Delhi District Court
Smt. Saroj Aggarwal vs Sh. Mehar Singh on 12 July, 2013
IN THE COURT OF MS. SNIGDHA SARVARIA, CIVIL JUDGE,
CENTRAL05 TIS HAZARI COURTS , DELHI
Suit No. 221/2010
IN THE MATTER OF:
Smt. Saroj Aggarwal
W/o Sh.Rakesh Aggarwal
R/o B895 Gulab Bagh,
PO Uttam Nagar, Najafgarh Road,
New Delhi110059
........Plaintiff
VERSUS
1. Sh. Mehar Singh
S/o Sh. Tirkhe Singh,
C/o M.S. Properties,
Jain Road, Sidhatri Enclave,
Bhagwati Garden, Extension,
New Delhi110059.
2. Sh. Laik Ram S/o Not known
R/o F3, Sidhatri Enclave,
Bhagwati Garden, Extension,
New Delhi110059.
3. Sh. Vinod Sharma S/o Sh. Kishan Chand,
R/o F31, Bhagwati Garden, Extension,
Sidhatri Enclave, New Delhi110059.
4. Master Rajesh S/o Sh. Ran Singh,
R/o F33, Bhagwati Garden, Extension,
Sidhatri Enclave, New Delhi110059
5. Sh. Praveen S/o Sh. Randhir
R/o F31A, Bhagwati Garden, Extension,
Sidhatri Enclave, New Delhi110059
6. Municipal Corporation of Delhi
Suit No. 221/2010 Page No. 1 of 19
Through it Commissioner,
Town Hall, Chandni Chowk,
Delhi
7. Deputy Commissioner of Police(West)
Rajouri Garden,
New Delhi
.........Defendants
Date of Institution : 08/11/2006
Date of Reserving for Judgment : 28/05/2013
Date of Judgment : 12/07/2013
SUIT FOR PERMANENT AND MANDATORY INJUNCTION
JUDGMENT:
1. Vide this judgment, I shall dispose of a suit for permanent and mandatory injunction, filed by the plaintiff.
2. Brief stated the relevant facts of the case are that the plaintiff purchased land measuring 2 bighas 7 biswas out of khasra No. 319, situated in the Revenue Estate of village Nawada, New Delhi 110059 from Sh. Vijay Kumar Gulati for valuable consideration on 20th June 1997, vide documents viz. Agreement to Sell, General Power of Attorney, Affidavit, Receipt and Will etc. It is further submitted that plaintiff purchased land measuring 2 bighas 7 biswas out of khasra No. 319, situated in the Revenue Estate of village Nawada, New Delhi110059 from Smt. Anita Gulati for Suit No. 221/2010 Page No. 2 of 19 valuable consideration on 25th April, 1997, vide documents viz. Agreement to Sell, General Power of Attorney, Affidavit, Receipt and Will etc. Thus the plaintiff became owner in possession of land measuring 4 bighas 14 biswas out of khasra no. 319 situated in the Revenue Estate of village Nawada, New Delhi110059 and he raised a boundary wall around the entire land in the year 1997 and affixed a gate in the boundary wall. It is further submitted that thereafter, the plaintiff demarcated plots on the said land within the boundary wall and sold some of the plots to various persons. The plots so demarcated in the said land are shown in the site plan which are numbered from 1 to 42. The said block was named as Aggarwal Apartments, Sidhatri Enclave, Bhagwati Garden Extension, Post Office Uttam Nagar, New Delhi110059. Some plots bearing No. 23, 24,25, 28A, 37&38 are still with the plaintiff. The plaintiff is the owner in possession of the said plots. The other plots were sold to close relatives and close friends of the plaintiff. The internal lanes are being exclusively used by the plot holders and the residents of the Aggarwal Apartments. The internal roads are not available for use to the outsiders as the block ins surrounded by a boundary wall from all sides with one gate for ingress and egress which is shown in the site plan marked as A to B. The internal lanes which are 24 fts. wide and 14 fts. wide Suit No. 221/2010 Page No. 3 of 19 approx. are closed at the other and which ends are shown in the site plan marked as C to D, D to E and E to F for the purpose of exclusive use of the said lanes by the plot holders and occupants and more particularly for the purpose of security and safety of the residents and property owners of the Aggarwal Apartments, Sidhatri Enclave, Bhagwati Garden Extension, Post office Uttam Nagar, New Delhi. This plot is since 1997. In the year 2001 the defendant no. 1 along with his accomplices in collusion and connivance with local police attempted to remove the wall existing as shown in the site plan annexed hereto and marked as C to D and the gate which was installed at points A to B, forcefully by undue process of law. The matter was reported by the plaintiff to the police station Uttam Nagar vide complaint dated 18.1.2001, duly received by PS Uttam Nagar on 19.1.2001 and with the collective efforts of the plot holders and residents of the Aggarwal Apartments along with plaintiff, the defendant no. 1 and his accomplices could not succeed in their illegal designs and ulterior motives. Again on 16.12.2002 the plaintiff made a complaint to SHO PS Uttam Nagar, Assistant Commissioner of Police, Tilak Nagar, New Delhi, Deputy Commissioner of Police, West District, New Delhi. Since the defendant no. 1 and his accomplices again tried to remove the wall at points C to D and the gate at points A to Suit No. 221/2010 Page No. 4 of 19 B so as to create an ingress/egress through that internal lane to the agricultural land belonging to defendant no. 1 and his other family members with the help of goonda elements. Again the defendant no. 1 could not succeed in his illegal designs, malafide intentions and ulterior motives. Now again the defendant no. 1 along with other defendants has started illegal colonization of the agricultural land which is shown in the yellow colour in the site plan whereas no illegal colonization is permissible in accordance with law now a days. Even the Municipal Corporation of Delhi and the local police cannot facilitate any illegal colonization on the agricultural land in the area in question. It is further stated that on 7.11.2006, all the defendants gathered near the gate and called the plaintiff and her husband Sh. Rakesh Aggarwal land threatened them that in case they will not remove the wall existing at point C to D, they will close the ingress to the Aggarwal Apartments from the gate installed at point A to B by raising a wall in front of the gate. When the plaintiff told that she would be approaching the court of law they used abusive language for plaintiff as well as her husband and the local residents of Aggarwal Apartments. Actually, the defendants are doing illegal colonization and are running unauthorised construction on the agricultural land shown in yellow colour and want the used to be extended upon Suit No. 221/2010 Page No. 5 of 19 the internal lanes in the Aggarwal Apartments are developed by the plaintiff out of her own funds and the maintenance of such internal lanes is also being done by her from time to time. The Municipal Corporation of Delhi has also laid mettled road only on the road shown at points X1 to X2. With efforts made by the plaintiff and the residents of Aggarwal Apartments, the Municipal Corporation of Delhi has also agreed to lay down mettled roads on the internal lanes but due to local political influence they are intentionally not doing so under the influence of the defendants who are local politicians. It is further submitted that the staff who supervise the construction of roads in the area including the road shown at X1 to X2 has also refused to cooperate with the plaintiff and the residents of Aggarwal Apartments and are illegally pressuring them to agree to the illegal demands of the defendants, which clearly indicates that they are acting under their influence. The local police is also not hearing to the residents. The plaintiff and her husband had approached the police post Matiala chowki, Uttam Nagar, Delhi and had also given a complaint but he refused to give any acknowledgment. Despite complaints having been made to the police authorities, the defendant no. 1 alongwith his accomplices is repeatedly taking law in his own hands because the police is not taking any action against them and his accomplices Suit No. 221/2010 Page No. 6 of 19 and the defendants no. 6 & 7 instead of stopping the illegal colonization and unauthorised construction are aiding the the same despite directions of Hon'ble High Court which are reported in the newspapers also. It is further submitted that the defendant no. 6 is providing all civil amenities like roads, water, facility, electricity supply, street lights, sewerage, drainage etc. in the colonies situate in the agglomeration area of the Aggarwal Apartments, Sidhatri Enclave, Bhagwati Garden Extension, PO Uttam Nagar, Delhi whereas no such facility is being provided to the said area, for political reasons. The Municipal Corporation of Delhi has even provided such facilities in the colonies which have been demarcated and developed by the local colonizers under political patronage, which have been demarcated and developed just during the period of 23 years. The Municipal Corporation of Delhi being statutory body is legally duty bound to carry out its statutory functions with fairness, impartially, without any discrimination, with uniformity and transparency. It is further stated that in case the defendants succeed in their illegal designs, ulterior motives and malafide intentions, the plaintiff shall suffer irreparable loss and injury which cannot be compensated in terms of money.
3. On the other hand in written statement filed by the defendant No. 3 & 5, it is contended that the suit has been filed against them Suit No. 221/2010 Page No. 7 of 19 without any cause of action as they have no concern or connection with the boundary wall in question, gate installed in the said boundary wall and Aggarwal Apartments, Sidhatri Enclave, Bhagwati Garden Extension, PO Uttam Nagar, Delhi. They never tried to demolish the boundary wall or gate as alleged. It is further contended that that the land/property in question was purchased by the plaintiff and plots were demarcated by the her within the boundary wall and sold some plots to various persons. It is admitted that the plots are correctly shown in the site plan; Block was named as Aggarwal Apartments, Sidhatri Enclave, Bhagwati Garden Extension, PO Uttam Nagar, Delhi. It is denied for want of knowledge that some plots bearing No. 23,24,25, 28A & 37 are still with the plaintiff. It is admitted that the internal lanes are being exclusively used by the plot holders and residents of Aggarwal Apartments as the block is surrounded by a boundary wall. It is stated that recently some persons tried to demolish the boundary wall and the gate, but police had come, the boundary wall was restored to its original position by the plaintiff. The defendants have nothing to do with the illegal colonization of the agricultural land being done by defendant no. 1 and they have unnecessarily been involved in the present suit. It is admitted correct that the internal lanes in Aggarwal Apartments are developed and being Suit No. 221/2010 Page No. 8 of 19 maintained from time to time by the plaintiff out of her own funds and the job work of metaling the roads by the MCD/DSIDC is in progress. Further the defendant denied all the allegations of the plaintiff which are made in his plaint and prayed that the suit of the plaintiff be dismissed.
4. The defendant No. 7 in his written statement has stated that the plaintiff has impleaded the answering defendant without any reason or rhyme. The Deputy commissioner can be served only through commissioner of police and not directly. Also the suit of the plaintiff is not maintainable in view of the facts that no noticfe under section 140 of the Delhi Police Act has been served by the plaintiff. Also the notice under section 80 of CPC has not been served by the plaintiff. Further it is submitted that the plaintiff has not come to the court with clean hand and has suppressed the material facts. The suit is barred by the provision of section 41 SRA Act. The plaintiff has no locus standi to file the present suit against the defendant No. 7. it is submitted by the defendant No. 7 that the plaintiff is firing in the air without any specific allegation. In whose collusion and connivance of the local police, the wall was attempted to be removed. Moreover, the plaintiff is referring to the act alleged to have been committed in the year 2001 and she is filing the suit in the end of 2006. Why no reasons have been Suit No. 221/2010 Page No. 9 of 19 explained. Whatever the complaints were submitted by any person, the same are disposed of after due compliance. Here in this case, the plaintiff is referring to a complaint dt. 16122002, this fact is denied. If at all there was any such complaint,l the same would have been disposed of and failed after the compliance. The record is maintained only for three years and thereafter the same is destroyed as routine. had there been any dissatisfaction to the plaintiff at that point of time, she could have filed this suit in the year 2002 instead of filing the same in the year 2006. That shows that all the complaints if filed were disposed of satisfactory. it is further submitted that the answering defendant is not aware about any incident alleged to have been taken place on 07112006. However it is transpired that a PCR calls was received at PP Matiala on 12112006 at 6.30 PM which was entered as DD No. 26 in respect to removal of a wall and when the ASI Viajy Pal visited the site nobody was found at the site and only one person namely Sh. Rakesh Aggarwal was found there who informed that the civil suit is pending in respect of the present property and wall has been removed. From the enquiry from the neighbour this fact could not be established therefore, the said DD kept pending. It is further submitted that vide DD NO. 38 dt. 12112006 a complaint was received from the plaintiff at PP Matiala. The same was also Suit No. 221/2010 Page No. 10 of 19 marked to ASI Vijay Pal as and when the same was being investigated another application was received from Laik Ram and others in respect of the same suit property. Taking into consideration, the apprehension of breach of peace, the Kalandara u/s 107/150 Cr.PC was prepared and sent to LD. SEM. Further the defendant denied all the allegations of the plaintiff which are made in his plaint and prayed that the suit of the plaintiff be dismissed.
5. On the basis of pleadings of the parties, vide order dated 01.5.2013, following issues were framed:
i) Whether the plaintiff is entitled to a decree of permanent injunction, as prayed? OPP
ii) Whether the plaintiff is entitled to a decree of mandatory injunction, as prayed? OPP
iii) Whether no cause of action has arisen in favour of the plaintiff and against defendant No. 3 & 5?OPD 3 &5
iv) Whether the present suit is not maintainable in its present form?
OPD
v) Whether the present suit is barred by S. 140 Delhi Police Act? OPD7
vi) Whether the plaintiff had not come with clean hands and suppressed the material facts? OPD7
vii) Whether the present suit is barred by S. 80 CPC? OPD7 Suit No. 221/2010 Page No. 11 of 19
viii) Whether the plaintiff has not locus standi to file the present suit against defendant No. 7? OPD7
ix) Whether the present suit is hit by section 41 of Specific Relief Act? OPD7
x) Relief.
6. To prove his case plaintiff has examined herself as PW1 . PW1 has filed her evidence by way of affidavit Ex. PW1/A. The PW1 has reiterated the facts mentioned in the plaint and also relied upon the document which are as under:
i) The agreement to sell, GPA, Affidavits, receipts and Will all dt. 20061997 are Ex. PW1/1 to PW1/5.
ii) The agreement to sell, GPA, Affidavits, receipts and Will all dt. 25041997 are Ex. PW1/6 to PW1/10.
iii) Site Plan is Ex. PW1/11.
iv) The copy of complaint dt. 18012001 & 16122002 are Ex. PW1/12 & PW/13.
PW1 was also crossexamined by the Ld. counsel for the MCD
7. On the other hand the defendant No. 1, 2 & 4 were Proceeded Ex parte vide order dt. 07122006 and the remaining defendant did not lead their evidence and their evidence was closed vide order dt. 28052013.
8. I have heard the counsel for both the plaintiff and counsel for the Suit No. 221/2010 Page No. 12 of 19 MCD and have gone through the record carefully.
9. My issue wise finding is as under:
10. Issue No. 1 Whether the plaintiff is entitled to a decree of permanent injunction, as prayed? OPP Issue No. 2. Whether the plaintiff is entitled to a decree of mandatory injunction, as prayed? OPP Issue No. 6 Whether the plaintiff had not come with clean hands and suppressed the material facts? OPD7 Issue No. 9 Whether the present suit is hit by section 41 of Sepcific Relief Act? OPD7 The plaintiff has filed the present suit claiming to be the owner of land measuring 2 Bighas and 7 Biswas of Khasra No. 319 of Village Nawada, N. Delhi59 vide agreement to sell, GPA, Affidavits, receipts, will etc. all dated 20/6/1997 viz. Ex. Pw1/1 to PW1/5 and of land measuring 2 Bighas and 7 Biswas of Khasra No. 319 of Village Nawada, N. Delhi59 vide agreement to sell, GPA, Affidavits, receipts, will etc. all dated 25/4/1997 viz. Ex. Pw1/6 to PW1/10. These documents Ex. PW1/1 to 1/4 and Ex. PW1/6 to 9 are unregistered documents, which are required to be compulsorily registered under the provisions of S. 17 of the Registration Act and thus cannot be read in evidence except for purposes under S. 49 of the Registration Act. Further, Ex. PW1/5 Suit No. 221/2010 Page No. 13 of 19 being a will dated 20/6/1997 executed by Sh. Vijay Kumar Gulati in favour of the plaintiff and except Ex. PW1/10 being a will dated 25/4/1997 executed by Sh. Anita Gulati in favour of the plaintiff has not been proved as per the provisions of S. 68 of the Evidence Act. Section 68 of the Indian Evidence Act, 1872 (in short the 'Evidence Act') mandates examination of one attesting witness in proof of a Will, whether registered or not. The law relating to the manner and onus of proof and also the duty cast upon the Court while dealing with a case based upon a Will has been examined in considerable detail in several decisions of this Court [See H. Venkatachala Iyengar v. B.N. Thimmajamma and Ors. (AIR1959 SC 443),Rani Purnima Debi and Anr. v. Kumar Khagendra Narayan Deb and Anr. (AIR1962 SC
567) andShashi Kumar Banerjee and Ors. v. Subodh Kumar Banerjee and Ors. (AIR1964 SC 529)].
11.Also, at this juncture it would be worthwhile to discuss the decision in Suraj Lamp & Industries Pvt. Ltd vs. State of Haryana & Anr. SLP (C) No. 13917 of 2009 dated 11.10.2011. In the aforesaid decision, the Hon'ble Supreme Court has clearly laid down that such documents do not create any ownership right in immovable property. The Hon'ble Supreme Court held as under:
"Therefore, a SA/GPA/WILL transaction does not convey any title nor create any interest in an immovable property. The observations by the Delhi High Court, in Asha M. Jain Suit No. 221/2010 Page No. 14 of 19 v. Canara Bank - 94(2001) DLT 841, that the "concept of power of attorney sales have been recognized as a mode of transaction" when dealing with transactions by way of SA/GPA/WILL are unwarranted and not justified, unintendedly misleading the general public into thinking that SA/GPA/WILL transactions are some king of a recognized or accepted mode of transfer and that it can be a valid substitute for a sale deed. Such decisions to the extent they recognize or accept SA/GPA/WILL transactions as concluded transfers, as contrasted from an agreement to transfer, are not good law. We therefore reiterate that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance. Transactions of the nature of 'GPA sales' or 'SA/GPA/WILL transfers' do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immovable property. The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property"
12.Now from the aforesaid it is clear that the plaintiff is claiming ownership on the basis of the GPA, agreement to sell, affidavit, will etc. but in view of the aforesaid decision in Suraj Lamp's case (supra), the plaintiff cannot be said to be an owner as there is no valid transfer of property vide the aforesaid documents. Thus, plaintiff has failed to prove her ownership over the suit land.
13.Further, the site plan Ex. PW1/11 has not been proved as per the provisions of the Evidence Act. Further, during crossexamination Suit No. 221/2010 Page No. 15 of 19 the plaintiff/PW1 deposed that the same was got prepared by her husband by the architect. Neither the architect nor the husband of the plaintiff has been examined to prove it. Also, the complaints Ex. PW1/12 and 13 have not been proved as per the provisions of the Evidence Act. It is well settled that the case of the pliantiff has to stand on its own legs but the plaintiff has, as discussed, not proved her case.
14.Furthermore, the plaintiff pleads that the lanes situated between the gates points A to B and the wall C to D and between the wall E to F & points G to H are for the exclusive use of the plaintiff and the incumbents of Aggarwal Apartments but the plaintiff has not proved by leading positive evidence that the alleged lanes situated between the gates points A to B and the wall C to D and between the wall E to F & points G to H are for the exclusive use of the plaintiff and the incumbents of Aggarwal Apartments and public has no access to it. Also, the plaintiff has not proved by leading positive evidence that gates points A to B and the wall C to D and between the wall E to F & points G to H is owned by the plaintiff. It is no more res integra that if a party does not come to the court with clean hands then it is not entitled to equitable relief of injunction. In Seema Arshad Zaheer and others v. Municipal Corpn. of Greater Mumbai and others ((2006) 5 SCC 282), the Suit No. 221/2010 Page No. 16 of 19 Hon'blE Apex Court held :
"30. The discretion of the Court is exercised to grant a temporary injunction only when the following requirements are made out by the plaintiff; (i) existence of a prima facie case as pleaded, necessitating protection of the plaintiff's rights by issue of a temporary injunction; (ii) when the need for protection of the plaintiffs rights is compared with or weighed against the need for protection of the defendants rights or likely infringement of the defendant's rights, the balance of convenience tilting in favour of the plaintiff; and (iii) clear possibility of irreparable injury being caused to the plaintiff if the temporary injunction is not granted. In addition, temporary injunction being an equitable relief, the discretion to grant such relief will be exercised only when the plaintiffs' conduct is free from blame and he approaches the Court with clean hands."(See also: AIR 2008 SUPREME COURT 2291 "Mandali Ranganna v. T. Ramachandra"; Transmission Corpn. of A. P. Ltd. v. Lanco Kondapalli Power (P) Ltd. ((2006) 1 SCC 540)
15.The maxim withholds assistance of Court where the wrongdoer is trying to enjoy the fruits of his own wrong. It is a selfimposed ordinance that closes the door of a Court of equity to one tainted with inequitableness or bad faith relative to the matter in which he seeks relief. A party who seeks equity must bring on record the entire facts of his case supported by documentary proof. But as discussed above the plaintiff has failed to prove the same and has not come to the clean hands. Thus, the suit is not maintainable under the provisions of S. 41 (i) of the Specific Relief Act.
16.In view of the foregoing discussion, the plaintiff has failed to prove Suit No. 221/2010 Page No. 17 of 19 her case and thus is not entitled to the reliefs of permanent and mandatory injunction. These issues are decided accordingly in favour of the defendants and against the plaintiff.
17.Issue No. 3 Whether no cause of action has arisen in favour of the plaintiff and against defendant No. 3 & 5?OPD 3 &5 The burden to prove this issue was on the defendant nos. 3 & 5 but the defendants have neither led any evidence in this regard nor otherwise proved this issue. Accordingly, this issue is decided in favour of the plaintiff and against the defendants.
18.Issue No. 4 Whether the present suit is not maintainable in its present form? OPD The burden to prove this issue was on the defendants but the defendants have neither led any evidence in this regard nor otherwise proved this issue. Accordingly, this issue is decided in favour of the plaintiff and against the defendants.
19.Issue No. 5 Whether the present suit is barred by S. 140 Delhi Police Act? OPD7 The burden to prove this issue was on the defendant no. 7 but the said defendant have neither led any evidence in this regard nor otherwise proved this issue. Accordingly, this issue is decided in favour of the plaintiff and against the defendants.
20.Issue No. 7 Whether the present suit is barred by S. 80 CPC? Suit No. 221/2010 Page No. 18 of 19 OPD7 The burden to prove this issue was on the defendant no. 7 but the said defendant have neither led any evidence in this regard nor otherwise proved this issue. Accordingly, this issue is decided in favour of the plaintiff and against the defendants.
21.Issue No. 8 Whether the plaintiff has not locus standi to file the present suit against defendant No. 7? OPD7 The burden to prove this issue was on the defendant no. 7 but the said defendant have neither led any evidence in this regard nor otherwise proved this issue. Accordingly, this issue is decided in favour of the plaintiff and against the defendants.
22.Relief:
In view of the foregoing discussion, the plaintiff has failed to prove her case and thus the suit is hereby dismissed. There are no orders as to costs.
Decree sheet be prepared accordingly. File be consigned to the record room after necessary compliance.
Announced & signed in the ( Snigdha Sarvaria) open court on 12072013. Civil Judge/Central05 Delhi Suit No. 221/2010 Page No. 19 of 19