Nirmal Gupta vs Yogesh Sethi
2015 Latest Caselaw 2307 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI
                                     Date of Reserve: February 04, 2015
                                      Date of Decision: March 18, 2015
+     CS(OS) 2931/2012

      NIRMAL GUPTA                                       ..... Plaintiff
                          Through:     Ms. A. Maitri, Adv.

                   Versus

      YOGESH SETHI                                      ..... Defendant
                          Through:     Mr. Amita Sehgal Mathur, Adv.
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J.

IA No.17735/2012 (under Order 39 Rules 1 & 2 CPC) and IA No.16373/2013 (under Order 39 Rule 4 CPC)

1. The above applications are filed for confirmation of the injunction orders passed earlier/vacation of the injunction order. The plaintiff has filed the present suit seeking a decree of permanent injunction to restrain the defendant from constructing or encroaching upon the vacant land of the plaintiff measuring 80 sq. yards out of a total area of 250 sq.yards falling part of Khasra No.0487 Village Piragarhi,Delhi. It is the contention of the plaintiff that he bought the said land from its earlier owner vide a registered sale deed dated 24.4.1991. It is further averred that the land in question is actually a total area of 500 sq.yards half of which was bought by the plaintiff and the balance half was purchased by the brother in-law of the plaintiff, namely, Shri Krishan Kumar. The

plaintiff after purchase of the property in 1991, raised construction over an area measuring 170 sq.yards. The balance 80 sq.yards was said to be kept vacant. On 13.4.2011 Shri Krishan Kumar the brother in law of the plaintiff sold his share back to the original owner Mr.Shamsher Singh. The said Shamsher Singh on 16.4.2012 is stated to have sold this property to the defendant. It is urged that under the garb of having purchased 250 sq.yards adjacent to the plaintiff's property, and taking undue advantage of the fact that the plaintiff has not constructed on her entire plot of land, the defendant started making attempts to encroach on the plaintiff's vacant land measuring 80 sq.yards. Hence, the present suit has been filed.

2. The matter came up for hearing on 25.09.2012. This Court passed an ex parte injunction restraining the defendant from constructing a boundary wall or other construction on the aforesaid 80 sq.yards. Vide order dated 12.11.2013 this Court appointed Ms.Sangita Dhingra Sehgal the then Registrar General of this Court (as she then was) to act as a Local Commissioner to measure and demarcate the disputed site measuring 80 sq.yards. On 29.11.2013 the defendant was directed to maintain status quo with regard to the construction and SHO Police Station Miawali was directed to ensure that no further construction is carried out by any of the parties at the suit premises. Against the said order dated 29.11.2013 an appeal was filed before the Division Bench. The Division Bench clarified that the order dated 29.11.2013 may not be read as disposal of the application filed by the plaintiff and stated that the two applications herein would be decided without being influenced by the previous order. An observation was made to the Delhi High Court

Rules concerning revenue related matters and the learned counsel for the parties were directed to bring the same to the notice of the Single Judge on the next date of hearing. I may clarify that neither of the parties have made any submissions regarding any rules of the Delhi High Court regarding revenue related matters.

3. Learned counsel appearing for the plaintiff has strenuously urged that as long as the combined property was in possession of the plaintiff and his brother in-law Krishna Kumar, there was no dispute. The plaintiff had constructed on 170 Sq.yds and left the balance 80 sq.yards vacant. There was no need to construct a boundary wall in view of the cordial relationship between Krishan Kumar and the plaintiff. He has urged that now after having bought the property on 16.4.2012 the defendant is taking undue advantage of the fact that the property is lying vacant and has attempted to usurp the property within her own area. Reliance is also placed on the Local Commissioner's Report to state that the defendant is admittedly occupying the area in excess of her area.

4. Learned counsel appearing for the defendant has made the following submissions to support his contention that there is no unauthorised occupation of the plaintiff land.

(i) It is pointed out that the disputed 80 sq.yards is a part and parcel of the land bought by the defendant. It is pointed out that on 16.4.2012 two sale deeds were registered by Shamsher Singh in favour of the defendants. One related to property measuring 250 sq.yards and the second pertained to property measuring 25 sq.yards. Hence, the defendant became owner of the total 275 Sq.yards. Reliance is placed

on the sale deed that has been executed in favour of Shri Krishan Kumar dated 17.5.1991. As per the said sale deed it shows the description of the neighbouring properties and the property on the east is that of Smt. Nirmal Gupta (plaintiff). It is pointed out that exactly similar description is there in the sale deed dated 16.4.2012 in favour of the defendant pertaining to an area measuring 250 sq.yards. It is also pointed out that for the second sale deed which is also executed on the same date which pertains to the balance area of 25 sq.yards the description shows that on the left is plot of Shri K.K.Gupta (Krishan Kumar Plot) the plot which is now bought by the defendant.

(ii) It is also averred that at various stages in these proceedings the plaintiff has filed three different site plans. Each of the site plans show a different description of the area allegedly occupied by the parties. It is submitted that these variations clearly show that there is no truth in the contention of the plaintiff. Site plan could not have materially changed in the manner as depicted by the plaintiff.

(iii) Reliance is also placed on various photographs placed on record to submit that these clearly show that there is a clear demarcation of the plot of the plaintiff and the defendant, and the plaintiff has constructed a high rise building on his plot and there is no confusion of the demarcation. It is the plaintiff, it is averred, who is needlessly creating confusions.

(iv) It is also pointed out that in paragraph 6 of the plaint the

plaintiff has made a categorical averment that there is no boundary wall bifurcating and separating the two properties. This is denied by the defendant in her written statement in the corresponding para where it is clearly averred that a boundary wall existed. There is no response to this averment by the plaintiff in the corresponding para of the replication. Hence, it is urged that this clearly shows that the version of the plaintiff cannot be believed. It is only an attempt to usurp the property of the defendant.

5. Contradictory claims are being made by the parties. It is only the final adjudication that will determine who is the owner of this disputed 80 sq.yards.

6. However, for the purpose of disposing of the present stay applications I may look at the limited evidence which is available on record. Two aspects need to be noted. Firstly, the Local Commissioner has in her final report dated 17.01.2014 noted that there are 300-400 plot/properties in the given Khasra No.487. The Local Commissioner noted that in the absence of revenue record of the khasra it is not possible to fully determine the dispute. The Local Commissioner also noted that in an effort to amicably settle the matter the defendant had offered to part with 40 sq.yards of land to the plaintiff but a settlement could not be arrived at.

7. The second aspect to be noted is the sale deed of the defendant shows that the defendants are the owners of two chunks of land one measuring 250 sq.yards and the balance measuring 300 sq.yards. Learned counsel appearing for the defendant has pointed out that earlier Krishan

Kumar used to access his area through what is marked as Gate No.1 in the plan filed with the plaint. This area belongs to the plaintiff and access to Mr.K.K.Gupta (Krishan Kumar) was given by the plaintiff through this area. After the sale of property done by Mr.K.K.Gupta the land which he previously owned had no access from any of the roads. As the defendant is owner of an adjoining property which has an access through one of the roads, the property was sold to the defendant by Shamsher Singh. When the two properties are joined the defendant can access the area previously owned by Mr.K.K.Gupta (Krishan Kumar) through the property purchased before and owned by the defendant. The sale deed dated 16.4.2012 in favour of the defendant pertaining to 25 sq.yards notes that the said plot is adjoining the defendants' property and that there is no entrance of the said plot from any side due to which the vendor has sold the plot to the vendee i.e. defendant. The defendant was to use the entrance from his old property and not to make any opening/entrance from any other side.

8. In my opinion the version of the plaintiff is prima facie not correct. I am persuaded to reach this conclusion based on three facts. Firstly, there is merit in the contention of learned counsel for the defendant that contradictory maps are being filed by the plaintiff. Learned counsel for the plaintiff has of course tried to explain the contradictory maps by showing that these are only rough sketches filed and some variation is bound to occur. In the first map while facing the map the 80 sq.yards is shown as a strip of land on the left of the area belonging to the plaintiff leaving the upper area open for the neighbour from gate No.1. In the second map the disputed area is shown as to include a major portion of

the upper area of the land. In the third map the disputed portion of the upper area has been reduced. The maps are as follows:-

1st Map

2nd Map

3rd Map

9. The materially inconsistent plans filed by the plaintiff on three different occasions raise a grave doubt on the authenticity of the contentions raised by the plaintiff.

10. Secondly, in paragraph 6 of the plaint the plaintiff has made a categorical averment that the plaintiff did not raise a boundary wall bifurcating the two properties i.e. the plaintiffs property and the property of K.K.Gupta. In para 6 of the written statement it is denied that the plaintiff did not raise a boundary wall bifurcating two properties. The relevant portion reads as follows:-

"6... It is incorrect on the part of plaintiff to allege that there is no dividing wall, separating two plots, one owned by plaintiff, i.e. 250 sq.yds. and adjoining plot, i.e. 275 sq.yds., which is owned by Smt.Kavita Sethi,

wife of defendant. It is submitted that the defendant is placing photographs on record, which are manifest clear to show that there is wall dividing plaintiff's portion from the defendant's portion, which is as tall as 30 ft. in height. It is further submitted that the suit property admeasuring 80 sq.yds was utilized by the erstwhile owner. Earlier there was a shed on the suit land, admeasuring 80 sq.yds., which was utilized by the erstwhile owner for his own purpose."

11. In the replication filed by the plaintiff there is only a crisp denial without any further explanation. Relevant portion of the replication reads as follows:-

"6. That the contents of para No.6 of the written statement are wrong, false and hence denied. Corresponding para of the plaint is true, correct and reiterated. It is correct that the adjoining area of plot of land measuring 250 sq. ydds was belonging to the plaintiff's brother in law namely Shri Krishan Kumar. It is denied that the plaintiff is concealing material facts and placing facts in distorting manner in order to mislead this Hon'ble court. It is denied that the photographs placed by defendant on record show that there is wall dividing plaintiff's portion from the defendant's portion, which is as tall as 30 ft. in height. It is denied that the suit property admeasuring 80 sq. yds was utilized by the erstwhile owner or that earlier there was a shed on the suit land, admeasuring 80 sq. yds, which was utilized by the erstwhile owner in for his own purpose. It is correct that Shri Krishan Kumar has sold his share in the land to Shri Shamser Singh, who further sold it to Smt. Kavit Sethi wife of defendant. It is denied that the suit property, admeasuring 80 sq. yds. is very much in possession and utilization of the defendant. The photographs of construction over the site as well as showing the physical possession/status of the suit property, if any, are procured one, wrong and denied. Rest of the contents of para under reply are wrong, false and denied."

12. Hence there is no meaningful denial of the averments of the defendant that a partition wall exists.

13. Thirdly, keeping in view the averment in the written statement if we were to look at the photograph placed on record by the defendant which are placed on page 76 of the documents file, it clearly shows a three storied building standing which admittedly belongs to the plaintiff. The adjoining plot is empty. The photograph that is at page 76 of the documents filed gives the same topography as photograph P-1 filed by the Local Commissioner. These two pictures show that the plaintiff has built a three storied structure on his plot of land. There is nothing to show as to why the balance area allegedly claimed by him has been kept vacant. A question was posed to learned counsel for the plaintiff as to what was the purpose of keeping 80 sq.yards open. No plausible explanation has been given.

14. My above observations regarding materially contradictory site plans filed by the plaintiff, no denial of existence of a boundary wall separating the properties by the plaintiff as stated by the defendant in paragraph 6 of the written statement and the photographs at page 76 and photograph P-1 of the Local Commissioner's Report persuade me to hold that the defendant has made out a prima face case.

15. The issue would be of balance of convenience. In case the defendant is allowed to construct a permanent structure, the effect may be to permanently destroy the rights of the plaintiff. If ultimately after final adjudication the suit of the plaintiff is decreed, it may be difficult to put the clock back.

16. Keeping in view the above issues, I modify the interim order dated 25.9.2012 and permit the defendant to carry out construction on the 80 sq.yards of land. However, any such construction carried out by the defendant shall be subject to any final orders that may be passed by this Court in the suit. The defendant shall file an undertaking in Court that in case a decree is passed in favour of the plaintiff or any directions are passed in favour of the plaintiff at the final stage, the defendant will forthwith comply with the same, even if it involves demolition of the already constructed building. No equities would operate in favour of the defendant in such an eventuality. The defendant will of course not sell, alienate or transfer the disputed portion during the pendency of the present proceedings. Both the IAs stand disposed of. CS(OS) 2931/2012 List before the Joint Registrar on 27.04.2015 for further proceedings.

(JAYANT NATH) JUDGE MARCH 18, 2015 n