Delhi District Court
Smt. Jasbir Kaur vs Smt. Rakesh Rani on 1 July, 2013
IN THE COURT OF SH. SAMEER BAJPAI, JSCCCUMASCJCUM
GUARDIAN JUDGE (WEST): DELHI
MCA No. 6/12
Unique Case I.D. No. 02401C0487332012
Smt. Jasbir Kaur
W/o Sh. Mastan Singh
R/o 75A, Navyug Block,
Vishnu Garden,
New Delhi110018. ...........Appellant
Versus
Smt. Rakesh Rani
D/o Sh. Lal Chand
R/o WZ76/1, Navyug Block,
Tilak Nagar, New Delhi 110018. ........ Respondent
Date of filing of the appeal : 16.10.2012
Date of reserving order : 17.05.2013
Date of pronouncement of order : 01.07.2013
O R D E R
1. This appeal has been preferred by the appellant, who was the plaintiff in the suit before the Ld. Trial Court, against the impugned order dated 07.09.2012, by which Ld. Trial Court has partly disallowed the application under Order 39 Rule 1 & 2 CPC of the appellant.
2. The facts in brief before the Ld. Trial Court were that the appellant had purchased the suit property measuring 125 sq. yds. from one Sh. Kanhiya Lal on execution of a registered GPA. Subsequently, MCA No. 6/12 Page No. 1/12 the appellant had sold a portion of the said plot of land admeasuring 56 sq. yds. i.e. 46'x11' to Smt. Kiran Aggarwal through registered General Power of Attorney dated 02.02.2006. After having been sold the above portion of the plot to said Smt. Kiran Aggarwal, the area of plot of the appellant reduced to 68.78 sq. yds., and immediately thereafter, the appellant raised construction on her said plot upto first floor on an area of plot measuring about 51.89 sq. yds. leaving an open area of land about 152 sq. feet i.e. 8' wide and 19' long towards SouthEast direction. As per appellant, the respondent is claiming herself to be the owner of a plot bearing no. WZ76/1, Navyug Block, Tilak Nagar, New Delhi, which is adjacent to the aforementioned property of the appellant. As per appellant, Sh. Ravi, who is defendant no.2 claimed himself to be a builder, in collaboration with the respondent had started raising absolutely illegal and unauthorized construction in an arbitrary manner and that too without getting the plan of the building sanctioned from MCD in the month of October, 2010, on the said adjacent plot bearing no. WZ76/1. As per appellant, her husband had made complaint to the police but police in connivance with the respondent instead of taking any action has started threatening and harassing her. As per appellant, the respondent had also encroached unauthorizedly and illegally upon a portion of land of the appellant admeasuring about 8' wide facing towards southeast direction and they illegally installed a window frame as well as a chokhat of a door and such opening of the said window and door was apprehended on the said 8' wide portion of the land which is part and parcel of the open area measuring 152 sq. feet of the plot of the appellant. Along with the MCA No. 6/12 Page No. 2/12 suit the appellant had also filed an application under Order 39 Rule 1 and 2 CPC with the prayer to pass an exparte adinterim injunction in favour of the appellant and against the respondent/defendants restraining them from raising any further illegal and unauthorized construction and installation of windows and doors at any of the proposed floors etc. at plot no. WZ76/1, Navyug Block, Tilak Nagar, New Delhi in any manner i.e. facing SouthEast direction and further from having the opening of the same at the open area measuring 8'x19' part and parcel of property bearing no. 76/1, Navyug Block, Tilak Nagar, New Delhi till the final disposal of the suit.
3. The respondent has filed reply to the appeal, in which, it is submitted that the appellant has not approached the Court with clean hands and knowingly and intentionally suppressed the material facts. It is further submitted that the suit property i.e. 76/1, Navyug Block, Vishnu Garden, New Delhi110018 was purchased by Sh. Lal Chand (now deceased), father of the respondent Smt. Rakesh Rani in May, 1989, which was a built up property and the window/door were already installed in the wall which was renovated and reconstructed and no changes were made therein and the present appeal filed by the appellant is a fictitious one based on false, baseless and frivolous averments and is a severe attempt to encroach the street in the garb of the present appeal. The rest of the averments as well as grounds of appeal were denied by the respondent.
MCA No. 6/12 Page No. 3/12
4. The Ld. Trial Court vide impugned order has partly allowed the application under Order 39 Rule 1 and 2 CPC filed by the appellant.
5. Aggrieved by the impugned order, the appellant has filed the present appeal mainly on the following grounds:
(a). That the impugned order has been passed by the Ld. Trial Court absolutely on conjectures and surmises without due application of its mind.
(b). That the Ld. Trial Court has not at all gone through the pleadings of the parties, documentary evidence placed on record as well as the report of the Local Commissioner, rather passed the impugned order in haste.
(c). That the impugned order is self contradictory and despite of the fact that the respondent was being on wrong track, the Ld. Trial Court even then has given the uncalled for relief of interim injunction to the respondent and against the appellant herein.
(d). That the impugned order is absolutely arbitrary and smacks of bias approach of the Ld. Trial Court by which undue favour has been given to the respondent.
(e). That the Ld. Trial Court has committed gross error of law by holding that the wooden door with window installed in the wall of the defendants is not causing any obstruction to the enjoyment of appellant/plaintiff's property and by further disallowing the stay application of the appellant herein to that effect. MCA No. 6/12 Page No. 4/12
(f). That the Ld. Trial Court should not have allowed to the respondent, the opening of window and door on the said open area of land until and unless the primafacie opinion is arrived at by the Ld. Trial Court that the said open area of land does not belong to the appellant herein and that the same belongs to the respondent.
(g). That the Ld. Trial Court has given blanket and indefinite relief to the respondent by permitting her to have opening of her windows and doors lying installed in the wall which is at the disputed portion as in the impugned order, it has absolutely not at all specified regarding duration of the said relief, which amounts to arriving at final opinion and that too when the suit under appeal has to go through mill of trial.
(h). That the Ld. Trial Court further has erroneously restrained the appellant herein from raising construction in her own property and further from installing any window and door opening which would be towards the open area, which open area is the exclusive property of the appellant herein and neither of the respondent nor MCD.
(i). That the Ld. Trial Court has not examined the substantial title transferred documents of the appellant evidencing the fact that the said open area is part of the appellant's property and none else except the appellant have any right, title or interest over the same.
(j). That the Ld. Trial Court has committed gross error of law by arbitrarily observing the report of the Local Commissioner as MCA No. 6/12 Page No. 5/12 against the appellant on the premise that the Local Commissioner has observed that the said wooden door with window installed in the wall of the defendant marked red is not causing any obstruction to the enjoyment of the property of the appellant and which is clear from the photographs. The report of the Local Commissioner has to be considered as a whole and not in isolation as the same very report says that the property of the respondent is a newly constructed three storey building as shown in photographs.
(k). That the Ld. Trial Court has further lost its sight to a very vital aspect of the matter that the report of the Local Commissioner has not become conclusive as the objection filed against the said report on behalf of the appellant are yet to be disposed off.
(l). That the Ld. Trial Court has further committed gross error of law thereby restraining the appellant itself from raising any construction despite of the fact neither any counter claim has been setup along with the written statement nor any interim relief whatsoever of any kind has been sought on behalf of the respondent.
(m). That the Ld. Trial Court has committed gross error of law by arbitrarily and illegally arriving at the findings that the said disputed windows and doors in the wall of the defendant are already lying installed, therefore, the respondent cannot be restrained from having the opening of the same in future. MCA No. 6/12 Page No. 6/12
6. I have heard Ld. Counsel for the parties and perused the material on record including the Trial Court Record.
7. The appellant has raised several objections but all of them are not important to be discussed.
8. Objections 1 to 4 are not important to be discussed separately.
9. In objection (e), the appellant submits that on one hand the court has observed that the controversy regarding the ownership of the open land in front of the house of the respondent cannot be decided without receiving evidence and the same is subject to trial whereas on the other hand, the Ld. Trial Court in the impugned order has given a very vast relief to the respondent no. 1 by permitting her to open the windows and doors, which are lying installed in the wall of the disputed portion. The appellant raises further objection in objection no. (f) that the Ld. Trial Court should not have allowed the respondent no. 1 to open the window and door in the said open land until and unless it does not reach to the conclusion that the same belongs to the respondent no. 1. Further, even if this submission of the respondent no. 1 is admitted that the open land belongs to MCD, even then, the respondent no. 1 has no right to open the windows on that land. I am not satisfied with these objections of the appellant. The appellant was suppose to show primafacie that the open land belonged to her but before the Ld. Trial Court she failed to show the same. Had the appellant/plaintiff primafacie shown that the open land, where the alleged windows of the defendant no.1's house were opened, belonged to her, the court MCA No. 6/12 Page No. 7/12 would not have given any relief to the respondent no. 1 but only because the plaintiff failed to discharge her duty to show prima facie that open land belonged to her, the Court gave the relief to the respondent no. 1 and not to her. Even if the submission of the respondent no. 1, that the open land belongs to MCD and not to the appellant is admitted, it is for the MCD to see that the respondent no. 1 is not permitted to open windows on the land. It is important that the Ld. Trial Court has given the relief to the respondent no. 1 only till the pendency of the trial and the same is temporary.
10.In objection (g), the appellant/plaintiff raises objection that the impugned order by which the relief has been granted to the respondent no. 1 has no specific period and the same amounts to final rejection of the part of the relief of the appellant and also amounts to expression of forming final opinion on the merits of the case. To my mind, Ld. Trial Court has given interim relief to the respondent no. 1 only till the pendency of the trial which is very clear on perusing the order itself and any period can certainly not be specified by the Court.
11.In objection (h), the appellant avers that Ld. Trial Court erroneously restrained the appellant from raising construction in her own property and further from installing any window and door towards the open area which is the exclusive property of the appellant. This objection of the appellant is also not justified when the order clearly shows that the Court found the disputed open land to be controversial and did not find right of any of the parties over the same and for that reason only, the Ld. Trial Court MCA No. 6/12 Page No. 8/12 restrained both the parties from raising any construction or opening any window or door towards it.
12.In objection (i), the appellant avers that the Ld. Trial Court did not examine the substantial title documents of the appellant which show that the said open area is part of the appellant's property. The appellant in her plaint said that she purchased the property measuring 125 sq. yds., out of which she sold 56 sq. yds. and the remaining property now measures 68.78 sq. yds. Subsequently, she raised construction on an area measuring 51.89 sq. yds. and the remaining area measuring 8' x 19' was left, which is the open area in dispute as shown in the site plan. It cannot be ruled out that this open area measuring 8' x 19' belongs to the appellant but presently the same is an open land. The appellant must prove that this open land belongs to her. Had there been any site plan attached with the title documents, there would not have been any problem but as there is no specific site plan with the title documents to show the open area to be the part of the plaintiff's property, the plaintiff has to prove this fact. Further the GPA executed in favour of the plaintiff show that her 125 Sq. Yards plot was bounded as follows :
West : Others plot
South : Road 15 feet
North : Others plot
East : Gali 12 feet
MCA No. 6/12 Page No. 9/12
13.It is seen that the GPA does not show clear boundaries. In south only a 15 feet road is shown, whereas, the plot of the defendant is also situated there, covering more than half of the southeren boundary. Further, in the GPA the road in the south direction has been shown to be 15 feet wide, whereas the plaintiff, in her site plan has not given any measurement to the road. If the road as shown in the south direction, adjoining the open area of 8 feet x 19 feet is in fact 15 feet wide, then only the claim of the plaintiff may find some weightage. But the site plan of the plaintiff itself makes it apparent that the road is not 15 feet wide. The open area has been shown by the plaintiff as 8 feet wide, whereas the width of the road is apparently just less than 8 feet, what to say about 15 feet. Further, if width of the road as seen in the site plan is added to the width of the open space, the total width must come around 15 feet, which is the same as shown by the plaintiff in GPA in her favour. At this stage, it can be clearly seen that the open space as claimed by the plaintiff does not belong to her and in fact is a part of the 15 feet road as shown in south direction in the GPA of the plaintiff herself.
14.In objection (j), the appellant avers that the Ld. Trial Court has committed gross error by arbitrarily observing the report of Ld. Local Commissioner against the appellant. Ld. Local Commissioner was supposed to examine whether the construction of the window as alleged by the plaintiff was causing obstruction to the enjoyment of the property of the plaintiff. Ld. Local Commissioner reported that there was no obstruction to the plaintiff from the alleged window as put by the respondent no. 1. I have also gone through MCA No. 6/12 Page No. 10/12 the report of the Local Commissioner. Ld. Trial Court has given correct observation after considering the report of the Local Commissioner. The report as well as photographs therein clearly show that there is no obstruction to the appellant from the windows of the respondent no. 1's property.
15.In objection (k), the appellant says that the report of the Ld. Local Commissioner was not conclusive as objection against the same had been filed by the appellant but still the Ld. Trial Court disposed of the injunction application. To my mind, Ld. Trial Court could consider the report of the Ld. Local Commissioner for the purpose of disposing of the injunction application.
16.In objection (l), the appellant avers that the Ld. Trial Court has committed gross error of law thereby restraining the appellant herself from raising any construction despite the fact that there was neither any counter claim nor any such prayer was made in the written statement. To my mind when the Court considered the open land as a disputed land, it was justified to restrain the appellant also to open windows, doors etc. on the same or to raise any unauthorized construction.
17.To my mind, there is no infirmity in the impugned order and the same is absolutely correct and in accordance with law. Hence, as there is no irregularity, infirmity or illegality in the impugned order, the appeal is dismissed.
MCA No. 6/12 Page No. 11/12
18.No order as to costs.
19.TCR be sent back along with a copy of this order.
20.Appeal file be consigned to Record Room.
Announced in the open Court today the 1st July, 2013.
(SAMEER BAJPAI) JSCCCumASCJCum GUARDIAN JUDGE (West) 01.07.2013 MCA No. 6/12 Page No. 12/12