Delhi District Court
Dr. D.K. Sakhuja vs Sh. Bansi Lal (Since Deceased Through) on 19 December, 2011
IN THE COURT OF SH. GAUTAM MANAN
ASCJJSCCGJ: (CENTRAL) DELHI.
CS No.: 181/09 of 2003
DR. D.K. SAKHUJA,
S/O SH. R.L. SAKHUJA,
123537, GALI SANGTARASHAN,
PAHARGANJ, DELHI.
.......PLAINTIFF
VERSUS
1. SH. BANSI LAL (SINCE DECEASED THROUGH)
i. SMT. RAJ RANI KRISHNA RANI
ii SH. GIRDHARI LAL
iii SH. RAVI
iv SMT. CHANCHAL KANCHAN
v SMT. DEVI
2. SMT RATNA DEVI
W/O LATE SH. CHARAN DAS,
ALL R/O 1235, GALI SANGTARASHAN, PAHARGANJ,
DELHI
3. MUNICIPAL CORPORATION OF DELHI
THROUGH ITS COMMISSIONER,
TOWN HALL,CHANDNI CHOWK,
DELHI
.......DEFENDANTS
SUIT FOR MANDATROY & PERMANENT INJUCTION
INSTITUTION OF SUIT : 30.10.1995
ORDER RESERVED ON : 02.12.2011
JUDGMENT PRONOUNCED ON : 19.12.2011
1 CS No. 126/09 of 1995
J U D G M E N T
1. The plaintiff has filed the present suit seeking relief on mandatory and permanent injunction on averments that he is the owner of property no. 15/1237, 15/1236 and joint/common stairs bearing no. 15/1235 situated at Sangtarshan, Paharganj, Delhi. He purchased these properties vide a registered sale deed & plan dated 22.07.1982 from the earlier owner Smt. Shakuntla Devi. By virtue of the aforesaid sale deed, the plaintiff became the exclusive owner of the aforesaid properties.
2. That the plaintiff is in possession of the aforesaid properties since then and is using the common stairs bearing no.1235 as shown in yellow colour in the site plan attached with the plaint.
3. It is stated that there are two shops bearing no. 1236 and 1237 on the ground floor of the property and one 2 CS No. 126/09 of 1995 room on the first floor of the property and other construction on the second floor of the property. The stair case bearing no. 15/1235 leading to the first floor of the property is common. On or about 20/10/1995 the defendants 1 & 2 in collusion with each other starting raising unauthorized construction on the 2nd and 3rd floor of property no. 15/1235 without sanction of the MCD and they have placed a roof by placing iron girder on wall of the plaintiff which is towards the property no. 15/1235 without the consent of the plaintiff. It is stated that the defendants also constructed a wall A and B as shown in the site plan, 2nd & 3rd floor illegally and unauthorizedly and against the municipal bye laws. The defendants no. 1 and 2 have also threatened to damage the common staircase bearing no. 15/1235 and to further damage the wall C and D as shown in the site plan.
4. It is stated that defendants no. 1 and 2 have no right to raise unauthorized construction on the walls C and D 3 CS No. 126/09 of 1995 or in the staircase for which they have threatened and they have also threatened to raise a bathroom and latrine over the existing bathroom and latrine on the 2nd and 3rd floor of the property. It is stated that the plaintiff reported the matter in respect of the unauthorized construction to the local Police Chowki at Paharganj on 27/10/1995 but the defendants no. 1 and 2 threatened the plaintiff for dire consequences.
5. It is prayed that the defendants no. 1 and 2 be restrained from raising any unauthorized construction in any portion of property no. 15/1235 and from causing damage to the wall C and D , the common staircase and from raising any construction over there without the sanction of the MCD. The plaintiff has also prayed that the defendants no. 1 and 2 be directed to demolish the unauthorized construction raised by them in the property no. 15/1235, Gali Sangtarshan, Paharganj, New Delhi and to restore it in its original condition and demolish the 2nd and 3rd floors and RRC placed on the walls 4 CS No. 126/09 of 1995 marked as A and B. The plaintiff has also sought a direction for the MCD to demolish the unauthorized construction in accordance with law.
6. The defendants no. 1 and 2 in their written statement stated that the defendants no.2 has no concern with suit property in any manner and she is the mother of the defendant no. 1. It has been stated that the whole of the property no. 15/1235 is exclusively owned and belongs to defendant no. 1 and the staircase is an integral part of property no. 1235 and is the only approach to property no. 15/1235. The staircase forms part of the sale of the house no. 15/1235 to the defendant no. 1 or his predecessor in interest i.e. his father Late Sh. Charan Das.
7. Defendants no. 1 and 2 have submitted that when the property was purchased by defendant no. 1 the right of use the stair was exclusively available to them but the plaintiff 5 CS No. 126/09 of 1995 requested defendant no. 1 to permit the plaintiff to go to the 1st floor and to property no.1237 and 1236 from portion B & C and it was assured that the plaintiff would be using the said portion sparingly and during the period of construction of his property and it would not affect the privacy of defendant no. 2. It was assured by the plaintiff that after construction his property no. 1238 the plaintiff would stop using the staircase. However even after the portion of property no. 1238 was constructed the plaintiff continued to use the stair case. The defendant no. 1 who had good relations with the plaintiff agreed for the same and after an alteration between sons of the plaintiff and defendant no.1, the plaintiff had a grudge against the defendant no. 1 and under these circumstances the plaintiff has filed the present suit against the defendant to harass them.
8. It has been stated that the instead of getting a door and B and C closed the plaintiff intends to use the stair case illegally and he has no right to use the same as well as the 6 CS No. 126/09 of 1995 access from the B and C to the 1st floor and shop no. 1236. It is stated that the suit is a device to seek an indirect declaration of the plaintiff right to use the staircase and portion B and C and in fact has filed the present suit to have joint possession of the staircase and use the portion B and C. The defendants denied the right of the plaintiff over the staircase and sought the dismissal of the present suit.
9. The defendant no.3/MCD in it's written statement stated that the MCD has already initiated as action against the unauthorized construction carried out in the suit premises and after following due process of law a demolition order has already been issued and served on defendant no. 1. The MCD has stated that unauthorized constructions of two rooms, covered varandah staircase, 2nd floor and 3rd floor was noticed in the suit premises and the same was booked by the MCD.
10. The plaintiff filed the replication to the written statement of the defendants and reiterated the claim made by them in the plaint.
7 CS No. 126/09 of 1995
11. On pleadings of the parties, the following issues were framed :
1. Whether the plaintiff is entitled to relief of permanent injunction, as prayed for ? OPP
2. Whether the plaintiff is entitled to relief of mandatory injunction as prayed for ? OPP
3. Whether the suit of the plaintiff is maintainable on the ground of acquiescence, latches and delay ? OPD
4. Whether the suit of the plaintiff is bad for joinder (to be read as misjoinder) of parties ? OPD
5. Relief ?
12. During trial of the suit, the defendant no.1 unfortunately got expired and LRs of defendant no.1 were impleaded as parties to the present suit.
8 CS No. 126/09 of 1995
13. The plaintiff examined himself as PW1 and deposed on the lines of the plaint. The plaintiff proved a copy of Sale Deed and plan in respect of the suit property in his favour Ex.PW1/1 & PW1/2. The site plan has been proved as Ex.PW1/3, an application made by the plaintiff to the police post as proved Ex.PW1/4. The photographs of the suit property are Ex PW1/6.
14. PW2 is Sh Ghasi Ram, Officer Incharge from MCD. The witness deposed that the suit property was booked for unauthorized construction but due to shortage of time the property was not demolished. The witness proved the record of the MCD as Ex.PW2/1 to PW2/7.
15. The Defendant no.1 Sh Bansi Lal initially deposed as DW1 but later on he unfortunately got expired. Thereafter, Smt Krishna Rani, wife of defendant no.1 deposed as DW1 and tendered her examinationinchief by way of affidavit which is 9 CS No. 126/09 of 1995 Ex. D1 and proved a copy of Sale Deed in respect of suit property as Ex.DW1/1 and death certificate of her fatherinlaw Sh Charan Dass Ex.DW1/2.
16. The defendant no.3/MCD examined Sh A.C. Garg, Executive Engineer of the MCD and the witness deposed that the suit property was booked for unauthorized construction and the unauthorized construction is liable to be demolished under provisions of DMC Act.
17. I have heard the ld. Counsels for the parties and have gone through the record. The issuewise findings are as under:
18. ISSUE No.1: Whether the plaintiff is entitled to relief of permanent injunction as prayed for ? The plaintiff in the present suit has sought a relief that the defendants no.1&2 be permanently restrained from raising any unauthorized 10 CS No. 126/09 of 1995 construction in any portion of property no. XV/1235 and from causing damage to the wall C & D, common staircase and from raising any construction over there.
19. The plaintiff in his testimony has deposed that he is the owner of properties bearing no.1236,1237 with common staircase and passage in property bearing no.1235. In order to prove his title the plaintiff has proved a copy of Sale Deed Ex.PW1/1 and registered site plan as Ex.PW1/2. By proving this document, the plaintiff has been able to prove that he has purchased the properties no.1236, 1237 and 1235 from its earlier owner. Even otherwise also the title of the plaintiff in respect of the aforesaid properties is not disputed by the defendants but in their defense the defendants no.1&2 have submitted that they have an exclusive rights over the staircase and the plaintiff has filed the present suit to seek in declaration of his rights to use the staircase and the portion B and C. 11 CS No. 126/09 of 1995
20. DW1 Smt Krishna Rani in her evidence has produced a copy of Sale Deed in respect of the portion of the defendants as Ex DW1/1. This Sale Deed is executed in favour of her fatherinlaw Sh Charan Dass in respect of residential portion of property no. XV/1235 measuring 49 Sq. yards consisting of two rooms, latrine, bathroom, courtyard and staircase on the ground floor and barsati on the first floor. In this Sale Deed, it is mentioned that staircase are common with the vendors up to the room and shop of the vendors.
21. By virtue of the documents proved on record by the plaintiff and defendants no.1&2, it is evident that the staircase in the property no. XV/1235 is a common staircase and the plaintiff has right to use the same. The staircase being common between the plaintiff and defendants as such any unauthorized construction in this case can infringe the rights of the plaintiff for use of the same. More so, DW1 during her crossexamination has also admitted that the staircase is being used by the plaintiff as well.
12 CS No. 126/09 of 1995
22. The plaintiff has categorically deposed that the defendants no.1&2 have any intention to raise latrine in the common staircase as well. As stated above, the staircase is common staircase in which the plaintiff has right also as such the plaintiff has a right to restrain the defendants from raising any illegal or unauthorized construction in the common staircase and further has a right to restrain the defendants from causing any damage to the wall C and D as shown in the site plan as Ex.PW1/3. Accordingly, the issue stands decided in favour of the plaintiff and against the defendants.
23. ISSUE No.2: Whether the plaintiff is entitled to relief of mandatory injunction as prayed for ? OPP The plaintiff has also sought a relief that the defendants be restrained to demolish the unauthorized construction raised in property no. XV/1235. The defendants have denied that they have raised any illegal or unauthorized construction in this property. The plaintiff has examined PW2 Sh Ghasi Ram, 13 CS No. 126/09 of 1995 Officer Incharge (building), SP Zone of MCD. This witness has produced the record Ex.PW2/1 to Ex.PW2/7 and as per the deposition of the PW2 the property no. XV/1235 was booked for unauthorized construction. Ex.PW2/1 is a complaint dated 23.08.1995 wherein it has been stated that the unauthorized construction of two rooms, covered varanda, staircase was noticed at second floor and third floor of property bearing no. XV/1235. Ex.PW2/2 is a notice sent to the defendant no.1 (since deceased) in respect of booking of unauthorized construction. Ex.PW2/3 is a note of the MCD in respect of unauthorized construction in the suit property. Ex.PW2/4 is a reply sent by the defendant no.1 to the MCD wherein it has been mentioned by defendant no.1 that the defendant no.1 undertook some repair work which has been misbooked by the MCD for new construction. Ex.PW2/5 is a notice dated 31.08.1995 wherein the defendant no.1 was directed to demolish the unauthorized construction within 6 days of receipt of the notice.
14 CS No. 126/09 of 1995
24. On perusal of the record, it is evident that the defendant no.1 was guilty of raising unauthorized construction in the suit property and in this connection, the property of the defendants were booked by the MCD for the unauthorized construction. Nothing is brought on record on behalf of defendants no.1&2 in order to prove that construction carried out by the defendants was authorized or they took any permission from the MCD for raising the construction in the suit property.
25. The MCD, defendant no.3 has examined D3W1 A.C. Garg, Executive Engineer, MCD . This witness in his deposition also deposed that the suit property was booked for unauthorized construction and is liable to demolished in due course of time. As stated above, the defendants no.1 & 2 have not produced any document in order to suggest that they raised the construction after obtaining the permission of the MCD. Accordingly, the plaintiff being the occupant of the same 15 CS No. 126/09 of 1995 building in which the unauthorized and illegal construction has taken place, is entitled for the relief of mandatory injunction as claimed by him in the present suit. Accordingly, the issue stands answered in favour of the plaintiff and against the defendants.
26. ISSUE No.3 : Whether the suit of the plaintiff is maintainable (to be read as not maintainable) on the ground of acquiescence, latches and delay ? OPD. The onus to prove that the suit of the plaintiff is not maintainable on the ground that of acquiescence, latches and delay is on the defendants no.1 &2. DW1 has deposed that the suit property was constructed when the same was purchased by the defendants and at that time ground floor, first floor, covered barsati floor and a second floor was in existence. Sh Charan Dass, father of the defendant no.1 during his lifetime had made repairs and barsati was converted into a hall and over that a space for keeping cots was constructed. DW1 deposed that her husband 16 CS No. 126/09 of 1995 didn't raise any construction after 1976 and all the work was done in the suit property by Charan Dass during his lifetime much prior to 1976. It has been deposed on behalf of defendants that construction in the suit property is old and since the plaintiff did not object to the existing construction as such he has not approached the Court with reasonable time and as such the suit of the plaintiff is not maintainable.
27. PW2 in his evidence has produced a letter Ex.PW2/4 written by the defendant no.1 to the MCD and in this letter dated 26.08.1995, the defendant no.1 stated that he undertook some repairs in the suit property and the repairs had to be undertaken to avoid any causality. The execution of Ex.PW2/4 is not denied by the defendant no.1 and hence, the stand taken by the DW1 that all the work was done in the suit property was prior to 1976 is not believable.
28. On the other hand, PW2 witness from MCD has categorically deposed that the defendant no.1 was guilty of 17 CS No. 126/09 of 1995 raising unauthorized construction in the suit property and in this regard, the property of the defendant no.1 was booked in the year 1995. The suit being filed in the year 1995 itself, I find that there is no delay by the plaintiff to institute the present suit. Thus, the suit of the plaintiff cannot be stated to be not maintainable on account of acquiescence, latches or delay.Accordingly, the issue stands answered against the defendants and in favour of the plaintiff.
29. ISSUE No.4: Whether the suit of the plaintiff is bad for joinder ( to be read as misjoinder) of parties ? OPD The onus is on the defendants to prove that the suit of the plaintiff is barred for misjoinder of the parties but no evidence has been led on behalf of defendants on this issue. Accordingly, the same stands decided against the defendants and in favour of the plaintiff.
30. RELIEF : In the light of the aforesaid discussions, the suit of the plaintiff stands decreed in favour of the plaintiff 18 CS No. 126/09 of 1995 and against the defendants no.1 & 2 for relief of permanent injunction. The defendants no.1 & 2 are hereby restrained from raising any unauthorized construction in property no. XV/1235, Gali Sangtarashan, Pahar Ganj, New Delhi and they are further restrained from causing damage to the wall C and D and common staircase. A decree of mandatory injunction is also passed in favour of the plaintiff and against the defendants thereby directing the defendants to demolish the unauthorized construction raised in the property no. XV/1235, Gali Sangtarashan, Paharganj, Delhi.
Decree Sheet be drawn accordingly.
File be consigned to Record Room.
Announced in open Court
on : 19th December, 2011 (GAUTAM MANAN)
ASCJ/JSCC/GJ(C)/Delhi
19 CS No. 126/09 of 1995