Delhi District Court
Mohd. Aziz Sheikh vs Sh. P.S. Chauhan on 17 October, 2016
IN THE COURT OF MS. NEHA, CIVIL JUDGE09,
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI
Suit No. 595355/16
1. Mohd. Aziz Sheikh,
S/o Sh. Khurjan Sheikh,
R/o H. No. 178, Gali No. 7,
Main Market, Sant Nagar,
Delhi - 110084.
2. Smt. Sushma Devi,
W/o Sh. Paltu Ram,
R/o H. No. 178, Gali No. 7,
Main Market, Burari,
Delhi - 110084. .... Plaintiffs.
Versus
1. Sh. P.S. Chauhan,
S/o Sh. Parath Singh Chauhan,
R/o 153, Gali No. 6, Sant Nagar,
Burari, Delhi - 110084.
2. The Station House Officer,
Police Station : Timarpur,
Delhi - 110054. .... Defendants.
SUIT FOR P ERMANENT AND MANDATORY INJUNCTION.
Date of Institution : 19.06.2001
Date of reserving Judgment : 20.09.2016
Date of pronouncement : 17.10.2016
Suit No. 595355/16 Md. Aziz & Anr. Vs. P.S. Chauhan & Anr. Page No. 1 of 11.
JUDGMENT
1. Vide this Judgment, I shall dispose of the suit of the plaintiff seeking a decree of permanent and mandatory injunction.
2. Brief facts as stated in the plaint are as follows : 2.1. The plaintiff No. 1 purchased a plot of 60 Sq. Yds. from Smt. Raj Rani Garg, bearing Khasra No. 123/12/1 situated in extended Abadi, now known as 178, Gali No. 7, Sant Nagar, Burari, Delhi. This plot is situated in Gali No. 7 with opening on one side. The plaintiff no.1 built his house and a courtyard in front of the house on the plot in 1995 and since then, he is in settled possession of the same. The entrance of the plot is only from Gali No. 7. There is a common chowk measuring about 40 Sq. Yds. in front of the house of the plaintiff No. 1 which is used only by the plaintiff Nos. 1, 2 and Badshah. Both plaintiff no. 1 and 2 purchased plots measuring 60 sq. yds from Smt. Raj Rani Garg. 2.2. Besides 30 sq. yds sold to plaintiff no. 2, Smt. Sushma Devi, Smt. Raj Rani had also sold a plot of 30 Sq. yds to the plaintiff No. 2, Smt. Sushma Devi. Smt. Raj Rani Garg also sold 30 Sq. Yds. out of plot no. 178 to one Sh. Badshah, out of the plot measuring 100 Sq. Yds. and remaining plot measuring 40 Sq. Yds. was left as common passage for the use of three occupants, i.e. plaintiff Nos. 1 and 2 and one Badshah.
2.3. The plaintiffs and Sh. Badshah use the common portion i.e. the Chowk for ingress and egress to their respective houses. The seller, Suit No. 595355/16 Md. Aziz & Anr. Vs. P.S. Chauhan & Anr. Page No. 2 of 11. Smt. Raj Rani Garg had charged the price for the common chowk in the prices of respective portions sold to the plaintiffs. The gali no. 7 ends before the common chowk. The said chowk was not accessible to defendant No. 1 as the entrance of house of defendant No. 1 is only from Gali No. 6 and he has no concern to the common chowk. 2.4. The house of defendant No. 1 is built on plot No. 153, Gali No. 6, adjacent to the house of the plaintiff No. 1 and its entrance is only from Gali No. 6. The defendant no. 1 was having only one ventilation cum window on the back portion of his house adjacent to the house of the plaintiff no. 1 till 09.06.2001. The defendant No. 1 unlawfully tried to make an opening from backside which was objected to by the plaintiffs and other residents. The plaintiff No. 1 and defendant No. 1 were called at Police Chowki and it was also told to the defendant No. 1 that he had no right to make any opening from backside. The matter was then settled.
2.5. On 9.6.2001 at about 2.30 pm, when both plaintiffs were not in their houses, the defendant No. 1 in connivance with the defendant no. 2, broke open the portion of back wall of his house and made an unlawful opening in Gali No. 7 to which he had no legal right. On 9.6.2001, when the plaintiffs came to their houses, they saw that defendant No. 1 had made an opening in Gali No. 7 and has demolished the walls of houses of plaintiff no. 1 and 2. The defendant No. 1 has further threatened to break whole of back wall and physically occupy the lands of plaintiffs in Gali No. 7.
2.6. On 11.6.2001, after breaking entire back wall from Gali No. 7 Suit No. 595355/16 Md. Aziz & Anr. Vs. P.S. Chauhan & Anr. Page No. 3 of 11. unlawfully, the defendant has made a permanent opening on the side of Gali No. 7 and has built a chhajja over it after breaking the walls of the plaintiff's house. The plaintiffs went to the Police station but the police did not register the complaint and threatened the plaintiffs and chased them away saying that it was a civil matter. Therefore, the plaintiffs have filed the present suit seeking following reliefs against the defendants :
"By way of mandatory injunction directing defendant No. 1 to close the opening / entrance made by him in Gali No. 7 and also to remove the Chhajja illegally constructed over it in Gali No. 7 .
The defendant may also be directed not to interfere or demolish the walls of the plaintiffs built over land in their legal possession in front of their house in the chowk shown yellow in the site plan and in front of their houses.
A decree of permanent injunction in favour of the plaintiffs and against the defendants not to make any further opening in Gali No. 7 by demolishing the back wall of the house as he has opening of his house only from Gali No. 6, thereby restraining the defendant, his agents, employees, heirs and representatives from using the opening illegally made in Gali No. 7 by invading / violating the legal rights of the plaintiffs".
Suit No. 595355/16 Md. Aziz & Anr. Vs. P.S. Chauhan & Anr. Page No. 4 of 11.
3. The defendants have filed their separate written statements. In the written statement, the defendant No. 1 has raised preliminary objections that the present suit has been filed without any cause of action against defendant No. 1. The plaintiffs have concealed material facts from the court as they had constructed a structure over the public land and the same was probably demolished by MCD / DDA or civic authorities. The plaintiffs have not filed the present suit with clean hands as it has been filed with twisted facts that the small plots are one side open if they are owned by two persons. On the contrary, the plots of bigger size are two side open if they are owned by one person. The defendant is legally entitled and can used the two openings provided that does not encroach upon anybody's legitimate rights.
4. It is stated that the defendant's house has two entrances i.e. from Gali no. 6 and Gali no. 7 and as such in the name of common chowk, the plaintiffs and Badshah cannot unlawfully put an impediment in the way of right to use the two side opening of the plot. It is also stated that from the very beginning, the defendant was having a door from the said gali and story of ventilation cum window till 09.06.2001 on the back portion is a cooked story by the plaintiffs. The averments made in the plaint are denied in the written statement.
5. The defendant No. 2, in the written statement, has taken preliminary objections that the present suit has been filed without any cause of action against defendant No. 2. The suit is not maintainable in its present form as no notice under Section 140 of the Delhi Police Act or Section 80 of the CPC has been served upon the defendant No. 2.
Suit No. 595355/16 Md. Aziz & Anr. Vs. P.S. Chauhan & Anr. Page No. 5 of 11. The plaintiffs have also not disclosed true facts before the court and have suppressed material facts. The averments made in the plaint are denied in the written statement.
6. The plaintiffs have filed replication to the written statement of defendant No. 1, wherein the plaintiffs have denied the averments made in the written statement and reiterated the averments made in the plaint.
7. On completion of pleadings, following issues were framed by the Ld. Predecessor on 12.3.2008 for consideration :
1. Whether the plaintiff is entitled for the relief of mandatory injunction, as claimed? OPP.
2. Whether the plaintiff is entitled for the relief of permanent injunction, as prayed for? OPP.
3. Relief.
8. The parties were then called upon to lead their respective evidence.
9. The plaintiff No. 1 suffered paralytic attack and therefore, at request of the plaintiffs, plaintiff No. 1 was dropped from the array of parties vide order dated 3.10.2013. Vide order dated 19.1.2015, the defendant No. 2 was proceeded exparte as none appeared for defendant No. 2.
10. The plaintiff No. 2, Smt. Sushma Devi examined herself as PW1 and tendered her evidence by way of affidavit Ex. PW1/A wherein she has relied upon the following documents : Suit No. 595355/16 Md. Aziz & Anr. Vs. P.S. Chauhan & Anr. Page No. 6 of 11.
i. Deed of Will dated 15.7.2002 as Ex. PW1/1.
ii. GPA dated 15.7.2002 as Ex. PW1/2.
iii. Receipt dated 15.7.2002 as Ex. PW1/3A.
iv. Agreement to sell dated 15.7.2002 as Ex. PW1/3B. v. Affidavit dated 15.7.2002 as Ex. PW1/3C.
vi. Amended site plan as Ex. PW1/4.
vii. Photographs as Ex. PW1/5 to Ex. PW1/8.
11. PW1 was cross examined by the Ld. Counsel for the defendant. Vide order dated 20.5.2016, plaintiff's evidence was closed and the matter was listed for defence evidence.
12. In defence, the defendant No. 1 Sh. P.S. Chauhan examined himself as DW1 and tendered his evidence by way of affidavit as Ex. DW1/A. DW1 relied upon the photographs already exhibited during examination of PW1 as Ex. PW1/5.
13. DW1 was cross examined by the Ld. Counsel for the plaintiff and defence evidence was closed vide order dated 22.07.2016.
14. Parties were then called upon to advance their final arguments in the matter.
15. Despite opportunity being given, Ld. Counsel for the plaintiff did not address final arguments. I have heard the final arguments as advanced by the Ld. Counsel for the defendant No. 1 and have perused the case file. My issuewise findings are as follows :
16. ISSUE NO. 1 : Whether the plaintiff is entitled for the relief of mandatory injunction, as claimed? OPP.
Suit No. 595355/16 Md. Aziz & Anr. Vs. P.S. Chauhan & Anr. Page No. 7 of 11.
17. ISSUE NO. 2 : Whether the plaintiff is entitled to relief of permanent injunction as prayed? OPP.
18. Issue no. 1 and 2 are taken together as both the issues require common discussion and also to avoid repetition. The onus of proof of both issues was also placed upon the plaintiffs.
19. Ld. Counsel for defendant no.1 has argued that the plaintiff no.2 has admitted that she has no title documents in respect of the common chowk and in the absence of title documents, the plaintiff cannot stop the defendant no.1 from using the chowk. It is also argued that the door in Gali no. 7 was already in existence and no wall was demolished by defendant no.1 and therefore, the plaintiff is not entitled to any relief.
20. I have considered the submissions and have perused the material on record.
21. It is admitted case of parties that the plaintiff no.2 and the defendant no.1 are neighbours. The plaintiffs have claimed that the common chown was purchased by them and it was only for the use of the plaintiffs and one Badshah. The burden lies upon the plaintiff no.2 to prove that they are the owners of the common chowk and the chowk was meant only to be used by the plaintiffs and said Badshah.
22. The plaintiff no.2 has examined herself as PW1 to prove the case. PW1 Smt. Sushma Devi has stated, during crossexamination, that there is no document regarding the right to use the common chowk. She has further stated that there is no reference of common chowk in the documents vide which she has purchased the property. She has voluntarily stated that the common chowk was already there Suit No. 595355/16 Md. Aziz & Anr. Vs. P.S. Chauhan & Anr. Page No. 8 of 11. for the use of occupants of the property which are adjacent to the common chowk. The testimony of PW1 shows that the plaintiff has no title documents in respect of the chowk.
23. Perusal of testimony of PW1 Smt. Sushma Devi also shows that there are contradictions in her statement. During crossexamination, PW1 has stated that she has purchased the built up house and the house was not constructed by her. This statement of PW1 is contrary to the statement made in her affidavit. In the affidavit, Smt. Sushma Devi has stated that she along with plaintiff no. 1 in the year 1995 built house on the plot along with courtyard in front of the house.
24. The defendant no.1 has taken defence that his property was always two side open and the gate in gali no.7 was in existence for last many years and no new construction has been done by him. DW1 has been cross examined at length by the Ld. Counsel for the plaintiff no. 2.
25. DW1 Sh. P.S. Chauhan has stated that he has purchased the plot in the year 1984 and built up the same in the year 1990. Suggestion has been given to the DW1 that the plot owned by him was two side open. It has been suggested to DW1 "It is correct that the plot owned by me was two side open". The suggestion given to the witness by Ld. Counsel for the plaintiff no.2 is an admission of the plaintiff no.2 that the plot of the defendant no.2 was two side open.
26. The plaintiff has relied upon the photographs Ex. PW1/5 to Ex. PW1/8 to prove that the defendant no.1 had demolished the back wall of his house and also broke wall of the plaintiff's house. The defendant no.1 has also relied upon the photographs Ex. PW1/5 (Colly.) in Suit No. 595355/16 Md. Aziz & Anr. Vs. P.S. Chauhan & Anr. Page No. 9 of 11. support of defence that he had not broken any wall of either his house or the house of the plaintiffs.
27. I have carefully perused the photographs filed by the plaintiffs.
28. Perusal of the photographs would shows that all the photographs show one door in each of the house. Any of the photograph does not depict that any demolition was done by the defendant no. 1 as alleged by the plaintiffs. It is alleged in the plaint that on 9.6.2001, when the plaintiffs were not in their houses, the defendant No. 1 broke open the portion of back wall of his house and made an unlawful opening in Gali No. 7. It is also alleged that on 11.6.2001, the defendant has made a permanent opening on the side of Gali No. 7 and has built a chhajja over it, after breaking the walls of the plaintiffs. However, the plaintiff has not filed any photograph of broken backside wall of the house of the defendant no.1 and there are also no photographs of any broken wall of plaintiff's house. All the photographs show that there is fixed gate in each house.
29. It is admitted by the plaintiff No. 2 that the plaintiff does not have title documents over the chowk measuring 40 sq. yds. There is also nothing to show that at the time of purchase of the property, the plaintiffs or said Badshah had made any payment for the chowk. The plaintiffs have also not examined seller Smt. Raj Rani Garg to prove that the common chowk was only for the use of the plaintiffs and Badshah. Admittedly, the common chowk is for the use of occupants of the property which are adjacent to the common chowk. The property of the defendant No. 1 is two side open, out of which one side opens on Suit No. 595355/16 Md. Aziz & Anr. Vs. P.S. Chauhan & Anr. Page No. 10 of 11. the disputed chowk. This court is of the view that chowk, being common for the occupants of the adjacent property, the plaintiffs cannot claim any exclusive right over the same.
30. In view of discussion hereinabove, this Court holds that the plaintiffs have failed to prove, on the balance of probability, that they have any exclusive right / title over the chowk or that the defendant no.1 has demolished / broke any wall of the plaintiff's house. Therefore, this Court holds that the plaintiffs are not entitled to any relief of permanent or mandatory injunction. Accordingly, both issue are decided in favour of the defendant no.1 and against the plaintiffs.
31. Relief.
32. In view of findings of this Court on the aforesaid issues, this Court holds that the plaintiffs are not entitled to any relief. The suit of the plaintiffs is dismissed. Parties to bear their own costs. Decree Sheet be prepared accordingly. File be consigned to record room after necessary compliance.
Pronounced in the open court (NEHA)
on 17th October, 2016 Civil Judge09, Central
Tis Hazari Courts, Delhi
Suit No. 595355/16 Md. Aziz & Anr. Vs. P.S. Chauhan & Anr. Page No. 11 of 11.