit property which was rented out to the father of defendant no. 1 and after the death of his father, the plaintiff became the landlord to whom the rent was tendered by the deceased father of defendant no. 1 in respect of suit property.
38. In the present case, plaintiff himself claims to be the co- owner and the landlord of the suit property rented out initially to the father of defendant no. 1 who after the death of father of the plaintiff, had tendered rent to the plaintiff. Therefore, this case is based on landlord-tenant relationship and hence, plaintiff is required to show that he is the landlord in respect of suit property.
39. To prove the existence of jural relationship of landlord and tenant between the plaintiff and the defendant no. 1. The plaintiff apart from his oral testimony, has relied upon Sale Deed dated 30.12.1963 Ex.PW4/A and its photocopy Mark-A. He has also relied upon original rent receipts dated 04.10.1993 in Urdu and its translated copy in English which is exhibited as Ex.PW1/12 and original rent receipts dated 02.11.1963 in Urdu CS SCJ 83379/2016 Inder Singh Vs. Krishan @ Nikke & Ors. Page no.17 of25 and its translated copy in English which is exhibited Ex.PW1/13. He has further relied upon a Legal Notice dated 12.09.1979 Ex.PW1/9, its postal receipts Ex.PW1/10 and Acknowledgement Slip Ex.PW1/11.
40. In Written Statement, it is stated by defendant no. 1 that he is the owner as well as in possession of the suit property in his own right which he acquired from his father and hence, plaintiff has no right, title or interest in the suit property.
41. But in evidence, D1W1/Sh. Ravi Kumar Sachdeva (Attorney/Son of defendant no. 1) has deposed that he has not filed any document to show his ownership in the suit property. Nor can he produce any document to show that defendant no. 1 or his ancestors have ever been the owner in respect of suit property.
42. In the case of Kedar Nath (Deceased) Through His LRs. Vs. Rajinder Tiwari decided on 03.11.2016, it was held by the Hon'ble High Court of Delhi that, "a tenancy is proved either by a rent agreement or by a rent receipt or at least by showing the payment of amounts by a tenant to a landlord."
43. The Hon'ble Apex Court in case titled as 'Shanti Sharma Vs. Ved Prabha, AIR 1987 SC 2028, has held that the plaintiff is required to prove that he has a better title than tenant. The Hon'ble High Court of Delhi in case titled M/s Saurabh Buildcon Pvt. Ltd. Vs. M/s Aster Technologies Pvt. Ltd. & Anr., decided on 10.12.20212 has held as under:
CS SCJ 83379/2016 Inder Singh Vs. Krishan @ Nikke & Ors. Page no.18 of25 "..... An owner to whom possession can be granted need not be a complete owner of the suit premises, and all that is required is that the plaintiff must have a better title to the suit premises than the defendant."
44. In order to prove landlordship or the better title qua suit property than the tenant/defendant no. 1, the plaintiff has relied upon the Sale Deed dated 30.12.1963 Ex.PW4/A, original rent receipts dated 04.10.1993 in Urdu and its translated copy in English which is exhibited as Ex.PW1/12, original rent receipts dated 02.11.1963 in Urdu and its translated copy in English which is exhibited Ex.PW1/13, Legal Notice dated 12.09.1979 Ex.PW1/9, its postal receipts Ex.PW1/10 and Acknowledgement Slip Ex.PW1/11.
45. It has been proved by the plaintiff that Sh. Nanak Chand, father of defendant no. 1, used to pay rent as tenant to the previous owner Sh. Khwaja Mohammaduddin Ahmed Sahab vide Rent Receipts dated 04.10.1963 and 02.11.1963 which are exhibited as Ex.PW1/12 and Ex.PW1/13 respectively in respect of suit property and the Ex.PW1/12 bears his signature at Point A. The previous owner Sh. Khwaja Mohammaduddin Ahmed Sahab had sold out one single storied house entirely in demolished condition, Sr. No. 999, 1001/1, 1001/2 and 1001/3 alongwith land underneath admeasuring 420 and half sq. yards or whatsoever surrounded with the four boundaries to Sh. Banarasi Dass (father of plaintiff). Soon after the death of his father, he had intimated this fact to Sh. Nanak Chand, father of the defendant no. 1, through Legal Notice which was exhibited CS SCJ 83379/2016 Inder Singh Vs. Krishan @ Nikke & Ors. Page no.19 of25 as Ex.PW1/9 which was duly served vide Ex.PW1/11. The father of the defendant no. 1 started paying rent to the plaintiff. However, no rent receipt has been filed on record by the plaintiff in this regard. Perusal of Ex.PW1/9 reveals that Sh. Nanak Chand was in occupation of a portion of a residential house bearing Municipal No. 999, Ward No. 7, Kasai Walan, Mehrauli, Delhi-30 as tenant of Sh. Banarasi Dass, father of the plaintiff. And to prove this fact, plaintiff has also filed the original Rent Receipts in Urdu i.e. Ex.PW1/12 and Ex.PW1/13 and its translated copies which show that the father of defendant no. 1/Sh. Nanak Chand S/o Sh. Buddhu Ram was a tenant in respect of suit property who used to pay rent to the previous owner Sh. Khwaja Mohammaduddin Ahmed Sahab.
46. All these factors, as discussed above, taken together would establish that the father of the plaintiff was the landlord of the suit property or he had the better title than the tenant and therefore, the plaintiff, being one of the legal heirs, became the landlord or having a better title than the tenant in respect of suit property by virtue of law of succession. Consequently, it has been proved that Sh. Nanak Chand, father of defendant no. 1 was a tenant of the previous landlord qua the suit property and after the sale, he became the tenant of Sh. Banarasi Dass, father of the plaintiff, qua the suit property. As a result of this, the defendant no. 1 acquired the tenancy rights in the suit property similar to the rights of his deceased father namely Sh. Nanak Chand.
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47. At this stage, Section 116 of Indian Evidence Act is relevant which is reproduced as under :-
"116. Estoppel of tenant; and of licensee of person in possession - No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof, shall be permitted to deny that such person had a title to such possession at the time when such licence was given."
48. This section says that the tenant or his successors of immovable property shall not deny the ownership/title of the landlord at any point of time during the continuance of tenancy.
49. Since it has been proved by the plaintiff that Sh. Nanak Chand, father of defendant no. 1 was a tenant qua the suit property. Therefore, by virtue of Section 116 of Indian Evidence Act, defendant no. 1/legal heir of Sh. Nanak Chand has no right to deny the title of previous owner Sh. Khwaja Mohammaduddin Ahmed Sahab or Sh. Banarasi Dass, father of the plaintiff.
50. It is important to record that when the summons were served upon defendant no. 1, his wife had appeared on 31.03.2015 and stated that they were merely carrying out repairs in the suit property and no fresh construction was being carried out. Upon this, the Ld. Predecessor's court was pleased CS SCJ 83379/2016 Inder Singh Vs. Krishan @ Nikke & Ors. Page no.21 of25 to direct the defendant no. 1 to maintain status quo till next date of hearing. However, on 18.05.2015, upon the undertaking of Sh. Ravi Kumar Sachdeva being Special Power Attorney of defendant no. 1 stated that defendant no. 1 or his family members/agents, etc. shall not carry out any unauthorized construction in the suit property nor will create any third party interest in any manner whatsoever without due process of law till the final disposal of the suit.
51. In evidence, it is deposed by the plaintiff that the defendant no. 1 is raising unauthorized construction over the suit property and has filed two photographs i.e. Mark-F (colly) showing unauthorized construction. Plaintiff has also denied the suggestion of defendant no. 2 that it is wrong to suggest that no unauthorized construction has taken place in the suit property. However, the property number is not reflected in the photographs i.e. Mark-F(colly).
52. Moreover, the defendant no. 3/SHO had filed Status Report on 30.04.2015 wherein it was submitted that beat staff of PS Mehrauli had noticed the construction work was going on at property bearing no. 999, Ward No. 7, Mehrauli and Deputy Commissioner, Green Park, MCD was informed in due time regarding the said construction vide No. 1246/R-SHO PS Mehrauli dated 17.03.2015. However, no construction was going on in the suit property at present i.e. 30.04.2015. Copy of Letter dated 17.03.2015 is on record containing the subject regarding unauthorized construction in property bearing no. H. No. 999, Ward No. 7, Mehrauli being done by Sh. Dinesh and CS SCJ 83379/2016 Inder Singh Vs. Krishan @ Nikke & Ors. Page no.22 of25 the same letter was received by the office of Deputy Commissioner on 19.03.2015.
53. On perusal of statement made by Sh. Ravi Kumar Sachdeva on 18.05.2015, deposition of plaintiff and Status Report filed by defendant no. 3/SHO clearly shows that unauthorized construction was being carried out at the suit property by the defendant no. 1, being a tenant, who wanted to create third party interest therein.
54. Therefore, in view of the abovesaid discussion, defendant no. 1 is restrained from carrying out unauthorized construction at the suit property and is also restrained from creating third party interest in the suit property.
55. Consequently, issues no. 3 and 4 are decided against the defendant no. 1 and in favour of the plaintiff.
Issue no.5:-
56. I shall deal with the issue no. 5 as under:-
"5. Whether the plaintiff is entitled to a decree of mandatory injunction as prayed for in prayer clause (c) of the plaint? OPP"
57. The onus to prove this issue is upon the plaintiff to the extent of removal of illegal and unauthorized construction being carried out by defendant no. 1 in the suit property.
CS SCJ 83379/2016 Inder Singh Vs. Krishan @ Nikke & Ors. Page no.23 of25
58. In view of the findings of this court on issues no. 3 and 4 as stated above, it has been established that unauthorized construction has been raised by the defendant no. 1 at the suit property. Thus, in the opinion of this court, illegal and unauthorized construction having been raised by defendant no. 1, is required to be removed/demolished. Therefore, this issue is also decided against the defendants and in favour of the plaintiff.
Issue No.6:-
"Relief"
59. The following reliefs have been granted in the present suit:
(i) Decree of permanent injunction is passed in favour of the plaintiff and against the defendants and the defendants are hereby restrained from carrying out unauthorized and illegal construction over the suit property.
(ii) Decree of permanent injunction is also passed in favour of the plaintiff and against the defendants whereby restraining the defendants from creating third party interest in the suit property.
(iii) Decree of mandatory injunction is also passed in favour of plaintiff and against the defendants directing the defendants to demolish/remove illegal and unauthorized construction made by defendant no. 1 over the suit property.
CS SCJ 83379/2016 Inder Singh Vs. Krishan @ Nikke & Ors. Page no.24 of25
60. Cost of the suit is also awarded in favour of the plaintiff and against the defendants.
61. Separate decree sheet be drawn accordingly on filing of deficit fee, if any.
62. File be consigned to record room after due compliance.
Pronounced in open Court (Santosh Kumar Singh)
on 15.07.2023 SCJ-cum-RC (South)
Saket Courts, New Delhi
This judgment contains 25 pages and each page bears my signature.
(Santosh Kumar Singh)
SCJ-cum-RC (South)
Saket Courts, New Delhi
Digitally signed
by SANTOSH
SANTOSH KUMAR SINGH
KUMAR Date:
SINGH 2023.07.15
17:20:48
+0530
CS SCJ 83379/2016 Inder Singh Vs. Krishan @ Nikke & Ors. Page no.25 of25