Delhi District Court
Mr. Raju vs Mr. Yogesh Pahadia on 14 October, 2022
IN THE COURT OF SH. GAURAV RAO, ADJ-03, NEW DELHI
DISTRICT, PATIALA HOUSE COURTS, NEW DELHI.
CS No. 188/18
CNR No. DLND01-001511-2018
Mr. Raju
s/o Sh. Vijay Kumar
R/o C-304, Budh Nagar,
New Delhi - 110012.
........Plaintiff
Vs.
Mr. Yogesh Pahadia
s/o Sh. Laxmi Narain,
R/o C-268, Budh Nagar,
New Delhi -110012.
..........Defendant
Date of institution : 01.03.2018
Date on which reserved for judgment : 14.10.2022
Date of decision : 14.10.2022
Decision : Dismissed
JUDGMENT
1. The present suit has been filed by the plaintiff against the defendant for recovery of damages to the tune of Rs. 35,00,000/-
CS No. 92/16 Raju Vs. Yogesh Pahadia 1/29 Plaint/Plaintiff's version
2. It is the case of the plaintiff that he is the owner and in possession of property bearing no. C-304, Budh Nagar, Inderpuri, JJ Colony, New Delhi - 110012 (hereinafter referred to as the suit property) wherein he resides with his family consisting of his wife and three children. It is averred that the suit property belonged to the late father of the plaintiff namely Sh. Bhagwan Dass who expired 25 years ago.
2.1 It is further the plaintiff's case that defendant is the contractor/builder who constructs buildings and then sells them for making profit. It is averred that defendant purchased property i.e. plot no. C-224, Budh Nagar, New Delhi- 110012 on which he raised a new building structure without taking appropriate precautions and without exercising due diligence. It is his case that the land underneath the said property, which is just next to the suit property, was filled up with soil and perhaps the defendant did not take care to lay a strong foundation which could have supported the building structure.
2.2 It is further the plaintiff's case that building structure was constructed in the year 2017 by defendant and he being the contractor/builder was controlling and monitoring the construction personally.
CS No. 92/16 Raju Vs. Yogesh Pahadia 2/29 2.3 It is further the plaintiff's case that on 05.06.2017 (in fact should
be 06.05.2017) at 03.10 a.m. when the building structure was almost complete, because of the weak foundation, the building of the defendant could not take the load of the structure and it fell on the house adjacent to the suit property i.e. house no. C-303. It is averred that plaintiff felt a terrible vibration in the suit property and all the family members of the plaintiff rushed out of the house and plaintiff saw that whole building structure of the defendant was leaning with the support of house bearing no. C-303.
2.4 It is further averred that due to the fall of the building of the defendant on property no. C-303, the foundation of property no. C-303 rammed into the foundation of the suit property, which received a push and since suit property is smaller in size, it received huge crack in the middle of the basic structure which is apparent till today. It is averred that direct consequence of this fall of the building of the defendant resulted into an absolute destruction of the basic structure of the suit property which occurred because of the absolute negligence on the part of the defendant. It is also averred that the study room on the top of the building has been pushed one inch by the push.
2.5 It is further averred that defendant was supposed to be careful while raising the construction, should not have put the lives of neighbors and other properties in danger and should not have raised the height of the CS No. 92/16 Raju Vs. Yogesh Pahadia 3/29 building to increase the number of floors, which were not supported by foundation, to make extra profit.
2.6 It is the plaintiff's case that crack in the structure has put the plaintiff in a very risky & difficult situation as the suit property may fall during rain any time and the water through those big cracks seeps into the rooms of the suit property as it happened in the year 2017 from July to August and the plaintiff had to reside in the house of his relatives, thereby causing him significant inconvenience.
2.7 It is averred that defendant raised a structure/construction with a weak foundation at his own peril and he is answerable to all the damage which has been caused to the suit property due to fall of his building.
2.8 It is averred that basic structure of the suit property needs to be reconstructed as the contractor told the plaintiff that due to the damage the suit property can fell any time and it is beyond repair. It is averred that plaintiff claims Rs. 25 lakhs as damages from the defendant as this is the minimum cost which he would incur in reconstruction of the house and he also claims damages of Rs. 10 lakhs for the psychological & mental stress he & his family had undergone and who live in the fear that their house may fall upon them any time.
2.9 Hence the present suit.
CS No. 92/16 Raju Vs. Yogesh Pahadia 4/29 Written Statement/Defendant's version
3. Defendant denied the contents of the plaint and took a preliminary objection that present suit is not maintainable as the plaintiff has filed the same maliciously and with ulterior motives in order to extort money from the defendant. It was pleaded that plaintiff has not approached the court with clean hands as he has concealed the material facts from the court and on this ground alone the suit of the plaintiff is liable to be dismissed. It was further pleaded that plaintiff has no locus standi to file the present suit and same deserved dismissal. It was pleaded that no cause of action ever arose to file the present suit against the defendant and hence the present suit is liable to be dismissed.
3.1 It was pleaded that the defendant is himself a victim of the act & omission of Delhi Jal Board as the main water pipe line installed in the street in front of houses including the house of defendant developed leakage and water went into the foundation of the house of the defendant and made the foundation & its adjoining area muddy and owing to that the house of the defendant leaned resulting in loss of huge amount to the defendant.
3.2 It was pleaded that the properties of defendant and plaintiff are situated in Budh Nagar, JJ Colony, Inderpuri which is resettlement colony and complaint of leakage of Delhi Jal Board pipe line and sewerage in C CS No. 92/16 Raju Vs. Yogesh Pahadia 5/29 block of the colony was old and residents of C block had complained to the Delhi Jal Board and other agencies regarding leakage of water pipe line and the sewerage was also not repaired by any agency.
3.3 It was pleaded that after demolition of the house of the defendant and digging the place near the leaning area of the house, the leakage of Delhi Jal Board water pipe line was detected and muddy water stored beneath the floor of the house near foundation, was removed and the leaked water pipe line of Delhi Jal Board was got repaired by a plumber.
3.4 It was further pleaded that residents of C Block complained to Delhi Jal Board, SDM Delhi Cantt and MCD Commissioner on 08.05.2017 regarding leakage of sewers lines which weakened the foundation of their house and they apprehended the danger to their houses and requested them for immediate repair of the leaked sewers. It was further pleaded that they also complained that due to leakage of sewer line etc. house no. C-224 was entirely damaged and Delhi Jal Board & MCD were made accused and in the said complaint it has not been mentioned that suit property was also damaged in this incident.
3.5 On merits it was further pleaded that defendant is neither a builder nor a contractor nor sells the building after construction, however, he is a civil Engineer and a contractor under the name & style of M/s KP Interior on the panel of Punjab National Bank for civil works of the Bank.
CS No. 92/16 Raju Vs. Yogesh Pahadia 6/29 3.6 It was pleaded that house of the plaintiff is not adjoining to the
house of the defendant and it was denied that the defendant raised construction without appropriate precautions or due diligence. It was further pleaded that defendant made the strong foundation of his house by constructing a ring beam made of iron bars and concrete which was embedded in the pillars are in the foundation of the house. It was denied that the construction was supervised, monitored and controlled by the defendant and it was pleaded that building was constructed and supervised under the instruction/advise of the expert and experienced person.
3.7 It was denied that the building leaned or fell due to weak foundation or that it could not bear the load and it was pleaded that building structure of the defendant leaned because of the leakage of water pipe line of Delhi Jal Board in the foundation.
3.8 It was denied that the defendant's building/structure fell on property no. C-303 or that the foundation of the said building rammed into the suit property or that the suit property received a push and a huge crack in the middle of its basic structure. It was pleaded that just adjoining the house of the defendant is house no. C-303 which was having four storey and there exists a street wide about 10/12 feet between the house of defendant and house no. C-303. It was further pleaded that it is surprising as to how the building structure of the defendant can fall on the house of plaintiff CS No. 92/16 Raju Vs. Yogesh Pahadia 7/29 which is next to the property no. C-303.
3.9 It was pleaded that if the building has a weak structure, the structure of the whole building would not have leaned one side but would have entirely collapsed. It was pleaded that the cracks, if any, in the suit property are due to leakage of Delhi Jal Board pipeline as well as on account of weak foundation of the suit property. It was denied that the cost of construction of the suit property would come around Rs. 25 lacs or that the study room was pushed away by around one inch. It was denied that the plaintiff had undergone any mental stress or that he and his family were living in the fear of collapse of the suit property. It was pleaded that no harm was caused to the suit property by the fall of the defendant's building/structure.
Replication
4. In the replication, the plaintiff denied the averments of the written statement while simultaneously reiterating and reaffirming the contents of the plaint.
Admission/denial
5. Affidavits of admission/denial filed by the parties are on record.
CS No. 92/16 Raju Vs. Yogesh Pahadia 8/29 Issues
6. On the basis of pleadings of the parties, following issues were framed, by the Ld. Predecessor of this court, vide proceedings dated 10.02.2021-
1. Whether plaintiff is entitled to decree for a sum of Rs. 25 lakhs as prayed in Clause (i)? OPP
2. Whether plaintiff is entitled to decree of Rs. 10 lakh as prayed in Clause (ii)? OPP
3. Relief.
Plaintiff's evidence
7. To prove its case, plaintiff examined himself as PW1 and tendered his evidence by way of affidavit Ex. PW1/A and relied upon the following documents:-
A. Copy of ration card and documents in possession of the whole family of the plaintiff as Ex. PW1/1 (colly).
B. Photographs depicting the extent of damage caused to the suit property as Ex. PW1/2 (colly).
7.1 Plaintiff also examined Sh. Om Prakash as PW2 who tendered his evidence by way of affidavit Ex. PW2/A and he relied upon certain photographs as Ex. PW2/1 (colly) and copy of election ID card as Ex.
PW2/2.
CS No. 92/16 Raju Vs. Yogesh Pahadia 9/29 Defendant's evidence
8. Defendant examined himself as DW1 and he tendered his evidence by way of affidavit Ex. DW1/A and relied upon following documents:-
1. Site plan of all three properties i.e. C-224, C-303 and C304 as Ex.
DW1/1.
2. Photographs of leaned house of the defendant as Ex. DW1/2 and Ex.
DW1/3.
3. Photograph showing the leaked water in and near the foundation of the house no. C-224 as Ex. DW1/4.
4. Photographs showing the pillars and depth of foundation of house no.
C-224 as Ex. DW1/5.
5. Photographs showing the construction and repaired work of house no. C-303 and support for the same on house no. C-304 as Ex. DW1/6.
6. Copy of complaint made to Delhi Jal Board as Ex. DW1/7.
7. Copy of letter of PNB Bank as Ex. DW1/8.
8. Aadhar card of the defendant as Ex. DW1/9.
9. MTNL bill as Ex. DW1/10.
8.1 Defendant also examined SI Jai Singh from PS Inderpuri as DW2 and he proved the copy of FIR bearing no. 104/17 PS Inderpuri dated CS No. 92/16 Raju Vs. Yogesh Pahadia 10/29 06.05.2017 in lieu of DD no. 6A as Ex. DW2/1.
Findings
9. I have heard the Ld. counsels for the parties, given due consideration to the rival contentions raised at bar and have carefully gone through the record. Both the issues being interconnected my issue wise finding is as under:
Issue no. 1. Whether plaintiff is entitled to decree for a sum of Rs. 25 lakhs as prayed in Clause (i)? OPP Issue no. 2. Whether plaintiff is entitled to decree of Rs. 10 lakh as prayed in Clause (ii)? OPP 9.1 At the outset I am constrained to observe that the plaint is ill drafted which is writ large from a bare reading of the plaint particularly the two sub paras of para 5 of the plaint wherein it is repeatedly referred as "negligence on the part of the plaintiff", "plaintiff was supposed to be careful". The date of fall of the defendant's property as has been mentioned as 05.06.2017 and so is the case in the affidavits of PW1 and PW2 whereas the actual date is 06.05.2017. Furthermore till date plaintiff has not paid the deficient court fees and as against the court fees of Rs. 35,000/- he has only paid a court fees of Rs. 10,000/-.
9.2 Plaintiff had filed the present suit on 01.03.2018 claiming CS No. 92/16 Raju Vs. Yogesh Pahadia 11/29
himself to be the owner of the suit property. It is mentioned in para 1 of the plaint as "Plaintiff is the owner and in possession of............". The plaintiff thus filed the suit for damages allegedly suffered in the suit property in the capacity of the owner of the same. However, it has emerged on record that on the day when the suit was filed, plaintiff was not the owner of the suit property.
9.3 No title documents etc. were filed by the plaintiff to prove that he is the owner of the suit property. It was only for the first time during his cross examination that he brought on record a Will dated 25.10.2018 i.e. Mark A, purportedly executed by his mother, to claim ownership qua the suit property. Admittedly except for this Will he did not file any other ownership document nor does he have any other ownership document. Even if this Will, which is unregistered, is presumed to be genuine, it nonetheless proves that on the day when the plaintiff had filed the present suit i.e. 01.03.2018, he was not the owner of the suit property. The plaint, the affidavit of evidence is absolute silent as regards the date of death of the mother. The Will would have come into effect only upon the death of his mother, which date has not been brought on record. Though during the course of arguments it was orally submitted that the mother died in the last week of October 2018 i.e. just a week within the execution of Will and it was also admitted that a civil suit is also pending qua the suit property between the plaintiff and other legal heirs, however, let that be the case atleast on the day when the suit was filed, he was not the owner of the suit CS No. 92/16 Raju Vs. Yogesh Pahadia 12/29 property.
9.4 Not only that, except for the Will of his mother, plaintiff has not filed any document on record whereby her mother had become owner of the suit property and in that capacity purportedly executed a Will in favour of the plaintiff. No sale deed, no agreement to sell, no possession letter, no revenue record etc. has been placed on record by the plaintiff. From the cross examination of the plaintiff it appears that the suit property was allotted to the father of the plaintiff namely Late Sh. Bhagwan Dass.
Nonetheless plaintiff has not placed on record any such allotment letter in the name of his father. No detail whatsoever has been furnished as to when it was allotted, who allotted it etc. Furthermore during his cross examination plaintiff kept on changing his stand qua the suit property. The relevant portion of the cross examination of the plaintiff is reproduced hereunder:-
(Cross examination dated 01.03.2021) "The suit property i.e. C-304 Buddh Nagar, Inderpuri, New Delhi-110012 is in my name and I am the owner. I do not remember whether I have filed the documents of the suit property/ownership of the suit property along with plaint. Again said after seeing the judicial file, there is no documents of ownership of the suit property on record. I can show the original documents of ownership of the suit property, however today I have brought the photocopies of the same but I can produce the original documents on the next date of hearing.
It is my inherited property. My mother had given this property to me by way of Will.
..............It is wrong that the suit property i.e. C-304, was allotted in the name of my natural father namely Late Bhagwan Dass.
CS No. 92/16 Raju Vs. Yogesh Pahadia 13/29 (Cross examination dated 09.03.2021) .............I have brought the photocopies of the documents of ownership of the suit property and the same is marked as Mark "A". However, I can produce the original documents of ownership of the suit property on the next date of hearing. Today I have brought the document i.e. deed of Will dated 25.10.2018.
I do not have any other document in relation to the ownership of the suit property except the Will.
Suggestion by the Ld. Counsel for the defendant:
It is correct to suggest that this plot was allotted in the name of Shri Bhagwan Dass, who is the real/natural father of the plaintiff, in the year 1967 and it was constructed in the year 1984 from that period onwards it was never constructed.
...........It is wrong to suggest that the will which is marked "A" is a false will because Late Smt. Pachi Devi was not the actual owner of the suit property and this land was allotted in the name of real father in the year 1967 of the plaintiff."
9.5 So though the plaintiff initially denied that the suit property was allotted in his father's name, however, subsequently he admitted the said fact. This is despite the fact that in the plaint in para 1 he has mentioned in hand as "This property was of Late father (First) (of the plaintiff who expired 25 years ago named) Bhagwan dass). The suit property was never allotted to the plaintiff's mother but she had executed the Will qua the suit property in favour of the plaintiff. Nonetheless as discussed above no allotment papers etc. either in the father's or mother's name, have been filed on record. Even the electricity bill, water bill, house tax receipt etc. have not filed by the plaintiff.
9.6 Hence though it was in his right as the owner of the suit property that the plaintiff claimed damages, on account of damage caused to the suit CS No. 92/16 Raju Vs. Yogesh Pahadia 14/29 property, however, he has clearly failed to establish his ownership/title over the suit property. No doubt this is not a title suit, however, once the plaintiff pleads a fact he is duty bound to prove the same. Moreover he is entitled to damages only if he is owner of the property which has suffered damages.
He has to establish his ownership, right over a property and then prove the damages caused to the property, the loss suffered by him in the capacity of the owner of the property. Plaintiff has miserably failed to prove the same. Not only the ownership but the plaintiff has also failed to prove that he had incurred expenses for the construction of the suit property and suffered monetary loss on account of damage caused to the suit property. Admittedly he had not constructed or repaired the suit property, had not incurred any expenses for construction of the suit property and thus there is no occasion for any monetary loss being caused to him. Accordingly to the plaintiff the suit property was constructed 25 years ago and it was not constructed thereafter. Though Ld. Counsel for the plaintiff relied upon Saleem & ors Vs. Wahid Malik RSA no. 118/22 & CM Appl. 42446/2022, CM Appl. 42447/2022 dated 26.09.2022, however, the said case law is based upon completely distinct facts altogether. In that case the issue was regarding possession of the property and the right of rightful owner viz-a-viz the one in possession of the suit property/trespasser. In the case at hand the issue is damage to the suit property and whether the plaintiff is entitled to claim damages in his alleged capacity as the owner of the suit property.
9.7 Even if it is presumed that plaintiff has some right in the suit CS No. 92/16 Raju Vs. Yogesh Pahadia 15/29
property and he was/is in possession of the same, the plaintiff has miserably failed to prove that the fall of property bearing no. C-224 belonging to the defendant had caused damage to the suit property.
9.8 Undoubtedly property bearing no. C-224 was constructed by the defendant and the said property had collapsed/fallen/leaned while it was being constructed. It also stands proved that the defendant failed to take necessary precautions while constructing the said property. Admittedly no sanction/building plan was obtained from the MCD for constructing the suit property. No soil testing was done and no structural drawing/report was obtained for constructing the property. The relevant portion of the cross examination of the defendant is reproduced hereunder:-
"Ans.: In November 2016, I started the construction of the building which has fallen as shown in the above mentioned photographs. It is correct that on 06.05.2017 the above mentioned building has fallen/leaned over suit property no. C-303.
Question: Civil engineering structure like building which has fallen in this case is founded below the surface of earth and the stability and suitable foundation in accordance with soil of the land is required to be made? Ans. It is correct that the soil test is mandatory. Vol. But for small construction its not required.
........Question: Without getting soil test done, how did you determine the depth of the foundation on which you were suppose to built the building? Ans. Since it was a very structure so a depth of 6 feet of foundation was enough.
..........Question: Did you apply for construction permit from MCD or concern civil body of the building structure which is shown fallen in photograph, which is exhibit as EX.DW1/2?
Ans. Since this property was less then 50 sq. meter, there was no requirement for the permission from the concern civic authority or MCD for raising construction.
Question: Did you get the land survey done from any private surveyor or CS No. 92/16 Raju Vs. Yogesh Pahadia 16/29 from a govt. authorized surveyor for the purpose of measurement of plot/property no. C-224, before starting construction in order to ascertain the area of the plot/property?
Ans. The plots are very small in the locality as they were allotted under JJ Slum Board and there is no need of any survey from any private or authorized govt. surveyor.
I am the owner of property bearing no. C-224, situated at JJ Colony, Budh Nagar, Inderpuri, Delhi.
It is correct that I am a civil engineer.
I did not prepare any structural report of the property bearing no. C-224, Budh Nagar, JJ Colony, Inderpuri, Delhi. I didn't get it done through someone else as well. Even at the time of raising the structure which fell in photo exhibit DW2/2 I did not get the structural report prepared."
9.9 So the defendant failed to obtain necessary permission, sanction plan from the concerned authorities before raising the construction in his property bearing no. C-224. No structural drawing was prepared, no load bearing drawing was prepared, no soil testing was done and he did not take the assistance of any registered structural engineer or architect before raising the construction. Though in his WS it was claimed that the construction was raised under the supervision, instruction/advise of an expert, experienced person, however, no evidence was led in this regard. He did not examine any such expert or experienced person who was monitoring the construction in question. In fact he failed to provide the name of said person. Furthermore the cross examination of defendant leaves no doubt that the fall of the building is solely attributable to him as he was the one constructing it and had absolute control over the same. Relevant portion of his cross examination is reproduced hereunder:-
" It is correct to suggest that I was the contractor and I was the builder and CS No. 92/16 Raju Vs. Yogesh Pahadia 17/29 I had absolute control over the construction of the building which has fallen over the property which was adjacent to the suit property i.e. Property no. C-303."
9.10 After the building fell, FIR bearing no. 104/17 i.e. Ex. DW2/1 was registered at PS Inderpuri and the charge sheet was filed by IO SI Jai Singh/DW2 and the defendant/accused compounded the matter with the complainant of the FIR who is none other than owner of property bearing no. C-303. From the testimony of DW2 no doubt remains that the building had fallen on account of lapses on the part of the defendant as the construction was being raised in a negligent manner and the material used was substandard. The relevant portion of the cross examination of DW2 is reproduced hereunder:-
".......Q. Did you find sufficient evidence during investigation against the accused/defendant to present chargesheet against him in the Court of Ld.? Ans. Yes, I did ........It is correct to suggest that the construction which was being carried out by the defendant was being done in a negligent manner and also used sub-standard material during the construction of the building which accidentally fell on 06.05.2017, which was being constructed by the defendant.
At this stage witness is confronted with two photographs which are already exhibited as PW-1/2.
Q. I put it to you that the building which is liening at point A at Page no. 12- A shown in photograph is belongs to Mr. Yogesh Pahadia, who is defendant in this case.
Ans. It is correct that this building at Point A in document as Ex. PW-1/2. It is correct that the reason of this accident fall is poor construction material which was being used by Mr. Yogesh Pahadia/defendant, as I have already deposed above."
9.11 It will also be pertinent to point out that the construction raised CS No. 92/16 Raju Vs. Yogesh Pahadia 18/29 by the defendant in C-224 is unauthorized as same was raised without any sanctioned plan, permission from the concerned municipal authorities and and said unauthorized construction has admittedly been booked by the MCD for demolition/necessary action after the writ was filed by the plaintiff before the Hon'ble High Court of Delhi in this regard.
9.12 Though the defendant tried to attribute the fall of the building/construction upon leakage in the Delhi Jal Board sewer line, however, the said argument/defence is nothing but an afterthought. Though the defendant relied upon photograph Ex. DW1/4 to establish that there was leakage in the sewer line/pipeline of Delhi Jal Board, however, the said photograph does not anywhere prove that there was any such leakage. The sewer/pipeline of Delhi Jal Board is not visible in Ex. DW1/4. Defendant has failed to prove that any sewer pipeline was running beneath his property, under the foundation of his property/construction or that same was running close to/adjacent to his property. Where exactly the sewer/pipeline was located has not been proved by the defendant. Most importantly, he miserably failed to prove the leakage in the sewer pipeline. Though in the WS it was pleaded that after the building was demolished, the leaked pipeline was detected and same was got prepared by a plumber namely Sh. Mahinder Mandal, however, no evidence was led in this regard. Defendant did not examine the said plumber nor any evidence showing the purported leakage/repair was brought on record.
CS No. 92/16 Raju Vs. Yogesh Pahadia 19/29 9.13 Though the defendant also relied upon copy of complaint dated
07.05.2017 i.e. Ex. DW1/7, however, the said complaint does not even remotely prove that defendant's building/property fell/lean on account of leakage in the sewer line. It is a general complaint given by the residents regarding non maintenance and leakage of sewer line. It was for the defendant to prove that it was the alleged leakage in the sewer line which resulted in the fall of his building. Defendant has failed to prove that apart from his property/building any other building/property had fallen or leaned in the area where the suit property is situated on account of leakage in the sewer line. He did not lead any expert evidence to prove that it was the alleged leakage which was responsible for the fall of his building. He did not examine anybody from Delhi Jal Board to prove the alleged leakage or the consequences thereof. He also did not examine any other inhabitant of the locality to establish his case in this regard.
9.14 Now the question to be determined is whether the fall of construction/building in property no. C-224 resulted into the alleged damages in the suit property. I have considered photographs Ex. PW1/2 (colly) as well as the site plan Ex. DW1/1. Plaintiff did not file any site plan and he did not dispute the site plan filed by the defendant. The photographs and the site plan make it amply clear that there is a gali in front of defendant's property bearing no. C-224 which as per the uncontroverted stand of the defendant, in the WS, is around 10/12 feet wide. Across the gali is property bearing no. C-303. It is on this property that the defendant's CS No. 92/16 Raju Vs. Yogesh Pahadia 20/29 property had fallen/leaned. The said property is constructed upto 4 th floor. Plaintiff's property/suit property is adjoining the said property and the same is constructed upto Ist floor with a mumty/barsaati on the roof of the first floor. The photographs make it crystal clear that at the time of fall, the defendant's property had leaned on property no. C-303 and came to rest against the support of the said building/property. The balcony of the defendant's 1st, 2nd 3rd floor and 4th floor can be seen leaning against the balcony of property bearing no. C-303. However defendant's property is not touching/leaning against property no. C-303 at the ground floor. There is a gap between the two buildings on the ground and uptil the first floor balcony. The photographs also makes it crystal clear that property no. C-303 suffered damages on the second and third floor. What damages were exactly suffered are not known/clear. Plaintiff for reasons best known to him did not examine the owner of property bearing no. C-303 to prove the extent of damages suffered by the said property especially at the ground and the first floor. It was incumbent upon the plaintiff, in the peculiar facts of the present case, to prove that property no. C-303 had suffered damages on the ground and the first floors as well, on account of the defendant's property falling on property no. C-303. Unless property no. C-303 suffered damages at the ground and first floors, the effect of fall of property no. C-224 on the suit property cannot be ascertained/determined.
9.15 It was for the plaintiff to prove that on account of fall of defenant's property on property no. C-303, the impact was such that not CS No. 92/16 Raju Vs. Yogesh Pahadia 21/29 only property no. C303 suffered damages but the impact/force/pressure was such that it also damaged the suit property. It was for the plaintiff to prove that the force/pressure exerted by defendant's property on property no. C- 303 percolated/transferred to/reached the suit property. It was for the plaintiff to prove that property no. C-303 could not handle the weight, impact of defendant's property and that impact was shifted, transferred to the plaintiff's property. However, the plaintiff miserably failed to prove the same.
9.16 What appears from the photographs is that property no. C-303 neutralized the impact/force created by fall of defendant's property. It appears that the whole impact was withstood by property no. C-303 and whatever damage was caused, same was caused to property no. C-303 and it was further limited only to its second and third floors and the damage did not go into its foundation so as to create/exert pressure upon the suit property. If indeed there was any such pressure/force created by property no. C-303 on the suit property it was for the plaintiff to prove the same. As discussed above he did not examine owner of property bearing no. C-303 nor did he examine any MCD official, JE, AE etc. He did not examine any expert i.e. any structural engineer or architect to prove the said crucial fact. Though he claimed that the day when the building fell, terrible vibrations were felt in the suit property, however, except for the bald averments no positive evidence was led to prove that indeed the vibrations on account of the fall of the building traveled or could have indeed traveled upto the suit CS No. 92/16 Raju Vs. Yogesh Pahadia 22/29 property. He ought to have led expert evidence in this regard much more when, as discussed above, there is significant gap between the suit property and the defendant's property. In addition to a gali/lane there is property no. C-303 between the suit property and the defendant's property and the said property had not directly fallen upon the suit property. It was for the plaintiff to prove the direct nexus between the fall of defendant's property and resulting damage to the suit property. He had to prove the chain of causation between the fall of defendant's property and the damage to the suit property i.e. it was the direct cause. However, plaintiff miserably failed to prove the same. Reliance placed upon Rylands Vs. Fletcher (1868) LR 3 HL 330 does not help the case of the plaintiff as in that case the damage to the property was proved on account of the water bursting from the old shafts from Ryland's property and entering into Fletcher's mines whereas in the case at hand defendant's property had admittedly not fallen on the suit property.
9.17 It will also be pertinent to highlight the following statement made by the plaintiff during his cross examination:
"Q. I put it to you that the building at point-X is a two storey building which is suit property and at point-Y is building bearing No. C-303, is a four storey building, and there is no wall which runs parallel to building-Y which is already shown at PW-1/2 (colly) at page-13 A. It is correct."
9.18 Once no wall was running parallel between the properties i.e. property no. C-303 and the suit property no question arises of any impact of CS No. 92/16 Raju Vs. Yogesh Pahadia 23/29 the fall of defendant's property, any pressure or force created by it upon property no. C-303 reaching upon or acting upon the suit property and thereby damaging it. Though in the plaint it was also claimed that the study room which is on the top of the suit property was pushed by one inch, however, the photographs make it amply clear the said room, which is in fact a mumty on which there is water tank, is at a quite distance from property no. C-303. The wall of the said room/mumty is not touching property no. C-303 and there is no question of impact if any reaching the said room. No question of said room being pushed by one inch as is claimed arises. Furthermore plaintiff failed to lead any evidence to prove his case in this regard.
9.19 Furthermore it has also come up on record that the suit property was an old construction, constructed 25 years back and same was not reconstructed again. In fact there is also no proof that the property was constructed 25 years back and from the photographs on record it appears to be quite an old construction. Plaintiff admittedly had not raised the construction existing in the suit property and thus he could not give any concrete evidence as regards the nature of construction so raised. The plaintiff also made incorrect, false statement during his cross examination as regards the nature of construction as existed in the suit property. Though he claimed that the property was constructed on lanter i.e. solid construction with beams, pillars etc., however, when he was confronted with the photographs of the suit property, he admitted that the property was having CS No. 92/16 Raju Vs. Yogesh Pahadia 24/29 wooden support. The photographs Ex. PW1/2 makes it amply clear that the roof of the suit property consist of asbestos sheets supported by wooden/iron poles/garters. There are t-iron supporting the slabs/roof. Even the plaintiff failed to lead any evidence to the effect that the cracks appearing in the suit property, walls etc. are appearing in the walls adjoining property no. C-303. From the very look at the suit property it appears that the property was not being maintained and it was almost in dilapidated condition. The relevant portion of the cross examination of the plaintiff in this regard is reproduced hereunder:-
"My house is 25 yrs, old constructed property and the suit property was not constructed thereafter. Again said the property was re-constructed 25 years ago ......... The suit property is constructed on (linter) from top to bottom ever since it was constructed.
At this stage witness is confronted with a photograph at page No. 15 at point-Z where the attention of the witness is drawn on the roof of the room constructed on the roof of the suit property an witnessed is asked whether it is linter or cement sheets or wooden support. (wooden Kadi). A. It is a wooden support of his room volounteer it is being used as a Go- Down."
9.20 In addition to the damage to the suit property the plaintiff also claimed that he had to reside at his relative's house during the rainy season as the suit property had developed cracks and it leaked during the monsoon, however, no evidence was led in this regard by the plaintiff. He did not examine the relatives at whose house he stayed during the alleged period. Though the plaintiff also claimed that he suffered psychological & mental stress and he & his family had to live in fear that the house may fall, CS No. 92/16 Raju Vs. Yogesh Pahadia 25/29 however, it is a matter of fact that since 2017 plaintiff is residing in the suit property and admittedly he has not carried out any repair whatsoever. If indeed there was any such apprehension or fear the plaintiff would not have resided in the suit property or atleast he would have carried out the necessary repairs.
9.21 In fact though the plaintiff claimed that the suit property was rendered unsafe on account of damage caused to it by the defendant's property, however, when property no. C-303 was repaired after being damaged on account of defendant's property falling upon the same, the repair work was carried out taking support of the suit property/roof of the suit property. The scaffolding reaching upto the 4 th floor of property no. C- 303 is quite visible in photograph Ex. DW1/6. If indeed the suit property was so badly damaged, rendered unsafe than the plaintiff would not have permitted the owner of property no. C-303 to carry out repairs using the roof of the suit property. This itself negates the claim of psychological fear and trauma. The relevant portion of cross examination of PW1 in this regard is reproduced hereunder:-
"At this stage, witness confronted a photograph on page no. 23 Annexure "F" the witness is pointed at point "A" where the witness admits that the photograph is shown his house and the Ballis/shuttering by the owner of property no. C-303, which is being reflected in the photograph and the construction was carried out with my permission. There were cracks in my property/suit property prior to fixing of ballis/ which is shown in the photograph at page no. 23 as Annexure "F".
CS No. 92/16 Raju Vs. Yogesh Pahadia 26/29 9.22 As far as PW2 is concerned, he is the plaintiff's relative and his
testimony in light of the above discussion does not help the plaintiff's cause. He merely runs a grocery shop and is not an expert in building construction etc. to prove that the damages to the suit property were on account of fall of defendant's building/property. Though he claimed that the cracks appearing in the photographs Ex. PW2/1 were not in existence before fall of defendant's property, however, except for this bald averment not even a single photograph or any other material was brought on record to prove that indeed there was no such crack in the suit property or that same was in perfect condition before the fall of defendant's building/property.
9.23 It will also be pertinent to point out that though the exact measurement/ dimensions have not been provided by the plaintiff, however as per the Will the suit property measures around 25 sq. yards. As already discussed above the construction in the same was raised 25 years back if not older. The kind of construction which has been/was raised is not exactly a pucca construction, as already discussed above in detail. Plaintiff has not led any evidence as to what is the market rate for construction of a similar property as the suit property and what would be the expenses which would be incurred for raising fresh construction in the suit property. He did not examine the expert/contractor whom he had allegedly contacted and who had given the said estimate for reconstruction, as is pleaded in the plaint.
9.24 Nonetheless plaintiff is seeking damages to the tune of Rs. 25 CS No. 92/16 Raju Vs. Yogesh Pahadia 27/29
lacs towards the damage caused to the suit property. A 25 sq. yards plot in sq. feet comes to 225 sq. feet. Even if the property is to be demolished and construction raised in the same from the foundation, the expenses for meeting the standard of construction existing in the suit property i.e. asbestos sheets, wooden girders, the per sq. feet cost would not come to more than Rs. 500 to 600 sq. feet i.e. at best the entire cost of new construction would be anywhere around Rs. 3 lacs. Whereas plaintiff is demanding compensation @ Rs. 5500/- per sq. feet which is highly exorbitant. The object of awarding damages is to place the injured party as nearly as possible in the same position, the party would have been but for the injury. One whose interest in immovable property has been injured by the tortious act or omission of another is entitled to those damages which will compensate him for the injury sustained. Damages cannot be sought as a means of undue enrichment. In the case at hand the plaintiff's interest in the suit property is doubtful, his ownership claim is doubtful (on account of lack of evidence). Plaintiff failed to prove that the suit property was indeed damaged on account of fall of the defendant's building and that the damages were direct result of the fall of defendant's building. Plaintiff also failed to make out a case for damages towards psychological and mental stress.
9.25 Therefore in view of the above discussion both the issues are decided against the plaintiff.
9.26 As both the issues have been decided against the plaintiff, CS No. 92/16 Raju Vs. Yogesh Pahadia 28/29
plaintiff is not entitled to any relief. Suit of the plaintiff is liable to be dismissed.
9.27 I order accordingly.
Announced in the open court (Gaurav Rao)
on 14th October 2022 ADJ-03/ New Delhi District,
Patiala House Courts,
New Delhi.
CS No. 92/16 Raju Vs. Yogesh Pahadia 29/29