Final Order 8

Order Details: COPY OF JUDGMENT
Pdf Text: RCA No.11/24 Narender & Ors. Vs Umed Singh Page No. 1 of 14
IN THE COURT OF JSCC/ASCJ/GUDN. JUDGE
NORTH, ROHINI COURTS, DELHI
Presided by: Nitish Kumar Sharma
CNR NO.DLNT03019862024
RCA No.11/2024
Date of Institution : 18.11.2024
Date of reservation of judgment : 24.03.2025
Date of pronouncement of Judgment : 01.04.2025
1. Narender (Aged About 38 Years)
2. Joginder (Aged About 36 Years)
Both sons of late Sh Pratap singh both r/o
H.no.425, village & post office Khera khurd,
Delhi-110082
3. Vinod pal (aged about 52 years)
4. Kirpal (aged about 45 years)
5. Raj kumar (aged about 40 years)
all sons of late Sh Rampat
6. Kashish (Aged About 27 Years)
S/O Late Sh. Jaiprakash
All R/O H.No.430, Village & Post Office Khera
Khurd, Delhi-110082
...Appellants
VERSUS
Sh. Umed Singh
Son Of Late Sh. Sehaj Ram
R/O H.No.119, Village & Post Office Khera
Khurd, Delhi-110082
....Respondent
Appellant represented by : Sh. R.S. Lathwal
Respondent represented by : Sh. D.S. Khatri
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RCA No.11/24 Narender & Ors. Vs Umed Singh Page No. 2 of 14
Regular civil appeal under section 96 of the code of civil
procedure, 1908 against judgment & decree dated
21.10.2024, passed by Ld. Civil judge, North district, Rohini
courts, Delhi in Civil Suit No.CS/SCJ/602/2018, titled as
"Umed singh versus Narender & ors."
JUDGMENT
The appellants in the present appeal have challenged
the judgment and decree dated 21.10.2024 passed by Ld.
Civil Judge, North West, Rohini Courts, Delhi whereby the
suit of the respondent was decreed by the Ld. Trial Court. For
the sake of convenience the parties are referred as per ranks
before the Ld. Trial Court.
The present case is yet another reflection of fading
family ties.
Factual matrix:
1. The plaintiff instituted a suit for a permanent
injunction against the appellants which was decreed by the
trial court vide judgment and decree dated 21.10.2024.
2. The plaintiff/respondent claimed before the trial court
that he, along with his three brothers—Rampat, Ratan Singh,
and Pratap Singh—were co-owners of land situated in
Khasra No. 338 (1-12) and 341/1 (0-4), located in the
extended abadi of Lal Dora and other houses in Old Lal Dora,
Village Khera Khurd, Delhi.
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RCA No.11/24 Narender & Ors. Vs Umed Singh Page No. 3 of 14
3. The respondent contended that the properties were
partitioned among the co-owners during their father's
lifetime in 1984. According to the site plan, the respondent’s
portion was marked in green, the appellants' No.1 and 2 in
blue, appellants No.3 to 6 in red, and Ratan Singh’s in
orange, with a common passage marked in yellow.
4. The respondent alleged that after the partition,
disputes arose between him and Rampat, leading to police
intervention twice. A settlement was reached on 11.07.2004,
affirming the partition in writing. Despite this, Rampat,
allegedly influenced by his sons and in collusion with Pratap
Singh, filed a suit for partition, which was dismissed on the
grounds that partition had already occurred. The appellate
court, while hearing an appeal, directed a measurement of the
shares, but no compromise was reached, leading to the
dismissal of the appeal on merits.
5. The respondent further claimed that as the built-up
area within his portion had become old and dilapidated, he
initiated repairs. However, while conducting repairs on the
boundary wall (marked between points A, B, and C in the site
plan), the appellants objected, leading to a quarrel and
subsequent police complaints from both sides.
6. The appellants maintain that they never objected to
repairs within the respondent’s portion but assert that the
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RCA No.11/24 Narender & Ors. Vs Umed Singh Page No. 4 of 14
disputed wall belongs to them. The respondent allegedly
attempted to encroach upon the wall and construct a new wall
between points B and C, trespassing into the appellants’ area,
which led to the present dispute.
7. The trial court framed the following issues:
a. Whether the plaintiff is entitled to a decree of
permanent injunction, as prayed? OPP.
b. Relief?
8. The plaintiff examined himself as PW-1 and Sh. Sunil
as PW-2, while the defendants produced two witnesses in
support of their claim. The trial court, vide judgment dated
21.10.2024, decreed the suit against the appellants holding
that the defendant DW1/D1 had admitted the site-plan filed
by the plaintiff to the extent of portions shown therein and the
respective ownership. The Ld. Trial Court further observed
that the defendant DW1/D1 admitted that the passage shown
in yellow colour was a common passage and that the parties
had raised constructions in their respective portions. It was
further observed that Defendant no.3 also admitted that
partition had taken place and the parties had constructed in
their portions. It was thus observed that the fact that parties
were enjoying their respective shares as shown in the plan
was duly proved.
The Ld. Trial Court held that the plaintiff was owner of
portion shown in green colour in the site plan. The contention
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that the plaintiff was encroaching in the shares of others as
the common passage was of 16ft in width was rejected as the
settlement dated 11.07.2004 mentioned the passage to be of
13ft in width and there was no other document produced to
show that there was a subsequent agreement regarding the
width of common passage/gali.
The Ld. Trial Court finally held that the owner of
property has right to use it and raise construction over the
same for its preservation without any interference and thus,
decreed the suit in favour of the plaintiff/respondent.
Grounds of appeal:
9. The appellants have appealed the impugned judgment
and decree dated 21.10.2024 on the ground that the same are
contrary to law, facts, and the oral and documentary evidence
on record.
9.1. The trial court's approach and observations are erroneous
and unfounded, as the plaintiff/respondent provided
contradictory statements, notably Exhibit DW-1/1.
9.2. The judgment is vitiated by the non-consideration of
material facts, documents, evidence, and submissions on
record, including admissions by the parties.
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9.3. The trial court erroneously granted an injunction despite
the respondent failing to provide any proof of alleged repairs.
9.4. The non-existence of a wall between points B and C, and
from point B to A (up to 40% of its length), was overlooked,
leading to an erroneous decision.
9.5. The judgment disregards the respondent’s own violation
of the settlement dated 11.07.2004.
9.6. The trial court misinterpreted and misapplied established
legal principles and factual circumstances, leading to a
flawed approach.
9.7. The judgment is based on conjectures and surmises,
warranting its reversal.
9.8. The judgment contradicts the evidence of
PW-1/respondent given before the trial court and in the
partition suit filed by Rampat, rendering it legally infirm.
9.9. The appellants produced all relevant documents and
successfully proved their case before the trial court, which
failed to properly appreciate them.
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9.10. The judgment was passed in undue haste without due
consideration of the facts and evidence.
9.11. The trial court misinterpreted the site plan and
photographic evidence showing a separate wall in question,
with no proof of repairs undertaken by the respondent.
Prayer:
10. In light of the foregoing, the appellants pray that this
Hon'ble Court:
(a) Allow the present appeal and set aside the
impugned judgment and decree dated 21.10.2024, passed by
the Ld. Civil Judge, North District, Rohini Courts, Delhi, in
Civil Suit No. CS/SCJ/602/2018, titled "Umed Singh vs.
Narender & Ors."; and
(b) Dismiss the respondent’s suit with costs in favor of
the appellants.
11. Arguments on behalf of the Respondent:
It was argued by ld. Counsel for the respondent that the
appellants failed to challenge the site plan presented by the
respondent during the trial insofar as no counter site plan was
placed on record and even in the appeal appellants relied on
the same admitted site plan. As such, the appellants are
estopped from disputing its accuracy at the appellate stage.
The site plan clearly demarcates the partitioned portions,
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which was not contested by the appellants before the trial
court, thereby affirming its authenticity. The trial court
correctly relied upon the site plan and the evidence produced
by the respondent, as it corroborated the historical partition
and the areas allotted to each party. The repairs undertaken
by the respondent were within his own portion as per the
undisputed site plan, and the appellants' objections were
unjustified.
It was argued that the previous partition suit filed by
Rampat was dismissed on merits, and the settlement dated
11.07.2004 further reinforced the finality of the partition,
which the appellants are now attempting to dispute
indirectly. The decree of permanent injunction granted by the
trial court is based on sound reasoning and aligns with the
factual matrix and documentary evidence, which the
appellants failed to refute.
12. Arguments on behalf of the Appellants:
Ld. Counsel for the appellants on the other hand
argued that the trial court erred in granting the decree without
properly considering the appellants' objections regarding the
disputed boundary wall. The site plan was specifically
challenged in the written statement and the existence and
ownership of the wall between points B and C were contested
throughout the proceedings. The respondent failed to provide
documentary proof of any prior repairs or necessity for
reconstruction, making the claim of urgent repairs
unsubstantiated.
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It was argued that the appellants have consistently
maintained that the respondent attempted to encroach upon
their property under the guise of repairs, which led to the
dispute. The trial court failed to appreciate that the appellants
provided documentary and oral evidence supporting their
claim, but the judgment did not adequately consider this
evidence. The injunction granted is excessive and unfairly
restrains the appellants from exercising their lawful rights
over their property.
Decision And Reasons
13. Upon a thorough review of the pleadings, evidence,
and arguments, this Court finds the appellants’ claims to be
unsubstantiated and lacking in merit. Their primary
argument of alleged encroachment by the respondent is
unconvincing, particularly due to their failure to challenge
the site plan.
Though, the site plan filed by the respondent/plaintiff
was disputed in the written statement by stating that it does
not match with the factual position of the land, however no
counter site plan was filed by the appellants/defendants
before the Ld. Trial Court. It has come from the written
statement that the gali/passage goes to the very end of the
property implying thereby that a passage exists between plot
of Rampat and Pratap whereas the plaintiff had asserted that
the plots of Rampat and Pratap were adjacent to each other. It
is imperative herein to note that with the said assertions of
existence of Gali/passage between plot of Pratap and
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Rampat, a suit for partition was filed by Rampat, which was
dismissed by the Ld. SCJ, West District, Delhi holding that
partition had already taken place.
13.1 The Ld. Trial Court while appreciating the evidence in
the present case, had discussed that DW-1/D1 i.e. Narender
had admitted the site plan in the cross-examination to the
extent of portions shown therein and the respective
ownership. The relevant part of the testimony is reproduced
herein-
“It is also correct that the portions of all the occupants
are correctly shown in the site plan Mark H.”
The said document Mark-H was the site plan filed by
the plaintiff in the suit which showed that there was no
passage in between the share/plots of Rampat and Pratap.
DW-3/Vinod Pal Mann had also admitted that
pursuant to compromise dated 11.07.2004, all the co-sharers
were occupying their respective portions. Thus, it is evident
that both the witnesses on behalf of the defendant/appellants
had admitted the site plan filed by the plaintiff and as such no
challenge was thrown to the site plan. Even in the cross-
examination of plaintiff or plaintiff’s witness/PW-2, no
question pertaining to the veracity of the site plan was put.
13.2 The fact that the portions were constructed by their
respective owners was also admitted by Defendant no.3. It is
well settled law that if the defendant does not file his site plan
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to dispute the site plan of the plaintiff then the site plan filed
by the plaintiff is deemed to be admitted to be correct and the
defendant can not be permitted to challenge the site plan of
the plaintiff.
The site plan filed by the plaintiff was thus, rightly
concluded by the Ld. Trial Court to have been duly proved.
13.3 This plan, which delineates the respective portions of
the parties, was an essential document forming the
foundation of the respondent’s claim. The appellants’ failure
to dispute it during the trial signifies their acquiescence to its
authenticity and correctness.
13.4. The Ld. Trial Court had thus, rightly held that the
plaintiff was raising construction in its portion as per site
plan and is entitled to do so without any interference.
14. It was argued on behalf of the appellants that the
settlement dated 11.07.2004 was not complied by the
respondent himself and as such, he could not have relied on
the same for seeking relief of injunction. It was argued that
the respondent had admittedly not paid Rs 30,000/ and thus,
it can not be accepted that the settlement was accepted and
given effect to by all the parties.
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RCA No.11/24 Narender & Ors. Vs Umed Singh Page No. 12 of 14
14.1 It is pertinent to mention herein that the after the
settlement dated 11.07.2004, a suit for partition was filed on
behalf of appellants but the same was dismissed holding that
the partition had already taken place. The appeal preferred
against the said suit was also dismissed on merits. Thus, the
dismissal of the previous partition suit on merits affirms that
the issue of ownership and demarcation was already settled.
The appellants’ attempt to raise fresh disputes over the
boundary wall at the appellate stage is unsustainable, as it
contradicts the prior legal findings and lacks any
documentary or substantive evidence to support their
assertions.
15. The appellants also argue that no wall exists between
points B and C, relying on the testimony of one of the
plaintiff’s witnesses who stated that there was no existing
wall at that location. However, this testimony does not
strengthen the appellants' case as it was observed by the Ld.
Trial Court that the portion from point B-C fell within the
share of the plaintiff/respondent.
15.1 The absence of a wall at a particular time does not
negate the partition or the demarcation of boundaries as per
the site plan, which remains uncontested. The trial court,
having carefully examined the site plan and witness
testimonies, rightly concluded that the respondent was
entitled to conduct repairs/raise construction within his
demarcated portion. The appellants’ objections appear to be a
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deliberate attempt to obstruct the respondent’s legitimate
right to maintain his property.
16. It was next argued that the plaintiff/respondent had not
sought the relief to the effect of raising/repairing wall from
point B-C and as such, the Ld. Trial Court had granted the
said relief which was not even prayed for. It is pertinent
herein to refer to Order VII Rule 7 of the CPC, which grants
the court discretion to award appropriate relief based on the
facts and circumstances of the case.
A holistic reading of the plaint showed that the dispute
between the parties was with respect to raising the
wall/construction by the plaintiff from point A-B-C and the
Ld. Trial court had held that the said portion was part of the
plaintiff’s share in the suit property as per the site plan. As the
site plan was not disputed during trial, in the considered
opinion of this Court, the Ld. Trial Court had rightly held that
respondent is entitled to a permanent injunction restraining
the appellants from interfering with his lawful repairs. Given
that the appellants did not challenge the site plan in the first
instance, they cannot be permitted to do so belatedly in
appeal.
17. In view of the overwhelming evidence in favor of the
respondent, including the unchallenged site plan, the prior
settlement, and the previous legal adjudications, this Court
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upholds the judgment and decree of the trial court. The
present appeal is, therefore, dismissed without costs.
18. ORDER:
1. The present appeal is dismissed.
2. The judgment and decree dated 21.10.2024, passed by
the Ld. Civil Judge, North District, Rohini Courts,
Delhi, in Civil Suit No. CS/SCJ/602/2018, titled
"Umed Singh vs. Narender & Ors.", are upheld.
3. The appellants are permanently restrained from
interfering with the respondent’s right to repair and
maintain the existing structures within his portion as
per the site plan filed in the suit.
19. Trial Court Record be sent back along with copy of
this judgment.
20. Appeal file be consigned to record room.
Announced in the open court
on 01.04.2025.
(Nitish Kumar Sharma)
JSCC/ASCJ/GUDN. JUDGE
North Rohini, Courts,Delhi/01.04.2025
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