Delhi District Court
Mrs Punita Singh vs ) Sh. Ali Ahmad on 20 January, 2022
IN THE COURT OF MS. NITI PHUTELA SENIOR CIVIL JUDGE (SOUTH
DISTRICT) SAKET COURTS, NEW DELHI
C.S. No. 434/18
Mrs Punita Singh
W/o Sh. Pawan Kumar Singh
R/o H. no. 1002/7, First Floor,
Totta Building, Ward no.7,
Mehrauli, New Delhi110030. .......Plaintiff.
VERSUS
1) Sh. Ali Ahmad
R/o H. no. 1002/7, Top Floor
Totta Building, Ward no.7,
Mehrauli, New Delhi110030
2). Sh. Jatin Kumar
S/o Sh. Radhe Shyam
R/o H. no. 1014D, First Floor,
Ward no.7. Mehrauli,
New Delhi
(deleted vide order dtd 27.02.2019)
3). SDMC,
Green Park,
New Delhi
4). SHO
PS Mehrauli ...........Defendants
CS SCJ 434/18 PUNITA SINGH Vs. ALI AHMED AND ORS Page 1 of 8
SUIT FOR PERMANENT AND MANDATORY INJUNCTION
Date of Institution : 11.05.2018
Date of Reserving of Judgment : 07.01.2022
Date of Order : 20.01.2022
JUDGMENT
CASE OF PLAINTIFF:
1. As per the case of plaintiff, she is owner and in possession of property/flat bearing no. 1002/7, First Floor, Totta Building, Ward no.7, Mehrauli, New Delhi, along with proportionate and indivisible land share/ownership rights in the land underneath standing thereon and all common facilities like stair, common scooter parking etc vide registered sale deed dtd 03.03.2015.
2. As per her, defendant no.2 was earlier the owner of the flat situated at third floor (top floor) of the said building and has now sold the said flat to defendant no.1. Other occupants of the said property are exclusive and absolute owner of their individual flats in the said Totta Building.
3. As per plaintiff, when defendant no.2 was residing in his flat in Totta Building, he illegally erected a wall and covered the major portion of the common area on the terrace. Now defendant no.1 has put a lock on the door of the portion which was illegally covered by defendant no.2. As per plaintiff, defendant no.1 is trying to construct and raise permanent fittings and fixtures and also trying to put slab/linter on the terrace of the said property in illegal manner and beyond drawings of the said building while encroaching the common area on the terrace. Plaintiff requested defendant no.1 & 2 to remove the walls and shift all the belongings lying on the terrace but in vain. It is also CS SCJ 434/18 PUNITA SINGH Vs. ALI AHMED AND ORS Page 2 of 8 alleged that defendant no.1 & 2 are illegally interfering in the common area/amenities in the terrace and common staircase of the said building.
4. On 04.01.2018, plaintiff approached defendant no.2 and requested him to allow her to use the terrace but defendant along with his wife threatened the plaintiff. Due to this, plaintiff filed a complaint at PS Mehruali and SDM, Mehruali. Again on 14.01.2018, defendant no.2 along with his wife quarrelled with plaintiff and beat her to pressurize her to withdraw the above said police complaint. In this regard, plaintiff again filed a police complaint on the basis of which an FIR no. 08/2016(NCR) dtd 14.01.2018 U/S 323/506 IPC was lodged but no action was taken by the police.
5. Hence, the present case has been filed by plaintiff for passing of decree of permanent injunction restraining defendants, their agents, servants, legal heirs, family members etc, to not to encroach and raise any illegal construction on the terrace of the suit property and seeking decree of mandatory injunction thereby directing defendants to remove the illegally erected wall and their articles from the suit property.
6. Summons were issued to all the defendants. WS was filed by defendant no.1 & 2. However, during the course of the proceeding, defendant no. 2 was deleted from the array of parties by the orders of Ld Predecessor Judge vide order dtd 27.02.2019. Hence, WS filed by defendant no.2 and Replication to the said WS are not discussed herein.
WRITTEN STATEMENT OF DEFENDANT NO.1
7. Defendant no.1 in his WS stated that he got registered the flat in question on 22.12.2017 in his wife's name. He stated that he is owner and in possession of the suit property I.e flat bearing no.1002, ward no.7, 3 rd floor, measuring area CS SCJ 434/18 PUNITA SINGH Vs. ALI AHMED AND ORS Page 3 of 8 42 Sq yards out of 70 Sq yards forming part of Khasra no.1151/3, situated at Abadi under the area of Village & Tehsil Mehrauli, New Delhi vide registered sale deed no. 11890 and registration no. 7867 in book no. 1, Volume no. 2103 on page 141 to 149 dtd 05.01.2018. He purchased the flat in question from defendant no.2 on 22.12.2017 by registered sale deed. As per him, the GPA which defendant no.2 had shown, as per the same, defendant no.2 had exclusive roof rights of 3rd floor. He also stated that, defendant no.1 made complaint before SHO PS Mehrauli and to DCP concerned on 15.01.2018 regarding misbehavior of plaintiff with wife of defendant no.1. In reply on merits, defendant no.1 has denied the allegations leveled by plaintiff and prayed that present suit is liable to be dismissed under Order 7 Rule 11 CPC as no cause of action has arisen in her favour.
WRITTEN STATEMENT OF DEFENDANT NO.3
8. No WS was filed by defendant no.3/SDMC. However, status report dtd. 07.02.2022 was filed by SDMC as per which property in question was inspected. The whole building consisting of ground floor, first floor, second floor, third floor and fourth floor was booked vide file no. 26/UC/BII/SZ/19 dtd 31.01.2019 for demolition. It was also reported that walls were raised in the form of fresh construction at the terrace. Another status report dtd 27.02.2022 was filed by SDMC as per which site was inspected on 15.02.2019 and it was found that there exists two walls at terrace of fourth floor but no construction work was going on. Photographs were also filed along with the said status report.
Replication/Rejoinder
9. The plaintiff filed the replication to the WS of defendant no.1 wherein she CS SCJ 434/18 PUNITA SINGH Vs. ALI AHMED AND ORS Page 4 of 8 denied the averments of defendant no.1 alleged in the WS and reasserted and reiterated the facts alleged by her in the plaint.
Issues
10. Upon completion of pleadings, issues were framed vide order dtd 27.02.2019. During the course of the proceedings, it was submitted by Ld Counsel for plaintiff that she was not pressing prayer clause (b) on the ground that the said prayer was satisfied as the wall which was constructed had already been demolished. Hence, the said prayer was abandoned from the plaint. Therefore, issue no. (2) was struck off on statement of Ld Counsel of plaintiff and following issues were left to be decided.
(1) Whether the plaintiff is entitled to relief of permanent injunction as prayed for? OPP (2) Whether the suit of plaintiff is liable to be dismissed having no cause of action? OPD1 (3) Relief.
Plaintiff Evidence
11. In order to prove his case, plaintiff got examined herself as PW1. She entered the witness box and tendered her affidavit as Ex.PW1/A. She relied upon documents i.e. copy of registered sale deed which is Ex.P1(OSR), site plan which is Ex.P2, photographs which are Ex.P3(colly), copy of complaint dtd 04.01.2018 which is Ex.P4(OSR), copy of reply dtd 12.01.2018 which is Ex.P5(OSR), copy of reply dtd 14.01.2018 which is Ex.P6(OSR), copy of NCR which is Mark P8, photographs which are Mark P9(colly), copy of complaint dtd 13.02.2018 to Executive Engineer (building) is Mark CS SCJ 434/18 PUNITA SINGH Vs. ALI AHMED AND ORS Page 5 of 8 P10(OSR). She was crossexamined by Ld Counsel for defendant no.1 & 3 and was discharged.
12. No other witness was examined, hence, PE was closed vide order dated 21.10.2021.
Defence Evidence
13. No evidence was led by any of the defendants despite opportunity. Hence, opportunities of defendants to lead evidence was closed vide order dated 04.01.2022.
Final Arguments
14. Final arguments advanced on behalf of parties. Heard. Record perused.
Findings
15. Issue no. 1 & 2 shall be taken up together.
(1) Whether the plaintiff is entitled to relief of permanent injunction as prayed for ? OPP (2) Whether the suit of plaintiff is liable to be dismissed having no cause of action ? OPD1
16. The onus to prove issue no.1 was upon plaintiff and that of issue no.2 was upon defendant no.1.
17. Plaintiff in order to shed the onus upon her shoulders relied upon the title document in her favour which is copy of registered sale deed Ex.P1. By relying upon the said document, she alleged that as per the said sale deed, she is entitled to use the terrace, as 'common terrace rights' were granted in her favour. The said sale deed is perused by the present court. The averment of plaintiff in respect to the said right in her favour is correct. The said CS SCJ 434/18 PUNITA SINGH Vs. ALI AHMED AND ORS Page 6 of 8 documents also therefore clarify that plaintiff is not having any exclusive terrace right but common terrace right to use the terrace in question.
18. It is matter of record as reported by SDMC that only two walls were existing when property was inspected, as reported in the status report dtd 27.02.2019. It is the admitted case of plaintiff that the said two walls were raised by defendant no.2 in the year 2015 as was stated by her in her crossexamination as PW1. She failed to remember the exact date or month when defendant no.2 had constructed the said walls. She stated that she had even lodged complaints against defendant no.2 when the said walls were raised. In this respect, she has relied upon copies of various complaints lodged before various authorities which are Ex.P4, Ex.P5, Ex.P6 and Mark P10. All the said complaints show that the grievance in respect to the terrace was alleged against defendant no.2. Not even a single complaint is filed to show that any unauthorized construction was raised by defendant no.1.
19. The grievance of plaintiff is that defendant no.1 had put a lock on the door on the said walls, however, as the said walls were demolished and no other construction apart from the two walls was found, therefore, it is clear and evident that no unauthorized construction was raised by defendant no.1.
20. In her plaint, plaintiff has alleged that she is under apprehension that defendant no.1 might raise unauthorized construction. No injunction order can be passed on the basis of merely whims and fancies of the plaintiff.
21. Plaintiff has failed to prove on the balance of probabilities that any unauthorized construction was raised by defendant no.1. Rather, on perusal of the plaint, it is clear and evident that her grievance is in respect to access to the terrace and to use the terrace as a common terrace. There is no prayer for CS SCJ 434/18 PUNITA SINGH Vs. ALI AHMED AND ORS Page 7 of 8 giving direction to defendant no.1 to allow plaintiff to have access to the terrace. There is also no prayer for restraining defendant no.1 to interfere in the use of plaintiff to the said terrace as common terrace.
22. In absence of the said prayers, merely on the basis of apprehension of plaintiff that defendant no.1 might raise any unauthorized construction, no order can be passed in her favour. Hence, it can be said that plaintiff has not been able to shed the onus upon her shoulders to prove issue no.3. Thus, the said issue is decided against the plaintiff and in favour of defendants.
23. As far as issue no.2 is concerned, though no evidence was lead by defendant no.1, however, on the basis of the above said facts that by crossexamining PW1, defendant no.1 has been able to prove on record that as no unauthorized construction was raised by the said defendant, therefore, there is no cause of action in favour of plaintiff against the said defendant. Hence, it can be said that defendant has been able to shed the onus upon his shoulders to prove issue no.2. Thus, the said issue is decided against the plaintiff and in favour of defendant no.1.
RELIEF
24. In view of the discussion in respect to issue no. 1 & 2, the suit filed by plaintiff is hereby dismissed.
25. Parties to bear their own cost. Decree sheet be prepared.
26. File be consigned to record room after due compliance.
Announced through ( NITI PHUTELA)
Video conference mode SCJ/RC Judge (South)
on this day of 20.01.2022 Saket Courts, Delhi.
CS SCJ 434/18 PUNITA SINGH Vs. ALI AHMED AND ORS Page 8 of 8