Final Order 13

Order Details: COPY OF JUDGMENT
Pdf Text: IN THE COURT OF SH. RINKU JAIN, ADDITIONAL
SENIOR CIVIL JUDGE-01, CENTRAL DISTRICT,
TIS HAZARI COURTS, DELHI
RCA No. 31/2023
CNR No. DLCT03-006594-2023
In the matter of:-
SH. DINESH KUMAR GUPTA
S/O LATE SH. GIAN CHAND GUPTA
R/O H.No.4546-4588, GALI NO.52,
REGHARPURA, KAROL BAGH,
NEW DELHI-110005 ….APPELLANT
VERSUS
1. SH. RAJESH KUMAR SINGHAL
S/O LATE SH. GIAN CHAND
2. SMT. MANILA SINGHAL
W/O SH. RAJESH KUMAR SINGHAL
BOTH R/O
Η.ΝΟ.3875/12, THIRD FLOOR,
KANHIYA NAGAR, TRI NAGAR,
DELHI ….RESPONDENTS
Date of Institution : 22.11.2023
Reserved for Judgment : 19.07.2025
Date of Decision : 20.08.2025
Decision : DISMISSED
REGULAR CIVIL APPEAL UNDER SECTION 96 OF THE
CODE OF CIVIL PROCEDURE, 1908 AGAINST THE
IMPUGNED JUDGMENT & DECREE DATED 12.10.2023
PASSED BY LD. CIVIL JUDGE-08, CENTRAL DISTRICT,
TIS HAZARI COURTS, DELHI IN CIVIL SUIT NO.1124/2018
TITLED AS "DINESH GUPTA VERSUS RAJESH SINGHAL
& ANR." WHEREBY THE SUIT FILED BY THE APPELLANT
HAS BEEN DISMISSED.
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J U D G M E N T
1. The present appeal impugns the judgment and
decree dated 12.10.2023 passed by the then Ld. Civil Judge-08,
Central, whereby the suit instituted by the appellant was
dismissed. The appellant herein was plaintiff and the respondents
were the defendants therein. For the sake of convenience, parties
shall be referred to by their nomenclature in the main suit.
Pleadings of the plaintiff:-
2. Brief facts pertinent to the present adjudication as
delineated in the plaint are that plaintiff and defendant no.1 are
real brothers. Defendant no.2 is wife of defendant no.1. It is
stated that plaintiff is in exclusive possession of first & second
floor and he is in joint possession of ground floor and mezzanine
floor along with his brother namely Rakesh Kumar Gupta, being
the owner of the property bearing municipal no.4546-4588, Gali
No.52, Regharpura, Karol Bagh, Delhi measuring 50 sq. yds.
(hereinafter referred to as ‘the suit property’). Defendants are in
possession of third floor of the suit property. Staircase and terrace
are for common use of all the residents (shown in red colour in
the site plan).
3. It is further stated that defendants are quarrelsome
by nature and in order to disturb the plaintiff, defendants & their
family members locked the gate of the roof as well as the boxes
of electricity and water meters. Defendants stopped the water
supply and disturbed the CCTV camera of the plaintiff.
Defendants were disowned by the mother of the plaintiff and
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their license was also revoked by their mother. A suit for
possession of the third floor against the defendants is pending
adjudication.
4. It is further stated that in another litigation,
defendant no. 1 was directed to remove the iron gate fixed in the
stair case before 3rd floor’s entry, which was removed by
defendant no. 1. However, defendants kept on obstructing the
plaintiff in enjoyment of the suit property. Plaintiff and his family
members went out of station from 24.01.2018 to 27.01.2018, but
on their return they found a wooden gate installed at the place
from where iron gate was removed. Plaintiff and his family
members are stopped from going to the terrace through the said
wooden door. Plaintiff made several requests to the defendants to
allow him to go to the terrace, but all his requests fell on deaf
ears. Hence, the present suit with the following prayers:-
(a) to pass a decree of permanent injunction in favour of the
plaintiff and against the defendants, thereby restraining the
defendants, their agents, assignees, employees, executives,
representatives from creating any obstruction in visiting the
terrace of the building bearing no.4546-4588, Gali No.52,
Regharpura, Karol Bagh, New Delhi-110005, more particularly
shown in red colour in the site plan annexed with the plaint.
b) To pass a decree of mandatory injunction thereby directing
the defendants to remove the wooden gates installed by them in
the staircase before the 3rd floor, and also the terrace gate to give
free ingress and outgress for terrace to the plaintiff and his
family members.
(c) Cost of the suit may also be awarded in favour of the
plaintiffs and against the defendant, in the interest of justice.
(d) Pass any other order or orders which this Hon’ble court may
deem fit, just and proper in the facts and circumstances of the
case, may kindly be passed in favour of the plaintiff and against
the defendant.
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Pleadings of the defendants:-
5. Summons of the present suit were issued and
defendants entered their appearance. WS was filed on behalf of
defendant no.1 and 2 jointly.
6. In the Written Statement filed on behalf of
Defendants, it is contended that the suit is untenable as plaintiff
has concealed material facts regarding filing of another suit. It is
stated that family of defendants comprise of two daughters aged
18 years and 16 years and if the suit of the plaintiff is allowed it
will cause serious safety and security problems to the family and
property of the defendants. It is further stated that the relief for
visiting the terrace of the suit property has already been decided
in civil suit no.173/15 and the same is therefore hit by the
principle of his
res judicata. Plaintiff is stated to have no
locus
standi to file the present suit. Mother of plaintiff and defendant
no. 1 is stated to be only benamidar of their father and both the
parties are stated to be tenants-in-common in the suit property.
7. The present suit is stated to have been filed by the
plaintiff in collusion with the other real brother with a
malafide
intention to usurp the 3rd floor of the suit property. The
documents of the suit property in favour of plaintiff are stated to
have been executed by playing fraud. Each and every averment
of the plaint has been specifically denied.
Replication:-
8. The plaintiff filed his replication, wherein he
categorically denied each and every averment and defense set
forth by the defendants. Furthermore, the plaintiffs reaffirmed
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and reiterated the claims originally advanced in their pleadings.
Issues:-
9. After completion of pleadings, the following issues
were framed vide order dated 04.12.2018 :-
1. Whether the plaintiff is entitled to a decree of permanent
injunction, as prayed for? OPP
2. Whether the plaintiff is entitled to a decree of mandatory
injunction, as prayed for? OPP
3. Whether the plaintiff has no cause of action to file the present
suit in hand? OPD.
4. Whether the suit in hand is barred by the law and is not
maintainable? OPD.
5. Relief.
Plaintiff’s evidence:-
10. Plaintiff examined himself as PW1. He deposed on
the lines of the averments made in the plaint. He relied upon the
following documents:-
a) Ex.PW-1/1 (OSR) copy of Aadhar Card.
b) Ex.PW-1/2 original site plan.
c) Ex.PW-1/3 de-exhibited and marked as Mark-C (colly.) being
photocopy of water bills.
d) Ex.PW-1/4 two electricity bills.
e) Ex.PW-1/5 photographs.
f) Ex.PW-1/6 pen drive containing audios and videos.
g) Ex.PW-1/7 de-exhibited.
h) Mark-A complaints.
i) Mark-B statement of defendant and copy of orders of the
Court.
He was duly cross examined by Ld. counsel for the
defendants.
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11. Plaintiff examined Sh. Brij Mohan, Ahlmad from the
court of Ld. Civil Judge-08, Central. He brought the order sheet
and the statement of Khajani Devi dt. 04.05.2017 in suit bearing
no. 2350/16 titled Khajani Devi v. Rajesh Kumar Singhal. Copies
of the same were Ex. PW2/A (colly) & Ex. PW2/B.
12. Plaintiff further examined Sh. Rajpal, Judicial
Assistant, Record Room (civil), THC as PW-3. He brought order
sheets dt. 20.11.2015 & 15.07.2016 in Execution bearing no.
62/15 titled Rakesh Kumar Gupta & Ors. v. Rajesh Kumar
Singhal, which were Ex. PW3/A.
13. Thereafter, PE was closed and matter came to the
stage of DE.
Defendant’s evidence:-
14. Defendants examined defendant no.1 as DW-1. He
deposed on the lines of his written statement and relied upon
following documents:
a) Ex.DW-1/1 Site Plan of 3rd floor of the suit property.
b) Ex.DW-1/2 photograph showing door at entrance of 3rd floor
and common corridor joining kitchen, bathroom and
washroom/toilet.
c) Ex.DW-1/3 Photograph showing terrace of suit property
adjoining neighbors' properties.
d) Ex.DW-1/4 Photograph showing terrace of suit property
adjoining neighbors' properties.
e) Ex.DW-1/5 Certified copy of decree dated 25.08.2015 passed
in suit No.173/2015.
f) Ex.DW-1/6 Certified copy of order dated 04.05.2017 passed
in suit No.2350/16.
g) Ex.DW-1/7 Certified copy of order dated 02.06.2017 passed
in suit No.2350/16.
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h) Ex.DW-1/8 (OSR) Copy of Notice/complaint dated
14.12.2017 from DDA.
i) Ex.DW-1/9 (OSR) Copy of Final Show Cause Notice dated
06.09.2018 from DDA.
j) Ex.DW-1/10 Copy of Notice/complaint dated 20.02.18 from
DDA was de-exhibited and marked as Mark-A.
k) Ex.DW-1/11 Copy of complaint dated 01.04.2018 by
defendant No.1 to the SHO, PS Karol Bagh was de-exhibited
and marked as Mark-B.
l) Ex.DW-1/12 Copy of report of police dated 15.05.2017 was
de-exhibited and marked as Mark-C.
m) Ex.DW-1/13 Certified copy of order dated 11.12.2015 in Ex.
No.62/15.
n) Ex.DW-1/14 Certified copy of order dated 23.09.2016 in Ex.
No.62/15.
He was duly cross examined and thereafter, DE was
closed.
Decision of the Ld. Trial Court:-
15. Ld. Trial Court decided issues no.1 and 2 against the
plaintiff holding that existence of door at the entrance of the
terrace of the suit property is essential for the safety of the
occupants of the suit property and therefore, no question for
removal of the door arises. Ld. Trial Court further held that the
visitation rights of the plaintiff to the terrace of the suit property
has already been decided and plaintiff cannot be allowed to
reagitate the said issue. Ld. Trial court held that the photograph
relied upon the plaintiff cannot be considered in absence of
certificate u/s 65-B of Indian Evidence Act. Ld. Trial Court
further held that admittedly there are doors on entrance of other
floors and defendant has a right to protect his possession and
property, further, plaintiff failed to bring any evidence to show
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any hindrance being caused by the defendant, therefore, plaintiff
was not entitled to the relief, as prayed for.
Grounds of appeal:-
16. The impugned judgment and decree are assailed
primarily on the grounds that:-
(a) Ld. Trial Court failed to consider the orders in Ex.
No. 62/15 titled as Rakesh Kumar Gupta Vs. Rajesh Kumar
Singhal Ex. PW3/A, wherein defendants agreed to remove the
iron gate in compliance of the directions of the Court, however,
they have installed a wooden gate instead of the iron gate.
(b) Ld. Trial Court failed to consider the evidence led
on behalf of the plaintiff and the arguments advanced at the time
of final arguments that the gate installed at the entry of third floor
is creating obstruction to the plaintiff.
(c) Ld. Trial Court failed to consider the photographs
and pendrive containing audio and video recordings Ex.PW1/6.
The certificate us 65-B of Indian Evidence Act had been filed by
the plaintiff along with the plaint and the same is available at
page no.52.
(d) Ld. Trial Court failed to appreciate the evidence of
the plaintiff correctly as it has wrongly been considered that the
rooms, kitchen and bathroom do not have their independent gates
and the gate at the entry of the third floor is the only gate
available.
(e) Ld. Trial Court failed to appreciate that the water
tank of the plaintiff had been tampered with by the defendants,
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which itself shows that plaintiff is being obstructed from having
access to the terrace.
Decision with reasons:-
17. I heard the arguments advanced on behalf of both
the sides. I have perused the record.
18. That in the case in hand, at the very threshold, it is
pertinent to mention that the certificate u/s 65-B of Indian
Evidence Act, 1872 has neither been relied upon by the plaintiff
in his evidence by way of affidavit Ex.PW1/A nor the same has
been exhibited during the examination in chief of plaintiff/PW1
dated 05.04.2019. Therefore, in view of the settled position of
law, the electronic evidence in the form of audio and video
recordings contained in pendrive Ex.PW1/6 as well as the
photographs Ex.PW1/5 have rightly been not relied upon by the
Ld. Trial Court. The ground of appeal that Ld. Trial Court failed
to consider the audio and video recordings in pendrive Ex.
PW1/6 or the photographs Ex.PW1/5 is liable to be rejected
being not sustainable.
19. Perusal of the impugned judgment dated 12.10.2023
shows that Ld. Trial Court has nowhere observed or given a
finding that the room, kitchen and bathroom at the third floor of
the suit property do not have independent gates. It has been
observed that the wooden gate in question directly opens into the
common passage through which, all other rooms can be accessed.
Ld. Trial Court has declined the relief sought by the plaintiff on
the ground that the defendant has the right to protect his
possession of the suit property and his belonging, lying on the
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third floor of the suit property and also on the ground that
plaintiff failed to lead any positive evidence to show any kind of
hindrance at the hands of the defendants. In view of the fact that
no such finding has been given by the Ld. Trial Court that rooms,
kitchen and bathroom on the third floor do not have their
independent gates, the ground of appeal is liable to be rejected.
20. As regards the ground of appeal that Ld. Trial Court
failed to consider the evidence led on behalf of the plaintiff, the
arguments advanced on behalf of the plaintiff or the Ld. Trial
Court wrongly interpreted the evidence of the plaintiff. It is
pertinent to mention that there is no clarity or explanation from
the appellant as to how the evidence has been misinterpreted by
the Ld. Trial Court. Perusal of the record shows that Ld. Trial
Court has carefully examined and appreciated the evidence led
on behalf of both the sides. Therefore, in absence of such clarity,
this ground remains vague, and is thus not tenable.
21. As far as the ground of appeal that Ld. Trial Court
failed to consider the order in Ex. No. 62/15, copy of order is
Ex.PW3/A is also liable to be rejected as perusal of the record
shows that neither copy of the Ex. No. 62/15 nor the decree,
which was the subject matter of the above stated execution
petition has been placed on record by the plaintiff.
22. On careful perusal of the record of the Ld. Trial
Court and the evidence led on behalf of plaintiff, it transpires that
in the absence of certificate u/s 65-B of Indian Evidence Act,
photographs Ex.PW1/5 and contents of the pendrive Ex.PW1/6
cannot be read into evidence. There is not even an
iota of
evidence led on behalf of the plaintiff to establish that any
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obstruction is being caused by the defendants to the plaintiff to
have access to the terrace of the suit property. There is nothing on
record to show that the finding of the Ld. Trial Court that
defendants have a right to protect their possession of the third
floor and their belongings lying there and existence of the door is
essential for the safety of the occupants, is erroneous.
23. It has categorically been admitted by the
plaintiff/PW1 in his cross examination that on 15.05.2017, a PCR
was called by him regarding carving a hole in his water tank by
the defendant and at the same he has also admitted that on
20.06.2017, a report was prepared by the police to the effect that
no hole had been found in his water tank. Therefore, the ground
of appeal that Ld. Trial Court failed to consider his averment and
evidence regarding tampering with his water tank is untenable.
24. In view of reasons given above, I find no illegality,
perversity or infirmity in the impugned judgment and decree
dated 12.10.2023 and there is no merit in the present appeal. The
same is accordingly dismissed and the decision of the Ld. Trial
Court is upheld.
25. No order as to costs.
26. Decree sheet be prepared accordingly.
27. The appeal file after due compliance be consigned to
the Record Room. Trial Court Record be sent back along with a
copy of the judgment.
Announced in open Court
on this 20th Day of August, 2025
(RINKU JAIN)
JSCC/ASCJ/GJ-01 (CENTRAL)
TIS HAZARI COURTS/DELHI
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