Delhi District Court
Shobha Kant Jha vs Singh Pal on 5 August, 2013
IN THE COURT OF MS. SNIGDHA SARVARIA, CIVIL JUDGE,
CENTRAL05 TIS HAZARI COURTS , DELHI
Suit No.547/2012
IN THE MATTER OF :
Shobha Kant Jha,
S/o late Dev Narayan Jha,
R/o T2598, Gali No.21,
Near Sanjay Park, Baljeet Nagar,
New Delhi110008. ... Plaintiff
Versus
1. Singh Pal, S/o Shri Chunni Lal
2. Pradeep
3. Chaman
4. Aman
All sons of Shri Singh Pal,
All R/o T2598/D, Gali No.21A,
Baljeet Nagar, near Sanjay Park,
New Delhi. ... Defendants
Date of Institution : 01.03.2002
Date of Reserving for Judgment : 11072013
Date of Judgment : 05082013
SUIT FOR DECLARATION AND PERMANENT INJUNCTION
JUDGMENT:
1. Vide this judgment, I shall dispose of a suit for declaration and Suit No.547/2012 Page No.1 /15 permanent injunction filed by the plaintiff.
2. Brief stated the relevant facts of the case are that the plaintiff, the plaintiff is rightful owner and in possession of the property bearing No.T2598 Gali No.21 near Sanjay Park, Baljeet Nagar, New Delhi 6 since 1992 and enjoying the Gali shown in the site plan mark with red. The defendants residing in the property bearing No.2598D, Gali No.21A near Sanjay Park, Baljeet Nagar, New Delhi is neighbourer of the plaintiff. The disputed portion shown in the red Mark is between the plaintiff and defendant is that of common Gali. It is further submitted that the plaintiff's property having Gali with stair on the Southern and Eastern side since the date of the possession there is one door at the bottum of the Southern Gali with one window, earlier to the suit the plaintiff using the door and windows but since 09112001 the defendant in hindering in reaffixing the door which is opened towards Southern Gali and also objecting to open the window adjacent to it. The issue raise when the plaintiff wants to change the door but the defendant objected, took illegal step not allowing to affix the door at present open space still exist. Quarrel took place on 0911 2001 when the plaintiff wants to change the damaged door. Defendant No.2, 3 and 4 interfere into reaffixing of the door of the plaintiff and altercation took place between the parties above Suit No.547/2012 Page No.2 /15 mentioned defendants cause injuries to the plaintiff and the matter was reported to the police. PCR call was made and the matter was handed over to the local police and again the same situation of the quarrel arose on 06122001 when the plaintiff was affixing the door on the place defendant interfere, obstructed and quarrel took place between the parties and plaintiff sustained injury, pertaining to this occurrence a proceeding under Section 107/151 Cr.PC was initiated between parties which is at present pending before the Hon'ble SubDivisional Court, PS Moti Nagar holding the post of Special Executive Magistrate. It is further submitted that in the year 1995, the same issue was raised by the defendant objecting therein and not allowing the plaintiff to reaffixing the staircase of the Southern Gali which is at present red mark in the site plan. The defendant was not allowing the plaintiff in any to repair the staircase but the local persons neighbourers intervene in the matter and came to the conclusion that the disputed Gali is of settled to be used commonly as usual, and to this effect a written compromise was drawn where defendant and plaintiff put their signature witnesseth by neighbourers hence the matter was finally pacified between the parties. It is further submitted that the defendants want to grab the disputed portion shown in the site plan defeating the right of the plaintiff one or other way. On 25022002 Suit No.547/2012 Page No.3 /15 defendant spread dirty water over the stair which goes in the room of the plaintiff where the door is not affixed due to the obstruction by the defendant. Further during the pendency of 107 Cr.PC proceedings they were intended to quarrel and beat the plaintiff but in the circumstances the plaintiff kept mum and have no efficacious remedy except to file the suit.
3. On the other hand the defendants have filed written statement and in their written statement contended that suit as filed and framed is not maintainable in the eyes of law as the same being an abuse and misuse of process of law, hence the same deserves dismissal. The suit is barred by provisions of Section 10 and 11 of the CPC and the present suit is liable to be stayed and is hit by provisions of resjudicata, as the defendant No.1 already instituted a suit against the plaintiff which is now pending before the Hon'ble Court of Ms. Ruby Alka Gupta, Civil Judge, Delhi. The said suit was filed by the defendant No.1 against the plaintiff on 240102 and the subject matter and property in dispute is same between the said suit and the present false suit filed by the plaintiff, hence the present suit is liable to be stayed and dismissed as hit by resjudicata. It is further submitted that the suit of the plaintiff is only a counter blast to the suit filed by the defendant No.1 against the plaintiff as pending before the Hon'ble Court of Ms. Ruby Alka Gupta, Civil Judge, Suit No.547/2012 Page No.4 /15 Delhi. The plaintiff has no locus standi to file the present suit and the only motive of the plaintiff is to grab the portion of the property of the defendant No.1. There has been no gali as alleged, rather it is the part and parcel of the property of the defendant No.1 where the stairs of the defendant No.1 are existing and the plaintiff is bent upon to grab the stairs and the said portion of the defendant No.1 and open the door and window towards the said portion. It is further submitted that the plaintiff under the garb of the suit for declaration is seeking the relief of possession. The suit has not been properly valued for the purpose of court fee and jurisdiction and no proper court fee on the market value of the subject premises has been affixed. Further, the suit is without any cause of action and no cause of action has arisen in favour of the plaintiff and against the defendants, hence the suit deserves dismissal u/o VII Rule 11 CPC. The plaintiff is neither the owner nor having any legal right, title or interest over the subject premises No.T2598, Gali No.21, nor even the plaintiff has produced any documentary proof of his ownership over the suit premises. The site plan as filed by the plaintiff is wrong and contrary to the factual position. The plaintiff has not come to the court with clean hands and has suppressed the true material facts from this Hon'ble Court. Further the defendants denied that the plaintiff is the owner of the property Suit No.547/2012 Page No.5 /15 T2598, Gali No.21, Near Sanjay Park, Baljeet Nagar, New Delhi since 1992 as alleged or that there is any gali existing or the plaintiff is enjoying the same as alleged. So far as the alleged portion as shown in red colour in the site plan is concerned, it is not a gali as wrongly alleged by the plaintiff and the site plan is wrong and false one. In fact the said portion is part and parcel of the property of the defendant No.1 over which the stair case of the defendant No.1 is existing and the plaintiff is bent upon to grab the said portion, stair case of the defendant No.1 and open the door and window of his house towards the said stair case and as such the defendant No.1 has already instituted a suit against the plaintiff and the same is pending before the Hon'ble court of Ms. Ruby Alka Gupta, Civil Judge, Delhi. There is no any Gali what to talk of common gali. It is further denied that there is any gali with stair or that there was any door with window or that the plaintiff was using the door and window. The plaintiff wants to fix door and window opening towards the premises of the defendant No.1 and making repeated attempts for the same and all the incidents as stated are the part of the said attempt and conspiracy by the plaintiff. The plaintiff in fact has no legal right to fix door and window or make any sort of encroachment over the property of the defendant No.1. The suit is also bad for misjoinder of parties. The defendants Suit No.547/2012 Page No.6 /15 No.2 to 4 have been wrongly impleaded by the plaintiff. Further the defendant denied all the allegations of the plaintiff which are made in his plaint and prayed that the suit of the plaintiff be dismissed.
4. The plaintiff has filed replication to the written statement filed by the defendant. In his replication the plaintiff has reaffirmed the contents made in the plaint and denied all the allegation made by the defendant in his written statement and further submitted that the suit of the plaintiff be decreed.
5. From the pleading of the parties following issues were framed vide order dt. 29072003:
i) Whether the suit of the plaintiff is maintainable in the form as presented and framed before this court? OPP
ii) Whether the suit of the plaintiff is barred under any provision of law, specifically those of Specific Relief Act? OPD
iii) Whether the plaintiff is entitled to relief or declaration as prayed for? OPP
iv) Whether the plaintiff is entitled to the relief or permanent injunction as prayed for? OPP
v) Relief.
6. To prove his case plaintiff has examined himself as PW1. PW1 has filed his evidence by way of affidavit Ex. PW1/A. The PW1 Suit No.547/2012 Page No.7 /15 has reiterated the facts mentioned in the plaint and also relied upon the document which are as under:
i) GPA in favour of plaintiff is Ex. PW1/1.
ii) Agreement to sell, Will, receipt and Affidavit are Ex. PW1/2 to Ex. PW1/5.
iii) Photo copy of Ration Card is mark A.
iv) Deposit of ration card and receipt is Ex. PW1/6.
v) Electricity Bill is Ex. PW1/7.
vi) Electricity Bill dt. 28102004 is Ex. PW1/8.
vii) Water bill is Ex. PW1/9 and 10.
viii) Gas connection in the name of the plaintiff is Ex. PW1/11.
ix) Copy of birth certificate of the son of plaintiff is Ex. PW1/12
x) Photocopy of compromise between the parties is Mark B.
xi) Voter card of the plaintiff is Ex. PW1/13.
xii) Site plan is Ex. PW1/14.
xiii) Certain photographs are PW1/15.
The PW1 was also crossexamined by the Ld. counsel for the defendant.
7. On the other hand the defendant has examined himself as DW1. Who has filed his evidence by way of affidavit Ex. DW1/A. In his affidavit the DW1 has reiterated the facts mentioned in his written statement. The DW1 was also crossexamined by the Ld. counsel Suit No.547/2012 Page No.8 /15 for the plaintiff.
8. I have heard the counsel for both the parties and have gone through the record carefully.
9. My issue wise finding is as under:
10. Issue No. 1 Whether the suit of the plaintiff is maintainable in the form as presented and framed before this court? OPP Issue No. 2 Whether the suit of the plaintiff is barred under any provision of law, specifically those of Specific Relief Act? OPD Issue No. 4 Whether the plaintiff is entitled to the relief or permanent injunction as prayed for? OPP Issue nos. 1, 2 and 4 being interrelated are being taken up & decided together.
The case of the plaintiff is that on the southern and eastern side of the house of the plaintiff are galis and there is a door at the bottom of the southern gali with one window and same were used by the plaintiff since the time he entered the possession of his house. But since 9/11/2001 the defendant is causing hindrance to the plaintiff. The plaintiff tried to reaffix a door and use the window which opens to the southern gali but the defendant objects to it.
11.It is well settled that the case of the plaintiff should stand on its own legs. The entire case of the plaintiff rests on the fact that there Suit No.547/2012 Page No.9 /15 existed a door at the entrance of the staircase which the defendant is not allowing to affix. But it has not been proved by the plaintiff that a door ever existed at the entrance of the staircase as alleged. Also, the plaintiff relies on Mark B a compromise entered between the parties in the presence of the persons of the locality but firstly the said compromise has not been proved by the plaintiff and secondly the same does not mention of any door at the entrance of the staircase. As regards the opening of the window in the southern Gali, firstly, it has not been proved that their exists a window at point B as shown in the site plan. Secondly, The plaintiff is claiming easementary rights over the suit property. An easement is a right which the owner or occupier of a certain land possess, as such for the beneficial enjoyment of that land to do something, or to prevent and continue to prevent something being done, in or upon or in respect of certain other land not his own.
12.An easement is a privilege, without which the owner of one tenement has a right to enjoy in respect of that tenement in or over the tenement of another person, by reason where of the latter is obliged to suffer or refrain from doing something on his own tenement for the advantage of the former.
The following six characteristics are essential for an easement
(a) There must be a dominant and survient tenement Suit No.547/2012 Page No.10 /15
(b) An easement must accommodate the dominant tenement
(c) The rights of easement must be possessed for the beneficial enjoyment of the dominant tenement.
(d) Dominant and survient owners must be different persons.
(e) The right should entitle the dominant owners to do and continue to do something or to prevent and continue to prevent something being done, in or upon, or in respect of, the servient tenement; and
(f) The something must be of a certain or well defined character and be capable of forming the subject matter of a grant.
The easement of light is a negative easement or a species of negative easement. The easement of light does not consist of a right to have a continuance of all the light which has previously come to the window of the dominant tenement. What the dominant owner is bound to show in order to maintain an action is that the interference is such an obstruction of light as to interfere with the ordinary occupations of life. In other words, the nature and extent of the right is to have that amount of light through the window of the dominant house which is sufficient, according to the ordinary notions of mankind, for the comfortable use and enjoyment of the house as a dwelling house, if it is a dwelling house, or for the beneficial use and occupation of the building if it is a warehouse, shop or other place of business. Access and use of air to and for any building may be Suit No.547/2012 Page No.11 /15 acquired under the Indian Easements Act if it has been peaceably enjoyed without interruption for twenty years. The right to air is coextensive with the right light. The owner of house cannot by prescription claim to be entitled to the full and uninterrupted passage of a current of wind. He can claim no more air than which is sufficient for sanitary purposes. There is no right as a right to the uninterrupted flow of south breeze as such. There is no easement for free access of wind.
13.But the plaintiff herein has not proved that his property is a dominant tenement and that the said window is the only source of light and air to the plaintiff's property. Mere averments in this regard are not sufficient. Not even a single photograph has been filed and proved on record for this purpose.
14.As regards restraining the defendant from spreading dirty water in the gali on the southern side shown as red colour, it is well settled that a contract which is dependent on the personal volition of the parties or involves performance of a continuous duty which the court cannot supervise is not specifically enforceable and an injunction cannot be granted in relation to a contract which cannot be specifically enforced as is clear from the provisions under S. 14 with S. 41(e) of the Specific Relief Act.
15.Thus, the plaintiff is not entitled to the permanent injunction Suit No.547/2012 Page No.12 /15 restraining the defendants from making hinderance in the re affixing the damaged door at Point A and opening the window at point B in the suit property bearing no. T2598, Gali No. 21, near Sanjay Park Baljeet Nagar, Delhi as shown in the site plan and spreading dirty water in the gali on the southern side shown as red colour.
In view of the foregoing discussion, the plaintiff has failed to prove his case and thus, these issues are accordingly decided against the plaintiff and in favour of the defendants.
16.Issue No. 3 Whether the plaintiff is entitled to relief or declaration as prayed for? OPP Before delving on the controversy as regards issue no. 3, it would be worthwhile to reproduce Section 34 of the Specific Relief Act, which is as under:
"Section 34 Discretion of court as to declaration of status or right :Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:
Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.
Explanation.A trustee of property is a "person interested to deny" a title adverse to the title of some one who is not in existence, and for whom, if in existence, he would be a Suit No.547/2012 Page No.13 /15 trustee."
From the aforesaid, it is clear that one of the ingredients which the plaintiff has to satisfy in order to get the relief of declaration is that the plaintiff has to show that the plaintiff is entitled to any legal character, or to any right as to any property.
In the case at hand, the plaintiff is seeking declaration that the common gali marked red in the site plan is to be used by both the parties. But in this regard the plaintiff has failed to show whether the said gali is a public or a private gali thus plaintiff has failed to show any entitlement to any legal character, or to any right as to the said Gali.
The plaintiff is also seeking declaration that the chajja to be carried out on the 10 ft height of the suit property bearing no. T 2598, Gali No. 21, near Sanjay Park Baljeet Nagar, Delhi be of two & a half feet wide. For this relief the plaintiff had to show a legal right in his favour, but as discussed above in issue nos. 1,2, and 4 that the plaintiff has not proved the compromise Mark B, thus clearly, plaintiff has failed to show any entitlement to any legal character, or to any right as to the said chajja.
In view of the foregoing discussion, the plaintiff has failed to prove his case and thus, this issue is accordingly decided against the plaintiff and in favour of the defendants.
Suit No.547/2012 Page No.14 /15
17. Relief:
In view of the foregoing discussion, the plaintiff has not been able to prove his case. Therefore, the present suit is dismissed.
Parties shall bear their own costs.
Decree sheet be prepared accordingly. File be consigned to the record room after necessary compliance.
Announced & signed in the ( Snigdha Sarvaria) open court on 05082013. Civil Judge/Central05 Delhi Suit No.547/2012 Page No.15 /15