Delhi District Court
Sh. Narender Singh vs Dharambir Singh on 10 October, 2019
IN THE COURT OF SH. SATVIR SINGH LAMBA,
ACJ-CUM-CCJ-CUM-ARC, NORTH DISTRICT, ROHINI
DELHI
CS No. 90/14
New CS no. 34723/16
In the matter of :-
Sh. Narender Singh
S/o Late Sh. Chander Bhan,
R/o H. N. 439, Village Bankner,
Delhi.
....Plaintiff
Versus
1. Dharambir Singh
2. Jasbir Singh
Both sons of Sh. Bhim Singh
R/o Near Patwar Khana,
Village Banker, Delhi.
......Defendants
Date of Institution : 16.05.2019
Date of reserving order : 10.10.2019
Date of order : 10.10.2019
SUIT FOR DECLARATION
AND PERMANANT INJUNCTION
JUDGMENT
1. Present suit has been filed by the plaintiff seeking the CS No.34723/16 Page 21 of 21 relief of declaration and permanent injunction against the defendant.
PLAINT
2. Brief facts necessary for disposal of the present suit are that father of the the plaintiff namely Sh. Chander Bhan was the owner and in possession of the land measuring 370 sq. yds. situated in the Lal Dora of the Village Bankner, Delhi. It is alleged that out of the said land, 185 sq. yds. was purchased by him from his brother Ram Swaroop in the year 1980 in family settlement and remaining half land came into his share by inheritance from his father. It is further alleged that during his lifetime, father of the plaintiff partitioned the above mentioned total land among the plaintiff and his three brothers in equal share. After partition, plaintiff constructed his share of land way back in 1974 and started residing therein. The defendants are cousin brothers of the plaintiff & when they started raising construction over their portion of land in the year CS No.34723/16 Page 21 of 21 1976, they requested the plaintiff and his father to put wooden garter of their two rooms over the wall of the plaintiff. The plaintiff being cousin brother allowed the defendants for the same on the condition that in future, defendants would not put any garter or make any construction over the wall of plaintiff and if the defendants will do the same they would construct separate wall in their own property. It is further alleged that in the month of April, 2014, the defendants started raising construction over the wall of the plaintiff and upon objection by the plaintiff, the defendant claimed that the wall belongs to them. Several complaints were made by the plaintiff to the concerned police authorities in this regard but in vain. Thereafter, plaintiff filed a civil suit seeking injunction against the present defendants before the Court of Ld. Senior Civil Judge, Rohini Courts but the same was disposed as withdrawn with liberty to file a fresh suit for the relief of declaration. Hence, the present suit.
CS No.34723/16 Page 21 of 21
WRITTEN STATEMENT
3. Written statement was filed by the defendants denying the averments made in the plaint and stating therein that the the plaintiff has not approached the court with clean hands and has concealed the material facts. It is further contended that the present suit is time barred as limitation for seeking relief of declaration is three years and the present suit has been filed after about 40 years. It is further contended that the property/ house of the defendant are separated by a common wall which was constructed in the year 1974 and at that time cost of the common wall was fixed @ 27,000/- out of which Rs.13,500/- were paid by the father of the defendants to the father of the plaintiff and since then this common wall has been used by the plaintiff as well as the defendants. It is further alleged that the width of the disputed wall is 14 inch and on both the sides of this common wall, the almirahs and the cupboard etc. have been embedded and the beams of the house of the defendants CS No.34723/16 Page 21 of 21 and plaintiff also lying upon this common wall. It is further alleged that there is no objection from either side since 1974 which itself proves that the wall is common and is for the use of the plaintiff as well as the defendant. Hence, the same is not the exclusive property of the plaintiff. It is further alleged that the said arrangement was between the father of the plaintiff and the father of the defendants, therefore, the plaintiff can not challenge the said arrangement made by his father in present manner. It is further contended that even the said common wall has also come in adversary possession of the defendants. It is further averred that a suit bearing no.134/98 was disposed off as decided on 07.09.1999 between the parties to that suit and the disputes were settled amicably and a compromise deed dated 24.08.199 was executed between the parties to the suit. Therefore, it is crystal clear that the area of the common wall in question equally divided between the plaintiff and the defendants also shows that the father of the defendants not only shared the cost of the construction of the common wall, CS No.34723/16 Page 21 of 21 but also the area of the common wall in question. It is prayed that the suit of the plaintiff be dismissed.
REPLICATION
4. Replication to the WS of defendants was filed by the plaintiff denying all averments made in the WS as well as reiterating the facts made in the plaint.
ISSUES
5. After completion of the pleadings, following issues were framed :-
1. Whether the plaintiff is entitled to a decree of declaration as prayed for? OPP
2. Whether the plaintiff is entitled to a decree of permanent injunction as prayed for? OPP
3. Whether the present suit is barred by limitation? OPD
4. Whether the present suit is barred in view of compromise Deed dated 24.08.1999 and in view of the amicably settlement in a previous suit bearing no.134/98, disposed on 07/09/1999? OPD CS No.34723/16 Page 21 of 21
5. Whether the plaintiff is entitled to costs? OPP
6. Relief.
Thereafter, matter was listed for PE.
PE
6. To prove his case, plaintiff tendered his evidence by way of affidavit as Ex.PW1/A and relied upon the documents exhibited as Ex.PW1/1 to Ex.PW1/5 i.e. original site plan is proved as Ex.PW1/1, Photographs of the suit property are proved as Ex.PW1/2 (Colly.), copy of ration card is proved as Ex.PW1/3, Electricity bill is proved as Ex.PW1/4 and complaints made to various police authorities are proved as Ex.PW1/5 (Colly).
PW1 was duly cross-examined by the Ld. counsel for the defendant.
No other witness was examined on behalf of plaintiff. Thereafter, PE was closed.
CS No.34723/16 Page 21 of 21
DE
7. Defendants to prove their case, examined defendant no.1 Sh. Dharambir Singh. Defendant no.1/DW1 Dharambir Singh tendered his evidence by way of affidavit as Ex.DW1/A and relied upon the documents i.e. copy of ID proof of defendant no.1 is proved as Ex.DW1/1, photographs of the suit are proved as Ex.DW1/2.
DW1 was duly cross-examined by the Ld. counsel for the plaintiff.
No other witness was examined on behalf of the defendants. Thereafter, DE was closed.
8. I heard final arguments on behalf of parties from their respective counsels.
FINDINGS
9. After considering the submissions of Ld. counsel for the CS No.34723/16 Page 21 of 21 parties and the evidence on record, my issue wise finding are as under :-
Issue no.1 : Whether the plaintiff is entitled to the relief of declaration as prayed for? OPP
10. The onus for proving the above issue is upon the plaintiff and for the same he has placed reliance on his testimony and also on the exhibited documents.
During cross examination of plaintiff as PW1, he has categorically deposed that the wall in question is not a common wall and no money was paid by the defendant for the construction of the wall in question. PW1 further deposed that the wall in question was constructed in the year 1976 and there is no question of partition of the wall in question. In his cross- examination, PW1 further admitted that no other litigation was pending regarding the wall in question. PW1 has categorically deposed that the 'wooden gatter' were placed on the wall in question but there were no almirah. PW1 further deposed the CS No.34723/16 Page 21 of 21 said wooden gatter were placed on the wall only on the request of Bhim Singh (father of defendant) to his father. PW1 has also explained that there were no almirah in the wall in question. PW1 further admitted that the property in question falls in the area of the Lal Dora and the width of the wall in question is 14 inches. PW1 has denied the suggestion given to him during his cross-examination by the defendant that the defendant has contributed half of the consideration amount of Rs.13,500/- for construction of wall in question. PW1 further denied the suggestion that wall in question was constructed with the consent of the defendant and is a common wall.
I have perused the document i.e. Ex.PW1/2 (Colly). The photographs of the suit property do not show any almirah built on either side of the wall in question and same supports the testimony of the plaintiff to the fact that there were no almirah. Further, the defendant has failed to bring on record any documentary proof to prove that his father had paid a sum of Rs.13,500/- as share towards the cost of the alleged common CS No.34723/16 Page 21 of 21 wall @ Rs.27,000/-. Moreso, it is the admitted position that the defendant is the cousin brother of the plaintiff. It is pertinent to mention here that the defendant has not disputed the factum that the father of the plaintiff was owner and in possession of the land measuring 370 Sq. Yards situated in the Lal Dora of the village - Bankner, Delhi as well as the factum of the partition of the land among his four sons including the plaintiff. The defendant has also not disputed the construction in the share of the plaintiff in the year 1974. The defendant has categorically claimed that the defendants started their construction in the year 1976 and during the said construction, they requested plaintiff and his father to put their wooden garter of their two rooms over the wall in question. Since the defendants were the cousin brothers therefore, same was allowed to them with the condition that in future, defendant would not put any garter or make any construction over the wall of the plaintiff. The defendant has also supported the stand that the wall in question was constructed by the father of the CS No.34723/16 Page 21 of 21 plaintiff and claimed that the defendant shared the expenses of the wall in question to make it a common wall in the year 1974 itself. However, the said stand is denied by the plaintiff. It is pertinent to mention here that the defendant has failed to lead any iota of evidence to support his stand that the house of the defendant was itself constructed in the year 1976. Moreso, the defendant has not even disclosed the area and dimensions of the land / property in his possession which could have illustrated the area of the share of the defendant including or excluding the wall in question.
In the light of the above, the plaintiff has been able to prove his case with respect to issue no.1 and therefore, plaintiff is entitled to decree of declaration in his favour and against the defendants as the defendants have no right to use the said wall as their own. Hence, the plaintiff is hereby declared as owner and in possession of wall shown in red colour in the site plan. CS No.34723/16 Page 21 of 21
Issue no.2 Whether the plaintiff is entitled to the relief of permanent injunction as prayed for? OPP
11. The burden to prove this issue is on the plaintiff. In the light of the findings given in issue no.1, the plaintiff has proved that he is the owner of the wall in question and the defendant has no right, title or entitlement to use the wall in question. Moreso, the defendant has failed to bring on record any cogent evidence to establish the plea raised by them that the wall in question is common wall and they have contributed for the half share of the construction of the wall in question. Considering the facts and circumstances of the present case, the plaintiff is entitled for the relief of permanent injunction in his favour and against the defendants, thereby restraining the defendants, their agents, associates, representatives, LRs, mesons etc. are hereby restrained from raising any sort of construction over the wall of plaintiff as shown in red colour in the site plan. Hence, this issue is decided in favour of the plaintiff and against the CS No.34723/16 Page 21 of 21 defendants.
Issue No.3: Whether the present suit is barred by limitation?
OPD
12. The onus to prove this issue is upon the defendants. The defendants have raised the plea that the present suit is time barred as the limitation for seeking relief of declaration is three years and the present suit has been filed after 40 years from the existence of the common wall in between the house of the plaintiff and defendants. The defendants have claimed that the house of the defendants was constructed in the year 1974 and at that time, the cost of the common wall was fixed as Rs.27,000/-. Out of the said amount, it is claimed that the father of the defendants had paid half contribution to the tune of Rs.13,500/- to the father of the plaintiff. It is argued on behalf of defendants that the filing of the present suit for the relief of declaration is time barred and accordingly the present suit is not maintainable.
CS No.34723/16 Page 21 of 21
On the other hand, the plaintiff has strongly opposed the abovesaid pleas and has raised contention that the cause of action in favour of the plaintiff had arisen only on 27.04.2014, when the defendants started construction over the wall of the plaintiff. It is further contended on behalf of the plaintiff that the existence of the wall in question is since the year 1974 and there was no occasion earlier for filing of the any case against the defendant because they have not disputed the claim of the plaintiff at any point of time regarding the wall in question. It is not disputed that the defendants have raised any independent claim over the wall in question prior to the filing of the case by the plaintiff. It is also admitted position that earlier no dispute has arisen between either the father of the plaintiff and defendants or between the plaintiff and defendants regarding the claim over the wall in question. It is also admitted position in the present case that cause of action has arisen in favour of the plaintiff on 27.04.2014 when the defendant started construction over the wall in question. Therefore, considering the facts and CS No.34723/16 Page 21 of 21 circumstances of the present case, I am of the opinion that prior to the date i.e. 27.04.14, there was no occasion where in the defendants have raised the independent claim of wall in question or the defendants have denied the claim of the plaintiff over the wall in question. The plaintiff has been compelled to file the present case against the defendants only when the defendants have raised their objections to the claim of the plaintiff over the wall in question. The present case is filed on 16.05.14, and same is filed within prescribed period of limitation. Accordingly, the present issue is decided in favour of the plaintiff and against the defendants.
Issue no. 4: Whether the present suit is barred in view of compromise Deed dated 24.08.1999 and in view of the amicably settlement in a previous suit bearing no.134/98, disposed on 07/09/1999? OPD
13. The onus to prove this issue is upon the defendants. The defendants have raised the plea in the present suit by way of CS No.34723/16 Page 21 of 21 their written statement, that a suit bearing no. 134/98 was disposed off as decided on 07.09.1999 between the parties. It is further alleged that the said dispute was settled amicably between the parties and a compromise dated 24.08.1999 was executed between the parties to the said suit. It is further contended that now the plaintiff has averred something new, which has not pleaded /objected by the plaintiff in the said suit. It is further contended that the area of the properties of the plaintiff and his brothers and the defendants and his brothers is approximately same. Therefore, it is cleared that the father of the defendants not only shared the cost of the construction but also the common wall in question. It is further contended that after the lapse of 40 years the plaintiff has no right/remedy to file the present suit and the defendants have all right to use the common wall as they wish. It is further contended that once the dispute between the parties have been settled then the plaintiff has no right /remedy to file the present suit against the defendants.
CS No.34723/16 Page 21 of 21
On the other hand, the plaintiff has strongly opposed the abovesaid pleas. The plaintiff has categorically denied the abovesaid averments of the defendants in his replication to the written statement of the defendants. It is pertinent to mention here that the abovesaid plea has been raised by the defendants in para no. 13 of their amended written statement. However, the defendant have not alleged the averments of the abovesaid para of their written statement in the testimony in evidence by way of affidavit of DW1. The defendants have not brought on record the contention raised by them in their written statement, in their evidence. The defendants have miserably failed to prove on record the alleged compromise deed dated 24.08.1999. Further the defendants have also not filed the certified copy of the alleged compromise deed dated 24.08.1999. Moreover, the defendants have not even explained that how the present suit is related with the alleged earlier suit between the parties. The defendants have not even explained anything about the prayer of the alleged earlier suit. The CS No.34723/16 Page 21 of 21 defendants have even not explained that how the alleged previous suit is barring the filing of the present suit by the plaintiff against the defendants. Therefore, considering the facts and circumstances of the case, I am of the opinion defendants have failed to discharge their burden to prove this issue. Accordingly, this issue is decided against the defendants and in favour of the plaintiff.
Issue no. 5: Whether the plaintiff is entitled to costs? OPP
14. Onus to prove this issue is on the plaintiff. In the present case plaintiff has also claimed costs of the proceedings in his favour and against the defendants. The defendants have strongly opposed the awarding of the cost in favour of the plaintiff. Plaintiff has filed the present suit against the defendants for declaration of the effect that he is owner and in possession of the wall in question and defendant has no right to use the same alongwith relief of permanent injunction CS No.34723/16 Page 21 of 21 restraining the defendants from raising any kind of construction over the wall in question. All the other issues have already been decided in favour of the plaintiff. Plaintiff has proved his case, hence, there is no reason to deny the award of costs in his favour. Considering the facts and circumstance of the present case, I am of the opinion that the plaintiff is entitled for the cost of the present suit. Accordingly, this issue is decided in favour of the plaintiff and against the defendant.
RELIEF
15. Considering the abovesaid findings and for the reasons assigned herein above, it is held that the plaintiff is entitled for the following reliefs :
i) a decree of declaration thereby declaring that the plaintiff is owner and in possession of the wall in question and defendant has no right to use the same.
ii) a decree of permanent injunction thereby restraining the defendants & their agents etc. from raising any kind of construction over the wall in question.
iii) plaintiff is also entitled to costs of the suit.CS No.34723/16 Page 21 of 21
Decree sheet be prepared accordingly. Decree sheet be prepared after payment of deficient court fees, if any.
File be consigned to record room after due compliance.
SATVIR Digitally signed
by SATVIR
Announced in the Open Court SINGH SINGH LAMBA
Date: 2019.10.10
on this 10th day of October, 2019 LAMBA 16:07:17 +0530
(SATVIR SINGH LAMBA)
ACJ/CCJ/ARC (NORTH),
ROHINI COURT, DELHI
CS No.34723/16 Page 21 of 21