Sohan Lal vs Sobha Shukla
2016 Latest Caselaw 5735 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                   RSA 236/2016 & CM Nos. 30418-30419/2016

%                                                              1st September, 2016

SOHAN LAL                                                      ..... Appellant
                                  Through: Mr. Arun Kaushal, Advocate

                                  Versus

SOBHA SHUKLA                                                         ..... Respondent

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. This Regular Second Appeal filed under Section 100 of the Code of

Civil Procedure, 1908 (CPC) impugns the concurrent Judgments of the courts

below; of the Trial Court dated 13.4.2015 and the First Appellate Court dated

3.5.2016; by which the courts below have decreed the suit filed by the

respondent/plaintiff for permanent and mandatory injunction. Operative

paragraph 30 of the judgment of the trial court decreeing the suit reads as

under:-

"In the light of discussion hereinabove, suit of the plaintiff is decreed. The defendant is hereby restrained from constructing any staircases at the back portion of the property bearing no. 277/7, Ground Floor, Pul Prahaladpur, New Delhi. The defendant is also hereby restrained from blocking and locking the common passage entrance gate and bathroom at the ground floor of the above said property. The defendant is further restrained from creating any hindrance in the use of common passage and bath room by the plaintiff in any manner on the ground floor of the above said property. The defendant is also decreed to

remove the goods kept by him in the common passage at the ground floor of the above said property. In the circumstances of the case, no order for cost. Parties shall bear their own cost." (underlining added)

2. The case of the respondent/plaintiff was that she purchased the

basement/lower ground floor of the property bearing No. 277/7, Pul

Prahaladpur, New Delhi, as per documentation dated 26.10.2005 from Sh.

Kuljeet Singh. The title documents included registered General Power of

Attorney, agreement to sell, affidavit etc. By these documents proved as

Ex.PW1/16 (colly) before the trial court, respondent/plaintiff purchased rights in

the suit property along with common passage for approach, staircase etc. The

respondent/plaintiff was enjoying the common passage, staircase and bathroom

on the ground floor since the date of purchase of the suit property and the

respondent/plaintiff had installed entrance gate and the door at the back portion

of the common passage with the joint funds with other shopkeepers for safety

purpose. Electricity meter of the respondent/plaintiff was also installed at the

common passage of the ground floor of the suit property. That the

appellant/defendant has wilfully and illegally blocked the common passage by

keeping his almirah and table and he also has locked the bathroom.

Appellant/defendant was seeking to create hindrance in the use of the common

passage, and also the bathroom and was trying to illegally put locks at the

ground floor of the suit property. Appellant/defendant was also illegally trying

to build the staircase on the back portion of the suit property, therefore, closing

the door of the back portion as well as the window of the basement property of

the respondent/plaintiff. he subject suit hence was filed by the

respondent/plaintiff with the following prayers:-

"(a) pass a decree of permanent injunction in favour of the plaintiff by restraining the defendants, their agents, associates, legal heirs etc. from constructing the staircase at back portion of the said property and blocking and locking the common passage entrance gate and bathroom at the ground floor of the suit property and not to interfere in the use of common passage and bathroom by the plaintiff in any manner.

(b) Pass a decree of mandatory injunction in favour of the plaintiff and against the defendant by removing the goods kept by the defendant in the common passage at the ground floor.

(c) Cost of the suit be awarded in favour of the plaintiff and against the defendant.

(d) Any other relief (s) this Hon‟ble Court may deems fit and proper in the facts and circumstances in the present case."

3. Appellant/defendant filed his written statement and denied the

rights of the respondent/plaintiff in the common passage or the bathroom or in

the back portion. It was pleaded that the respondent/plaintiff had no rights in

the common passage or the back portion or the bathroom of the ground floor of

the property.

4. After pleadings were completed, the trial court on 12.9.2011 framed the

following issues:-

"(1) Whether the suit is bad for mis-joinder on necessary parties? OPD (2) Whether the suit is barred by delay and latches? OPD (3) Whether the plaintiff has not approached the Court with clean hand? OPD (4) Whether the plaintiff is entitled to a decree of permanent injunction as prayed for in prayer clause (a) of the plaint? OPD (5) Whether the plaintiff is entitled to a decree of mandatory injunction as prayed for in prayer clause (b) of the plaint? OPD

(6) Relief. "

5. Evidence was led by the plaintiff as PW1 proving certain

documents besides also summoning witness PW2 Sh. Jagmohan Sharma, from

the office of the local electricity company/BSES. Appellant/defendant however,

failed to lead his evidence and his evidence was closed by the Order dated

22.8.2013. These aspects are noted in paras 6 to 8 of the judgment of the trial

court and which read as under:-

"(6) The plaintiff examined herself as PW1 to prove her case. She reiterated the facts stated in the plaint. She relied upon the following documents.

(a) Ex.PW-1/1 to Ex. PW 1/8 are photographs indicating the „Kainchi gate‟ at point A;

(b) Ex.PW 1/9 is receipt of Jeevan Citizen Service Center run by the plaintiff at her premises;

(c) Ex.PW 1/10 is the copy of electricity bill in the name of Sh. Kuljeet Singh, of period from 10.11.2005 to 13.01.2016 indicated at point X pertaining to property of plaintiff in the suit premises;

(d) Ex. PW 1/11 is the copy of electricity bill in the name of the plaintiff pertaining to the period March, 2008;

(e) Ex. PW 1/12 is the electricity bill in the name of Kuljeet Singh of CRN No. 2510114324 (previous owner of property i.e. basement) of plaintiff;

(f) Ex. PW 1/13 (colly) is name changed demand notice to the plaintiff dated 30.10.2010 in respect of electricity meter bearing K No. 2511 N 8031735 from Sh. Kuljeet Singh in her name;

(g) Ex. PW 1/14 is a site plan of the suit property i.e. the ground floor highlight the common area from point A, B, C and D;

(h) Ex PW 1/15 (colly) are two complaints made to the police by the plaintiff dated 21.05.2011 and 24.05.2011;

(i) Ex. PW 1/16 (colly-24 pages) are the copies of registered GPA with consideration from previous owner i.e. Sh. Kuljeet Singh to the plaintiff and previous chain of property papers of basement property of the plaintiff. (7) The plaintiff has also examined Mr. Jagmohan Sharma, Section Officer, BSES Office, Pul Prahaladpur, New Delhi, as PW2. He has produced summoned record. The entire file including requisite documents for change of name along with check list and acknowledgement of DSS request order for change of name from Kuljeet Singh to Shobha Shukla duly certified are

exhibited as Ex. PW2/A (colly-16 pages).

(8) PE was closed vide order dated 31.07.2013. The defendant did not lead any evidence. DE was closed vide order dated 22.08.2013."

6. The courts below have held that respondent/plaintiff by means of her

title documents Ex.PW1/16 (colly) has proved that respondent/plaintiff

purchased besides the basement/lower ground floor, right in the common

passage, staircase etc, and therefore, respondent/plaintiff had rights to use the

common passage, bathroom on the ground floor as also prevent the

appellant/defendant from closing the back door and construct the staircase at the

back.

7. In my opinion, no substantial question of law arises under Section

100 CPC for setting aside of the concurrent judgments of courts below

inasmuch as whereas the respondent/plaintiff proved her case by leading

evidence, the appellant/defendant admittedly led no evidence.

8.           As    also    stated    above,     the     title    documents      of    the

respondent/plaintiff,     Ex.PW1/16      (colly)      duly      show   right    of    the

respondent/plaintiff besides to the basement also to the staircase and common

passage etc. The only way this evidence could be displaced was by leading of

evidence by the appellant/defendant with respect to whether he was the

exclusive owner of the common passage on the ground floor, bathroom on the

ground floor as also the back portion area for construction of the staircase, but

since appellant/defendant led no evidence, appellant/defendant cannot be said to

have proved his case of his ownership of the common passage, bathroom, back

portion etc.

9. Learned counsel for the appellant/defendant argued that

appellant/defendant had moved an application before the first appellate court for

leading additional evidence under Order XLI Rule 27 CPC, but this application

was illegally not decided by the first appellate court, however I note that right to

lead additional evidence under Order XLI Rule 27 CPC is only if there is

already some evidence of a person and additional evidence is sought to be led

on complying with the ingredients of Order XLI Rule 27 CPC. However, once

evidence of a person is closed because evidence is not led in spite of sufficient

opportunities, then in such a case, the provision of Order XLI Rule 27 CPC

cannot be invoked.

10. I must finally note that even before this Court in spite of

opportunities, appellant/defendant did not file copies of his title documents to

show that he was the exclusive owner of the ground floor, common passage,

bathroom on the ground floor or the back portion of the property.

11. In view of the above, there is no merit in this Regular Second

Appeal and the same is therefore dismissed as no sufficient question of law

arises.

SEPTEMBER 01, 2016                                      VALMIKI J. MEHTA, J
P