Document Fragment View

Matching Fragments

1. The present suit has been filed by plaintiff against defendants seeking a decree of permanent injunction thereby restraining the defendants, their family members, supervisors, labourers, agents etc. from carrying out further structural changes and construction permanently. Further a decree of recovery in the sum of Rs. 1,86,190/­ in favour of plaintiff and litigation charges, pendenete lite and future interest @ 15% from the defendants.

2. Brief narration of facts as set out in the plaint is that plaintiff is registered owner of property bearing no. 139­B, Hari Nagar Ashram, New Delhi. Plaintiff has been residing in the said property since the year 1996 alongwith her family. Defendant no. 1 is the owner of adjoining property bearing House No. 139, Hari Nagar Ashram, New Delhi. Defendant no. 2 is husband of defendant no. 1 and is engaged in the work of flooring of buildings with marbles and tiles. Defendant no. 2 is a mischief monger who creates mischief by altering flooring, changing structures and walls of his house even in the odd hours which causes nuisance to the neighobours including the plaintiff. In the year 2009 plaintiff made renovation, distumper and paint work in her house then defendants started changing the structure of their house by removing walls to convert them into flats. Due to effect of heavy iron hammer cracks developed in the wall of plaintiff's house. Both the defendants assured the plaintiff that they will take care of cracks which have developed in the walls of plaintiff's house. Later on around 2010, the basement of house of defendants was sold to one Smt. Beena Mahor who who made structural changes in the basement and converted it into a residential unit by constructing kitchen, bathroom etc. Due to constant leakage of water and structural changes of all the floors by the defendants, their house has tilted in the front side and a gap has developed between the house of plaintiff and defendants which has resulted in causing seepage in the house of plaintiff.

7. I have heard the arguments advanced by rival counsels and have perused the records and documents filed on both sides.

8. Issue wise findings are as follows:

Issue No. 1 & 2:­ The onus to prove these issues was on the plaintiff. It was for the plaintiff to prove that she is entitled to damages in the sum of Rs. 1,86,190 from the defendants for causing damage to the property of plaintiff. Plaintiff in order to prove that the renovation work in her property would require a sum of Rs. 1,79,411.65 by examining PW2 Sh. Anil Chaudhary who is a Project Coordinator for the construction company. This witness was examined to prove that after inspection an estimate was given by the company that the renovation work of building of plaintiff which has been damaged and the cracks and seepage would require the aforesaid amount. The plaintiff has not examined any expert witness to prove that so called damage to the property of plaintiff has been caused due to some construction work carried out in the building of the defendants. It is the claim of plaintiff that her property has been damaged due to frequent construction carried out by defendants in their property as defendant no. 2 is a Mason who every now and then carries out structural changes in his property. On one hand, plaintiff has tried to say that the financial position of defendant no. 2 is not so sound that he could construct the entire building which comprises of four floors and a basement at one time, on the other hand plaintiff has alleged that the defendants are frequently carrying out renovation and other structural changes in the building. A person who is not so well­off as alleged by plaintiff how can not spend money in bringing about structural changes in his building very often.
The other claim of plaintiff is that due to changes carried out in the basement by defendants when it was sold to Smt. Beena Mehor, (DW2 herein). After purchase, even Smt. Beena Mahor has carried out changes in the property due to which seepage has occurred in the property of plaintiff. This witness has categorically stated that there is a difference in the height of the property of plaintiff and defendants as there is a basement in the property of defendants, therefore, carrying out any construction in the basement would not affect the property of plaintiff. Defendant no. 2 has also denied any construction carried out by him in the property except the minor repairs. No document or photograph has been filed by plaintiff or any independent witness examined to substantiate the claim that the defendant is carrying out construction and brining about structural changes in the property. No evidence has come on record to prove that the condition of the plaintiff's building i.e cracks and seepage is because of so called structural changes brought about by defendants in their property. Once the plaintiff has failed to establish that damage has been caused to her property because of defendants, she is not entitled to any damage.