Delhi District Court
)Smt. Santosh Kumari Phutela Date vs ). Smt Mithilesh Devi(Now Deceased) on 20 February, 2020
IN THE COURT OF MS NITI PHUTELA: ADDITIONAL SENIOR CIVIL
JUDGE : JSCC : GUARDIAN JUDGE, KARKARDOOMA COURTS (EAST)
Civil Suit No. 8098/16 Digitally
Old no. 62/13 signed by
NITI
NITI PHUTELA
1)Smt. Santosh Kumari PHUTELA Date:
W/o Sh. Jay Pal Singh 2020.03.12
14:57:31
2). Sh. Jay Pal Singh +0530
S/o Sh. Khoobi Ram
Both R/o
H. no. A81, New Ashok Nagar,
Delhi110096 ............. Plaintiffs.
Versus
1). Smt Mithilesh Devi(now deceased)
W/o Sh. Jai Prakash
Through her LRs:
1A). Sh. Rahul
S/o Sh. Jai Prakash
1B). Sh. Satbir
S/o Sh. Jai Prakash
2). Sh Jai Prakash (husband of Lt Mithilesh Devi)
S/o Lt. Sh. Roshan Singh
All R/o
H. no. C11, New Ashok Nagar,
Delhi110096 ..............Defendants.
Date of institution of Suit : 23.03.2013
Date on which order was reserved : 31.01.2020
Date of decision : 20.02.2020
SUIT FOR PERMANENT AND MANDATORY INJUNCTION
Suit No. 8098/16 SANTOSH KUMARI Vs. MITHLESH DEVI Page No. 1/14
JUDGMENT
PLAINT
1. It is the case of plaintiff that plaintiff no.1 is the owner of entire built up property bearing no. A81, New Ashok Nagar, Delhi96, built upon the plot of 100 Sq yards except one. The said property consists of 4 storey. Plaintiff no.2 transferred the entire above said property in favour of plaintiff no.1 except the above said shop in the year 2005. The abovesaid shop was purchased by defendant no.1 from plaintiff no.2 on 28.05.2004. It is on ground floor, admeasuring 12' X 12'. It is the version of the plaintiffs that defendant no.2 is in Delhi Police and he has been trying to grab the passage of the property of plaintiff no.1 and latrinebathroom which are situated on the ground floor and were for the use of tenants of plaintiff but the defendants have no right/ title/ interest in the same.
2. As per the plaintiffs, in February 2013, defendants illegally and unauthorizedly broke the southern common wall of the said shop and hurriedly put gate in absence of the plaintiffs when they were out of station. When they came back, they requested the defendants to remove the said gate but they threatened them that they will take forcible possession of the laterinebathroom as well as passage on the ground floor.
3. Aggrieved by the said acts, plaintiff no.1 gave written complaint against the defendants vide DD no. 61B, dt 04.03.2013 and also on 08.03.2013 vide DD no. 65B at PS New Ashok Nagar but no action was taken. Thus, plaintiffs have apprehension that defendants will forcibly take possession of passage and latrinebathroom. Hence, the present case has been filed Suit No. 8098/16 SANTOSH KUMARI Vs. MITHLESH DEVI Page No. 2/14 by plaintiff, praying that decree of mandatory injunction be passed in favour of the plaintiffs and against the defendants thereby directing them to remove the gate fixed towards the southern wall of the said shop as shown in the Red colour in the site plan and directing them to raise the wall in place of the said gate and also a decree of permanent injunction restraining the defendants from disturbing the peaceful possession of the plaintiff and their tenants in respect to their laterine/ bathroom as well as passage as shown in green colour in the site plan.
WRITTEN STATEMENT
4. Summons for settlement of issues were sent to the defendants. WS was filed wherein it is alleged by defendants that the present case of the plaintiff is liable to by stayed under Section 10 CPC because the earlier suit filed by plaintiffs bearing CS no. 31/13 is pending disposal and the present suit is counterblast to the suit filed by defendants. They alleged that plaintiffs have not approached the court with clean hands and they are rather trying to encroach the common passage of the shop of defendants and also the common toilet and bathroom meant for shopkeepers and for tenants of the suit property. They alleged that plaintiffs have also put the wall in front of the common toilet and affixed iron gate on the front side of the shopping complex which is causing inconvenience to general public, to other shop keepers and to defendants. They also averred that plaintiffs are threatening them to encroach the whole street of 10' in their shop/office and convert it into their personal land. As per defendants, the present suit is filed by plaintiffs merely to pressurize them to accept their demands and to extort money from them. Hence, it is prayed that suit of the plaintiffs be dismissed. They denied Suit No. 8098/16 SANTOSH KUMARI Vs. MITHLESH DEVI Page No. 3/14 the averments of plaint on merits.
5. During pendency of trial, unfortunately, defendant no.1 expired on 22.12.2016. As per order dt 25.06.2017, LRs of defendant no.1 were substituted.
REPLICATION
6. Replication was filed by plaintiff wherein he reiterated and reaffirmed the contents of the plaint and denied the averments of defendant in the Written Statement.
ISSUES
7. Thereafter upon completion of pleadings, following issues were framed by Ld Predecessor Judge vide order dt. 18.02.2015.
1). Whether the plaintiff is entitled for a decree of mandatory injunction as prayed in clause A of prayer clause of suit? OPP
2). Whether the plaintiff is entitled for a decree of permanent injunction as prayed in clause B of prayer clause of suit? OPP
3). Whether the suit is liable to be stayed u/s 10 of CPC? OPD
4). Whether the suit has not been valued properly for the purpose of court fee and jurisdiction?OPD
5). Whether the plaintiff has not approached the court with clean hands and has suppressed the material facts from the court? OPD
6). Relief.
PLAINTIFF EVIDENCE
8. In order to prove his case, the plaintiff examined three witnesses.
9. PW1 Smt Santosh Kumari tendered her evidence by way of affidavit which is Ex.PW1/A. She relied upon documents i.e. site plan which is Ex.PW1/1, Registered GPA dt 09.11.2005 which is Suit No. 8098/16 SANTOSH KUMARI Vs. MITHLESH DEVI Page No. 4/14 Ex.PW1/2(consisting of three pages), Registered Will deed dt 09.11.2005 which is Ex.PW1/3(consisting of two pages), Agreement to sell dt 09.11.2005, receipts of full and final payment, possession letter and affidavit are Ex.PW1/4(consisting of seven pages)(colly), copy of GPA dt 28.05.2004 which is Ex.PW1/5(consisting of three pages), copy of agreement to sell dt 28.05.2004 which is Ex.PW1/6 (consisting of two pages), copy of deed of Will dt 28.05.2004 which is Ex.PW1/7, copy of payment receipt is Ex.PW1/8, copy of complaint dt 04.03.2013 which is Mark A, copy of complaint dt 08.03.2013 is Mark B, six photographs are Mark C(Colly).
10. PW2 Sh Jaipal Singh tendered his evidence by way of affidavit which is Ex.PW2/A. He relied upon documents which were relied by PW1.
11. PW3 Sh Vijay Pal Singh, tendered his evidence by way of affidavit which is Ex.PW3/A.
12. All the abovesaid witnesses were crossexamined by Ld Counsel for defendants and were discharged.
13. No other witness was got examined by plaintiff, hence PE was closed DEFENDANT EVIDENCE
14. In order to prove their case, the defendants examined one witness.
15. DW1 Jai Prakash in his testimony, tendered his evidence by way of affidavit which is Ex.DW1A. He relied upon documents i.e. two GPAs, agreement to sell, affidavit, payment receipt, Deed of Will, all dated 28.05.2004 which are Ex.DW1/1(OSR), copy of plaint of Suit No. 6749/2016, Smt. Mithlesh Devi v. Santosh Kumari & Anr. which are Ex.DW1/2 (OSR), copy of written statement of Suit No.6749/2016 Suit No. 8098/16 SANTOSH KUMARI Vs. MITHLESH DEVI Page No. 5/14 which are Ex.DW1/3(OSR), copy of Order dated 06.05.2013 of Suit No.6749/2016 which are Ex.DW1/4(OSR) and copy of list of documents and the documents, filed by the plaintiff herein, in Suit No.6749/2016 which is Ex.DW1/5 (OSR).
16. DW1 was crossexamined by Ld Counsel for plaintiffs and was discharged. No other witness was got examined by defendants, hence, DE was closed FINAL ARGUMENTS
17. Final arguments advanced on behalf of parties heard. Record perused. Considered.
FINDINGS Issue No.3: Whether the suit is liable to be stayed u/s 10 of CPC?
OPD
18. It was the ground taken by defendants that previously instituted suit bearing no.30/13, filed by defendant no.1 was already pending, therefore, the present matter was prayed to be stayed, however, the present matter was not stayed and both the cases were proceed simultaneously. The said issue should have been decided as preliminary issue but the same was not pressed by any of the parties and the present suit was proceeded further.
19. Hence there is no requirement of deciding the said issue as it has already become infructuous.
Issue No. 4: Whether the suit has not been valued properly for the purpose of court fee and jurisdiction? OPD
20. In respect to the said issue, defendants has taken objection in vague manner that the suit has been not valued properly for the purpose of court Suit No. 8098/16 SANTOSH KUMARI Vs. MITHLESH DEVI Page No. 6/14 fee and jurisdiction. No evidence was lead by defendants in respect to the said issue. Moreover, the prayers which are sought by the plaintiffs are of injunction and in the valuation clause, they have valued the suit for the sum of Rs. 260/ i.e. Rs 130/ for each prayer for permanent injunction and mandatory injunction on which court fee of Rs. 100/ was filed. As per Section 7 (iv)(d) of Court Fee Act, 1870, the valuation in the suit for injunction, shall be done by the plaintiff. Moreover, as per Section 8 of Suit Valuation Act, the valuation for the purpose of jurisdiction shall be same as is the valuation under Section 7(iv)(d) of Court Fee Act, 1870. Hence, in the opinion of this court, the valuation of suit for the purpose of jurisdiction and court fee has been done properly and there is no defect in the same.
21. Hence, the said issue is decided in favour of the plaintiffs and against the defendants.
Issue no. 1,2 & 5:
Issue no. 1: Whether the plaintiff is entitled for a decree of mandatory injunction as prayed in clause A of prayer clause of suit? OPP Issue no. 2: Whether the plaintiff is entitled for a decree of permanent injunction as prayed in clause B of prayer clause of suit? OPP Issue no.5: Whether the plaintiff has not approached the court with clean hands and has suppressed the material facts from the court?OPD
22. The said issues shall be taken up together, being connected.
23. In respect to the said issues, the bone of contention between the parties is that as per plaintiff merely a shop measuring 12' X 12' was sold to Suit No. 8098/16 SANTOSH KUMARI Vs. MITHLESH DEVI Page No. 7/14 defendant no.1, out of the total property of plaintiff no.1 admeasuring 100 Sq yards, whereas, as per defendants, they have right to use the common passage and toiletbathroom, which are constructed at the end of the said passage, which falls on the south side of the shop of defendant no.1 i.e. in the 10' gali as the same are for the use of shopkeepers and tenants. In this regard, it is pertinent to mention that in documents Ex.PW1/5, which is GPA the specifications of the property which was sold to defendant no.1 are reproduced below:
'whereas the executant is the General Attorney and in possession of the buildup property measuring area 12 ft X 12 ft out of khasra no. 399/266, bearing Part of Property no. A81, consisting of One Shop without Roof rights, with common wall, (Height 10ft. Approx.), with the rights of Basement, situated at Vill. Chilla Saronda Banger, in the abadi of BlockA, New Ashok Nagar, Illaqa Shahdara, Delhi110096, and bounded as under:
East : Road 30ft. Wide West : Prop. of others North : Prop. of others South : Gali, 10 ft. wide'
24. Same are the specifications given in documents Ex.PW1/6 & Ex.PW1/7, which are Agreement to Sell and Will. The abovesaid set of documents are also relied upon by defendants in their evidence, which are Ex.DW1/1(OSR). Though the above said documents are not proper title documents as per provision of Section 54 of Transfer Property Act, 1882 and are not valid title documents. However, in the present matter the title of the parties is not in dispute and is rather admitted. It is merely the right to use specific portions of property by defendants is in dispute.Suit No. 8098/16 SANTOSH KUMARI Vs. MITHLESH DEVI Page No. 8/14
Hence, the above said documents can be looked into for deciding the dispute between the parties.
25. From the abovesaid specifications, it is evident that area of 12' X 12' with common wall, was sold to defendant no.1 out of the total area of property of plaintiff no.1, which was of plaintiff no.2 at that point of time as alleged in para 3 of plaint. This fact is averred by defendant no.1 herself in para no.2 & 3 of plaint in the suit bearing no. 6749/2016 titled Smt. Mithlesh Devi v. Santosh Kumari & Anr, filed by her against plaintiffs herein, the copy of which is Ex.DW1/2 (OSR). It is also stated therein that property no. A81 is consisting of 6 shops and defendant no.1 is its owner and out of the same, one shop was sold to plaintiff therein I.e defendant no.1 herein. Thus, its admitted fact that apart from the abovesaid area of 12' x 12' with common walls, rest of the area of property no. A81 is that of plaintiff no.1.
26. From the abovesaid documents, it is clear that no right was given to defendants to use the passage or toiletbathroom or other area of property of plaintiff as common property as the same is not specifically mentioned therein. On perusal of the abovesaid specifications, it is also evident that the intention of the parties was very clear that the defendant no.1 will have right to basement and no roof right was given to her and there is no ambiguity.
27. In this context, DW1 also admitted in his crossexamination that it was not specifically mentioned in the document Ex.PW1/5 that he had right to use the said passage.
28. The description of the property which is mentioned in respect to the geographical directions i.e. East, West, North and South in documents Suit No. 8098/16 SANTOSH KUMARI Vs. MITHLESH DEVI Page No. 9/14 Ex.PW1/5, Ex.PW1/6, Ex.PW1/7 and Ex.DW1/1 is not in dispute as DW1 has specifically admitted in crossexamination that on the east side i.e. front side of the property (including his shop), there is 30' wide road and in the back side i.e. west side of the property (including his shop), there is property of others. On the north side, there is plot of other persons/ property of other person and on the south side, 20' road and immediately on the south side of shop, there is 10 feet gali and presently its width is 7' 10''. As per him, his shop is in the 'L' shape i.e. there are two roads I.e one on the front side and one on the south side.
29. However, it was the contention of plaintiff that there is typographical mistake in the documents Ex.PW1/5, Ex.PW1/6 and Ex.PW1/7 because the gali which is immediately adjacent to the shop of the defendant no.1 is admeasuring 7 feet 10 inches and the gali i.e. the main road is 10 feet wide and the specifications of the property are not correctly mentioned.
30. The location of suit property i.e. passage as shown in green color in the site plan Ex.PW1/1 and latrinebathroom is clear from the photographs Mark C at page no. 37. This clarifies, that the suit property i.e passage was used for having access to other shops of plaintiff which were converted into residential rooms later on, as admitted by PW1.
31. Therefore, though, the ground taken by the plaintiffs that there is typographical mistake in the above said document in respect to description of the property but the location of the suit property i.e. common passage is not in dispute.
32. The above said specifications in the above said documents also reflect that the intention of the parties for describing the directions was merely to show the boundaries of the property of defendant no.1 i.e. shop and Suit No. 8098/16 SANTOSH KUMARI Vs. MITHLESH DEVI Page No. 10/14 not by way of giving any right to defendants to use the other portions of the property of plaintiff no.1.
33. It is admitted version of DW1 in his crossexamination that there is gate in his shop on front side of the road i.e. towards the east side of the shop. Hence, even the access to the shop was given from the said gate.
34. Moreover, plaintiffs in the crossexamination of DW1 themselves suggested to DW1 that there is a staircase in 10 feet passage/gali to have access to first floor and further floors which was admitted by DW1. This shows that plaintiffs are themselves alleging that gali is of 10'. It also clarifies that the passage is private passage on the property of plaintiff no.1 to have access to further floors which are also owned by her. Hence, the said passage is private passage forming part of property of plaintiff in which toiletbathroom was also built up and was not for use of defendants without permission of plaintiffs.
35. From the above said facts, it can be safely said that apart from the 12' X 12' area with common wall, no other portion of the suit property bearing no. A81, New Ashok Nagar, Delhi96, was sold to defendant no.1 by plaintiff no.2. Thus, she has no right to interfere in the property of the plaintiffs in the said gali, wherein toiletbathroom are situated behind the small wall which are constructed in the passage near the staircase on the south side of the shop of defendant no.1 as shown in green colour in the site plan Ex.PW1/1, as defendants have separate access to their shop.
36. A ground was taken by defendants that plaintiffs have not approached the court with clean hands as they encroached the common passage by placing iron gate and also the toiletbathroom by constructing a wall in front of the same. However, as discussed above as defendants have no Suit No. 8098/16 SANTOSH KUMARI Vs. MITHLESH DEVI Page No. 11/14 right in the said common passage, therefore, plaintiffs have every right to use the same in any manner whatsoever which is lawful and defendants have no right to interfere in the said possession. Hence, it cannot be said that plaintiff has not approached the court with clean hands.
37. Hence, issue no.2 and 5 are accordingly decided in favour of plaintiffs and against the defendants.
38. Further, it is the version of plaintiffs that at red point in the site plan Ex.PW1/1 there was a wall when property was sold. However, in the month of February 2013, when they had gone to Haridwar, defendants broke the wall and installed a gate. On the other hand, it is the version of defendants that no gate was opened by them later on and the shutter at point red was already installed when the suit property was purchased by defendant no.1.
39. In this context, though there is contradiction in the testimony of PW1, PW2 and PW3 in respect to the fact that in February 2013 when allegedly the wall was broken and the gate was installed, they were at Haridwar because as per version of PW1 they had gone for one day trip to Haridwar. As per version of PW2, they had gone for 56 days and he received the information through PW3, whereas PW3 stated that plaintiffs were present at their Noida address when the said incident of breaking the wall and constructing of the gate took place. However, in the opinion of this court, on perusal of the photographs Mark C at page no.38, it is evident and clear from naked eye that marble and the wall is reflected to be broken and is in shabby condition which is not cut properly which reflects that shutter has been placed later on and it is not that it was originally installed. The breakage in the marble is evident to Suit No. 8098/16 SANTOSH KUMARI Vs. MITHLESH DEVI Page No. 12/14 be an aftermath of construction/installation.
40. Moreover, DW1 in his crossexamination specifically admitted that in the 6 shops of plaintiff, there are 6 shutters. The shutter on the front side i.e. towards the main road of 30' on the east side is reflected in photograph Mark C at page no. 36. This shows that if one shutter for this shop was already there and the rest of the shops also had one shutter each, then additional shutter which is put in the passage/ gali of 10 feet was installed later on by the defendants.
41. Further, Defendant no.1 while being crossexamined as DW1 also admitted that shops which are opposite to his shop which open towards the south side i.e, towards the 20' road have no shutter/ gate in the common passage i.e. gali at the south side admeasuring 10' and have shutters towards the main road.
42. If that is the case, that other shops which are opening towards the south side have their respective shutters towards the main road and have no shutter in the common passage, thus it can be safely presumed that the shop which was sold to defendant no.1 also had no shutter in the same and it has been installed later on.
43. As already discussed above that, though there are contradictions in the testimonies of plaintiffs' witnesses in respect to the time when the said shutter had been opened but in the opinion of this court, it is clear and evident that it has been opened later on and it is not that it was already constructed while selling the property to defendants.
44. Hence, on the basis of preponderance of probabilities, it can be safely said that as defendants have no right in passage as shown in the green colour in site plan Ex.PW1/1. Hence, they even have no right to open a Suit No. 8098/16 SANTOSH KUMARI Vs. MITHLESH DEVI Page No. 13/14 shutter or gate in the said passage which is the property of plaintiff. Thus, they are required to be directed to close the said shutter and to raise a wall by removing the said shutter.
45. Hence issue no.1 is decided in favour of plaintiffs and against the defendants.
RELIEF
46. In view of the findings of this court on abovesaid issues, the suit of plaintiffs are decreed in favour of plaintiffs. LRs of defendant no.1 & defendant no. 2 are directed to remove the gate fixed towards the southern wall of the their shop as shown in the red colour in the site plan and to raise a wall in place of said gate. The LRs of defendant no.1, defendant no.2, their agents, assignees, representatives are further restrained from interfering or disturbing the peaceful possession of the plaintiffs and of their tenants in respect to latrine/bathroom as well as passage as shown in the Green colour in the site plan at the ground floor of the suit property i.e. A81, New Ashok Nagar, New Delhi96.
47. Parties to bear their own cost.
48. Decree sheet be prepared accordingly.
49. File be consigned to record room after due compliance.
Announced in the open court ( NITI PHUTELA)
on this 20.02.2020 ASCJ/JSCC/G. Judge (East)
Karkardooma Courts, Delhi.
Suit No. 8098/16 SANTOSH KUMARI Vs. MITHLESH DEVI Page No. 14/14