Delhi District Court
Sh. Niranjan Singh vs Union Of India on 3 July, 2013
IN THE COURT OF SH. ANIL KUMAR SISODIA :
ADDITIONAL DISTRICT JUDGE06 : WEST DISTRICT
TIS HAZARI COURTS : DELHI.
RCA NO. 21 OF 2012
SH. NIRANJAN SINGH
S/o Late Sh. Phool Singh
Original R/o Village Nilothi
At present R/o H.No.B64
Friends Colony (West)
New Delhi110065. ...... APPELLANT
Versus
1. UNION OF INDIA
Through
Chief Secretary
National Capital Territory of Delhi.
2. EXECUTIVE ENGINEER MINOR IRRIGATION
Department of NCT of Delhi
Basai Darapur, New Delhi.
3. ASSISTANT ENGINEER MINOR IRRIGATION
Department of NCT of Delhi
Basai Darapur, New Delhi.
4. GOAN SABHA, NILOTHI
Through
Development Commissioner
NCT Of Delhi
9, Under Hill Road, Delhi110054. ...... RESPONDENTS
RCA - 21/12 Page 1/14
Date of institution : 14.11.2011
Order reserved on : 27.05.2013
Date of Decision : 03.07.2013
J U D G M E N T :
1. The appellant has filed the present appeal aggrieved by the judgment and decree dated 03.10.2011 passed by the Ld. Trial Court, whereby the suit filed by the appellant against the respondents was partly decreed.
2. Briefly stated the facts necessary for disposal of the present appeal are that the appellant had filed a suit for mandatory and permanent injunction against the respondents on the averments that the appellant is the recorded Bhoomidar in possession of land comprised in Khasra No.48/4/1 min West (201), 48/6/2 min South (201), 48/14 (310) and 48/17 (314) situated in the revenue state of Village Nilothi, Delhi. It is further averred that the cremation ground of the village was reserved in Khasra No.40/22, 23 during the consolidation in the village in the year 195354 but thereafter in the year 1980, respondent no.4 shifted the cremation ground to Khasra No.48/4/7 which is adjoining to the land of appellant on eastern side. The cremation ground was embounded by a high wall. The entry of the cremation ground was from the western side. RCA - 21/12 Page 2/14 Sometime in the last week of June 2008, respondent no.3 broke open the boundary wall from the eastern side to which the appellant objected and he was informed by respondent no.1 & 2 that breaking of wall from there was temporary and only for unloading the building material and assured that the wall would be reconstructed. The appellant made several complaint to respondent no.3 regarding the same but to no avail. Thus, the appellant filed the suit for permanent and mandatory injunction.
3. The respondents contested the suit by filing their written statements. Respondents no.1 to 3 took the defence that land in the western side of the crematorium belongs to Irrigation & Flood Control Department and the road on the eastern side was on the Gram Sabha land. Respondent no.4 also took a similar stand and stated that the appellant had equally efficacious remedy before RA/ SDM. Respondent no.4 also took a stand that respondents have right to affix permanent gate on the eastern boundary wall of the crematorium and the appellant had no right to object to the same and no nuisance would be caused to the appellant.
4. Appellant filed replication to the WS of the respondents reiterating his claim and denying the contents contrary to the plaint. RCA - 21/12 Page 3/14
5. Thereafter the issues were framed and parties led their respective evidence. The appellant examined four witnesses in support of his case and the respondents examined Sh. N.K. Verma, Assistant Engineer in support of their case and closed their evidence.
6. After conclusion of evidence and hearing the parties, Ld. Trial Court partly decreed the suit of the appellant vide judgment and decree dated 03.10.2011 and directed the respondents to construct the wall or install the gate at the opening created on the eastern side of the cremation ground shown in red colour in site plan Ex.PW2/A within one month of the passing of the judgment.
7. Aggrieved by the said judgment and decree, the appellant has filed the present appeal on the following grounds that : (A). Ld. Trial Court has not framed any issue with respect to existence or nonexistence of road on the eastern side of the cremation ground and the appellant was not given any opportunity to adduce evidence on this aspect and Ld. Trial Court has given finding on the existence of road on the eastern side of the cremation ground. (B). Ld. Trial Court has ignored the evidence of the appellant and did not consider para3 of his evidence by way of affidavit wherein it was stated that the road of the Minor Irrigation Department was RCA - 21/12 Page 4/14 constructed only upto the NorthEast corner and was never extended to the Eastern Wall of the cremation ground.
(D). Ld. Trial Court also ignored the evidence of DW1 who in his evidence has categorically stated that opening on the eastern side of crematorium was made only to dump construction material and was a temporary affair and was to be closed after completion of work which proved that there was no gate or entry on the eastern side. DW1 also had no knowledge regarding the status of the approach road to the eastern side and the said evidence demolished the claim of existence of road on the eastern side.
(E). Ld. Trial Court has wrongly decided issues no.2 & 4 together and erred in concluding that appellant had not specifically mentioned as to what type of nuisance would be caused if gate is opened on the eastern side of the cremation ground. The appellant in para 5 of his replication on merits had specified the nuisance that would be caused to him. The nuisance is being caused due to the act of unreasonable interference and peaceful enjoyment of the land and the villagers had been using the gate affixed on the western boundary wall since 1980. The respondents failed to place on record any document to show that RCA - 21/12 Page 5/14 opening of eastern boundary wall was due to popular will of the villagers and the respondents were bound to reconstruct the wall and close the opening.
(F). Ld. Trial Court overlooked the evidence of the appellant wherein it was stated that the road was originally constructed upto northeast corner of the cremation ground but the same was illegally extended by respondents no.2 & 3 along with the eastern wall of cremation ground without demarcation by the Revenue Department despite the protest of the appellant.
8. Notice of the appeal was served on the respondents who appeared in response to the summons through their counsels. Respondent no.4 filed reply to the appeal.
9. The Trial Court Record was also summoned before hearing the arguments.
10.I have heard Counsel for appellant as well as the Counsel for the respondents and have perused the record carefully including the trial court record.
11.Counsel for the parties have argued on the lines of their pleadings. Counsel for the appellant has also filed certain documents such as; RCA - 21/12 Page 6/14 copy of Aks Shijra of village Nilothi and certified copy of Demarcation Report dated 22.05.2009 in support of his arguments. Counsels for the respondents have argued that the present appeal is an abuse of process of law and there is no illegality or infirmity in the judgment passed by Ld. Trial Court and the respondent no.4 has already complied with the judgment and has erected a steel gate. Two photographs were also filed showing the steel gate erected by respondent no.4 in compliance of the orders of Ld. Trial Court.
12.My findings on the issues are as under : ISSUE NO.1 Whether the present suit is not maintainable in view of existence of an equally efficacious remedy to file the suit before concerned RA/ SDM? OPD4.
13.Ld. Trial Court has decided this issue in favour of the appellant and against the respondents. The findings on this issues have not been challenged by either of the parties. Hence, the findings of Ld. Trial Court are reaffirmed.
ISSUES NO.2&4
2). Whether the proposed usage of cremation ground from the gate/ opening on the eastern side would be a source of continuous nuisance for the plaintiff? OPP AND RCA - 21/12 Page 7/14
4). Whether the plaintiff is entitled to the decree of permanent injunction, as prayed for in prayer clause "c" of the plaint? OPP
14.Ld. Trial Court has taken up both these issues together and decided them against the appellant and in favour of the respondents.
15.Ld. Counsel for the appellant has argued that Ld. Trial Court has overlooked the evidence of the appellant and has wrongly held the existence of road on the eastern side of the cremation ground. It was also argued that Ld. Trial Court has also wrongly ignored the evidence of DW1 regarding the existence of the road.
16.A bare perusal of the plaint would show that in para 3 of the plaint, the appellant himself has admitted the existence of the road on the eastern side of the cremation ground. He also admitted that this road was constructed on the land acquired by Delhi Government and the said road was built by Minor Irrigation Department. Ld. Trial Court also noted that even PW2 in his crossexamination has admitted that in the site plan Ex.PW2/A, the land shown as brown is a pucca metalic road on point C and D which abuts the eastern side of the cremation ground. Thus, the admission of the appellant coupled with the evidence of PW2 sufficiently shows the existence RCA - 21/12 Page 8/14 of the road on the eastern side of the cremation ground. Therefore, merely because DW1 has not been able to categorically state as to who had built the said road and to whom the said land belongs, is of no consequence. Law is well settled that facts admitted need not be proved further. The ground raised by the appellant that non framing of the issue regarding the existence or nonexistence of road on the eastern side and that he did not get the opportunity to lead evidence on this aspect, is without any merits. The appellant was well aware about the controversy involved in the case and he has already admitted that there existed a road on the eastern side of the cremation ground and therefore, no further evidence was required on this aspect.
17.So far as the question of nuisance is concerned, the averments made in the plaint in this regard were also absolutely vague. Even in the replication, no specific instance of nuisance caused to the appellant due to opening of the gate in the eastern boundary wall has been mentioned. The case law cited by the appellant in this regard has been rightly held to be not applicable to the facts of the present case. It is an admitted position that the land of the appellant opposite the crematorium is separated by the road which is a public RCA - 21/12 Page 9/14 way. Further, the appellant has himself admitted in his cross examination that the villagers are carrying the dead bodies from the eastern gate of the cremation ground. The land of the appellant is an agricultural land and the appellant is not residing there. In fact, PW4 Rame, in his crossexamination, has testified that he has been cultivating the land of the appellant for the last 15 years and the appellant visits his fields only twice or thrice in a year. Hence, there is no question of any nuisance by opening of the gate on the eastern side of the cremation ground. Therefore, I do not find any illegality or infirmity in the conclusion arrived at by the Ld. Trial Court that the appellant has no right to stop any person from exercising his public right. Hence, the findings of Ld. Trial Court on these issues are upheld and reaffirmed.
ISSUE NO.3 Whether the plaintiff is entitled to a decree for mandatory injunction, as prayed for in the prayer clause "a" of the plaint? OPP
18.This issue has been decided by the Ld. Trial Court in favour of the appellant. Ld. Trial Court directed the respondents to construct the wall or install a gate at the opening created at the eastern side of the cremation ground shown in red in the site plan Ex.PW2/A between RCA - 21/12 Page 10/14 the points C & D, which was created by them for bringing the construction material to the cremation ground within one month.
19.Ld. Counsel for the appellant has argued that opening on the eastern wall was for a temporary period and for a specific purpose and this was done in order to avoid any disturbance caused to the daily ingress and egress of the villagers in the cremation ground from the gate affixed on the western side of the cremation ground and after the completion of the construction, the opening was to be closed. It was also argued that the appellant never prayed for affixation of gate on the eastern wall of the cremation ground and the appellant had specifically prayed for directing the respondents to reconstruct the broken wall and to restore it to its original height.
20.Ld. Counsels for the respondents, on the other hand hand, have argued that respondent no.4 had complied with the directions of Ld. Trial Court and have installed the gate on the eastern wall of the cremation ground. Copy of the letter dated 15.11.2011 along with two photographs was also placed on record. It has been argued that the appellant cannot direct the respondents as to how the cremation ground should be put to use as the cremation ground is on a public land and the gate on the eastern side has been affixed keeping in RCA - 21/12 Page 11/14 view the convenience of the villagers who used the cremation ground. It has been argued that PW4, in his crossexamination, has admitted that the entrance of the western side had been closed and the wall on the eastern side was broken by the contractor. It was also argued that even the appellant, in his crossexamination, has admitted that the villagers are carrying the dead bodies from the eastern side gate of the cremation ground which shows that the villagers are using the cremation ground from the eastern side gate. It was argued that no right of the appellant is violated on erection of the gate on the eastern wall of the cremation ground which is situated on a public land and the land of the appellant is separated from the same by a public way.
21.No doubt, the appellant had not prayed for installation of the gate on the eastern side but keeping in view the evidence available on record, the Ld. Trial Court had given a discretion to the authorities, and rightly so, to either reconstruct the broken wall or to install a gate in keeping with the convenience of the local population. The appellant has failed to show that by installation of the gate on the eastern wall, he has suffered any kind of injury or any of his rights have been violated.
RCA - 21/12 Page 12/14
22.The principles/guidelines regarding the scope of interference by the Appellate Court in the exercise of discretion by the court of first instance have been laid down by Hon'ble Supreme Court in 1990 (supp.) SCC 727 and it was held :
"An appeal against exercise of discretion is said to be an appeal on principle. Appellate Court will not reassess the material and seek to reach the conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. The Appellate Court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage, it would have come to a contrary conclusion. If discretion has been exercised by the trial court reasonably and in a judicial manner, the fact that the Appellate Court would have taken a different view may not justify interference with the Trial Court's exercise of discretion".
23.These principles were reiterated again recently in Volume I (2010) SLT 52. Hence, the scope of interference by this Court in the exercise of discretion by the trial Court is only limited to the extent where discretion has been exercised arbitrarily, capriciously or RCA - 21/12 Page 13/14 perversely. This Court cannot substitute its own discretion in place of the discretion exercised by the trial Court.
24.After going through the entire evidence on record, I am of the considered opinion that the appellant has failed to show that the discretion vested in Ld. Trial Court had been exercised by it arbitrarily, capriciously or perversely. The judgment of the Ld. Trial Court cannot be termed as illegal or perverse.
25.Thus, in view of the aforesaid discussion, I find that the present appeal filed by the appellant is without any merits and therefore, the same stands dismissed. The judgment of Ld. Trial Court is re affirmed. No order as to costs. Decreesheet be prepared accordingly.
Trial Court Record be sent back forthwith alongwith the copy of this judgment.
Appeal file be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT ON: 3rd July, 2013.
(ANIL KUMAR SISODIA) Additional District Judge06/ West Tis Hazari Courts, Delhi.
RCA - 21/12 Page 14/14