Delhi District Court
Sh. Sri Ram Sharma (Since Deceased ... vs . Narinder Sharma & Anr. on 27 September, 2022
Sh. Sri Ram Sharma (Since deceased through his LRs) vs. Narinder Sharma & Anr.
CS SCJ : 99155/2016
IN THE COURT OF MS. SONAM SINGHII, CIVIL JUDGE07,
CENTRAL DISTT., TIS HAZARI COURTS, DELHI
Civil Suit No. : 99155/2016
CNR No. : DLCT030010132012
Date of Filing of Suit: 16.05.2012
Date of Reserving Judgment: 26.09.2022
Date of Decision: 27.09.2022
Sh. Sri Ram Sharma
(Since deceased through his LRs):
1) Sh. Naveen Sharma
R/o 5786, New Chandrawal
Jawahar Nagar, Delhi110007
2) Smt. Rekha Sharma
R/o Plot no. 906, Falt no. G6
Shalimar Garden Extn.
Ghaziabad, U.P.
3) Smt. Hemlata Sharma
W/o Sh. Kuber Dutt Sharma
R/o 18/200, Prem Nagar
Civil Lines, Buland Shahar, UP
4) Smt. Neetu Sharma
W/o Sh. Narender Bhardwaj
R/o V529, Gali No. 16A
Vijay Park, Near Yamuna Vihar
Delhi110053
.........Plaintiffs
versus
1) Sh. Narinder Sharma
S/o Sh. Yog Dutt Sharma
R/o 64640B, Gali No. 6
New Chandrawal, Delhi110007
Page 1 of 17 (Sonam SinghII)
Civil Judge07, Central, Delhi
Sh. Sri Ram Sharma (Since deceased through his LRs) vs. Narinder Sharma & Anr.
CS SCJ : 99155/2016
2) The Commissioner,
Municipal Corporation of Delhi
Civil Centre, Minto Road
Asaf Ali Road, New Delhi110002
.........Defendants
SUIT FOR PERMANENT & MANDATORY INJUNCTION
Present: None for parties.
JUDGMENT
1) Vide this Judgment I shall decide the present suit instituted by plaintiff against defendants seeking the following reliefs: (a) Decree of Permanent Injunction thereby restraining defendant no.1, his agent, family members, etc. from continuing to tie their cattle in the common passage of property bearing no. 5464, Gali No.6, New Chandrawal, Delhi110007 and also from raising any further unauthorized & illegal construction in the said common passage more particularly shown in the site plan; and (b) Decree of Mandatory Injunction thereby directing defendants to remove the unauthorized & illegal construction (more particularly shown in green color in the site plan) raised by defendant no.1 in the common passage of the said property bearing no. 5464 as described above.
Averments contained in Plaint:
2) It is averred in the plaint that Sh. Ram Singh was the father of plaintiff and grandfather of defendant no. 1 & had purchased the property no. 5464, Gali No. 6, New Chandrawal, Delhi 110007 vide sale deeds duly registered before the office of SubRegistrarI (North), Delhi vide Regn. No. 2734 in Addl. Book No.1, Vol.
No.2516 at pages 63 to 64 on 18.10.1947 and vide Regn. No. 4136 in Addl. Book No. 1, Vol. No. 2550 at pages 67 to 70 on 20.02.1948. Sh. Ram Singh had executed a Will on 20.08.1977 duly registered before the SubRegistrarII, Delhi on 22.08.1977 vide Regn. No. 719 in Addl. Book No.III, Vol. No. 81 at pages 24 to 27 by virtue of Page 2 of 17 (Sonam SinghII) Civil Judge07, Central, Delhi Sh. Sri Ram Sharma (Since deceased through his LRs) vs. Narinder Sharma & Anr.
CS SCJ : 99155/2016 which he had bequeathed the portion (assigned the number as 5464/C) as shown in yellow colour in the attached site plan in favour of plaintiff whereas the portion shown in saffron colour (assigned the number 5464/B) in favour of defendant no. 1 and the passage in between was to remain as common passage for common use of plaintiff and defendant no. 1 which has been shown in the site plan attached with the Will. It is averred that Sh. Ram Singh had passed away on 22.8.1979 following which plaintiff as well as defendant no. 1 became the owners of their respective portions and have been in possession of their portions as shown in the attached site plan in yellow and red colours for qua plaintiff and defendant no.1 respectively. It is further averred that defendant no. 1 and his family members had been trying to raise the unauthorized construction in the common passage in respect of which several complaints were made to the police authority at P.S. Roshnara Bagh and on most of the occasions defendant no. 1 used to apologize and assure not to repeat the said act in future. It is further averred that defendant no. 1 and his sons are running a dairy from their house in violation of Section 417 of Delhi Municipal Corporation Act, 1957 and keeping cattle which are driven out in the streets during the day time and tied in the common passage thereby resulting in passage of urine, dung, breeding of mosquitoes, threat to the safety and health hazards as the said common passage is only 4 feet wide app, and ingress and egress becomes very difficult, thereby necessitating strict and immediate action against defendant no. 1 and his sons under Sections 418 and 419 of Delhi Municipal Corporation Act, 1957. It is further averred that defendant no. 1 has also raised unauthorised construction in the common passage and to unlawfully occupy a space measuring 42 sq. ft. approx. thereby causing unlawful loss to plaintiff. The said unauthorized construction has also obstructed the supply of air and light to the portion of plaintiff as one of the windows of his portion has been closed and even otherwise, plaintiff has a legal right to protect his property and defendant no. 1 has no right of any nature whatsoever to occupy / misuse the said common portion. It is averred that earlier a written complaint was given at the office of defendant no. 2 on 30.05.2011 but no action was taken. On 27.6.2011 plaintiff has also served a legal notice under Section 478 of Delhi Municipal Corporation Act, Page 3 of 17 (Sonam SinghII) Civil Judge07, Central, Delhi Sh. Sri Ram Sharma (Since deceased through his LRs) vs. Narinder Sharma & Anr.
CS SCJ : 99155/2016 1957 to defendant no.2 through which defendant no. 2 was called upon to take immediate action against defendant no. 1 & his sons to stop them from unlawfully running the dairy in their portion and also to remove the unauthorized construction in the common passage within two months, however, no action was taken. Hence the present suit.
Version of Defendant no.1:
3) In his Written Statement (hereinafter WS) defendant no.1 has raised preliminary objections that under the garb of present suit plaintiff is trying to seek declaration pertaining to the portion measuring about 42 sq.ft. approx. and as such is liable to pay ad valorem court fees on the market value of the said portion which is not less than Rs. 4 lacs and as such this Court has no pecuniary jurisdiction to try and entertain the present suit. It is further objected that the suit is barred by limitation in view of the fact that the construction sought to be removed was occupied way back in year 1977 by Shri Ram Singh which is well within the knowledge of plaintiff herein and as such the suit has been filed by plaintiff for malafide reasons who has failed to bring the true facts and has concealed various material facts. It is stated that defendant no. 1 has not raised any unauthorized construction on the ground floor and that the ground floor of property is in the same condition as it was built up by the predecessor in interest and was accommodated in the same condition as such. It is stated that there was no wall in existence on the western side of the portion B and no passage as is shown between the portions B and C. The common passage was only beyond the portion of the answering defendant as shown in red colour in the site plan annexed. It is stated that the entire property was under the use of entire family before the same was divided and apportioned amongst plaintiff, defendant no. 1 and other sons of late Sh. Ram Singh and the wall existed only on the Eastern side of the portion C occupied by plaintiff. It is further stated that the defendant here came to know about the execution of Will by Shri Ram Singh only in or around the year 1983 though he had been in occupation with his family members since long qua the portion B including the portion on the western side shown between the portion of Page 4 of 17 (Sonam SinghII) Civil Judge07, Central, Delhi Sh. Sri Ram Sharma (Since deceased through his LRs) vs. Narinder Sharma & Anr.
CS SCJ : 99155/2016 plaintiff and defendant no. 1 without any intervening wall and it was only thereupon on seeing the Will executed by Shri Ram Singh it was revealed to defendant that the wall has been shown in the site plan annexed to the said Will. It is stated that the same is only on the papers and there appears to be a clerical mistake, otherwise the said wall never existed and even the site plan either annexed to the Will executed by Shri Ram Singh and/or the site plan filed by the plaintiff does not depict the true picture of the property in question at the relevant time. It is further stated that defendant and his family members had been in occupation of the premises under their use and occupation since year 1977 without any objections and/or hinderance either from plaintiff and/or the other legal heirs of Shri Ram Singh, who are in occupation of the front portions marked as 'A' and 'D'. It is further submitted that besides the portion existing on the ground, the parties to suit have raised construction on the upper floors in the year 19891990 over the above the same portion on the ground floor in existence and at that point of time also there was no objection from the side of plaintiff. It is submitted that keeping in view the ground reality that the entire portion i.e. portion 'B' as shown in red colour in the site plan annexed had been in possession of the defendant since the year 1977, in terms of the verbal settlement between parties defendant further carried out construction over and above the said portion 'B' shown in red on the ground floor without any objection from the plaintiff except on one occasion in relation to the laying of extended portion (stone slab chajja) beyond roof of first floor towards the gallery (common portion) which was later on settled between the parties. It is thus submitted that plaintiff is trying to subvert the issue in relation to settlement arrived between the parties. In Reply on Merits, defendant no.1 has not denied the execution of Will dated 20.08.1977, however, he has stated that the assigned portions are different in comparison to the portions detailed therein. Defendant no.1 has further stated that the site plan filed by plaintiff is not correct as per site. He has further stated that the cattle have been removed long time back and that he has not raised and/or covered the portion alleged to be common or raised any unauthorised construction therein. Apart from this, defendant no.1 has mainly denied the contents of plaint and stated them to be Page 5 of 17 (Sonam SinghII) Civil Judge07, Central, Delhi Sh. Sri Ram Sharma (Since deceased through his LRs) vs. Narinder Sharma & Anr.
CS SCJ : 99155/2016 incorrect.
Version of Defendant no.2/MCD:
4) In its WS, defendant no.2 has raised preliminary objections as to bar of Section 477 / 478 of DMC Act, 1957 for want of service of statutory notice and stated that after perusal of the contents of pleadings it appears that it is a family dispute between plaintiff and defendant no.1 and plaintiff wants to resolve his personal grievances by impleading MCD unnecessarily. It is stated that plaintiff is not entitled to any relief against MCD as defendant no.1 was running an illegal dairy at the premises bearing no. 5464, Gali no. 6, New Chandrawal, Delhi110007 which was removed on 14.5.2012 by Veterinary Services Deptt. Civil Line Zone and said premises was sealed with the help of local police. It is further stated that the said sealed premises was desealed on 27.9.2012 by the order of competent authority on the request of defendant no 1 along with an affidavit that there was no dairy running now. It is further stated that with respect to the construction in common passage plaintiff is required to prove the same and there is no cause of action against MCD. Apart from this, defendant no.2 has mainly denied the contents of plaint and stated them to be wrong.
Replications by Plaintiff:
5) In the Replications filed on record, plaintiff has mainly denied the contents of aforesaid WS and has reiterated and reaffirmed the averments made in the plaint as true and correct.
Settlement of Issues:
6) From the hearing of parties, pleadings and materials available on record, following issues were framed by the Court vide order dated 21.08.14:
(i) Whether the suit of the plaintiff is barred by the period of limitation?
OPD1
(ii) Whether the plaintiff is entitled for permanent and mandatory Page 6 of 17 (Sonam SinghII) Civil Judge07, Central, Delhi Sh. Sri Ram Sharma (Since deceased through his LRs) vs. Narinder Sharma & Anr.
CS SCJ : 99155/2016 injunction as prayed? OPP
(iii) Relief, if any
7) It is to mention here that vide order dated 03.08.17 application filed on behalf of plaintiff under Order XXII Rule 3 read with Section 151 of CPC was allowed and the LRs of plaintiff were impleaded in his place. Further, on 24.09.19 it was submitted that LR No.1 of deceased plaintiff i.e. his wife has also passed away and her LRs i.e sons and daughters are already on record. On 27.03.2021 it was thus clarified that there are now four LRs of plaintiff in the present suit one son and three daughters.
Plaintiff Evidence (PE):
8) On behalf of plaintiff two witnesses have been examined: (i) PW1: Sh. Ram Sharma
(ii) PW2: Sh. Anup Singh as follows:
PW1: Sh. Ram Sharma has tendered his evidence by way of affidavit which is Ex. PW1/A and has relied upon upon the documents Ex. PW1/1 to PW1/10 as mentioned in his affidavit out of which Ex PW1/6 is the photocopy and accordingly deexhibited and marked as Mark "A" (Exhibition of documents objected on the ground of mode of proof). In his crossexamination, PW1 has stated that his property is constructed up to 3rd Floor i.e. ground floor, first floor and second floor and stated that the portion A as shown in the photograph Ex. PW1/D1 is part of common passage and door at point B opens to his property & is the only gate from which his property could be accessed. He has denied that the wall at point C is constructed up to the height of second floor and vol. stated that it is constructed up to the height of first floor only. The witness has stated that in photograph Ex.PW1/9 the wall at point C belongs to his property, whereas the wall shown at point D is constructed on the portion which is in possession of defendant no.1 who has encroached upon it and has constructed his property up to four storeys and the wall at point D goes up to fourth floor. The witness has stated that the entire property in question belonged to his father and denied that the same was divided by him during his lifetime. The witness has vol. stated that he had executed a registered will and that Page 7 of 17 (Sonam SinghII) Civil Judge07, Central, Delhi Sh. Sri Ram Sharma (Since deceased through his LRs) vs. Narinder Sharma & Anr.
CS SCJ : 99155/2016 the properties as per Will were occupied by legatees after his death which had taken place on 22.08.1979. It is denied that they had occupied the respective portions as per Will during his lifetime even before his death and vol. stated that his father had infirmed the contents of the Will during his lifetime but the Will was acted upon only after his death. On being specifically asked, PW1 again answered that the property in question was divided by his father in the year 1977 and executed the Will & handedover the copies thereof and instructed all the legal heirs to occupy the portions, as per Will and they all occupied accordingly then and there. When PW1 was shown the site plan Ex. PW1/D2 he stated that he can understand the same and again said it does not appear to be correct and again said that the said Site Plan is wrong as not filed by him. The witness has then stated that the site plan Ex.PW1/5 does not depict the entry door to his property and in fact does not depict the entry door of any of the portions. The witness has denied that the Site Plan Ex. PW 1/5 is not as per site or is fabricated. In his further crossexamination PW1 has stated that in front of the entry door of his portion, the portion of defendant no. 1 (latrine) exists. He has further stated that the portion of defendant no. 1 is constructed up to four storeys but he does not remember when the same was constructed. He has further stated that he cannot say whether it was constructed 20 years back or 30 years back and has admitted that the portion of defendant no. 1 comprising of four storeys has been constructed long back but cannot say as to when it was constructed. It is further stated that he is not living in the portion assigned to him in the suit property i.e. 5464C and the same is occupied by his tenants since beginning who keep on changing from time to time and that he has been living in Gali No.6, House No. 5786 since his birth, however he does not remember whether he has informed this fact to his Counsel before filing the present case. The witness has then admitted that there is no door entry to his portion beyond the door / entry to his portion in property no. 5464C. On being specifically asked, PW1 has answered that there is only one gali leading to the portion of defendant no. 1 and this portion would be entered from common passage. He has further stated that there is no window existing on the wall beyond the door/ entry to his portion and vol. stated that there is one Jangla above the Page 8 of 17 (Sonam SinghII) Civil Judge07, Central, Delhi Sh. Sri Ram Sharma (Since deceased through his LRs) vs. Narinder Sharma & Anr.
CS SCJ : 99155/2016 door of his property which has been covered by defendant no.1. He has then denied that there is no such Jangla which has been covered by defendant no.1. The witness has stated that he has not brought any complaint and has filed all the documents on record. The witness has denied that defendant no. 1 did not carry out the unauthorized construction and vol. stated that as he carried out the same he was forced to file the complaint. He has then denied that defendant no. 1 has removed the Chajja and the matter was compromised with him and vol. stated that defendant no. 1 had removed the Chajja only in part approximately one slab extending over his door when intervention was made by the police on his call. The witness has then admitted that the Chajja is still in the same position which was left at that point of time in the year 1990 and stated that Mark A is the complaint which was made in the year 1990 to the police. PW1 has further stated that he visits the property bearing no. 5464C once or twice in a month for collection of rent and to supervise the property and does not remember since when the property no. 5464C and 5464B are in the same position as to the construction existing at the site. He has further stated that he doesn't remember if the construction existing in the said properties is more than 30 years old. The witness has denied that he is deliberately avoiding to answer the question as the construction existing in the said properties are more than 30 years old and has also denied that defendant no. 1 has not carried out any unauthorized construction over the common passage of 42 sq. feet as claimed. He has further denied that defendant no. 1 is not running Dairy from his property and that there is any nuisance created by him. It is also denied that defendant no. 1 has not been keeping any cattle in the common passage and there is any difficulty of egress and ingress from the common passage for the passer by. Lastly, the witness has denied that he is deposing falsely.
PW2: Sh. Anup Singh, Record Keeper from the Office of SubRegistrarII, Kashmere Gate, Delhi in his examinationinchief has deposed that he is the summoned witness and has brought the summoned record i.e. Will dated 20.08.1977 vide Registration no. 719 Book No. 3, Volume 81 on pages 24 to 27 on dt.Page 9 of 17 (Sonam SinghII)
Civil Judge07, Central, Delhi Sh. Sri Ram Sharma (Since deceased through his LRs) vs. Narinder Sharma & Anr.
CS SCJ : 99155/2016 22.08.1977 with site map which is in Urdu language as per the office record and same is already Ex. PW1/3 (objected to as to mode of proof) and that the same is true as per their record. In his crossexamination, the witness has stated that he has been working in the office of SubRegistrarII as Record Keeper since 31.12.2015 and has no personal knowledge regarding the summoned record.
Defendants Evidence (DE):
9) On behalf of defendant no.1 one witness namely Sh. Narendra Sharma has been examined as DW1 and on behalf of defendant no.2, Dr. Praveen Kumar has been examined as D2W1, as under:
DW1: Sh. Narendra Sharma has tendered his evidence by way of affidavit which is Ex. DW1/A and relied upon the document which is already exhibited as Ex. PW1/D2 and Ex. DW1/2 (colly four photographs). In his crossexamination DW1 has stated that he does not know whether late Mr. Shri Ram Singh had executed a Will dated 20.08.1977 accompanied by site plan and vol. stated that he was a child at that time. The witness has admitted that late Mr. Shri Ram Singh was the owner of the properties and all his legal heirs acquired their respective shares through him. It is further stated that he came to know about the Will dated 20.08.1977 in year 1990 when they were constructing the "balcony / Chhajja" and plaintiff had raised objection to the said construction, however, later on plaintiff and he settled the matter. The witness has stated that he does not remember that plaintiff had made a complaint to the PS, Roshnara Bagh and does not remember the year of construction but is near about 1990. He has further stated that after the settlement, they removed the "balcony / chhajja". The witness has stated that balcony/chhajja was constructed on the combined/common gali between plaintiff house and his house. The witness has denied that he had encroached the common gali by constructing "balcony/chhajja" and has further denied that he never became the owner of any portion between his house and plaintiff's house. He has further denied that the portion in his possession is more than 16 ' X 25' 3" and has also denied that he is still keeping some cattle in his house and in the common passage. The witness has denied that due Page 10 of 17 (Sonam SinghII) Civil Judge07, Central, Delhi Sh. Sri Ram Sharma (Since deceased through his LRs) vs. Narinder Sharma & Anr.
CS SCJ : 99155/2016 to unauthorized construction and encroachment plaintiff has been deprived of proper light and air in his possession in any manner. He has further denied that he has enclosed a wrong site plan along with his written statement and has lastly denied that he is deposing falsely.
D2W1: Dr. Praveen Kumar, Deputy Director (VS) has tendered his evidence by way of affidavit which is Ex. D2W1/A. In his crossexamination, the witness has stated that on 14.05.2012 the illegal dairy was removed but at that time he was not posted in Civil Line Zone and stating on the basis of record. The witness has stated that he does not have anything with him today to show that any proceeding qua removal of illegal dairy took place on 14.05.2012 and vol. stated that he can produce it if given some time. The witness has denied that no such proceeding took place despite repeated complaint by plaintiff. The witness has stated that he does not have the order dated 27.09.2012 as mentioned in para 2 of his affidavit and vol. stated that it was passed to deseal the suit property. He has further stated that the suit property was sealed on 14.05.2012 itself after removing the dairy and has denied that MCD did not take any action as per law or that defendant no. 1 was running the dairy fearlessly even thereafter. He has stated that they inspected the suit property 34 days before filing the present affidavit i.e. Ex D2W1/A and has further stated that he has not placed on record any document or any photographs in that respect. The witness then indicated towards the photocopies of the photographs i.e Mark A, B and Mark C which shows that no dairy was functioning at the time of inspection. The witness has denied that no such inspection was carried out or that he is deposing falsely.
10) Final arguments were advanced by both sides and written arguments were filed on behalf of plaintiff only. Record has been perused.
Findings:
Issue No. 1: Whether the suit of the plaintiff is barred by the period of limitation? OPD1 Page 11 of 17 (Sonam SinghII) Civil Judge07, Central, Delhi Sh. Sri Ram Sharma (Since deceased through his LRs) vs. Narinder Sharma & Anr.
CS SCJ : 99155/2016 Issue No. 2: Whether the plaintiff is entitled for permanent and mandatory injunction as prayed ? OPP
11) Both the issues are taken up together and can be disposed of by common appreciation of evidence on record. The onus to prove issue no.1 was on defendant no.1 and to prove issue no.2 was on plaintiff. Plaintiff in his affidavit Ex. PW1/A has deposed that his father Late Sh. Ram Singh had purchased the property bearing no.
5464, Gali No. 6, New Chandrawal, Delhi110007 vide registered sale deeds which are Ex. PW1/1 and Ex. PW1/2. It is deposed that the said Ram Singh had executed a registered Will on 20.08.1977 which is Ex. PW1/3 by virtue of which he bequeathed the portions namely 5464/C as shown in yellow color in the site plan in favor of PW 1/plaintiff and that of portion 5464/B as shown in red color in favor of defendant no.1 and the passage as shown in green color was to remain common for use of both the parties as shown in the site plan attached with the Will. It is further deposed that parties have been in possession of their respective portions, however, defendant no.1 had been trying to raise unauthorized construction in the common passage and on most occasions, defendant no.1 used to apologize & assure not to repeat the said act and also gave an undertaking dated 01.03.1990 which is MarkA. It is further deposed that defendant no.1 is running an illegal dairy from his house & keeping cattle tied in the common passage creating health hazards and obstruction in the way. It is further deposed that defendant no.1 has also raised an unauthorized construction in the common passage to unlawfully occupy a space measuring 42 sq. feet approx. thereby causing unlawful loss to plaintiff and further obstructing the supply of air & light to his portion as one of the windows has been closed and has also misused the said common portion.
12) Plaintiff has thus relied upon the registered Will and site plan annexed therewith to show the portions bequeathed in favor of parties and the common passage wherein alleged unauthorized construction has been raised by defendant no. 1. Perusal of this Will which is Ex. PW1/3 shows that portion 5464/C has been bequeathed in favor of plaintiff and that of 5464/B in favor of defendant no.1, however, nothing has been stated therein qua the common passage or construction of number of floors in the Page 12 of 17 (Sonam SinghII) Civil Judge07, Central, Delhi Sh. Sri Ram Sharma (Since deceased through his LRs) vs. Narinder Sharma & Anr.
CS SCJ : 99155/2016 portions bequeathed to parties. Plaintiff has also relied upon the site plan filed with the Will which also mentions about the colors shown in the site plan, however, colored copy of the said site plan or its translated copy has not been filed on record by plaintiff. In any case, defendant no.1 has disputed the site plan which is Ex. PW1/5 filed with plaint by plaintiff and has stated in his WS that the common passage was only beyond his portion as shown in the site plan filed by him which is Ex. PW1/D2. Even though defendant no.1 has not denied the execution of Will, however, he has contended that the assigned portions are different in comparison to the portions as detailed in the said Will.
13) Plaintiff in his plaint has further alleged unauthorized construction by defendant no.1, however, nothing has been stated as to the date, month or year qua raising of the said unauthorized construction by defendant no.1 in his evidence affidavit. On the contrary, plaintiff in his crossexamination has stated that he does not remember when was the alleged construction made whether 20 years or 30 years back, and has rather admitted that the portion of defendant no.1 comprising of four storeys was constructed long back. Further, when it was expressly put to plaintiff as to since when the property no. 5464C and 5464B are in the same position as to the construction existing at the site and as to their existence for more than 30 years old, he has vaguely answered to not remember the same. Thus, neither in his affidavit nor in his crossexamination has plaintiff stated as to when was the alleged unauthorized construction raised by defendant no.1 in the common passage. Furthermore, it is the contention of defendant no.1 that he has been in occupation of the premises since year 1977 without any objections and/or hindrance by plaintiff in terms of verbal settlement between parties and had carried out construction without any objection from plaintiff or other legal heirs. It is further contended by defendant no.1 that in terms of verbal settlement between parties, he had further carried out construction except on one occasion qua the stone slab chajja and the same was also settled later on between parties. Now, plaintiff in his crossexamination has also admitted that the chajja was partly removed by defendant no.1 and further stated that it is still in the same position as was left in the year 1990. It is also pertinent to mention here that Page 13 of 17 (Sonam SinghII) Civil Judge07, Central, Delhi Sh. Sri Ram Sharma (Since deceased through his LRs) vs. Narinder Sharma & Anr.
CS SCJ : 99155/2016 plaintiff in his crossexamination firstly denied that the property in question was divided by his father during his lifetime & was occupied by parties after the death of his father on 22.08.1979, however, subsequently, when it was expressly put to him that his father had divided the property in the year 1977 and in the said year itself, the parties occupied their respective portions as per division made, plaintiff clearly answered that the property in question was divided by his father in the year 1977 and the respective portions as per Will was occupied then and there i.e. in 1977 itself, thereby contradicting himself. Moving further, plaintiff has also alleged that due to the alleged unauthorized construction, obstruction is caused in the supply of air & light to his portion as one of the windows has been closed. However, in his cross examination, PW1 has admitted that there is no window existing on the wall beyond the door/entry to his portion and that there in one jangla above the door which has been covered by defendant no.1, however, PW1 has failed to produce on record any document including photograph showing the existence of such jangla or closure thereof by defendant no.1 and the photographs relied upon by PW1 merely shows the existence of a door in his portion of the property. Even in the site plan, which is Ex. PW1/5 nothing has been shown as to the existence of door or the jangla as alleged by plaintiff. Besides, no record from MCD was summoned by plaintiff to show that the construction raised by defendant no.1 is unauthorized, and despite crossexamination of official from the MCD/D2W1 nothing was put by plaintiff to the said witness qua the alleged unauthorized construction raised by defendant no.1.
14) Now, coming to the evidence led by defendants, defendant no.1/DW1 in his affidavit Ex. DW1/A has deposed that the construction sought to be removed by plaintiff was occupied way back in the year 1977 by Sh. Ram Singh his grandfather/father of plaintiff & same is within the knowledge of plaintiff. It is further deposed that he has not raised any unauthorized construction & the ground floor is in the same condition as was built up by his predecessor in interest. Defendant no.1 has relied upon the site plan which is already exhibited as Ex. PW1/D2 and photographs Ex. DW1/2 (colly). He has further deposed that the common passage was only beyond his portion as shown in red color in the aforeaid Page 14 of 17 (Sonam SinghII) Civil Judge07, Central, Delhi Sh. Sri Ram Sharma (Since deceased through his LRs) vs. Narinder Sharma & Anr.
CS SCJ : 99155/2016 site plan and the entire property was under the use of entire family before the same was divided. It is further deposed that defendant no.1 has been in occupation of the premises since 1977 without any objections/hindrance from plaintiff or other legal heirs who are in occupation of other portions and further construction was carried out in terms of verbal settlement between parties above the portion B on ground floor except for laying of extended portion of stone slab chajja beyond the roof of first floor towards common portion which was later settled between parties. It is pertinent to note here that PW1 in his crossexamination has already admitted that defendant no.1 had removed the chajja in part and is in the same position as was left in the year 1990. In his crossexamination, defendant no.1 has clearly stated that the matter was settled between plaintiff and him qua the chajja raised after which it was removed. Defendant no.1 has further denied that due to construction in the passage, plaintiff cannot open the window or has been deprived of proper light and air in any manner. He has further denied that wrong site plan has been enclosed by him.
15) From the aforesaid evidence lead by parties, it thus transpires that whereas on the one hand plaintiff has nowhere proved or even stated about the date, month, year or details qua raising of the alleged unauthorized construction by defendant no.1, he has also not been able to establish the same even after examination of MCD official and has also failed to prove his site plan or alleged unauthorized construction raised by defendant no.1 by way of examination of independent witness or by way of summoning of any record from MCD to this effect. Plaintiff has also not been able to show that he has been deprived of light & air in his portion due to the said construction. Merely relying upon the Will in absence of any other document or independent witness doesn't entitle the plaintiff to the relief of mandatory injunction as prayed. Defendant no.1 on the other hand has been able to show that he has been in occupation of the portion in his possession since 1977 without any objection/hindrance by plaintiff except for the chhajja which was admittedly removed after settlement between parties herein. Moreover, perusal of record shows that the present suit was filed by plaintiff on 16.05.2012 and as discussed in preceding paragraphs it has been admitted by plaintiff himself that all the legal heirs Page 15 of 17 (Sonam SinghII) Civil Judge07, Central, Delhi Sh. Sri Ram Sharma (Since deceased through his LRs) vs. Narinder Sharma & Anr.
CS SCJ : 99155/2016 occupied the property after division by his father in 1977 and even defendant no. 1 has also deposed that parties to the suit raised construction on the upper floors in the year 198990 without objection in terms of verbal settlement & using the same as owner thereof, which statement has also gone uncontroverted by plaintiff, thereby implying that the present suit seeking the relief of mandatory injunction was filed by plaintiff much after the expiry of the limitation period of three years as provided under Article 113 of The Limitation Act. Thus, not only has the plaintiff failed to prove that he is entitled to the relief of mandatory injunction on merits, rather defendant has also been able to show that the suit filed by plaintiff seeking the relief of mandatory injunction is barred by limitation.
16) As far as the relief of permanent injunction is concerned, defendant no.1 has admitted in his affidavit that cattle in the common area have been removed long time back and no cattle are there. He has further admitted in his crossexamination that there is a common gali between the houses of plaintiff and defendant no.1 and the common passage is also reflected in the site plan i.e.Ex. PW1/D2 relied upon by defendant no.1. Thus, in view of admission as to the existence of common gali/common passage and removal of cattle therefrom by defendant no.1, plaintiff is held entitled to the relief of permanent injunction as prayed. Accordingly, Issue no.1 is decided in favor of defendant no.1 and Issue no.2 is partly decided in favor of plaintiff as to the relief of permanent injunction only to the extent discussed herein.
Relief:
17) In light of the findings arrived on issues as discussed hereinabove, the present suit instituted by plaintiff is partly decreed as to the relief of permanent injunction and accordingly, defendant no.1, his agents, representatives, etc. are hereby permanently restrained from tying their cattle in the common passage of Property bearing no. 5464, Gali No.6, New Chandrawal, Delhi110007. No order as to costs.
18) It is, however, clarified that the findings arrived hereinabove shall not cause any Page 16 of 17 (Sonam SinghII) Civil Judge07, Central, Delhi Sh. Sri Ram Sharma (Since deceased through his LRs) vs. Narinder Sharma & Anr.
CS SCJ : 99155/2016 impediment to the MCD to take appropriate action as per law in case of non compliance of rules/other provisions, if any qua the construction raised.
19) Decree sheet be prepared accordingly.
20) File be consigned to record room after due compliance.
Digitally
signed by
SONAM
SONAM SINGH
SINGH Date:
2022.09.27
16:45:52
+0530
Pronounced in open court: (Sonam SinghII)
Dated: 27.09.2022 Civil Judge07, Central,
Tis Hazari Courts, Delhi
Note: This Judgment contains seventeen pages and all the pages have been checked and signed by me.
(Sonam SinghII) Civil Judge07, Central, Tis Hazari Courts, Delhi Page 17 of 17 (Sonam SinghII) Civil Judge07, Central, Delhi