Deen Dayal Sharma And Anr. vs Upkar Chibbar
2000 Latest Caselaw 1168 Del

JUDGMENT

Vikramajit Sen, J.

1. Boundaries between nations have two prominent characteristics - they change from time to time and most often cause friction and fighting between the neighbours. This is also true of those between States within a nation, and as the present case manifests, even between inhabitants of adjoining colonies located in the same metropolis. The Plaintiffs, the alleged owners of 325 and 326, Village Masjid Moth, New Delhi, have filed this suit for a declaration that the land over which ownership is claimed by the Defendant is a service lane on the, back side of N.D.S.E. Part-II, New Delhi, and that the land is a "public utility service". The Plaintiff has further prayed for an injunction restraining the Defendant from raising any unauthorised construction on this land. On 6.6.1997, the Defendant was restrained from raising any unauthorised, structure without having any sanctioned plan.

2. This application under Order XXXIX Rules 1 and 2 shall now be disposed on. Arguments were addressed before me at great length on a number of days. In order to succeed in sustaining the injunction, the Plaintiffs must make out a prima facie case, must disclose that the balance of convenience is in favour of the grant of the injunction and must also convince the Court that irreparable loss will visit them if the protection is denied to them. In my opinion they have failed to do so.

3. The Plaintiffs have filed a Site Plan of the area, regretfully replete with incorrect and/or false data. Firstly, in paragraph 4 of the Plaint there is a statement that there is a 30 feet wide-road 30 feet whereas in the Plan it has been shown as 75 feet. I am in no doubt that this is not an innocent mistake, but calculated to mislead the Court in believing that wide road existed at the site. Secondly, Plot No. A-63 is shown as adjoining, side-by-side, the Defendant's plot A-64 sharing a long common boundary, whereas both are corner plots. In fact, these plots face each other and have a short common boundary in front on the Plaintiffs property. This error is also palpably intended to mislead the Court as Plots A 63 and A-64 have an area much larger than other plots, since both appear to have been originally allotted extra land at both ends, being at the end of the street. This fact is sought to be diluted by giving the impression that all the plots in the entire row have to same area. Thirdly, the Plan is deliberately not to scale, quite obviously to cause the illusion that the Defendant has a small plot when compared with the Road. As already mentioned, the 30 feet road has been shown a 75 feet. The Court would naturally be alarmed in these circumstances and carry a bias against the Defendant for attempting to encroach upon a large portion of public land. This dishonesty is evident when the Plan is compared with a Plan (Annexure D E) of the same area filed in Civil Suit 690/1986 on 6.12.1986 by other Plaintiffs namely Rajnesh Kumar (House No. 328) and Om Prakash (House No. 327) in the Court of Shail Jain, Civil Judge, It is true that the Plaintiffs are not the same, but they are immediate neighbours of each other, fighting the same cause against the same adversary. J cannot believe that they are ignorant of their respective litigations with the same Defendant. The Plan filed in the earlier suit sounds the death-knell of the Plaintiffs case as it clearly shows that the garage of Plot 63A existed across the 30 feet road. It also shows that there was some construction in respect of the Defendant's land. It further shows that this road is a blind alley. Significantly, in paragraph 7 of the plaint it has been averred that the road is a "dead-end". These material misrepresentations are sufficient by themselves to disentitle the Plaintiffs to any equitable relief.

4. However, the Defendant has disclosed, with prima fade proof, that (a) his plot A-64 admeasuring 467 sq. yards had been purchased from the colonisers, (eventually DLF Universal Ltd.), by the Defendant's predecessor in interest, in terms of a Sale Deed dated 1st May, 1964, (Annexure DD), which plot is stated to be bounded in the North partially by Road and Plot A/63. This narration also demolishes the Plaintiffs case, and is in conformity with the averments, made by the immediate neighbours of the Plaintiffs in the Suit No. 690/86 before the Civil Judge, Delhi and in the Site Plan (with Annexure DE) filed in these proceedings and the Plaintiffs own averments in paragraph 7 of the plaint. (b) The Approved Lay-Out Plans of the Coloniser show the 30' wide road as a Dead-end/Blind Alley partially shared at the end by A-64 and A-63. These Lay-Out. Plans (Annexure DB and DC) also clearly demarcate/divide into separate blocks NDSE Part-II and Village Masjid Moth, (c) By Order dated 28.2.1987, Shri R.S. Khanna then Sub Judge 1st Class, rejected the prayer of the Defendant's neighbours for temporary injunction, inter alia, by taking into consideration that Plots A-63 and A-64 had substantially larger areas than other plots in the locality/colony and that the garage shown in the Site Plan filed in these proceedings was on the 30' road, (d) The Order dated 28.2.1987 was assailed in Appeal M.C.A. 65/1987 before Shri G.P. Thareja, then Senior Sub Judge, who even made a local site inspection so as to familiarize himself of the position prevailing at the particular place. While dismissing the Appeal Shri G.P. Thareja recorded that "none of the other roads which run parallel to 30' road or 15' land an connected by road to Masjid Moth Village as claimed by the Plaintiffs. The area of N.D.S.E. Part-11 is completely independent of the Masjid Moth Village except one small lane where the boundary of the Masjid Moth Village and N.D.S.E. Part-II is started. The position at the spot does not at all show that there is any 30' road connecting the village or any 15' land connecting the village. The lands are blind and it is for this reason that the area of these lanes and road have been included in the Sale Deed of the Defendant which amounts to 470 sq. yards. Similar is the position in the adjacent road where the last plot has included in it the area of the land or the road as the case may be ." The matter was carried to the High Court in Civil Revision 697/1987 which was dismissed, (c) The Defendant's suit for permanent injunction against the MCD was decreed by orders dated 27.3.1995 the operative part of the said Order is as follows:

7. The Plaintiff is, therefore, entitle to relief prayed for with costs. The suit of the Plaintiff is decreed. A decree for injunction is passed in favour of the Plaintiff and against the Defendant Corporation restraining the Defendants from building any road over the portion of the land in Plot No. 64, South Extension Part-II, New Delhi-110049 as shown "Red" and marked by letters A.B.C.D. and E.F.G.H. in the attached Site Plan and from including the said portions as part of 50' vide of the service lane or part of 34' vide Road by itself on or through its employees, directors, agents, servants etc."

(f) Criminal Writ Petition No. 484/1996 had been filed by Shri Arjun Dev Chad-ha, the owner of the next plot A/75-B, inter alia against the owners/occupier of House No. 348, Village Masjid Moth, which house is in the same row/line as that of the house of present Plaintiffs. A/63 and A/64 and A/75-B arc corner plots of N.D.S.E. Part-II. J.K. Mehra, J. allowed the Writ Petition, directing the Police to supervise the reconstruction of boundary wall in that area, with the effect that lights off the residents of the Village Masjid Moth to passage through that portion of N.D.S.E. Part-II was halted. A Letter Patent Appeal against this Order has been dismissed, (g) Keeping in view the allegations, and counter-allegations in the present proceedings, notice had also been issued to the Municipal Corporation of Delhi. It has filed a Report dated 29th July, 2000 in which it has been stated that "the street in front of the Defendant's plot is blind alley and as such there is no road open to village Masjid Moth between the property No. A-63 and A-64" and that "there is no encroachment made by the owner/occupier of property No. A-63 or A-64, South Extension-II". Along with this Report the M.C.D. has also filed a Lay Out Plan which shows a continuous boundary running along plot A-64, A-63, and A-48. Accordingly, the 15' service lane, 30' wide road and the next 15' lane are all cul-de-sac/ blind alleys/roads having a deadend. In respect of Plots A-64, A-63, (he Plan clearly shows that the 30' road has been partially apportioned between these plots. In conformity with the Order of Shri G.P Thareja, pursuant to his local inspection of the area, there is no access between this portion of NDSE Part-II and Masjid Moth Village. I see no reason whatsoever for disbelieving the Report of the MCD. (h) A perusal of the many photographs on the file clearly show that a portion of the boundary wall belonging to the Defendant has been demolished. This is evident from the manner in which the bricks on the wall arc exposed, and also that a brick-work foundation of the boundary wall exists, (i) The Report of the Local Commissioner dated 4.8.1997, if contrary to the conclusions recorded at by Shri G.P. Thareja, Additional District Judge, would not inspire conference. A reading of the Report, however, shows that it contains contradictory statements, possibly based on the fact that the Commissioner did not have the advantage of the documentation existing on the Court record. However, this Report confirms with the views of Shri G.P. Thareja in that, in conclusion, it has specifically been stated that "the broken portion of the service lane just in front of the house of the Plaintiff appears to have been demolished which shows access of New Delhi South Extension Part-II and the same otherwise never in use in the villagers and South Extension was clearly separated by the wall and only the service lane was available." (j) The owners of A-63 have already covered their portion of the 30 feet wide road. Half of the road which the Plaintiffs are claiming as a passage is not in existence. The other half is the partially demolished wall, which would be covered similarly to that of A-63 when construction on A-64 is carried out.

5. For all these reasons, the Plaintiff has hopelessly failed to make out a prima facie case. As I have already indicated above, there is clearly an effort by the Plaintiff to mislead the Court. While technically the Plaintiffs may adopt a position that they were not aware of the previous litigation filed by the neighbours in respect of the same plot of the Defendant, I am in no manner of doubt that this would be wholly incredible, especially keeping in mind the fact that this controversy had sparked off tension in the area which had to be quelled by police intervention.

6. The balance of convenience is also against the Plaintiffs. There is already in existence a 5 foot cemented/concrete passage for ingress egrees of the inhabitants of the Village Masjid Moth and they do not need to traverse the 30 feet road. Access from the village side to the N.D.S.E. Part II side has already been interdicted by the orders of J.K. Mehra, J, several years previously. This is also the Report of the M.C.D. officials. The two residential areas have been separated from each other.

7. The present Defendant had to first fight litigation against the Plaintiffs immediate neighbours, including in the First Appellate Court as well as in the Revision in this Court. The Defendant had also to fight litigation against the MCD in respect of the same property and contentions. He has had to face the second salvo of litigation in these proceedings. Arguments were heard on number of occasions. This is a fit case for the imposition of exemplary costs. The application is, accordingly, dismissed with costs of Rs. 10,000/-. LA. 8602/1999.

8. The MCD has already appeared, and submitted its detailed Report. The position existing at the Site has been clarified. It has no further concern with the present dispute, having already elucidated matters. The Report does not support the Plaintiffs. Hence, the MCD has needlessly been sought to be imp leaded, and has undoubtedly incurred expenses as a consequences of notice having issued to it. The application is dismissed with costs of Rs. 3000/-, to be paid by the Plaintiffs to the MCD.

I.A. 3485/2000.

9. The Municipal Corporation of Delhi has filed its Report. The application is dismissed.

I.A. No. 3486-87/2000.

10. A copy of the Lay Out Plans has been flied by the M.C.D. and this throws sufficient light on the matter beyond, controversy. The applications are accordingly dismissed.

I.A. 4573/2000 and 6043/2000.

11. This application under Order XXXIX Rules 1 and 2 has been filed by the Defendant. By Order dated 24.5.2000 I had restrained the Plaintiffs from making any construction on his plot. These orders were modified by me on 13.7.2000 to the effect that the Plaintiff may carry out construction, if so permitted by law and by the provisions of the D.M.C. Act and Bye-laws. I had also injuncted the Plaintiffs from carrying out any construction beyond the Ground Floor. Mr. Sanjay Kaul, Learned Senior Counsel for the Plaintiffs has contended that these reliefs should be prayed for in Proceedings initiated by the Defendant. I see merit in these submissions. If the easmentary rights of the Defendant are in danger of jeopardy he should lake independent action since this issue is not connected with the cause of action contained in the plaint. The Plaintiffs are dominus lIT is and it would be unfair to enlarge the ambit of the suit. The M.C.D. has reported that it has initiated action against the Plaintiffs in respect of the Plaintiffs' construction which was initially brought to a halt because of the interdict granted by me. The M.C.D. is free to pursue whatever action it considers appropriate. I.A. 4573/2000 is dismissed, but these orders shall not be construed as any expression on the legality or legitimacy of the Plaintiffs' construction. LA. 6043/2000 is accordingly allowed.

S. No. 1245/1997.

12. Renotify the matter on 6th December, 2000 for further consideration.