Delhi District Court
Suit No. 58892/18 vs (1) Sh. Swaroop Singh on 4 April, 2019
IN THE COURT OF SH. VIPIN KHARB, ADDITIONAL SENIOR CIVIL
JUDGECUMJUDGE, SMALL CAUSES COURTCUMGUARDIAN
JUDGE, NORTH WEST DISTRICT, ROHINI COURTS, DELHI.
Suit No. 58892/18
Smt. Savitri Devi,
W/o Late Sh. Ram Chandra,
R/o O230, Near Prajapati Chaupal,
Holambi Kalan, Narela, Delhi. ......Plaintiff
Versus
(1) Sh. Swaroop Singh,
S/o Late Sh. Harphool Singh,
R/o 231, Near Prajapati Chaupal,
Holambi Kalan, Narela,
Delhi.
(2) Municipal Corporation,
Narela Zone, New Delhi. ......Defendants
Date of Institution: 03.03.2012
Date on which judgment was reserved: 12.03.2019
Date of pronouncing judgment: 04.04.2019
SUIT FOR MANDATORY INJUCTION
JUDGMENT:
1. The brief facts of the plaint are that the defendant no. 1 is the neighbor of the plaintiff and have been illegally and without permission constructing his house by encroaching upon the common entrance/gali/ rasta/ street and have also obstructed ingress and egress to the house of plaintiff by constructing four to five stairs in the gali. The house of the plaintiff is situated at the end of the street and is having a gate of 5 feet width which opens in the street. The defendant have now encroached upon the remaining 3 feets of the street which was lying on the right side corner of the property of the plaintiff.
Suit No. 58892/16 Savitri Devi Vs. Swaroop Singh & Ors. 1/9
2. The defendant has also blocked the window of the plaintiff which opens towards the street. The plaintiff approached the defendant and requested him to stop the illegal construction but the defendant no. 1 refused to stop the illegal construction and started beating the plaintiff. The son of plaintiff rescued the plaintiff and made a call to the police. The plaintiff also approached the defendant no. 2/MCD and made a complaint regarding the illegal construction but the defendant no. 2 failed to take any action. The defendant no. 1 has been carrying out the construction day and night at war footing and by doing unauthorized construction has been blocking the sun light and air flow to the plaintiff's property. Therefore, present suit was filed.
3. In the written statement, defendant no. 1 stated that the defendant no. 1 had not done any encroachment in the common gali / rasta rather it was the plaintiff, who had herself done the encroachment and had constructed the stairs in the gali and was illegally occupying the common gali. The defendant was doing some necessary repairs in his house but the plaintiff objected to the same. The defendant has been using his house in the same condition since it was constructed. It was the plaintiff who had raised an illegal construction without the permission of the concerned authority. The suit of the plaintiff is liable to be dismissed with exemplary cost.
4. In the written statement, defendant no. 2 has stated that the suit property is situated in Village Abadi within Laldora of Village Holambi Kalan and the owner has constructed a residential building consisting of Ground Floor and First Floor with projection at roof level. There is no layout of the village Suit No. 58892/16 Savitri Devi Vs. Swaroop Singh & Ors. 2/9 Abadi, hence, encroachment cannot be ascertained, however, the owner has constructed three steps in the gali which are liable to be demolished without giving any notice being an encroachment. The entire unauthorized construction of three rooms, stairs at Ground Floor and three rooms, kitchen, bath with staircase at first floor with projections at roof level carried out by the owner has been booked vide filed No. 96/UC/B/N/2012 dt. 14.08.2012 u/s 343 & 344(1) of the DMC Act. The said unauthorized construction is liable to be demolished after following due process of law.
5. In the replication to the written statement of the defendant no. 1, plaintiff denied that she is at fault and have encroached the gali for her own use. The construction of the house of the plaintiff is very old raised by her late husband and the same is not liable to be demolished. However, the defendant has raised fresh construction without following the bylaws of MCD and the same is liable to be demolished.
In replication to the written statement of the defendant no. 2, plaintiff has denied all the averments and suggestion made in the written statement.
6. After completion of pleadings, issues framed by order dated 20.05.2014 are as follows:
1. Whether the plaintiff is entitled for decree of mandatory injunction, as prayed in Paraa of prayer clause? (OPP)
2. Whether the plaintiff is entitled to decree of mandatory injunction, as prayed in Parab of prayer clause?(OPP)
3. Relief?
7. Thereafter, matter was listed for Plaintiff evidence. Plaintiff only examined Suit No. 58892/16 Savitri Devi Vs. Swaroop Singh & Ors. 3/9 herself as PW1 and filed her affidavit in evidence as Ex. PW1/A and relied and exhibited the following documents:
1. Site plan as Ex. PW1/1;
2. Photographs of property as Ex. PW1/2;
3. Photographs of the plaintiff/injured as Ex. PW1/3;
4. MLC of injured /plaintiff as Ex. PW1/4;
5. Letter to DC as Ex. PW1/5.
In his crossexamination, she stated that Prajapat Choupal, Holambi Kalan falls under Laldora. She admitted that during the proceedings, MCD had partly demolished the property of defendant no. 1. She also admitted that the encroachment made in the street was removed by MCD and volunteered that it was again reconstructed by defendant no. 1. She admitted that projections made by defendant no. 1 has been demolished by MCD. She denied that she is deposing falsely.
Thereafter, Plaintiff evidence was closed.
8. Thereafter, matter was listed for Defendant evidence and defendant no. 1 examined 2 witnesses i.e. himself as DW1 and his son as DW3. Defendant no. 1 filed his affidavit in evidence as Ex. DW1/A. In his cross examination, he stated that he already given a complaint regarding the illegal construction done by the plaintiff. The complaint to MCD Narela dt. 09.09.2011 and application to Executive Engineer, North Delhi, MCD and the application to LG House are Mark A. He denied that the after demolition done by the MCD, he had again constructed the same. He denied that he is deposing falsely.
9. DW3 is Sh. Ashwani Kumar, filed his affidavit in evidence as Ex. DW Suit No. 58892/16 Savitri Devi Vs. Swaroop Singh & Ors. 4/9 3/A. He proved his ID proof as Ex. DW3/1.
In his crossexamination, he deposed that the street existing between his house and the house of the plaintiff is about 8 feet. The street is common for both the defendant and plaintiff. He denied that he is deposing falsely.
10.Defendant no. 2 examined Sh. Manoj Kumar, AE, Building Narela Zone, NDMC and he filed his affidavit in evidence as Ex. DW2/1A in which he deposed that the owner has constructed a residential building consisting of ground floor and first floor with projections at roof level. The said property falls in the village abadi/Laldora. The owner had constructed three steps in the gali. The demolition action was taken on 22.10.2012 on projections in shape of Chhajja at ground and first floor and steps at ground floor and the status report of the same was duly filed.
11. In his crossexamination, he deposed that the photographs of the property are already on record which are Ex. DW2/1B (colly) which shows the demolition of the suit property. After the demolition, the officials of MCD used to visit the suit property. The suit property is same after the demolition done by the MCD. He denied that after the demolition, the defendant reconstructed the demolished portion. He denied that he is deposing falsely.
Thereafter, Defendant Evidence was closed.
12. Final arguments heard on behalf of both the parties.
13. Court have heard counsel for the parties and perused the material on record Suit No. 58892/16 Savitri Devi Vs. Swaroop Singh & Ors. 5/9 carefully and issues wise findings are as under: ISSUES NO. 1.
14.Whether the plaintiff is entitled for decree of mandatory injunction, as prayed in Paraa of prayer clause? (OPP)
15.The onus to prove this issue was on the plaintiff. It is the case of the plaintiff that defendant no. 1 was doing construction in his house without having any sanctioned plan or permission from the defendant no. 2/MCD, so it was unauthorized. To discharge his onus, plaintiff have brought several documents on record.
16.Ex. PW1/1, Ex. PW1/3 and Ex. PW1/4 are the site plan of plaintiff's house, photographs of plaintiff and MLC of plaintiff respectively, which do not throw any light regarding unauthorized construction done by the defendant in his house. Ex. PW1/5 is the copy of complaint made by plaintiff to the Deputy Commissioner of MCD regarding unauthorized construction being done by defendant in his house. Ex. PW1/5 do not prove that any unauthorized construction was going on at the suit property, it only proves that complaint was made by plaintiff to the Deputy Commissioner, MCD. Only by filing of complaints, it cannot be said that its contents are also correct, contents are required to be proved.
17. Plaintiff also only brought on record photographs Ex. PW1/2 (colly) which only shows that construction was going on but they did not prove that construction was unauthorized construction. These photographs also shows Suit No. 58892/16 Savitri Devi Vs. Swaroop Singh & Ors. 6/9 that not only defendant has constructed stairs cases in the common gali but plaintiff has also done the same. If defendant is doing encroachment by constructing stairs cases in the common gali then plaintiff has also done the encroachment. The relief of injunction is a equitable relief and it can only be granted to the person who has come to the court with the clean hands. So, if court goes by the averments of the plaintiff then plaintiff has also done the encroachment and therefore, plaintiff is not entitled to equitable relief of injunction and only on this basis the suit of plaintiff to liable to be rejected.
18. Further, plaintiff failed to prove on record the file No. 96/UC/B/N/2012 dt.
14.08.2012 u/s 343 & 344(1) of the DMC Act issued to the defendant no. 1 by the defendant no. 2. Plaintiff has miserably failed to bring on record any document or any evidence to show that defendant no. 1 was doing any unauthorized construction in his plot.
19.For argument sake, even if, plaintiff was successful in showing that defendant no. 1 was doing unauthorized construction, even then, no relief could have been granted to him as plaintiff have not led any evidence to show that any of his easementary rights has been infringed as in judgment titled as "Rajendra Motwani & Anr. Vs. MCD & Ors." RSA No. 243/2017, Hon'ble High Court of Delhi has held at : "Para 8 The second reason for rejecting the arguments urged on behalf of the appellants/ plaintiffs is that an illegal construction in itself does not give any legal right to a neighbor. An illegal always no doubt gives locus standi to the local municipal authorities to seek removal of the illegal construction, but, a right of a neighbors only arises if the legal rights of light and air or any other legal right is affected by virtue of the illegal construction of the neighbor. Legal right to right an air is only in terms of Section Suit No. 58892/16 Savitri Devi Vs. Swaroop Singh & Ors. 7/9 15 of the Easements Act, 1882 which requires a cause of action to be laid out and proved that right to light and air has been enjoyed for 20 years and only on completion of 20 years there is a right to acquisition by prescription in the easementary rights. It is relevant to note that even after acquisition of easementary rights of prescription, yet, right to injunction for a neighbor is not absolute and is covered by Section 33 of the Easements Act which requires that disturbance to the easementary rights must actually cause substantial damage to a neighbor and the infraction materially diminishes the value of the dominant heritage with the fact that there is material interference in the physical comfort of the neighbor of living in his own house or prevents the neighbor from carrying on his accustomed business in the dominant heritage/ his own house. All these are factual aspects and admittedly there is no cause of action which is laid out in the plaint in terms of Section 15 and 33 of the Easements Act that right to easement of the appellants/plaintiff has become absolute as it has been enjoyed for 20 years and that in fact after rights to easement are acquired by prescription there is also a substantial damage to the appellants/ plaintiffs or there is material interference in the physical comfort of the appellant/ plaintiffs or the appellants/ plaintiffs being prevented from carrying on his accustomed business in their own dominant heritage / own property."
20.Therefore, in view of the mandate of the abovesaid judgment, the plaintiff has no cause of action to file the present suit regarding the alleged unauthorized construction done by the defendant no. 1. Further, as discussed above plaintiff is not entitled to equitable relief of injunction as she has not come to the court with the clean hands. Issue no. 1 is decided accordingly.
ISSUE No. 2.
Whether the plaintiff is entitled to decree of mandatory injunction, as prayed in Parab of prayer clause?(OPP)
21. The onus to prove this issue was on the plaintiff. DW2, who deposed on behalf of defendant no. 2 /MCD has specifically deposed that MCD has already demolished the stair cases and projections at roof level constructed by defendant no. 1 and after that defendant no. 1 has not reconstructed the Suit No. 58892/16 Savitri Devi Vs. Swaroop Singh & Ors. 8/9 demolished portion. Same was also admitted by defendant no. 1 that he has not reconstructed the demolished portion. Plaintiff has not brought anything on record to show that defendant no. 1 has reconstructed the demolished portion.
MCD/defendant no. 2 which is a statutory body has specifically deposed that the officials of MCD inspected the suit property and found that defendant no. 1 has not reconstructed the demolished portion. Unauthorized portion of the house of defendant no. 1 was already demolished by the MCD/ defendant no. 2 during the trial of the case. As demolition action has already been taken by defendant no. 2, therefore, issue no. 2 has become infructuous.
RELIEF The suit of plaintiff is dismissed.
No order as to costs. Decree sheet be prepared accordingly. File be consigned to record room.
Digitally signed by VIPIN VIPIN KHARB
KHARB Date:
2019.04.04
17:01:19 +0530
Announced in the open Court (Vipin Kharb)
th
on day of 04 April, 2019 Additional Senior Civil Judge cum Judge,
Small Causes Court cum Guardian Judge,
NorthWest District, Rohini, Delhi.
Suit No. 58892/16 Savitri Devi Vs. Swaroop Singh & Ors. 9/9