Delhi District Court
Whether The vs Manikrao & Anr." Air on 23 November, 2016
IN THE COURT OF SH. DEEPAK SHERAWAT, JSCC-CUM-
ASCJ-CUM-GUARDIAN JUDGE (WEST): DELHI
Suit No. 8191/16
Shri Ashok Kumar
S/o Late Shri Parmanand
R/o N-60, Kirti Nagar,
New Delhi. .....Plaintif
Versus
1. Shri Anil Kumar
S/o Shri Tikan Lal
R/o N-64/65, Kirti Nagar,
New Delhi.
2. Municipal Corporation of Delhi /N-DMC
(Service may be efected through
its Commissioner)
Town Hall, Chandni Chowk,
Delhi - 110006.
3. The Commissioner of Police
Police Head Quarters,
M. S. O. Building, I. P. Estate,
New Delhi.
4. Sh. Tikam Lal
(Since Deceased through legal representatives)
I. Mrs. Nirmal Mendiratta
W/o Sh. R. L. Mendiratta
R/o 783, Sector-43A,
Chandigarh
ii. Mrs. Raj Saluja
W/o Sh. Ved Saluja
R/o A-27, Rajouri Garden,
New Delhi.
Suit No. 8191/16 Page no.1/14
iii. Mrs. Savita Jhamb
W/o Sh. Vijay Jhamb
R/o A-3/67, Sector- 3,
Rohini, Delhi - 110085.
iv. Mrs. Anju Kalra
W/o Sh. Rajesh Kalra
R/o A-3/862, Palam Vihar,
Gurgaon.
v. Mrs. Kavita Ahuja
W/o Sh. Rajiv Ahuja
R/o D-342, Tagore Garden
New Delhi. ...... Defendants
Date of filing of the suit : 07.09.1998
Date of reserving judgment : 19.10.2016
Date of pronouncement : 23.11.2016
JUDGEMENT
1. By this judgment, I shall decide the present suit for permanent injunction and mandatory injunction filed by the plaintif.
2. The case of the plaintif is that the plaintif is residing on the first floor of property bearing no. N-60, Kirti Nagar, New Delhi, which was originally owned by Late Parmanand, father of the plaintif and after his death, the property devolved upon Smt. Ram Pyari Wd/o Late sh. Parmanand, mother of the plaintif and after her death, the plaintif along with his two brothers became the owner of the aforesaid property and out of which, one brother of the plaintif is residing on the ground floor of the above said property. Originally, the above said property was about 200 sq. yds., but during his life time, the father of the plaintif sold out 100 sq. Suit No. 8191/16 Page no.2/14 yds. of land to one Sh. Jogeshwar Raj Sachdev, who further sold the same to the defendant no. 4. After purchase of the said plot of 100 sq. yds., the defendant no. 4 along with his son, (who is the defendant no. 1 in the present suit), demolished the existing structure of the said plot of 100 sq. yds., i.e. No-60/A, Kirti Nagar, New Delhi (hereinafter referred to as the "suit property") and started raising unauthorized construction in the suit property and in the process caused damage to the property of the plaintif. Despite complaints made by the plaintif, no action has been taken by the MCD and therefore, the present suit has been brought by the plaintif.
3. The defendant no. 1 and 4 have filed their respective written statements wherein they have denied the averments made in the plaint and have stated that the present suit is bad for non-joinder of necessary parties and the plaintif has no cause of action. It is further stated that the defendant no. 1 is neither the owner of the suit property nor he has any right, title or interest in the suit property. They have denied to have raised any unauthorized construction. The defendant no. 4 has stated that he has merely carried out necessary repairs to make the suit property habitable.
4. In the written statement, the defendant no. 2/MCD has stated that the suit is barred by provisions of Section 477/478 of DMC Act and unauthorized construction in the property bearing no. N-60, Kirti Nagar, New Delhi and the same has been duly booked vide file no. B/UC/WZ/99/117 on 15.09.1999 and demolition order has also been passed on 01.10.1999. It is further stated that there is no property bearing no. 60A, Kirti Nagar, New Delhi.
Suit No. 8191/16 Page no.3/145. In the replication, the plaintif controvert-ed the contentions raised in the written statement and reaffirmed the averments made in the plaint.
6. On the pleadings of the parties, following issues were framed on 29.07.2004.
1. Whether the defendant no. 1 raised any unauthorized construction over the suit property which is liable to be demolished by the process of this Court? OPP
2. Whether the suit is bad for mis-joinder of necessary parties? OPD
3. Whether the plaintiff has not approached to this Court with clean hands? OPD
4. Whether the suit is barred u/s 477/478 of DMC Act? OPD
5. Whether the plaintiff has no cause of action against the defendant no. 1? OPD
6. Whether the plaintiff is entitled to any relief, if so, what relief? OPP
7. In order to prove his case, the plaintif has examined two witnesses. PW-1 Sh. Anil Kumar Rana is Section Officer and he has deposed about the electricity connection installed in the name of the defendant no. 4 at first floor portion of the suit property on 19.05.2000. PW-2 Sh. Shyam Nath is UDC, House Tax Department, West Zone, MCD and he has deposed about the construction in house no. 60, Kirit Nagar, New Delhi which was in existence in the year 1985. PW-2 has also deposed about the transfer of title in the said property.
Suit No. 8191/16 Page no.4/148. In order to prove his case, the defendant no. 1 has examined himself as DW1. He has not proved any document. However, in his cross-examination, photographs Ex. DW1/P1 to Ex. DW1/P27 have been put by the plaintif.
9. I have heard arguments and perused the record.
My issue wise findings are as under :
ISSUE NO. 1 and 6:
"Whether the defendant no. 1 raised any unauthorized construction over the suit property which is liable to be demolished by the process of this Court? OPP Whether the plaintiff is entitled to any relief, if so, what relief? OPP"
10. The issue no. 1 and 6 are being taken together as they are interconnected. The onus to prove this issue was on the plaintif. However, the plaintif has miserably failed to prove erection of any unauthorized construction in the suit property. In the first place, the facts averred in the plaint have not been proved because the plaintif has not taken the witness stand. The outcome is that the cause of action with regard to the suit also has not been proved. The main cause of action is the unauthorized construction which has not been proved due to the failure of the plaintif to depose before the Court.
11. In the case "Vidhyadhar vs Manikrao & Anr." AIR 1999 SC 1441, it was observed as under :
Suit No. 8191/16 Page no.5/14"17. Where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurbakhsh Singh v. Gurdial Singh and Anr. This was followed by the Lahore High Court in Kirpa Singh v. Ajaipal Singh and Ors. AIR (1930) Lahore 1 and the Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh AIR (1931) Bombay 97. The Madhya Pradesh High Court in Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat also followed the Privy Council decision in Sardar Gurbakhsh Singh's case (supra). The Allahabad High Court in Arjun Singh v. Virender Nath and Anr. held that if a party abstains from entering the witness box, it would give rise to an inference adverse against him. Similarly, a Division Bench of the Punjab & Haryana High Court in Bhagwan Dass v. Bhishan Chand and Ors., drew a presumption under Section 114 of the Evidence Act against a party who did not enter into the witness box.
12. In the present case, only two witnesses have been examined on behalf of the plaintif but neither of them has deposed regarding the facts alleged in the plaint. PW-1 has merely testified in respect of electricity connection installed in the suit property. PW-2, on the other hand, is the witness from the house tax department of MCD and he has stated about the Suit No. 8191/16 Page no.6/14 title and succession of property bearing no. N-60, Kirti Nagar, New Delhi, which the plaintif alleges to be his property. PW-2 has, however, stated that he is not aware of the position of the suit property because the record which he had brought along was pertaining to the entire property N-60, Kirti Nagar, New Delhi. Thus, it is clear that there is no evidence with regard to the fact that defendant no. 1 or defendant no. 4 raised any unauthorized construction in the suit property. The case set out by the plaintif was to be proved by him by appearing in the witness box and deposing about the case. The testimony of the plaintif was essential to prove his case. Neither the plaintif has deposed nor anyone on his behalf has been examined to prove the pleadings. Resultantly, the pleadings of the plaintif have not been proved and the allegations comprised therein stay as allegations and do not convert into evidence.
13. Secondly, the identity of the suit property has, itself, not been proved. As per the plaintif, the suit property is N- 60A, Kirti Nagar, New Delhi. However, the plaintif has not adduced any evidence to prove the address and identity of the said property. The defendant no. 2/MCD has specifically denied in its written statement that existence of any Municipal Number bearing no. N-60A, Kirti Nagar, New Delhi and as per the defendant no. 2/MCD, the property which has been booked for unauthorized construction is bearing no. N-60 and the entire property is constructed unauthorizedly. DW-1 in his cross- examination has also testified similarly by denying that the property purchased by his father bears No. 60-A. Therefore, it was for the plaintif to prove the exact identity of the property regarding which the demolition has been prayed for. However, as stated above, the plaintif himself has not appeared as a Suit No. 8191/16 Page no.7/14 witness to depose about the identity of the suit property and PW-1 and PW-2 in their testimonies have not established the same. The plaintif has, though, brought on record in the course of cross-examination of the DW-1, the Will dated 24.11.2009 executed by defendant no. 4 in favour of the defendant no. 1, but the said Will is regarding property no. I-16, Kirti Nagar, New Delhi and it has no bearing on the suit property.
14. So far as the evidence produced by the plaintif is concerned, the evidence do not prove any unauthorized construction in the suit property. The only documentry evidence produced by the plaintif is the photographs Ex. DW1/P1 to Ex. DW1/P27. However, the photographs have not been produced in the evidence led on behalf of the plaintif but the same have been marked during cross-examination of DW-1 thereby depriving the defendant to cross-examine the witness as to the accuracy of the photographs. It is always desirable to produce the photographs by examining the persons who took the photographs or by the party who is relying on the photographs or at whose instance the photographs were taken. The photographs produced during the cross-examination of the opposite party are admissible but the same cannot be marked during cross-examination of the opponent or his witness. The photographs are admissible only if the photograph has been properly verified on oath by a person able to speak to its accuracy. Photographs should not be admitted in evidence without examining the person who took the photographs and the negatives of the same being produced on record or at whose instance the photographs were taken. In the present case, the plaintif has not introduced Ex. DW1/P1 to Ex. DW1/P27 while leading his evidence and he rather chose to Suit No. 8191/16 Page no.8/14 produce them during the cross-examination of DW-1. Moreover, the photographer or the person who took these photographs has not been examined as a witness and the negatives of the said photographs have not been brought in evidence. Whether a photograph is a correct reproduction of the original, whether it correctly depicts the picture of the location depends on many factors viz., correctness of lens, state of weather and time taken, photographic skill adopted by the photographer, accuracy of the angle, availability of light and such other factors. The proof of identity of the site, location, objects and persons in the photograph could be admitted in evidence only by examining the photographer. In the present case, the plaintif has not even revealed as to who took the photographs Ex. DW1/P1 to Ex. DW1/P27, let alone examining the said person as a witness. There is no evidence as to when these photographs were taken. Therefore, these photographs cannot be relied upon as a credible evidence to prove unauthorized construction by the defendant no. 1 and 4.
15. PW-1 and PW-2 have not proved any document and their testimonies do not, by any means, prove any unauthorized construction in the suit property. PW-1 has said nothing about any construction in the suit property and he has merely deposed about installation of electricity connection in the said property. PW-2 has testified about the structure of entire property bearing no. N-60, Kirti Nagar, New Delhi as existing in the year 1985. He has also deposed about the mutation of the said property to diferent persons in diferent years but he has clearly stated that he cannot say anything about the position of the said property.
Suit No. 8191/16 Page no.9/1416. DW-1 in his cross-examination has admitted that in the year 1998, the work was done as shown in photographs Ex. DW1/P1 to Ex. DW1/P27 and he has also admitted that certain portion of the property was demolished by the MCD sometimes in the year 2007-08. However, these stray admissions on the part of the defendant no. 1 are not sufficient to help the case of the plaintif so as to prove any unauthorized construction in the suit property. The burden to prove his case was all along upon the plaintif and he cannot take advantage of the aforementioned testimony of the DW-1. It is to be noted that the plaintif has not examined any witness from the MCD to prove any unauthorized construction in the suit property. There is no evidence of any complaint having ever been lodged by the plaintif with the MCD.
17. Besides, in order to seek injunction, the plaintif was also required to prove that the acts of the defendants have violated certain personal right of the plaintif. In the present case, it is the plea of the plaintif that the unauthorized construction carried out by the defendant no. 1 and 4 has caused damage to the property of the plaintif. However, the plaintif has not brought on record any evidence to prove any kind of damage resulting to his property by reason of the said unauthorized construction. The plaintif has not stepped into the witness box to prove any such damage. Nor has he examined any other witness in this respect. In fact the plaintif has not even the description of damage in the plaint. The grievance of the plaintif is that due to the construction the flow of light and air through the window of the property of the plaintif has been obstructed. First of, the plaintif has not proved any site plan of his property and the suit property to Suit No. 8191/16 Page no.10/14 show whether the construction and the window of the plaintif are juxtapositioned so that the construction may block the flow of air or light to the house of the plaintif. In other words, the plaintif is claiming right of easement over the suit property.
18. The word Easement stands for the right to use another's property. It is a right, which the owner of a particular land enjoys over an adjacent property, which he does not possess. It is the right over a property belonging to someone else and not to the person claiming easement. The definition of diferent easements, the manner of imposition and acquisition of easementary rights, the incidents of easements and the remedies in case of interference or disturbance with easements are governed by the provisions of the Indian Easements Act, 1882. Easement Act refers to the diferent methods by which easements are acquired or imposed, that is, namely easements by grant, easements of necessity, easements by prescription and customary easements. Acquisition of an easementary right, by any of the aforesaid methods, requires fulfillment of the conditions prescribed under the Easements Act. A private easement, including a right of way to a person's land or right to take water from a source to his land, cannot be acquired in a manner not contemplated or prescribed by the Easement Act. Easements by grant require a grant by the owner of the servient heritage. Easements of necessity are based on implied grants or reservations made by the owner of a servient heritage, at the time of disposition such as transfers and partitions. Easements by prescription can be acquired only by peaceable and open enjoyment, without interruption for twenty years. Customary easement can be are acquired by virtue of a local custom. In the present case, there is no pleading or Suit No. 8191/16 Page no.11/14 evidence on behalf of the plaintif to establish as to how the plaintif acquired the right of easement over the suit property so as to injuct the defendant no. 1 to 4 from obstructing the flow of air or light to the property of the plaintif.
19. Thus, the plaintif has not proved the identity of the suit property. Nor has he proved that the suit property as alleged by the plaintif belongs to defendant no. 1 or defendant no. 4. He has also not proved the fact of unauthorized construction and consequently, he is not entitled to any relief.
20. Accordingly, the issue no. 1 and 6 are decided in favour of the defendants and against the plaintif.
ISSUE NO. 2 :-
"Whether the suit is bad for mis-joinder of necessary parties? OPD
21. The onus to prove this issue was on the defendant. However, there is nothing in the evidence produced on behalf of the defendant no. 1 and 4 to show as to who were the other parties which were required to be impleaded by the plaintif being necessary for the decision of the case.
22. Accordingly, this issue is decided in favour of the plaintif and against the defendants.
ISSUE NO. 3 :-
"Whether the plaintiff has not approached to this Court with clean hands? OPD"
Suit No. 8191/16 Page no.12/14
23. The onus to prove this issue was on the defendant. However, no evidence has been produced on behalf of the defendants to prove that the plaintif has not approached to this Court with clean hands.
24. Accordingly, this issue is decided in favour of the plaintif and against the defendants.
ISSUE NO. 4 :-
"Whether the suit is barred u/s 477/478 of DMC Act? OPD"
25. The onus of the said issue was upon the defendant. The defendants have not produced any evidence nor any argument has been advanced in this respect. As per Section 478 (3) of DMC Act, no notice is required with regard to urgent relief of injunction if the object of the same would be defeated by the giving of notice.
26. Accordingly, the issue is decided against the defendants and in favour of the plaintif.
ISSUE NO. 5 :-
"Whether the plaintiff has no cause of action against the defendant no. 1? OPD"
27. The onus to prove this issue was on the defendant. However, no evidence has been produced on behalf of the defendants to prove that the plaintif has no cause of action against the defendant no. 1.
Suit No. 8191/16 Page no.13/14
28. Accordingly, this issue is decided in favour of the plaintif and against the defendants.
RELIEF :
29. In view of my findings on the issues and aforesaid discussion, the suit of the plaintif is dismissed.
30. Decree sheet be prepared accordingly.
31. File be consigned to Record Room.
Announced in the open Court today the 23rd November 2016 (DEEPAK SHERAWAT) JSCC-cum-ASCJ-cum Guardian Judge (West), Delhi 23.11.2016 Suit No. 8191/16 Page no.14/14