Delhi District Court
Gurmeet Singh vs Harjeet Singh on 1 May, 2019
IN THE COURT OF SUSHANT CHANGOTRA,
ADDITIONAL SENIOR CIVIL JUDGE (SHAHDARA),
KARKARDOOMA COURTS, DELHI
Case no. 11050/16
Gurmeet Singh
S/o Late Sh. Jagjeet Singh
R/o 1/11644, (A48),
Panchsheel Garden, Naveen
Shahdara, Delhi110032 ...........Plaintiff
Versus
1. Harjeet Singh
S/o Late Sh. Jagjeet Singh
R/o 1/1164, (A48),
Panchsheel Garden, Naveen
Shahdara, Delhi110032
2. The SHO,
PS Shahdara, Delhi
3. The Deputy Commissioner
East Delhi Municipal Corporation,
Keshav Chowk, Near Shyam Lal
College, Shahdara, Delhi32
4. East Delhi Municipal Corporation (EDMC)
Through its Commissioner
Plot no. 418, Patparganj, Delhi92. ..........Defendants
SUIT FOR PERMANENT AND MANDATORY INJUNCTION
Date of filing of the suit : 05.12.2016
Date of pronouncement of judgment : 01.05.2019
JUDGMENT
1. The case of plaintiff as stated in the plaint is that father of plaintiff and defendant no. 1 was owner of property bearing no. 1/1164 (A Case no. 11050/16 Gurmeet Singh Vs. Harjeet Singh Page no. 1 of 6
48), Panchsheel Garden, Naveen Shahdara, Delhi measuring 240 sq. yards. In the year 2000, their father partitioned the suit property between plaintiff and defendant no. 1. Plaintiff and defendants no. 1 have been enjoying possession of their respective portions.
2. On 11.11.2016, defendant no. 1 began illegal construction/demolition in his portion without taking prior sanction from defendant / EDMC. He is intending to construct more shops at the ground floor in his portion after demolishing the common wall. The said illegal demolition/ construction caused damage to property of the plaintiff. Many tangible cracks have developed in the property of plaintiff and if the common wall is demolished, then the said property can easily fall down which can cause loss of life and of movable and immovable properties of plaintiff.
3. On 22.11.2016, plaintiff made complaint to EDMC against the said illegal construction, but no action was taken. On 23.11.2016 plaintiff also made complaint to defendant no. 2 vide DD no. 55B, but again no action was taken.
4. Hence, the plaintiff has prayed for decree of mandatory injunction for directing defendant no. 3/ EDMC to demolish the illegal construction which has been carried out without obtaining sanction plan. He has also prayed for decree of permanent injunction for restraining defendant no. 1 from carrying out any further demolition and construction work in the suit property. Plaintiff further prayed for decree of mandatory injunction for directing defendant no. 2 to secure the property of the plaintiff from being harmed from the illegal construction.
5. Defendant no. 1 filed written statement and took preliminary Case no. 11050/16 Gurmeet Singh Vs. Harjeet Singh Page no. 2 of 6 objections that plaintiff has no locus standi to file the present suit. Defendant no. 1 is simply replacing the old and damaged door of the existing accommodation with a new shutter door. He is merely repairing the suit property and is not making any unauthorized construction. The present suit is malafide and has been filed simply to harass and humiliate him. Plaintiff has not come to this court with clean hands. Plaintiff has suppressed material facts. On merits, defendant no. 1 denied the remaining averments of plaint and prayed that suit may be dismissed. (Thereafter, defendant no. 1 stopped appearing in the court and he was accordingly proceeded exparte vide order dated 25.07.2017.)
6. Summons of the suit were served upon the defendant no. 2, but he did not appear and was also proceeded exparte vide order dated 25.07.2017. Defendant/ EDMC did not file WS, but only filed status reports.
7. In order to prove his case, plaintiff appeared as PW1. He tendered his affidavit Ex. PW1/A and relied upon documents Ex PW1/1 to Ex. PW1/5, Ex. PW1/7 & PW1/8. He also relied upon photographs Mark A1 to A11. Opportunity to crossexamine the witness was given to defendant no. 3/EDMC, but it was not availed. Then, plaintiff closed PE on 17.12.2018.
8. Opportunities for leading DE were given to defendants no. 3/EDMC, but no evidence was led. Hence, DE was closed on 26.03.2019.
9. I have heard the arguments of ld. Counsel for plaintiff and ld. Counsel for defendant no. 3/EDMC. I have also gone through the evidence on record very carefully.
10. The onus to establish his case rested on plaintiff. The case of Case no. 11050/16 Gurmeet Singh Vs. Harjeet Singh Page no. 3 of 6 plaintiff is that the property bearing no. 1/11644 (A48), Panchsheel Garden, Naveen Shahdara, Delhi was owned by the father of plaintiff and defendant no. 1. The same was partitioned in the year 2000 and there is a common wall shown in blue colour in the site plan Ex. PW1/8. The plaintiff has further deposed that defendant started demolishing front portion and common wall due to which several cracks developed in his portion of property. Therefore, the case of plaintiff is based on the assertion that due to unauthorized acts of defendant no. 1, his property is in danger of being severely damaged.
11. The oral evidence of plaintiff has gone unrebutted in this regard. He has also proved the photographs which show that cracks have developed in the property possessed by plaintiff. Thus, plaintiff has proved to the preponderance of probability that his property was damaged as a result of construction activity done by defendant no. 1.
12. The plaintiff has also deposed that defendant no. 1 did not take necesary permission before making such alterations. Section 332 of DMC Act, 1957 specifically prohibits a person from executing any work as specified in section 334 of the Act, without obtaining prior sanction. Further, section 334 (b) of DMC Act provides that no alteration or repair to a building involving the removal or reerection of any external or party wall shall be made. Section 334 (e) of the DMC Act also provides that no repair, removal, construction, reconstruction or addition or structural alteration in any operation of a building abutting the street which stands within the regular line of such street shall be made.
13. As per case of plaintiff and unrebutted oral and documentary evidence led by plaintiff, it has been proved to the preponderance of Case no. 11050/16 Gurmeet Singh Vs. Harjeet Singh Page no. 4 of 6 probability that defendant no. 1 not just demolished the front wall of the suit property, but also demolished the common wall.
14. As per report of defendant/EDMC, the building has been constructed without obtaining prior sanction plan and defendant no. 1 was stopped from demolishing the front wall completely and no prior permission has been sought from EDMC.
15. Thus, in view of the aforementioned unrebutted evidence of plaintiff and report of EDMC, it has been proved to the preponderance of probability that defendant no. 1 was making unauthorized construction in the suit property without obtaining prior sanction from EDMC which caused damage to the property of plaintiff. Therefore, he is liable to be restrained from doing so.
16. As far as relief of mandatory injunction is concerned, the plaintiff has prayed that defendant no. 3 EDMC be directed to demolish the illegal construction. The plaintiff has neither pleaded nor brought any evidence on record to show as to what illegal construction had been made by defendnat no. 1. The only evidence lead on record is that defendant no. 1 was demolishing the walls which was stopped. Since, plaintiff has not proved as to what unauthorized construction was made by defendant no. 1, therefore, the question of demolishing it does not arise. Hence, it can be safely concluded that plaintiff has failed to prove to the preponderance of probability that he is entitled to decree of mandatory injunction for demolishing the unauthorized construction.
17. Plaintiff has also prayed that SHO of the area be directed to secure property of plaintiff from being harmed from illegal construction. The prayer in this regard is extremely vague. The defendant/SHO cannot Case no. 11050/16 Gurmeet Singh Vs. Harjeet Singh Page no. 5 of 6 be expected to be present around the suit property for 24 hours a day. There is no specific allegation of prevention of any act which can be enforced by the area SHO. Such a relief is incapable of being monitored. Hence, such mandatory injunction cannot be granted.
18. Hence, in view of the aforementioned discusssion, the suit of plaintiff is partly decreed with costs qua relief of permanent injunction and defendant no. 1 is restrained from carrying out construction/ alteration in the suit property without obtaining prior sanction from EDMC. Defendant no. 1 is also restrained from making any structural change in the suit property in any manner which will be detrimental to the adjoining property. The prayers qua mandatory injunction are dismissed.
19. Decree sheet be prepared. File be consigned to record room Digitally signed by after due compliance. SUSHANT SUSHANT CHANGOTRA CHANGOTRA Date: 2019.05.02 15:34:13 +0530 (Announced in the open court) (SUSHANT CHANGOTRA) 1st May, 2019 ASCJ (SHAHDARA)/KKD/01.05.2019 Case no. 11050/16 Gurmeet Singh Vs. Harjeet Singh Page no. 6 of 6