Delhi District Court
Sh. Ishwar Dass Seth vs Sh. Vijender Choudhary @ Munna on 17 November, 2012
IN THE COURT OF SH. ANIL KUMAR SISODIA :
ADDITIONAL DISTRICT JUDGE06 : WEST DISTRICT
TIS HAZARI COURTS : DELHI.
CIVIL SUIT NO. 369 OF 2012
1. Sh. Ishwar Dass Seth
S/o Lala Gajjomal Seth
R/o 12A, Under Hill Lane,
Civil Lines, Delhi110054.
SINCE DECEASED - Through his LRs
(a) Smt. Kamal Seth
W/o Sh. Ishwar Dass Seth
(b) Sh. Ranjeev Seth
S/o Sh. Ishwar Dass Seth
(c) Mrs. Meenakshi Malhotra
D/o Sh. Ishwar Dass Seth
All Residents Of :
12A, Under Hill Lane,
Civil Lines, Delhi110054.
2. Sh. Govind Narain
S/o Lala Brij Kishore
R/o 10A, Under Hill Lane,
Civil Lines, Delhi110054.
(WITHDRAWN Vide Statement dated 03.06.2009)
Suit No.369/12 Page : 1/
3. Sh. Dalip Kumar
S/o Late Suraj Singh
R/o 12A/2, Under Hill Lane,
Civil Lines, Delhi110054.
SINCE DECEASED - Through his LRs
(a) Smt. Madhu
W/o Sh. Dalip Kumar
(b) Ms. Shagun
D/o Sh. Dalip Kumar
(c) Ms. Shivani
D/o Sh. Dalip Kumar
All Residents Of :
12A/2, Under Hill Lane,
Civil Lines, Delhi110054. ..... PLAINTIFFS
Versus
Sh. Vijender Choudhary @ Munna
S/o Late Choudhary Kanwal Singh
R/o 1A, Under Hill Road,
Delhi110054. ..... DEFENDANT
Date of institution : 20.07.1998
Order reserved on : 07.11.2012
Date of Decision : 17.11.2012
Suit No.369/12 Page : 2/
SUIT FOR PERPETUAL AND PROHIBITORY INJUNCTION
J U D G M E N T :
1. The plaintiffs have filed the suit for perpetual and prohibitory injunction against the defendant.
2. The facts of the case are that the plaintiff no.1 is the owner and in occupation of property bearing no. 12A (Old No.12), Underhill Lane, Civil Lines, Delhi, admeasuring 2000 sq. yds. and a double storeyed house constructed thereon. Plaintiff no.2 is owner and in occupation of property bearing no. 10A (Old No.10), Underhill Lane, comprising land measuring 1500 sq. yds. and double storey house constructed thereon. Plaintiff no.3 is owner and in occupation of two residential flats on the ground floor and first floor constructed on plot bearing no. 12 A/2, Underhill Lane, Civil Lines, Delhi. Both the properties bearing no. 10A and 12A belonged to undivided Hindu family of Lallamal Sangam Lal Seth who was a great grandfather of plaintiffs no.1 and 2. By virtue of partition deed dated 14.10.1946, property no. 10A fell to the share of Lalla Daulatam Ram and property no. 12A fell to the share of Lalla Suit No.369/12 Page : 3/ Gajjomal. The two properties were divided by a common passage terminating in a open courtyard which was left for common use and enjoyment in the said partition. The present suit is concerned only with the said passage and open courtyard and has been referred as "suit property" and shown in red colour in the Site Plan. It has been stated that the said courtyard and passage have been used and enjoyed in common by the owners of the aforesaid property which have further been partitioned amongst the coowners. The defendant is an antisocial element indulging in grabbing the properties of others to extort money. The defendant was for sometime in occupation of one room in the servant quarters adjoining Bungalow no. 7 belonging to one Deepak Aggarwal and he was creating nuisance to them where upon a complaint was made to the police by the said Sh. Deepak Aggarwal and the defendant on 28.04.1998 left the said room of his own free will and consent and restored the same to Sh. Deepak Aggarwal. Defendant also gave a statement to the SHO, P.S. Civil Lines. After vacating the said room, defendant planned to forcibly occupy the portion of open courtyard and brought building Suit No.369/12 Page : 4/ material to carryout illegal and unlawful construction thereon in the first week of May, 1998. The said illegal construction was blocking the access of the plaintiff no.3 to his first floor flat. The plaintiffs objected to the trespass and unauthorized construction immediately and when the defendant defied and resisted plaintiffs' filed a complaint dated 09.05.1998 with P.S. Civil Lines for his removal. The police did not take any immediate action with the result that defendant started brick work for a room of about 10 X 10 feet on the suit property without taking any permission or approval from MCD. The plaintiffs also filed complaint with the MCD vide letter dated 07.07.1998 and requested to demolish the illegal structure raised by the defendant. The plaintiffs also persisted with the police and MCD and on 15.07.1988, the police officials form P.S. Civil Lines and MCD demolished the walls erected by the defendant and removed him from the suit property. The defendant, however, threatened to carryout the construction again. Finding no other alternative and apprehending, further trespass/ encroachment by the defendant, the plaintiffs filed the present suit.
Suit No.369/12 Page : 5/
3. Summons of the suit were served on the defendant. Defendant has contested the suit by filing the Written Statement raising preliminary objections that suit has not been properly verified; plaintiffs have even deliberately given wrong address of the defendant; plaintiffs have concealed material facts and they are in connivance with SHO, P.S. Civil Lines and ASI Kamla Prasad. The suit is liable to be dismissed on the ground that the property in dispute was never demolished on 15.07.1998 by the MCD but by the police which had no authority to do so.
On merits, the contents of the plaint have been denied and it has been submitted that the courtyard's half portion falling in property no. 10A where the servant quarter still exists and there are three latrines and the other half portion falls in property no. 14 (now known as property no.10) wherein the defendant is in possession of a room and a latrine. The electricity connection and water connection, etc. are in the name of the defendant and his elder brother. Defendant denied that open courtyard is the portion of property no. 10A. The defendant is a vegetable seller who sells vegetable at (i) Underhill Road footpath and is living in the suit property for Suit No.369/12 Page : 6/ more than 16 years. The defendant was in occupation of a room in the servant quarters of bungalow no. 14 (now known as no.10) and a room in the courtyard and the latrine. After the bungalow no. 10 was purchased by Sh. Naval Kishore Aggarwal and his brother Sh. Deepak Aggarwal, defendant agreed to vacate the servant quarter room but continued with the possession of other room in the courtyard and latrine. It has been stated that the room which was handedover to Sh. Deepak Aggarwal had nothing to do with the premises in dispute which is a separate room. Other contents of the plaint have been denied and a prayer has been made for dismissal of the suit.
4. The plaintiffs filed replication denying the contents of the WS in so far as they were contrary to the plaint. The contents of plaint were reiterated and reaffirmed.
5. On 19.07.2004, Ld. Predecessor of this court framed the following issues :
1) Whether the suit property is enjoyed in common by owners and occupants of property no. 10A and 12A? OPP Suit No.369/12 Page : 7/
2) Whether defendants forcibly occupied the portion of open court yard and raised unauthorised construction? OPP
3) Whether suit has not been properly verified in accordance with provision of Order 16 R.15, if so, its effect? OPD
4) Whether the court yard half portion falls in property no. 10A where servant quarter exists alongwith 3 lavatories and other half portion falls in property no. 14 now known as property no.
10 where defendants are in possession of a room and lavatory, if so, its effect?
5) Whether plaintiff is entitled for the relief claimed?
6) Relief.
6. Thereafter, the parties were directed to lead their evidence. In support of his case, the plaintiff has examined Sh. Gos Mohd. as PW1, Ahlmad in the Court of Sh. Sanjay Bansal, the then Ld. ACMM, North District, Delhi who produced the judicial file of case FIR no. 201/98 and proved the complaint dated 07.07.1998 as Ex.PW1/1 and the request to remove unsocial element dated 09.05.1998 as Ex.PW1/2. PW2 HC Samender Singh from P.S. Civil Lines who has proved the copy of FIR no. 201/98 as Ex.PW2/1. PW3 Sh. Narender Suit No.369/12 Page : 8/ Kumar, Head Clerk, MCD, Civil Lines Zone who has proved the certified copy of the file bearing no. 136/B/UC/CLZ/91, dated 30.07.1991 as Ex.PW3/1 (Colly.). PW4 Sh. Sunil Kumar, UDC from the office of SubRegistrar who has proved the two Sale Deeds dated 06.10.1987 and 08.01.1990 as Exs.PW4/1 and PW4/2 and the Site Plans registered alongwith the Sale Deeds as Exs.PW4/3 and PW4/4 respectively. PW5 Madhu Rohtagi filed her examination in chief by way of affidavit as Ex.PW5/A and relied upon the documents Exs.PW4/1 to PW4/4 and documents Exs.PW 5/3 to PW5/5 and thereafter, PE was closed.
7. Defendant neither crossexamined the witnesses of the plaintiff nor led any evidence and DE was closed vide order dated 24.01.2012.
8. It is also pertinent to mention here that the plaintiff no.2 Sh. Govind Narain made a statement before the Court on 03.06.2009, stating that the suit has become infructuous as he had filed a suit for possession against the defendant. The suit was accordingly withdrawn by plaintiff no.2 on his behalf.
Suit No.369/12 Page : 9/
9. I have heard Ld. Counsel for the defendant and have perused the record carefully. My findings on the issues are as under : ISSUE NO.3 : Whether suit has not been properly verified in accordance with provision of Order 16 R.15, if so, its effect? OPD
10.The onus of proving this issue was on the defendant. The defendant has neither led any evidence nor any arguments have been advanced by the Counsel for defendant on this issue. Hence, the issue is decided against the defendant and in favour of the plaintiff.
ISSUE NO.1 & 4:
1) Whether the suit property is enjoyed in common by owners and occupants of property no. 10A and 12A? OPP AND
4) Whether the court yard half portion falls in property no.
10A where servant quarter exists alongwith 3 lavatories and other half portion falls in property no. 14 now known as property no. 10 where defendants are in possession of a room and lavatory, if so, its effect?
11.These issues are taken up together as they require common discussion. The onus of proving issue no.1 was on the plaintiffs. Although the onus of proving issue no.4 has not been Suit No.369/12 Page : 10/ placed on either of the parties but keeping in view the nature of the issue, it is apparent that the same has been framed on the basis of averments mentioned in the written statement filed by the defendant wherein he has claimed in para 5 of the reply on merits that half of the courtyard's portion falls in property No.10A and the other half falls in property No.14, now known as property No.10 wherein the defendant is in the possession of a room and a latrine. Defendant also denied that the suit property was in common use of owners and occupiers of property no.10A & 12A. Hence, the onus of proving this fact lies on the defendant.
12. The plaintiffs have examined PW5 Smt. Madhu Rohtagi who has filed her examinationinchief by way of her affidavit Ex.PW5/A and she has testified that the suit property i.e that the common passage terminating in an open Courtyard is under common use and enjoyment of residents/ occupants of properties No.10A & 12A Underhill Lane, Delhi. She also proved the site plan of the suit property as Ex.PW5/3. She also testified that earlier the properties bearing No.10A & 12A belong to the great grandfather of plaintiffs no.1 & 2 and by Suit No.369/12 Page : 11/ virtue of the partition deed, the property was partitioned and the suit property was left in common for use and enjoyment by the owners and occupants of the properties No.10A & 12A.
13.The plaintiffs have also examined PW4 Sh. Sunil Kumar, UDC from the Office of SubRegistrarI who has proved the certified copies of Sale Deed as Ex.PW4/1 & Ex.PW4/2 dated 06.07.1987 and 08.01.1990 respectively. This witness has also proved the certified copies of the site plan registered with the Office of SubRegistrar as Ex.PW4/3 & Ex.PW4/4 respectively. There is no rebuttal to the testimony of PW5 nor she has been crossexamined at all. Hence, the testimony of PW5 coupled with the testimony of PW5 clearly establishes the case of the plaintiffs that suit property as shown in the site plan Ex.PW5/3 is enjoyed in common by the owners and occupants of property No.10A & 12A.
14.The defendant, on the other hand, has not examined any witness nor has proved any documentary evidence to substantiate his claim that the suit property is not in common use of the owners and occupants of property No.10A & 12A. He has also not placed on record any documentary evidence Suit No.369/12 Page : 12/ which could confirm that half portion of the courtyard falls in property no.10A and the other half falls in property no.10 where the defendant is in possession of a room and a latrine. Thus, the defendant has miserably failed to prove his claim. The issues are accordingly decided in favour of the plaintiffs and against the defendant.
ISSUE NO.2 : Whether defendants forcibly occupied the portion of open court yard and raised unauthorized construction? OPP
15.The onus of proving this issue was on the plaintiffs. The case of the plaintiffs is that the defendant has forcibly occupied a portion of open courtyard and has raised unauthorized construction in it. The plaintiffs have examined PW5 Ms. Madhu Rohtagi who has reiterated these facts in his examinationinchief by way of her affidavit Ex.PW5/A. She has testified that earlier the defendant was in occupation of a room in servant quarters adjoining Bunglow No.7 and after vacating the same, he occupied the portion of the open courtyard and carried out illegal and unauthorized construction in the first week of May 1998. She also proved the photographs showing the illegal construction as Mark C to Mark G. She also Suit No.369/12 Page : 13/ testified that a complaint was lodged with PS Civil Lines for removing the illegal construction. The said complaint has been proved as Ex.PW5/4. She has also testified that a complaint was made to the MCD for demolishing the unauthorized structure and she has proved the complaint as Ex.PW5/5.
16.The plaintiffs have also examined PW1 Gos Ahmed who produced the judicial file of case FIR No.201/1998 u/S 448 IPC titled as State vs. Virender Singh PS Civil Lines. The witness proved the complaint dated 07.07.1998 as Ex.PW1/1. He also proved the complaint to remove unsocial elements dated 09.05.1998 as Ex.PW1/2. The plaintiffs also examined PW2 HC Samender Singh who has proved the copy of FIR NO.201/1998 as Ex.PW2/1. PW3 Narender Kumar from Building Department, MCD was also summoned by the plaintiffs and he produced the certified copy of the file bearing No.136/B/UC/CLZ/931 dated 30.07.1991 as Ex.PW3/1 (Colly). None of these witnesses have been crossexamined by the defendant and their testimonies have remained unrebutted and unassailed. The documents proved by these witnesses as well as PW5 establish that the plaintiffs had been regularly Suit No.369/12 Page : 14/ complaining about the illegal occupation by the defendant and unauthorized construction being raised by him. The FIR Ex.PW2/1 lodged by plaintiff no.1 also shows that defendant had forcibly occupied the portion of the suit property. The complaint Ex.PW3/A lodged with the MCD also corroborates the fact that after forcibly occupying the suit property, the defendant had raised illegal construction thereon. Thus, there is clinching evidence against the defendant. The issue is accordingly decided in favour of the plaintiffs and against the defendant.
ISSUE NO.5 : Whether plaintiff is entitled for the relief claimed?
17.The onus of proving this issue was on the plaintiffs. Counsel for the defendant has argued that the suit of the plaintiffs has become infructuous as plaintiff no.2 has already filed a suit for possession against the defendant which shows that the defendant was already in possession of suit property and hence, the relief of permanent injunction claimed by the plaintiffs for restraining the defendant from encroaching the suit property cannot be granted. It has also been argued that as statusquo order has already been passed in respect of the suit property in Suit No.369/12 Page : 15/ the said case filed by plaintiff no.2. However, no copy of such order has been placed on record by the defendant in support of his contention.
18.No doubt the perusal of the statement of plaintiff no.2 recorded on 03.06.2009 shows that he had filed a suit for possession against the defendant and therefore, the relief of permanent injunction for restraining the defendant from encroaching into the suit property has become infructuous. But a perusal of the prayer clause of the plaint also shows that the plaintiffs have also claimed the relief of permanent injunction for restraining the defendant from undertaking any construction on the suit property. This relief can always be granted to the plaintiffs as defendant has failed to show as to in what capacity he has been occupying the suit property. The record also shows that defendant had earlier also raised illegal construction in the suit property which was demolished by the MCD. Hence, it is necessary that till the suit for possession is decided, the defendant should be restrained from raising any illegal construction in the suit property. The issue is accordingly decided in favour of the plaintiffs and against the defendant.
Suit No.369/12 Page : 16/ ISSUE NO.6 : (Relief).
19.In view of my findings on the aforesaid issues, the suit of the plaintiff is partly decreed. A decree of permanent injunction is passed against the defendant and the defendant, his agents, his associates etc., are restrained from raising any illegal and unauthorized construction in the suit property as shown in the site plan Ex.PW5/3. The parties shall bear their own costs. Decree sheet be prepared accordingly.
File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT ON: 17th November, 2012.
(ANIL KUMAR SISODIA) Additional District Judge06/ West Tis Hazari Courts, Delhi.
Suit No.369/12 Page : 17/
CS No.369/12
17.11.2012
Present: None for the plaintiffs.
Defendant in person.
Vide separate order announced in the open Court, the suit of the plaintiff is partly decreed. A decree of permanent injunction is passed against the defendant and the defendant, his agents, his associates etc., are restrained from raising any illegal and unauthorized construction in the suit property as shown in the site plan Ex.PW5/3. The parties shall bear their own costs. Decree sheet be prepared accordingly.
File be consigned to Record Room.
(Anil Kumar Sisodia)
ADJ06/ West/ THC/ Delhi
17.11.2012
Suit No.369/12 Page : 18/