Delhi District Court
(3) Sh. Sarthak Bhatia vs (1) Smt. Kamal Chawla on 31 March, 2022
IN THE COURT OF SENIOR CIVIL JUDGE-CUM-RENT
CONTROLLER, SOUTH-EAST DISTRICT,
SAKET COURTS, NEW DELHI
Presided By : Ms. Manisha Khurana Kakkar, DJS
Civil Suit No: 50646/16
(1) SMT. RAVI BALA BHATIA
W/O LATE SH. RAMESH BHATIA
(2) SH. SARANSH BHATIA
(3) SH. SARTHAK BHATIA
BOTH SONS OF LATE SH. RAMESH BHATIA
ALL RESIDENTS OF-b-151, JANGPURA-B,
NEW DELHI-110014.
... Plaintiffs
VERSUS
(1) SMT. KAMAL CHAWLA
W/O SH. TILAK RAJ CHAWLA
(THROUGH LEGAL HEIRS)
(a) SH. AMULYA CHAWLA
S/O SH. TILAK RAJ CHAWLA
(b) SH. ATUL CHAWLA
S/O SH. TILAK RAJ CHAWLA
(c) SMT. POONAM SABARWAL
D/O SH. TILAK RAJ CHAWLA
Q/O SH. LALIT SABARWAL
ALL R/O- B-152, JANGPURA-B, NEW DELHI-14.
(2) SH. TILAK RAJ CHAWLA
R/O B-152, JANGPURA-B, NEW DELHI-14.
(3) SH. ANIL KUMAR
S/O SH. KRISHNA LAL CHAWLA (K.L. CHAWLA)
R/O B-154, SECOND FLOOR, JANGPURA-B,
NEW DELHI-110014.
CS NO. 50646/16 RAVI BALA BHATIA & ORS. VS. AMULYA CHAWLA (LRS OF KAMAL CHAWLA) & ANR. Page 1 of 27
(4) MS. MADHU CHAWLA
D/O SH. KRISHNA LAL CHAWLA (K.L. CHAWLA)
R/O B-154, JANGPURA-B, NEW DELHI-110014.
(5) SOUTH DELHI MUNICIPAL CORPORATION
THROUGH ITS COMMISSIONER
CIVIC CENTER
JAWAHAR LAL NEHRU MARG
NEW DELHI. ...Defendants
SUIT FOR DECLARATION, PERMANENT AND MANDATORY
INJUNCTION.
DATE OF INSTITUTION : 07.04.2014
DATE OF CONCLUSION OF ARGUMENTS : 28.03.2022
DATE OF DECISION : 31.03.2022
JUDGMENT
Plaintiff's case:
1. The case of the plaintiffs as discernible from the amended plaint of this suit is that plaintiffs are resident of H.No.B-151, Jangpura-B, New Delhi-110014, which was purchased by the husband of plaintiff no.1 namely Sh. Ramesh Bhatia (also father of plaintiff no.2 & 3) from one Sh. Ashok Kumar through GPA and Will etc., on 26.08.1994. It is further stated that plaintiffs, being the legal heirs of Late Sh.Ramesh Bhatia, are the lawful occupants of the said house no. B-151. It is further stated that the colony of Jangpura, New Delhi was developed by Delhi Development Authority in or around 1960's as a double storied complex of ten houses in a block with gali on both sides. As per the plaintiffs, house at first floor, which is above the house of plaintiffs, bearing no. B-
152, Jangpura-B, New Delhi (hereinafter referred to as "suit property- I"), is in possession of defendant no.1, and that defendant no.1 claims herself to be the owner of said house. Plaintiffs state that the house at ground floor bearing no. 153, Jangpura-B, New Delhi which is located CS NO. 50646/16 RAVI BALA BHATIA & ORS. VS. AMULYA CHAWLA (LRS OF KAMAL CHAWLA) & ANR. Page 2 of 27 after a gali from the house of the plaintiffs, is also owned either by defendant no.1 or defendant no.2, and is at present is in occupation of Mr. Sunil as tenant therein.
2. Plaintiffs further state that the house at first floor above the said house no. 153, Jangpura-B, New Delhi i.e. bearing no. B-154, Jangpura- B, New Delhi (hereinafter referred to as "suit property-II), is in possession of defendant no.3 & 4, who are son and daughter of Mr. Krishna Lal Chawla (K.L. Chawla), brother-in-law (devar) of defendant no.1 and brother of defendant no.2). Plaintiffs state that the said Sh. K.L. Chawla, in collusion and connivance with defendant no.1 & 2, covered the gali adjacent to the house of plaintiffs at first floor level in the year 2013 and they constructed an additional floor i.e. second floor above the original first floor and facilitated defendant no.1 & 2 to enjoy the said encroached portion i.e. the second floor in suit property -I bearing no. B-152 and Sh. K.L. Chawla (father of defendant no.3 & 4) retained the said encroached portion at first floor for his enjoyment, whereby they had blocked the air and sunlight to the said gali, which is adjacent to the house of the plaintiffs.
3. It is further averred that on account of construction of additional floors by defendant no.1 & 2 over their original accommodation and and overload thereof, cracks had been caused in said house of the plaintiffs, more specifically in the pillar of rear room, pillar and wall from the side of front room, pillar adjacent to rear entry which is nearby the kitchen and WC, another pillar of rear room and pillar from kitchen side in the house of the plaintiffs. It is further averred that besides the said cracks in the pillars, gap in the joints of two properties in rear side, cracks in the ceiling of first room and cracks in the middle wall of the middle room, CS NO. 50646/16 RAVI BALA BHATIA & ORS. VS. AMULYA CHAWLA (LRS OF KAMAL CHAWLA) & ANR. Page 3 of 27 had developed in the house of plaintiffs, which have shaken the structural stability and durability of their house.
4. Plaintiffs state that on 06.07.2013, an instrument used in construction had fallen down due to which plaintiff no.1 had fallen down and had sustained injuries. Plaintiffs state that plaintiff no.1 had got the wound stitched at AIIMS Trauma Center and was discharged on 06.07.2013. Plaintiffs also state that on 09.07.2013, plaintiff no.1 also informed the Deputy Commissioner, MCD, Jal Vihar, New Delhi about the said illegal and unauthorized construction with a request to take action, but no action had been taken. It is further averred that another representation was given by plaintiff no.1 to the Engineer of concerned MCD on 30.07.2013, however, it is claimed that no action was taken.
5. Plaintiffs further claim that at the time of filing of the suit, defendant no.1 & 2 wanted to raise another floor over the suit property no.I i.e. B-152, Jangpura-B, New Delhi, after extending the existing balcony and for the said purpose, they had started removing the railing of second floor in order to construct the same parallel to the adjacent building. Plaintiffs aver that when plaintiff no.1 had seen the removal of the railing by defendant no.1 & 2 of the first floor of the suit property-I on 02.04.2014, they had inquired about the same and defendants had informed them that defendants intended to expand the balcony and to construct additional floor. Plaintiffs claim that due to deteriorating condition of the property of the plaintiffs, on 19.08.2015 and 01.012.2015, plaintiff no.1 approached the National Disaster Management Authority and ADM(SE), DDMA (SE) respectively to inspect plaintiffs property no. 151, Jangpura-B, New Delhi and suit property-I of defendant no.1 and 2 bearing no. 152, Jangpura-B, New CS NO. 50646/16 RAVI BALA BHATIA & ORS. VS. AMULYA CHAWLA (LRS OF KAMAL CHAWLA) & ANR. Page 4 of 27 Delhi and prayed for advice/suggestion whether the subject building being an old construction, was capable of bearing overload of unauthorized, illegal construction.
6. It is further stated that on 05.02.2016, plaintiffs received a letter from Asstt. Engineer (W)-VI whereby the concerned authority informed the plaintiff that the site was inspected and that there was no imminent danger to the building and it was requested to repair/strengthen the building immediately under section 6.4.1 of the building bye laws, to avoid any mishap/casualty. It is further averred that vide letter dated 05.02.2016, defendant no.5 asked the plaintiff to repair and strengthen the building instead of issuing notice to defendant no. 1 to 4 for their illegal construction.
7. Plaintiffs have, therefore, prayed to declare the second and third floor in double storeyed building constructed by defendant no.1 to 4 over suit property-I bearing no. B-152 and suit property-II bearing no. B-154, Jangpura-B, New Delhi as unauthorized and illegal. Plaintiffs have also prayed for decree of permanent injunction for restraining defendant no.1 & 2 from raising any unauthorized and illegal construction in the shape of additional floor over suit property-I i.e. B-152. Plaintiffs have also prayed for decree of mandatory injunction for directing defendant no. 1 to 4 and defendant no.5 to remove/demolish the second and third floor over the suit property-I bearing no. B-152, Jangpura-B, New Delhi as well as of suit property-II bearing no. B-154, Jangpura-B, New Delhi. Plaintiffs have also prayed for awarding compensatory cost to the plaintiffs. Hence, the present suit.
CS NO. 50646/16 RAVI BALA BHATIA & ORS. VS. AMULYA CHAWLA (LRS OF KAMAL CHAWLA) & ANR. Page 5 of 27Defendant's case:
8. In the amended written statement filed on behalf of defendant no.2, it is stated that the two sons of the plaintiff no.1 cannot be impleaded as plaintiff no. 2 & 3 at this stage in the present suit and that no proper application had been filed to bring LRs of deceased defendant no.1 on record. Thus, it is stated that the present suit is bound to fail under Order 23 Rule 1(3)(a) r/w Order 1Rule 9 of CPC, 1908. Defendant no.2 denied that they had erected any unauthorized construction as claimed in the present suit. It is stated that house no. 152, Jangpura-B, New Delhi-14 i.e. suit property-I is situated above the house no. 151, Jangpura-B, New Delhi-110014. It is further stated that plaintiffs have no locus standi to file the present suit. It is further stated that defendant no.1 (since deceased on 01.03.2018) and now survived by two sons and one daughter besides defendant no.2 (as class-I legal heirs) was owner of the suit property-I i.e. H. no. 152, Jangpura-B, New Delhi-14. It is further stated that the existing structure upto first floor level is almost more than 20 years old and second floor (incomplete) is existing since the year 2004 and nothing, which is not permissible has been done by defendant no.1 (since deceased) and defendant no.2.
9. It is stated that defendant no. 1 (since deceased) was the owner of the suit property-I i.e. H.No. 152, Jangpura-B, New Delhi-110014 and the ownership of the said property vested in her much prior to the alleged ownership of the plaintiff(s) in H. no. 151, Jangpura-B, New Delhi. It is stated that defendant no.2 became the owner of the house bearing no. 153, Jangpura-B, New Delhi-14 after the demise of his mother. It is further stated that the mother of defendant no.2 was the original allottee of the said house. It is further stated that defendant no.1(since deceased) CS NO. 50646/16 RAVI BALA BHATIA & ORS. VS. AMULYA CHAWLA (LRS OF KAMAL CHAWLA) & ANR. Page 6 of 27 and defendant no.2 along with their two sons, daughter-in-laws and two grand-children are residing in suit property no.I i.e. H. no. 152, Jangpura-B, New Delhi. Defendant no.2 claims that he and defendant no.1 (since deceased) had been paying property tax qua suit property no.I i.e. H. No. 152 to defendant no.5/SDMC since 2004.
10. It is further contended that in the last week of June 2013, plaintiffs approached defendant no.1 (since deceased) and defendant no.2 and asked them for financial help and defendant no.1(since deceased) and defendant no.2, citing their own financial constraint, pleaded their inability to accede to the said request and stated that they themselves were in need of money for repairing the railing of the house, which was damaged due to rain. It is further stated that on being refused, plaintiffs stated that they would not allow any repair work. Defendant no.2 further states that thereafter, plaintiffs started picking quarrels with them and also started lodging false complaints with various authorities.
11. It is further stated that vide letter dated 16.07.2013, son of defendant no.1 (since deceased) and defendant no.2 wrote to Executive Engineers, MCD, seeking approval for repair work of grill and front tiles without any extension in the suit property-I i.e. H. no. 152 and the said letter was replied by Executive Engineer stating that as per clause 6.4.1 of Building Bye-Laws, 1983 repair of building is allowed for which no permission is required from MCD separately. It is further stated that defendant no.1 (since deceased) started the repair work, however, on seeing the same, plaintiffs became furious and stated that they would not allow any kind of repair work unless Rs. 25 lacs were paid to them. It is further stated that plaintiffs threatened the labours and family members of defendant no.1(since deceased) and defendant no.2. It is CS NO. 50646/16 RAVI BALA BHATIA & ORS. VS. AMULYA CHAWLA (LRS OF KAMAL CHAWLA) & ANR. Page 7 of 27 further stated that the repair work could not be completed, however, the same was partially completed by the intervention of this Court vide order dated 20.12.2014 and 04.06.2015.
12. Defendant no.2 further states that on 29.03.2014, defendant no.1(since deceased) wrote to SHO, PS Nizamuddin, informing him about the obstruction being caused by the plaintiffs and others in carrying out the repair work and forceful entry in the house of defendant no.1 (since deceased) by the plaintiffs and that threats were being given by them to the family members of defendant no.1 (since deceased) and defendant no.2. Defendant no.2 further states that no new construction was /had been undertaken by defendant no.1 (since deceased) and defendant no.2 as claimed in the suit and the present suit had been filed only to extract money from defendant no.1 (since deceased) and defendant no.2. It is further stated that the existing structure up to first floor level is almost more than 20 years old and the incomplete second floor is existing since the year 2004 and nothing, which was not permissible, had been done by defendant no.1 (since deceased) and defendant no.2 and no major alteration/addition had been carried out by defendant no.1 (since deceased) and defendant no.2. It is further stated that the Assistant Engineer (W)-VI, acting on the application of the plaintiffs, vide its letter dated 05.02.2016 also advised the plaintiffs that there is no immediate danger to the buildings and repair/strengthening work may be carried out under 6.4.1 of building bye-laws.
13. Furthermore, defendant no.2 denied that late Sh. K.L. Chawla in collusion with defendant no.1 (since deceased) and defendant no.2 covered the gali adjacent to the house of the plaintiffs at first floor level CS NO. 50646/16 RAVI BALA BHATIA & ORS. VS. AMULYA CHAWLA (LRS OF KAMAL CHAWLA) & ANR. Page 8 of 27 in the year 2013 and constructed additional floor i.e. second floor above the original first floor and blocked the air and light of the gali adjacent to the house of the plaintiffs. Defendant no.2 also denied that any damage /crack had developed on account of construction of additional floor by the defendant no.1 (since deceased). Defendant no.2 also denied that instrument used in the construction fell down on 06.07.2013 resulting into injury to plaintiff no.1. Defendant no.2, therefore, prayed that the suit be dismissed.
14. Unfortunately, defendant no.1 had expired during the course of proceedings and LRs of defendant no. 1 had stepped into his shoes. LRs of defendant no.1 had adopted the amended WS already filed on behalf of defendant no.2 as stated vide order dated 28.05.2018, passed by Ld. Predecessor.
15. In the written statement filed on behalf of defendant no.5/SDMC, it is stated that the suit of the plaintiff is without any cause of action against the defendant no.5/SDMC. It is further averred that the property in question had been inspected by the officials of the SDMC, which comprised of ground floor to second floor and two rooms set on terrace on rear side and the same were residentially occupied. It is further stated that at the time of inspection, neither any construction activity nor building material was found stacked at the site and the property was not booked under section 343/344 of DMC Act.
Issues:
16. On the basis of pleadings of the parties, the following issues were framed by Ld. Predecessor vide order dated 28.11.2015:-
CS NO. 50646/16 RAVI BALA BHATIA & ORS. VS. AMULYA CHAWLA (LRS OF KAMAL CHAWLA) & ANR. Page 9 of 271. Whether the plaintiff is entitled to decree of permanent injunction as prayed? OPP.
2. Whether plaintiff is entitled to decree of mandatory injunction as prayed?OPP.
3. Relief.
17. Thereafter, after amendment of pleadings, vide order dated 31.07.2018, the following additional/modified issues were framed by Ld. Predecessor:-
1. Whether the present suit is liable to be dismissed under Order 23 Rule 1(3)(9) r/w Order 1 Rule 9 CPC? OPD.
2. Whether the present suit is without any cause of action and therefore the plaint is liable to be rejected under Order 7 Rule 11 CPC? OPD.
3. Whether the plaintiff is entitled to declaration that the second and third floors in property no. B-152 and B-154, Jangpura-B, New Delhi is unauthorized and illegal? OPP.
4. Whether the plaintiff is entitled to mandatory injunction against the defendants directing them to demolish the unauthorized construction in property no. B- 152 and B-154, Jangpura-B, New Delhi? OPP.
5. Whether the plaintiff is entitled to costs of the suit? OPP.
6. Relief.
Plaintiff's Evidence:
18. In order to prove their case, plaintiffs examined plaintiff no.2 Sh.
Saransh Bhatia as PW-1. In his examination-in-chief, he mostly reiterated the averments made in the plaint and he relied upon the following documents:
(1) Ration Card i.e. Ex. PW1/1 (OSR);
(ii) GPA in favour of Ramesh Bhatia i.e. Ex. PW1/2 (OSR);CS NO. 50646/16 RAVI BALA BHATIA & ORS. VS. AMULYA CHAWLA (LRS OF KAMAL CHAWLA) & ANR. Page 10 of 27
(iii) Will dated 26.08.1994 i.e. Ex. PW1/3 (OSR) ;
(iv) Death Certificate of Ramesh Bhatia i.e. Ex. PW1/4;
(v) Photograph showing exact location of defendant's property i.e. Ex. PW1/5;
(vi) Photographs showing cracks i.e. Ex. PW1/6 (colly) ;
(vii) Complaint dated 06.07.2013 i.e. Mark A;
(viii) Discharge Slip of Ravi Bala Bhatia i.e. Ex. PW1/8 (OSR);
(ix) Complaint dated 09.07.2013 i.e. Mark B;
(x) Complaint dated 30.07.2013 i.e. Mark D;
(xi) Complaint dated 23.08.2013 i.e. Ex. PW-1/11 (OSR);
(xii) Application dated 30.03.2014 i.e. Ex. PW1/12 (OSR); letters dated 05.02.2016 i.e. Ex. PW1/13 (OSR) (colly);
(xiii) Reply of RTI dated 11.05.2016 i.e. Ex. PW1/14 (OSR);
(xiv) Prescription slip of Ravi Bala Bhatia i.e. Mark C;
(xv) Photographs i.e. Ex. PW1/17 (colly); and (xvi) Complaint dated 05.01.2015 i.e. Ex. PW1/18 (OSR).
19. Sh. Deepak Kumar Khosla, Executive Engineer, Central Zone, SDMC, Defence Colony was examined as PW-2. He produced the following summoned record in the Court:
1. letter no. 3650 dated 05.02.2016 issued by him i.e. already Ex. PW1/13;
2.letter dated 16.11.2015, forwarded by National Disaster Management Authority as Ex. PW2/2;
3. application dated 14.03.2016 sent by plaintiff to AE (W)-VI as Ex.
PW2/3.
20. Sh. Sunil Verma, Record Keeper, Building Department, Central Zone, SDMC, Jal Vihar, New Delhi was examined as PW-3. He CS NO. 50646/16 RAVI BALA BHATIA & ORS. VS. AMULYA CHAWLA (LRS OF KAMAL CHAWLA) & ANR. Page 11 of 27 produced the complete file bearing no. D/EE(B)-I/CNZ/RTI/2016 in respect of RTI application bearing ID no. 26898 dated 26.04.2016 which is Ex. PW3/1(running into 12 pages).
21. Smt. Ravi Bala Bhatia i.e. plaintiff no.1 was examined as PW4. In her examination-in-chief, she mostly reiterated the averments made in the plaint and she relied upon the documents already placed on record by PW1 Sh. Saransh Bhatia.
Defendant's Evidence:
22. Defendants examined Sh. Tilak Raj Chawla as DW-1.In his examination-in chief, he tendered his evidence by way of affidavit as Ex. DW1/A and he mostly reiterated the averments made in the written statement. He relied upon the following documents:
1. Photocopy of conveyance deed dated 23.12.1992 as Mark D1;
2. Photocopy of relinquishment deed dated 14.05.2018 as Ex. DW1/1 (OSR);
3. photocopy of property tax receipts as Ex. DW1/2 colly (running from page no.7 to 10) (OSR);
4. photocopy of property tax receipt bearing no. 995003 for Rs. 770/-
dated 27.08.2004 as Mark D2;
5. photocopy of acknowledgment for new electricity connection along with revised demand note dated 18.10.2007 as Mark D3 (Colly);
6. photocopy of house tax receipt dated 24.06.2019 for Rs. 1770 as Ex. DW1/5 (OSR);
7. photocopy of letter dated 16.07.2013 addressed to Executive Engineer, MCD, Central Zone, Defence Colony as Ex. DW1/6 (OSR);
8. photocopy of complaint dated 29.03.2014 to SHO, PS H.N. Din as Ex. DW1/7(OSR);
CS NO. 50646/16 RAVI BALA BHATIA & ORS. VS. AMULYA CHAWLA (LRS OF KAMAL CHAWLA) & ANR. Page 12 of 279. coloured photograph of the suit property as Ex. DW1/8.
23. Thereafter, defence evidence was closed and the matter was fixed for final arguments.
Appreciation of Evidence & Finding:-
24. I have heard the counsels for both the parties carefully and perused the record.
Issue no.1 as framed on 31.07.2018.
1. Whether the present suit is liable to be dismissed under Order 23 Rule 1(3)(9) r/w Order 1 Rule 9 CPC? OPD.
25. In the amended WS filed on behalf of defendant no.2 and LRs of defendant no.1, it is stated that the sons of plaintiff no.1 cannot be impleaded as plaintiff no.2 & 3 at this stage without filing of appropriate application and seeking permission of this Court. It is further claimed that no proper application had been filed to bring the LRs of deceased defendant no.1 on record. It is, therefore, claimed that the suit is bound to fail under Order 23 Rule 1 (3A) r/w Order 1 Rule 9 of CPC.
26. Be that as it may, perusal of the record shows that vide order dated 20.03.2018, it had been informed that defendant no.1 had expired and an application under Order 1 Rule 10 CPC had been moved for taking on record the LRs of deceased defendant and the same was treated as an application under Order 22 Rule 4 CPC by Ld. Predecessor. Infact, vide order dated 28.05.2018, passed by Ld. Predecessor, it had been mentioned that counsel for LRs of deceased defendant no.1 had no CS NO. 50646/16 RAVI BALA BHATIA & ORS. VS. AMULYA CHAWLA (LRS OF KAMAL CHAWLA) & ANR. Page 13 of 27 objection for their impleadment and that they shall adopt the amended WS already filed on behalf of defendant no.2. Thereafter, WS to the amended plaint had been filed by defendant no.2 which was read as WS also on behalf of LRs of defendant no.1. Therefore, the said LRs of deceased defendant no.1 had been duly brought on record vide the order dated 28.05.2018. Moreover, the sons of plaintiff were already a party to the present suit, which is apparent from the memo of parties placed on record at the time of filing of the initial suit on 07.04.2014. Therefore, there is no merit in the said contentions raised by defendants. This issue is decided in favour of the plaintiffs and against the defendants.
27. For the sake of convenience and as some issues are inter- connected, therefore, the issues as mentioned above, are being decided in the following order:
Issue no.3 as framed on 31.07.2018.
3. Whether the plaintiff is entitled to declaration that the second and third floors in property no. B-152 and B-154, Jangpura-B, New Delhi is unauthorized and illegal? OPP.
28. As stated vide order dated 06.02.2018, counsel for plaintiff had dropped the relief for declaration, as prayed for and an amended plaint had been filed on 20.03.2018 wherein the said relief has not been mentioned. Therefore, this issue is not required to be decided.
Issue no. 2 as framed vide order dated 31.07.2018 and Issue no. 1 as framed vide order dated 28.11.2015, are being decided together as they are interconnected.
Issue no.2 as framed vide order dated 31.07.2018 and Issue no.1 as framed vide order dated 28.11.2015:
CS NO. 50646/16 RAVI BALA BHATIA & ORS. VS. AMULYA CHAWLA (LRS OF KAMAL CHAWLA) & ANR. Page 14 of 272. Whether the present suit is without any cause of action and therefore the plaint is liable to be rejected under Order 7 Rule 11 CPC? OPD.
1. Whether the plaintiff is entitled to decree of permanent injunction as prayed? OPP.
29. The onus to prove the said issue no.1 as framed vide order dated 28.11.2015 had been placed upon the plaintiff. In order to discharge the said onus, plaintiff no.1 Smt. Ravi Bala Bhatia had examined herself as PW-4. In her examination in chief, she had mostly reiterated the averments made in the plaint. In her cross examination, she had admitted the photographs i.e. PW4/DX as reflecting the suit property. In her cross examination, she had testified that on the day officials of MCD i.e. defendant no.5 visited the suit property bearing no.I, raw material was found lying in the property and construction work of 3 rd floor and work of extending the balcony of second floor was found to be going on. She denied the suggestion given by Ld. counsel for defendant no.5/SDMC that no construction was going on, on the day of the said visit.
30. In cross examination of PW4/plaintiff no.1, conducted by counsel for LRs of defendant no.1 & 2, she conceded that she was not admitted in AIIMS hospital on 06.07.2013. She, however, stated that she had got stitches in the OPD. She also denied the suggestion that she was in AIIMS hospital only for two minutes and was discharged after oral medication was given. As per her testimony, no one had appeared on behalf of NDMA to inspect the suit property. She also denied the suggestion that NDMA had informed her that there was no danger to the property and only repairs were required. She further deposed that the 2 nd floor was built in 2013. She, however, denied that the second floor was CS NO. 50646/16 RAVI BALA BHATIA & ORS. VS. AMULYA CHAWLA (LRS OF KAMAL CHAWLA) & ANR. Page 15 of 27 built in 2004. She also denied the suggestion that unauthorized construction had not taken place in the suit property.
31. Plaintiff no.2 also stepped into the witness box as PW1. He also supported the claim of plaintiff no.1/PW4. In his cross examination, PW1 Saransh Bhatia deposed that the property on the ground floor bears number 151 and the property on the first floor bears number 152. As per his testimony, on the day of filing of the present suit, there were two and half floors above the said property no. 151 including suit property-I bearing no. 152. He further deposed that the construction referred by him in his evidence by way of affidavit had started in the year 2008. He, however, deposed that first time the complaint was made to MCD in the year 2013 or 2014. As per his testimony, the construction on the second floor above house no. 151 had started in the year 2013. He further deposed that he had made complaint dated 06.07.2013, 09.07.2013, 30.07.2013, 23.08.2013, January 2014, 31.12.2014, 05.01.2015, 19.08.2016 and 01.12.2016. He further deposed that there was only one temporary room on the back side of the roof (second floor) for which the staircase was from the backside of the first floor. He further deposed that the reply which he had received from the SDMC on 05.02.2016 stated that there was no danger to the building but repair and strengthening of the building was required and the rest of the questions were unanswered. He further deposed that as per the status report filed by MCD on 04.06.2014, construction was not being carried out but as per him, the construction was still going on and material was kept on the passage going to the first floor. PW1/plaintiff no.2 denied the suggestion that when the suit property was inspected by the officials of SDMC, no construction work was found in progress. He further deposed that the construction on second and third floor was carried out in the CS NO. 50646/16 RAVI BALA BHATIA & ORS. VS. AMULYA CHAWLA (LRS OF KAMAL CHAWLA) & ANR. Page 16 of 27 year 2013. PW1 Saransh Bhatia was also confronted with the eight photographs of the suit property i.e. Ex. PW1/17 and in response to the same, he deposed that from the said photographs, it could be seen that construction was going on at 2nd and 3rd floor.
32. PW2 Deepak Kumar Khosla, Executive Engineer, M-1, Central Zone, SDMC, Defence Colony also deposed that the said department did not give any notice to the occupants of 1st, 2nd and 3rd floor to strengthen the building. He further deposed that on the basis of the cracks in the property of the plaintiff, he observed that there is load bearing wall in the ground floor and he requested the occupants of the ground floor to strengthen the building under Section 6.4.1 of the building bye laws.
33. Per contra, LRs of deceased defendant no.1 and defendant no.2 had taken the defence that plaintiff does not have any cause of action and that no unauthorized construction as claimed in the present suit had been erected by the said defendants. As per the defendants, the existing structure upto the 1st floor in the suit property-I bearing no. 152 was almost 20 years old and the second floor (incomplete) had been existing since the year 2004 and that nothing which was not permissible, had been done by defendant no.1 (since deceased) and defendant no.2. Defendant no.3 and 4 had failed to appear before this Court and they were proceeded ex-parte vide order dated 21.07.2014.
34. In order to prove the said defence, defendant no.2 Sh. Tilak Raj Chawla appeared in the witness box as DW-1. In his cross examination, he deposed that he had purchased suit property-I bearing no. B-152 prior to 2000 and that he was allotted property no. B-153 by L&DO CS NO. 50646/16 RAVI BALA BHATIA & ORS. VS. AMULYA CHAWLA (LRS OF KAMAL CHAWLA) & ANR. Page 17 of 27 department about 60 years back. He further deposed that his brother namely Sh. K.L. Chawla was the owner of suit property-II bearing no. 154 and the same had devolved upon his sons i.e. defendant no.3 & 4 herein. DW1 conceded that there is a public lane between property no. B-151 & B-153. The said witness was confronted with the photographs of the suit property i.e. Ex. DW1/P1. As per his testimony, the first floor as shown in the said photograph was supported by the wall of bricks and not by the pillars. He also affirmed that there is no such support on the second floor of the said property as well. The said witness was also confronted with the right side top photograph of Ex. DW1/P-1 and he had conceded that the right half of the second floor belongs to him and the other half belongs to his brother. As per his testimony, when he had purchased the property no. 152, the second floor and the part of 3 rd floor on the said property had already been constructed. As per his testimony, he had purchased the said property prior to the year 1990. He also conceded that the rooms on the first floor and the second floor of the suit property above the alleged lane/gali were also constructed prior to his purchase of the suit property. He further denied the suggestion that he had encroached lane /gali of suit property-I & II bearing nos. 152 & 154 in the year 2013-2014. He also denied the suggestion that due to illegal construction and overload, plaintiff's property had got damaged.
35. Be that as it may, plaintiffs had claimed that defendant no.1 (since deceased) and defendant no.2 had encroached upon the gali adjacent to his property i.e. bearing no. 151, ground floor and had constructed two floors above the first floor in the suit property-I bearing no. 152. Plaintiff no.1/PW4 had testified that due to the said illegal construction raised in the form of 2nd and third floor in the year 2013 in suit property-I bearing no. 152, the property bearing no. 151 belonging to the plaintiffs had got CS NO. 50646/16 RAVI BALA BHATIA & ORS. VS. AMULYA CHAWLA (LRS OF KAMAL CHAWLA) & ANR. Page 18 of 27 damaged and several cracks had developed therein. In order to substantiate the said averments, PW-1/plaintiff no.2 namely Sh. Saransh Bhatia had placed on record various correspondences exchanged between the department of defendant no.5/SDMC and the plaintiff herein to show that several complaints were made to defendant no.5 in respect of the unauthorized construction being carried out by defendant no.1(since deceased) and defendant no.2. PW2 Sh. Deepak Kumar Khosla had placed on record correspondences such as an application dated 14.03.2016 sent by plaintiff no.1 to Addl. District Magistrate, DDMA, Disaster Management Agency, Assistant Engineer(W) -VI, SDMC, Executive Engineer (building)(1), Secretary, National Disaster Management Authority i.e. Ex. PW2/3 vide which plaintiff had informed the said department regarding the illegal construction on the second and third floor of suit property-I bearing no. 152 by defendant no.1(since deceased) and defendant no.2 and vide the said letters, it had been requested that the said property be inspected and suggestions be made whether the building had capability to bear overload of illegal construction. Plaintiffs had also placed reliance on copy of the complaint made to Commissioner of defendant no.5/SDMC dated 23.08.2013 (Ex. PW1/11), whereby it is mentioned that construction activity was being carried out in suit property-I i.e. property bearing no. B-152, and an instrument for digging had also fallen from the second floor of the property on the ground floor of the plaintiff. The said complaint had not been denied by the defendants in their testimony or otherwise. However, the defendants had denied the fact that plaintiff had been admitted in the hospital in their pleadings. Plaintiffs had also placed reliance on a complaint dated 30.03.2014, sent to the Executive Engineer (Building), SDMC, Lajpat Nagar, i.e. Ex. PW1/12(OSR) dated 30.03.2014, whereby it is stated that the load bearing of the structure was CS NO. 50646/16 RAVI BALA BHATIA & ORS. VS. AMULYA CHAWLA (LRS OF KAMAL CHAWLA) & ANR. Page 19 of 27 for single storey at the first floor and that the defendant had built one and a half storey due to which the main column of the structure had cracked at various places and were showing extreme stress. The said letter also mentions that the manner in which cracks had appeared in her premises not only in the ceiling but also in the columns and walls as well were very dangerous and that the doors were also not opening due to the sagging of the frame. Thus, from the said documents placed on record on behalf of the plaintiffs, it is apparent that plaintiff no.1 had been time and again reporting to the concerned authorities regarding construction activity above the first floor i.e. the second and the third floor, by the defendant no.1 & 2 in the suit property-I i.e. property no. 152, primarily since the year 2013 and had been constantly intimating the concerned authorities regarding the structural instability due to excess load on the premises of the plaintiff. Plaintiff has also placed on record various photographs that are Ex. PW1/6(Colly) to show the damage caused to his property due to overload.
36. Further, PW2/Deepak Kumar Khosla had placed on record the reply dated 05.02.2016 sent by him to the plaintiff in response to the application dated 16.11.2015 vide Ex. PW1/13 (OSR). Perusal of the said letter shows that the said Assistant Engineer (W6) had informed the plaintiff no.1 that the property had been inspected and it had been reported that there was no imminent danger to the property in question. However, vide the said letter, the plaintiff had been requested to repair/strengthen the building under Section 6.4.1 of Building bye-laws to avoid any mishap. The concerned Assistant Engineer had, however, refrained from making any report regarding the illegal construction being raised by the defendant no.1 & 2 in suit property-I bearing no. 152 (1st floor) on the ground that the same was being dealt by the building CS NO. 50646/16 RAVI BALA BHATIA & ORS. VS. AMULYA CHAWLA (LRS OF KAMAL CHAWLA) & ANR. Page 20 of 27 department of Central Zone. Defendants have not denied the said letters or communications exchanged between the said department and plaintiff no.1 and no such suggestion had been given on behalf of the defendants to any of the plaintiff witnesses that no such correspondences were exchanged between the department and the plaintiff no.1.
37. Be that as it may, quite surprisingly, defendant no.5/SDMC had not led any evidence to show that there was no construction activity at the site at the time of inspection, as claimed in the WS. The concerned officials of SDMC/defendant no.5 who had inspected the said site were never produced by it, for reasons best known to it. Even in the WS filed on behalf of the said department/defendant no.5, apart from the contention that no construction activity was found at the site, no other averment had been made. In fact, the said WS is conspicuously silent as to whether any floor above the first floor i.e. the second floor and the third floor had been built in the suit property-I bearing no. 152 and in suit property-II bearing no.154 and whether they are authorized or illegal.
38. Having said that, plaintiff had placed on record response dated 12.05.2016 (to an RTI of the plaintiff) sent by the concerned department of defendant no.5 vide Ex. PW3/1, whereby defendant no.5/SDMC had conceded that construction of second and third floor in double storey, Jangpura-B, New Delhi (i.e. the area where the suit property is located), is not permitted. Thus, from the said response, it is apparent that the second and the third floor of the said suit properties are illegal and unauthorized in view of the said response filed by the defendant no.5/SDMC itself. The said defendant no.5/SDMC or the other defendants have not denied the said response and no such suggestion CS NO. 50646/16 RAVI BALA BHATIA & ORS. VS. AMULYA CHAWLA (LRS OF KAMAL CHAWLA) & ANR. Page 21 of 27 had been given to any of the plaintiff witnesses that the said construction is not illegal or unauthorized.
39. In fact, the only contention raised by the defendants is that the suit property was existing in the present form i.e. in the form of built up portion of second floor and third floor for the past several years. In fact, defendant no.1 & 2 have claimed that the first floor was in existence for the past 20 years. Defendant no.2/DW-1 Sh. Tilak Raj, in his testimony had testified that when he had purchased the suit property-I bearing no. B-152, second and part of third floor had already been constructed. He also testified that he had purchased the said property in the year 1990. Having said that, from the said response i.e. the RTI i.e. Ex. PW1/14(OSR), it is apparent that the suit property was built up till first floor since inception. No evidence had been led by defendant no.1 & 2 apart from their oral testimony to show that second and third floor in suit property -I bearing no. 152 were existent since the year 1990. It is a matter of record that defendants have not placed on record any title documents such as sale deed to substantiate the said claim. In fact, defendants had only placed on record the property tax receipts i.e. Ex. DW1/2(colly) to show that second and third floor were in existence prior to 2013. However, perusal of the said property tax receipts show that only the tax receipt for the year 2009-2010 mentions the details for which property tax was paid as B-152, 1st floor, 2nd floor, 3rd floor. However, the same is contrary to the testimony of DW-1/defendant no.2 Sh. Tilak Raj that the second floor and third floor construction was in existence since 1990. Moreover, the said fact does not render the construction of 2nd floor and 3rd floor as authorized construction.
CS NO. 50646/16 RAVI BALA BHATIA & ORS. VS. AMULYA CHAWLA (LRS OF KAMAL CHAWLA) & ANR. Page 22 of 2740. Be that as it may, the plaintiffs have testified that the construction activity had taken place in the year 2013 and from the aforementioned several complaints as mentioned above, the said contention stands substantiated as the said complaints as mentioned were primarily made by the plaintiffs from the year 2013 onwards. Furthermore, from the said complaints placed on record on behalf of the plaintiffs, it is apparent that the defendants had started construction activity in the second and third floor by removing the grills, which is apparent not only from the testimony of the plaintiff witnesses but the photographs placed on record as Ex. PW1/17 (colly), whereby the grills of the first and the second floor can be seen to have been removed. In fact, PW4/plaintiff no.1 Smt. Ravi Bala Bhatia had even testified that on 06.07.2013, during the construction activity, an instrument used for construction had fallen down, due to which PW4/plaintiff no.1 Smt. Ravi Bala Bhatia had suffered injuries. In order to substantiate the same, PW4/plaintiff no.1 Smt. Ravi Bala Bhatia had placed on record her medical documents vide Ex. PW1/8 (OSR) whereby nature of injury had been mentioned as 'soft tissue injury'. No such suggestion was given to the said witness by Ld. Counsel for defendants that the said injury was not caused by falling of instrument on the said date. Thus, the said testimony of PW4/plaintiff no.1 Smt. Ravi Bala Bhatia had remained untraversed to that extent and is deemed to have been admitted. Thus, as a necessary concomitant, it can be said that cause of action to file the present suit had arisen in the year 2013. Defendants had tried to belie the factum of construction activity being carried out in the suit property-I on the ground that only repair activity of grills were being conducted and that the said balconies were not being extended as claimed by the plaintiffs. In order to substantiate the same, defendants had placed on record letter dated 16.07.2013, sent by deceased defendant no.1 vide Ex. DW1/6(OSR), CS NO. 50646/16 RAVI BALA BHATIA & ORS. VS. AMULYA CHAWLA (LRS OF KAMAL CHAWLA) & ANR. Page 23 of 27 whereby permission had been sought by defendant no.5/MCD for repair of grills and tiles and it had been stated that no extension work was involved in the repair work. However, by merely seeking permission for carrying out repair work does not lead to an inference that defendant had not intended to carry out any further illegal construction. Thus, the same does not inspire confidence and in view of the aforesaid facts, balance of probabilities lies in favour of the plaintiffs and against the defendants.
41. Thus, from the said photographs placed on record on behalf of the plaintiff i.e. Ex. PW1/17, it appears that the defendants intended to carry out further unauthorized construction in the suit property for which grills had been removed, which could cause further structural instability leading to damage to the premises of the plaintiffs and could also expose the life of the inhabitants of the ground floor to danger. It, in fact, appears from the photographs placed on record on behalf of the defendants during the testimony of PW-4 Smt. Ravi Bala Bhatia vide Ex. PW4/DX that the defendants had, in fact, also encroached upon a passage between the property bearing no. B-151 & B-153, which is adjacent to the property of the plaintiffs and there is a common wall between the upper floors of suit property-I i.e. property no. B-152 and suit property-II i.e. property no. B- 154 (which is stated to be in possession of defendant no.3 & 4). Thus, from the said photographs placed on record as well as the letter issued by Assistant Engineer Deepak Khosla dated 22.03.2016 i.e. Ex. PW2/1, it is apparent that the structure raised above the first floor of the suit property-I bearing no.B-152 is unstable and unsafe and is also illegal and unauthorized as is reflected from the response of the RTI issued by MCD /defendant no.5 i.e. Ex. PW1/14. Therefore, defendants cannot be allowed to raise further unauthorized construction in the suit property no.I bearing no. B-
152. Thus, plaintiffs have a cause of action against the defendants. Defendants no.1 & 2 are hereby restrained from carrying out any CS NO. 50646/16 RAVI BALA BHATIA & ORS. VS. AMULYA CHAWLA (LRS OF KAMAL CHAWLA) & ANR. Page 24 of 27 unauthorized construction in the suit property. I bearing no. B-152. This issue no.1 as framed on 28.11.2015 and issue no.2 as framed on 31.07.2018 are decided in favour of the plaintiffs and against the defendant nos. 1 & 2.
Issue no. 2 as framed vide order dated 28.11.2015
2. Whether plaintiff is entitled to decree of mandatory injunction as prayed?OPP.
Issue no. 4 as framed vide order dated 31.07.2018
4. Whether the plaintiff is entitled to mandatory injunction against the defendants directing them to demolish the unauthorized construction in property no. B-152 and B-154, Jangpura-B, New Delhi? OPP.
42. Plaintiffs have claimed the relief that the defendant no. 1 to 4 be directed to demolish the second floor raised by them in property no. B-152 & B-154 and in case, they fail to demolish, defendant no.5/SDMC be directed to demolish the second floor. Be that as it may, as already stated, as per the said RTI, it is apparent that the floors above the first floor i.e. the second floor and above in suit property-I bearing no. 152 & suit property-II bearing no. 154 are illegal and unauthorized construction. It appears that despite intimation regarding unauthorized construction in the upper floors of suit property no. I & II bearing no. B-152 & B-154, SDMC/defendant no.5 failed to take any action qua the said properties. Defendant no.5/SDMC had not even brought on record as to the nature of the unauthorized construction in the said properties, the age of construction of the said building and whether the said constructions are protected as per the National Capital Territory of Delhi Laws (Special CS NO. 50646/16 RAVI BALA BHATIA & ORS. VS. AMULYA CHAWLA (LRS OF KAMAL CHAWLA) & ANR. Page 25 of 27 Provisions) Second Act, 2011, if at all. In the absence of any such material being placed on record, it is apparent that defendant no.5 had not acted in accordance with the due procedure laid down by law and it is for defendant no.5/SDMC to remove any unauthorized construction as per the procedure established by law which is 'The Delhi Municipal Corporation Act', whereby show cause notice /vacation notice could have been issued to the occupants of upper floors i.e. the second and the third floor of suit property no. I & II bearing no. B-152 & B-154 (stated to be in possession of defendant no. 1, 2, 3 & 4 respectively). However, it is a matter of record that no such proceeding under 'The Delhi Municipal Corporation Act' were conducted by the concerned authority, which should have taken action as per the said enactment. Therefore, defendant no.5/SDMC is directed to take appropriate action qua the unauthorized construction in the said properties in accordance with the procedure established by law. These issues are decided accordingly.
Issue no. 5 as framed vide order dated 31.07.2018
5. Whether the plaintiff is entitled to costs of the suit? OPP.
43. Plaintiffs have also prayed that compensatory cost be also awarded in the present matter. Plaintiffs had placed on record various photographs i.e. Ex. PW1/6 (colly) to show the damage caused by the illegal construction of the defendants in his property bearing no. B-151. Although, the plaintiffs have not quantified the amount of damage suffered by them. However, as aforementioned, from the said photographs placed on record as well as the report of PW-2 Sh. Deepak Kumar Khosla, it is apparent that the plaintiffs are required to strengthen their structure and also need to repair their part of the CS NO. 50646/16 RAVI BALA BHATIA & ORS. VS. AMULYA CHAWLA (LRS OF KAMAL CHAWLA) & ANR. Page 26 of 27 property, where various cracks had developed due to overloading and unauthorized construction in the upper floors. Therefore, compensatory cost to the tune of Rs. 50,000/- is hereby awarded to the plaintiffs to be paid by defendant no.1 & 2, who are occupants of suit property no.I bearing no. B-152. This issue is decided in favour of the plaintiffs and against the said defendants.
3. Relief.
44. The suit of the plaintiffs is hereby decreed in terms of the findings in the aforesaid issues and it is held that :
i. Defendant nos. 1 & 2 are hereby restrained from carrying out any unauthorized construction in the suit property-I bearing no. 152, Jangpura-B, New Delhi;
ii. defendant no.5/SDMC is directed to take appropriate action qua the unauthorized construction in the suit properties I & II bearing nos. 152 & 154, Jangpura-B, New Delhi in accordance with the procedure established by law; and iii. compensatory cost to the tune of Rs. 50,000/- is hereby awarded in favour of the plaintiffs and against the defendant no. 1 & 2;
45. After preparation of the decree sheet by the Reader, the file shall be consigned to the record room. MANISHA Digitally signed by MANISHA KHURANA KHURANA KAKKAR Date: 2022.04.11 16:24:34 KAKKAR +0530 Announced in open Court (Manisha Khurana Kakkar) today on 31.03.2022 Senior Civil Judge cum Rent Controller South-East, Saket Courts, New Delhi CS NO. 50646/16 RAVI BALA BHATIA & ORS. VS. AMULYA CHAWLA (LRS OF KAMAL CHAWLA) & ANR. Page 27 of 27