Delhi District Court
Huzur Saran Nigam vs Ritu Raj Juneja on 29 November, 2013
IN THE COURT OF MS. ANJANI MAHAJAN, CIVIL JUDGE17
(CENTRAL), TIS HAZARI COURTS, DELHI
SUIT NO. 1390/06
Unique ID No. 02401C0907272006
MEMO OF PARTIES
1. Huzur Saran Nigam
S/o Late Sh. Dayal Saran Nigam
R/o C51, Soami Nagar
New Delhi
2. Jyoti Sureka
S/o Sh. Ram Gopal Sureka
R/o C51, Soami Nagar,
New Delhi 110017
...........Plaintiffs
VERSUS
1. Ritu Raj Juneja
S/o Mr. Juneja
R/o E11, PocketC, Soami Nagar,
New Delhi
2. Ritu Juneja
W/o Mr. Ritu Raj Juneja
R/o E11, PocketC, Soami Nagar,
New Delhi - 110017
3. Surjit Singh Virdi
R/o E10, PocketC, Soami Nagar,
New Delhi 110017
4. The Dayal Bagh Housing Cooperative Society (Registered)
B60, Soami Nagar,
New Delhi 110017
..........Defendants
Suit No. 1390/06 Sh. Huzur Saran Nigam & Anr. Vs. Sh. Ritu Raj Juneja & Ors. 1/16
Date of institution of the Suit: 29.09.2006
Date on which judgment was reserved: 30.10.2013
Date of pronouncement of Judgment: 29.11.2013
SUIT FOR PERPETUAL AND MANDATORY INJUNCTION
JUDGMENT
1. The plaintiff have filed the present suit seeking the following reliefs " (a) Pass a decree against the defendant restraining the defendant nos. 1, 2 and 3 from occupying or encroaching upon the adjoining area, representing public land, as depicted in the site plan which is appendix A to the plaint. A decree needs to be passed against defendant no. 4 also, restraining it from cooperating with, and supporting such encroachments.
(b) A decree of mandatory injunction be passed against the defendants, directing them to remove all the structures on the public land, indicated in appendix A, and to direct them to restore the original status of the said public land.
(c) This Hon'ble Court may be pleased to award costs of the suit in favour of the plaintiff."
2. It is the case of the plaintiffs that the father of the plaintiff no. 1 Sh. Dayal Saran Nigam was the original owner of the plot number C51, Soami Nagar, New Delhi having purchased the same from defendant no. 4. After the Suit No. 1390/06 Sh. Huzur Saran Nigam & Anr. Vs. Sh. Ritu Raj Juneja & Ors. 2/16 death of the parents of plaintiff no. 1, plaintiff no.1 being the only class one legal heir became entitled to the possession of the aforesaid property and was also granted Letters of Administration by the court vide order dated 13.05.1997. As on date both the plaintiffs were the owners of their respective portions of the property bearing municipal no. C51, Soami Nagar, New Delhi along with undivided proportionate share of the land underneath to the extent specified in their respective title documents. Plaintiff no. 2 had purchased the property by virtue of a registered sale deed executed in his favour by one Ms. Ann Rizzolo Kumar, who had purchased the same from the plaintiff no. 1. The defendants no. 1 and 2 were the owners and purchasers of an apartment in the property bearing no. E11, PocketC, Soami Nagar. Defendant no. 3 was the occupier and owner of the apartment no. E10, PocketC, Soami Nagar. Defendant no. 4 was a housing society which had originally developed the colony of Soami Nagar and the original allottee of the land in question. Thereafter, it transferred plots of land to various members of the said society, while it retained the ownership of BlockE. The defendants no. 1 and 2 were merely the lessees of the portion E11, PocketC, Soami Nagar, New Delhi and the defendant no. 3 was lessee of apartment no. E10. The plaintiffs state that the suit lands are the pieces of land adjacent to, and in conjunction with the two residential plots of lands. The plot of land owned Suit No. 1390/06 Sh. Huzur Saran Nigam & Anr. Vs. Sh. Ritu Raj Juneja & Ors. 3/16 by the plaintiffs bore the no. C51, and the apartment leased by the first and second defendants bore the no. E11 while that of the defendant no. 3 was E10. An appendix A has been annexed along with the plaint and it is stated therein that diagram (I) demonstrated the position as per the Government and Revenue Records of the area diagram (II) demonstrated the current position at site, showing that the defendants and their predecessor in interest had attempted to wrongfully appropriate public land and even the link between the front and back lanes has been severed while diagram (III) illustrated the position that was likely to be created in case preventive relief sought was not granted. The area marked green or grey in appendixA was stated to represent open public land or roads. The plaintiffs state that some land in every residential locality particularly in the locality of Soami Nagar, was meant to be open land and neither to be constructed on nor allotted to any particular resident for construction. As per the lay out plan for the land use in the area Soami Nagar the land shaded in green and grey was open and the plaintiffs' plot being situated adjacent to the open land gave a special value to their property. The defendants no. 1 and 2 had appropriated wrongly parts of common lands for their exclusive personal use comprising even roads and were attempting to appropriate remaining open public land by constructing a boundary wall around it which would also considerably diminish the utility and Suit No. 1390/06 Sh. Huzur Saran Nigam & Anr. Vs. Sh. Ritu Raj Juneja & Ors. 4/16 value of the property of the plaintiffs. The plaintiffs had legally sanctioned windows opening into one of the areas and were relying upon these windows for sunlight and air and any structure built over this public land would have the effect of obstructing the utility of these windows. Plaintiff alleges that the defendant no. 4 which should be concerned to ensure lawful use of the land in question was actually colluding with defendants no. 1, 2 and 3 in encroaching upon the land by permitting construction of a boundary wall and other structures thereon. The plaintiffs state that they requested the defendants no. 1, 2 and 3 to stop encroachment upon the public land but they did not do so. The plaintiffs averred that they made a complaint to the Municipal Corporation Delhi but no action had been taken against the defendants.
3. The defendants no. 1 and 2 put in appearance and filed a joint written statement. Defendant no. 3 also filed his written statement. Defendant no. 4 did not put in appearance or file the written statement.
4. At this juncture it is noted that on 29.09.2006 counsel for plaintiff pressed the application for exparte adinterim stay and Ld. Predecessor of this court appointed a Local Commissioner and directed the parties to maintain the status quo in terms of the report of the LC which was to be operative after the visit of the LC. On 26.10.2006 the defendants no. 1 and 2 made a statement in Suit No. 1390/06 Sh. Huzur Saran Nigam & Anr. Vs. Sh. Ritu Raj Juneja & Ors. 5/16 court that they were not raising any unauthorized construction to the law and byelaws of the MCD or any public laws at the site shown as narrated by the Ld. Local Commissioner, which as per the defendants no. 1 and 2 was not a public land. On 21.03.2013 this status quo order as passed on 29.09.2006 was made absolute pending disposal of the suit.
5. The defendants no. 1 and 2 filed a joint written statement along with the counter claim. Preliminary objections were taken in the written statement by them. It was averred that the plaintiffs no. 1 and 2 had filed the suit with the malafide intention to encroach upon the land of the society. The plaintiffs had not come to the court with clean hands. The property no. C51, Soami Nagar, New Delhi was having a boundary wall not only in front but also in the rear portion. The defendants had also constructed the boundary wall and affixed a gate thereon with the express permission and consent of defendant no. 4. It was averred that the defendant no. 4 was the owner of the open land and also the owner of the land in front as well as rear of the plot no. C11 and could allow and permit any person to raise construction as permissible under the building byelaws and rules of MCD and plaintiffs had no locus standi to file the suit. The present suit had been filed to pressurize the defendants so that they may not insist that the plaintiffs close the unauthorized and illegal openings of the windows/ventilators constructed towards the adjoining portion Suit No. 1390/06 Sh. Huzur Saran Nigam & Anr. Vs. Sh. Ritu Raj Juneja & Ors. 6/16 of the flat in dispute and to remove three air conditioners projecting towards Flat No. E11. The defendants claimed to have a right to raise construction of the boundary wall up to a certain limit for which no permission was required from the MCD as p no er the building byelaws 6.4.1 of MCD. The defendants no. 1 and 2 on merits denied the ownership of the plaintiffs no. 1 and 2. It is stated that the defendants no. 1 and 2 were licensees of the property bearing no. E11, Soami Nagar, Delhi and defendant no. 4 was the licensor and sole owner of E11, PocketC, Soami Nagar. Further, defendant no. 4 had given permission to the defendants no. 1 and 2 to construct a security wall on the back portion of E11, Soami Nagar, New Delhi. It was submitted that the land in questi no on was not a public land but a private land solely owned by the defendant no. 4 society in respect of which the plaintiffs had no right whatsoever Flat No. E11 has been leased by the society to defendants no. 1 and 2 and in fact it was the plaintiffs who were harassing the defendants with the motive to grab the open land belonging to the society. It was admitted that some land in the locality was meant to be open land but it was submitted that the land in question belonged to the society and the plaintiff had not right in the land and that it was the society which had to decide usage of the land as per the law. It was denied that the defendants had wrongly appropriated parts of common land for their exclusive use. It was averred that the Suit No. 1390/06 Sh. Huzur Saran Nigam & Anr. Vs. Sh. Ritu Raj Juneja & Ors. 7/16 photographs filed by the plaintiff did not show any encroachment made by defendants no. 1 and 2 and the local commissioner had not correctly inspected the premises. It was submitted that the no encroachment has been made by the defendants.
6. In the counter claim the defendants no. 1 and 2 averred that there was a common wall between the property C51, Soami Nagar, New Delhi and E11, Soami Nagar, New Delhi and as per byelaws, rules and regulations no window or projection could be made in any property towards the adjacent properties and no window, ventilators etc. could be opened towards the adjoining property as the adjoining wall was common. The construction for the plot no. C51 was raised after getting the building plan approved and sanctioned from MCD and in the building plan approved, no window, ventilators or projections were shown therein. The plaintiffs no. 1 and 2 had encroached upon the open land belonging to the defendants by virtue of the license deed executed between the defendants no. 4 and defendants no. 1 and 2. The defendants no. 1 and 2/counter claimants therefore prayed for passing of a decree of mandatory injunction against the plaintiffs no. 1 and 2 directing them to remove three ACs and other equipments installed on the wall hanging/project towards Flat No. C11, Soami Nagar, New Delhi belonging to defendant no. 4 society and licensed to defendants no. 1 and 2 and a decree Suit No. 1390/06 Sh. Huzur Saran Nigam & Anr. Vs. Sh. Ritu Raj Juneja & Ors. 8/16 of permanent injunction restraining the plaintiffs no. 1 and 2 from further encroaching upon the open space in the adjoining property no. C51, Soami Nagar, New Delhi.
7. The written statement was filed by defendant no. 3. Preliminary objections were taken. It was stated that the defendants no. 1, 2 and 3 were members of defendant no. 4 and and in view the Delhi Cooperative Societies Act the Civil Court had no jurisdiction to entertain the present suit as a dispute between the plaintiffs and the defendants was to be referred to arbitration. It was averred that the construction of the boundary wall which the defendants were raising in their back courtyard was as per the building byelaws. The suit was bad for non joinder of necessary parties because defendant no. 3 had been shown as resident of Flat No. E10 though he was actually resident of E12 and the resident of E10 should have been impleaded in the place of defendant no. 3. Statutory notice as per the Cooperative Societies Act had also not been given. The defendant no. 3 averred that he was a member of defendant no. 4 and allottee of Flat No. E12, Pocket C, Soami Nagar, New Delhi. It was averred that there were some 17 plots where no construction was possible on individual basis of the members and instead the defendant no. 4 society undertook construction on group housing basis. The said plots were of 50 sq. yds. each marked as E1 to E17. The defendant no. 4 completed Suit No. 1390/06 Sh. Huzur Saran Nigam & Anr. Vs. Sh. Ritu Raj Juneja & Ors. 9/16 the construction of the Flats according to the Group Housing Scheme and plan thereof was approved by DDA vide its order dated 06.02.1979. In view of the same, the defendants no. 1 and 3 were entitled to enjoy the open land exclusively on the front as well as back portion for their flats. The open space in front of flat was being maintained with green flats and trees and there was barbed wire for protection since 1991 which had been done as per the desire of defendant no. 4 and payment had also been made to defendant no. 4.
8. Replication to the written statement of defendants no. 1 and 2 as well as the reply to their counter claim was filed by the plaintiffs. It was stressed that the land belonged to the Municipal Authorities and the Ld. Local Commissioner's report showed that there was no gate in the offending boundary wall however the same had been installed by the defendants despite status quo order. It was denied that the defendant no. 4 was the owner of the open land outside of the plot land in question. As such the contents of the written statement were denied and those of the plaint were reiterated.
9. In response to the counter claim the membership of the defendants with defendant no. 4 was not denied by the plaintiffs however the allegations contained in the counter claim were denied and it was stated that the windows and ventilators constructed in the house of the plaintiff were as per sanction plan sanctioned by the Municipal Authorities. It was prayed that the Suit No. 1390/06 Sh. Huzur Saran Nigam & Anr. Vs. Sh. Ritu Raj Juneja & Ors. 10/16 counter claim be dismissed. The defendants no. 1 and 2 filed replication to the reply to the counter claim denying the averments made therein.
10. Replication to the written statement of defendant no. 3 was filed by the plaintiff wherein it was stated that Section 60 of the Delhi Cooperative Societies Act governed the disputes to be referred to arbitration and it was specifically provided as to which disputes were referable to arbitration and the nature of the disputes in the present case was not referable to arbitration. It was denied that the suit was bad for nonjoinder and misjoinder of parties. It was averred that the defendant no. 3 along with his brother and father Sh. S.S. Virdi and Sh. G.S. Virdi were keeping Flats no. 12 and 10 and all three of them were acting in concert with each other. Earlier the Virdi family owned apartment E10 and subsequently E12 had also been acquired. The encroachments done by defendant no. 3 were with regard to E10. The averments made in the written statement were denied and those of the plaint were reiterated.
11. On 03.08.2011 the following issues were framed in the present case
1. Whether the plaintiff is entitled for a decree of permanent injunction as prayed for? OPP
2. Whether the plaintiff is entitled for a decree of mandatory injunction as prayed for? OPP Suit No. 1390/06 Sh. Huzur Saran Nigam & Anr. Vs. Sh. Ritu Raj Juneja & Ors. 11/16
3. Whether the defendant no. 1 and 2 are entitled for a decree of mandatory injunction as prayed in prayer clauseA in counter claim? OPD
4. Whether the defendant no. 1 and 2 are entitled for a decree of permanent injunction as prayed in prayer clauseB in counter claim? OPD
5. Relief?
12. After framing of issues defendants suddenly stopped appearing and were proceeded exparte vide order dated 30.11.2012.
13. The plaintiffs in evidence examined PW1 i.e. the plaintiff no. 1 and PW2 i.e. plaintiff no. 2. PW1 relied on the following documents: Mark A Copy of the sale deed dated 25.11.1968 in favour of Sh. Dayal Saran Nigam.
Mark B Copy of order dated 13.05.1997 along with its
schedule.
Mark C Copy of the sale deed dated 04.05.2006 between Ms.
Ann Rizzolo Kumar and plaintiff no. 2.
Mark D Copy of Map of Delhi Dayal Bagh Cooperative H.B.
Society Group Housing 150 sq. yds. known as Soami
Nagar, New Delhi.
Suit No. 1390/06 Sh. Huzur Saran Nigam & Anr. Vs. Sh. Ritu Raj Juneja & Ors. 12/16
Ex. PW1/E Appendix A containing diagrams.
Mark F Copy of location plan.
Mark G (colly) Coloured copies of photographs taken on site.
Mark H Copy of letter written by the plaintiffs to the
Deputy Commissioner MCD.
14. PW2 relied on the documents already tendered in evidence by PW1. The plaintiffs thereafter closed PE. Thereafter final arguments were advanced on behalf of the plaintiffs. As the defendants no. 1 and 2 have failed to pursue their counter claim therefore the counter claim of the defendants no. 1 and 2 is hereby dismissed for non prosecution. I have heard the arguments advanced by counsel for plaintiff and perused the record. My issue wise findings are as follows Issue nos. 1 and 2 Whether the plaintiff is entitled for a decree of permanent injunction as prayed for? OPP and Whether the plaintiff is entitled for a decree of mandatory injunction as prayed for? OPP
15. To prove their entitlement to the reliefs of the injunction both permanent and mandatory injunction as sought the plaintiffs must be able to establish their case that in fact the suit land is Government/public land. The defence of the defendants is that the land is a private land and that the same belongs to defendant no. 4 and the defendant no. 4 has granted the defendants permission to construct on the land. In paragraph 9 of the plaint, the plaintiffs Suit No. 1390/06 Sh. Huzur Saran Nigam & Anr. Vs. Sh. Ritu Raj Juneja & Ors. 13/16 have in fact admitted that the defendant no. 4 had permitted the construction of the boundary wall and other structures on the suit land albeit stating that the defendant no. 4 was colluding with defendants no. 1, 2 and 3 in encroaching upon the land in question. No doubt the defendants are exparte in the present case however it is well settled law that the suit of the plaintiff must stands on its own legs and reference may be had to the judgment of State of J & K Vs. Hindustan Forest Company, 2006 (12) SCC 198 wherein it was held that the onus is on the plaintiff to establish its case on the basis of material available and it can not rely on the weakness or absence of defence to discharge the onus. The plaintiffs have mostly relied on photocopies which have been merely marked in evidence. Even the alleged map of the Delhi Dayal Bagh Cooperative H.B. Society Group Housing 150 sq. plots at Soami Nagar, New Delhi has only been marked. The plaintiffs could have well produced cogent documentary evidence to show that the suit land was a public land/ government land. The plaintiffs could have sought to examine an official witness from the concerned Government Department in this regard but the plaintiffs have chosen not to do so. Even the alleged photographs of the suit land are only colour print outs which were not even supported with an affidavit U/s 65 B of the Evidence Act and were thus only marked as in evidence as Mark G (colly). The AppendixA i.e. Ex. PW1/E is the document Suit No. 1390/06 Sh. Huzur Saran Nigam & Anr. Vs. Sh. Ritu Raj Juneja & Ors. 14/16 which the plaintiff/PW1 deposed as having been prepared by him. This mere self serving document is not sufficient to establish the plaintiffs' case and position as existing in the Government record in fact can only be shown through the documents produced from the Government department or through the official witnesses from the department. There are not even any documents placed on record by the plaintiffs to show that unauthorized construction was being carried out by the defendants and not even any official witness has been examined to prove that there was any unauthorized construction being carried out by the defendants. The report of the LC basically states that a newly constructed wall had been found at the spot the dimensions of which had been provided. This report is as such not of much help to the case of the plaintiffs because the plaintiffs were basically required to prove that the suit land was public land and illegal construction thereon was being carried out by the defendants. The plaintiffs have miserably failed in establishing.
16. There is absolutely no documentary evidence on record to support the plaintiff's case that the suit land is Government land/public land and not private land though this was the very basis of the suit of the plaintiffs. The plaintiffs have failed to establish their case and the entitlement to the relief sought. The plaintiffs are thus not entitled to the reliefs sought. Issues no. 1 Suit No. 1390/06 Sh. Huzur Saran Nigam & Anr. Vs. Sh. Ritu Raj Juneja & Ors. 15/16 and 2 are decided against the plaintiffs.
Issues no. 3 and 4 Whether the defendant no. 1 and 2 are entitled for a decree of mandatory injunction as prayed in prayer clauseA in counter claim? OPD and Whether the defendant no. 1 and 2 are entitled for a decree of permanent injunction as prayed in prayer clauseB in counter claim? OPD
17. These issues pertain to the relief sought by the defendants no. 1 and 2 in their counter claim. The counter claim of the defendants has been dismissed by me for non prosecution as above. These issues thus do not survive for consideration.
Issue No. 5 Relief.
18. In view of the aforesaid discussion on issues no. 1 and 2 above the suit of the plaintiffs stands dismissed. The plaintiffs are held to be not entitled to the reliefs of permanent and mandatory injunction as sought against the defendants. The counter claim of the defendants no. 1 and 2 stands dismissed for non prosecution. No order as to costs.
Decree sheet be prepared accordingly.
File be consigned to the Record Room.
Announced in the open court ANJANI MAHAJAN
On 29.11.2013 Civil Judge - 17 (Central)
29.11.2013
Suit No. 1390/06 Sh. Huzur Saran Nigam & Anr. Vs. Sh. Ritu Raj Juneja & Ors. 16/16