Back
High Court Of Delhi
FAQIR CHAND - Appellant
Versus
LILA RAM - Respondent
Regular Second Appeal 165 of 1973
Decided On : 07/15/1993
PARTITION - CONSTRUCTION ON JOINT PASSAGE - LIMITATION - INJUNCTION - DAMAGES - ADVERSE POSSESSION - CONTINUING WRONG - COURT FEE - JURISDICTION - LACHES - MANDATORY INJUNCTION - PERPETUAL INJUNCTION - RELIEF - SPECIFIC RELIEF ACT, 1963 - SECTION 40.
Fact of the Case:
Appellant and respondent were co-owners of a property that was partitioned in 1921. In 1983, a partition deed was executed between them, and a map was registered showing the division of the property. The appellant claimed that the respondent had encroached upon a courtyard and a common passage by constructing a tin-shed and covering a portion of the passage. The appellant filed a suit seeking mandatory and perpetual injunctions, as well as rendition of accounts.
Finding of the Court:
1. The courtyard in question was exclusively owned by the appellant as per the partition deed and map. 2. The respondent had constructed a tin-shed in the common passage and covered a portion of the passage, which obstructed the appellant's right of passage. 3. The suit for mandatory injunction was barred by limitation as the construction had been in existence for more than three years before the filing of the suit. 4. The appellant was not entitled to damages in lieu of injunction as he had not claimed such relief in the plaint. 5. The appellant was guilty of laches in not taking any action against the respondent's construction for more than 5-6 years.
Issues: 1. Whether the courtyard was exclusively owned by the appellant or was it a joint property? 2. Whether the respondent had encroached upon the common passage by constructing a tin-shed and covering a portion of the passage? 3. Whether the suit for mandatory injunction was barred by limitation? 4. Whether the appellant was entitled to damages in lieu of injunction? 5. Whether the appellant was guilty of laches in not taking any action against the respondent's construction?
Ratio Decidendi: 1. The partition deed and map clearly showed that the courtyard was allotted to the appellant's father in the partition. 2. The respondent's construction of the tin-shed and covering of the passage obstructed the appellant's right of passage. 3. The suit for mandatory injunction was barred by limitation under Article 113 of the Limitation Act, 1963, as the construction had been in existence for more than three years before the filing of the suit. 4. Section 40 of the Specific Relief Act, 1963, debars the court from granting damages in lieu of injunction unless the plaintiff has claimed such relief in the plaint. 5. The appellant's inaction for more than 5-6 years in taking any action against the respondent's construction amounted to laches.
Final Decision: The appeal was partly allowed. The judgment and decree of the first appellate court were set aside, and the judgment and decree of the trial court were restored. The appellant was granted a perpetual injunction restraining the respondent from using the courtyard in question. The appeal with regard to other reliefs was dismissed.
( 1 ) THIS regular second appeal has been broughtagainst the judgment and decree dated 9/08/1974, of an Additionaldistrict Judge by which he had allowed the appeal of respondent Lila Ramagainst judgment and decree dated 31/01/1974, of a Sub-Judge and haddismissed the suit brought by the appellant against the respondent whereinreliefs of mandatory injunction, perpetual injunction and rendition ofaccounts were claimed.
( 2 ) THE dispute pertains to property bearing municipal No. 1 152 (Oldno. 272) situated in Gali Samosan, Farash Khana, Delhi. Admittely thisproperty was owned by Bhola Ram, father of the appellant. Lila Ramrespondent and one Kishan Lal. In 1921 Kishan Lal brought a suit forpartition and decree for partition was made and portion which is in browncolour in map Ex. Public Witness 3/2 had fallen to the share of Kishan Lal andultimately that portion also had been purchased by Lila Ram-respondent. In1983 the partition deed was executed between Bhola Ram and Lila Ram Ex. PW 3/1 which was duly registered and the map duly signed by the partieswas also registered which is Ex. Public Witness 3/2. The portion which fell to the shareof Bhola Ram is shown in light blue colour while the portion which fell tothe share of Lila Ram is shown in dark blue colour. A portion in red colouris shown as joint passage for the parties and beyond the joint passage shownin red colour, there exists a courtyard which is located in front of the cons-tructed portion which fell to the share of Bhola Ram. The portion in browncolour is located on the western side of the said courtyard.
( 3 ) THE case set up in the plaint by the appellant is that this particularcourtyard of compound, which is marked as ABCandd in the plan Ex. P-1 filedalong with the plaint, in accordance with the partition deed and the mappartitioning the properly which was duly registered, fell to the share ofappellant s father and the respondent bad started bringing drums in the saidopen courtyard for storing the same in the brown portion of the propertyand he had no right to use the courtyard at all and thus, a perpetual injunction was sought restraining the respondent from in any manner using thesaid courtyard.
( 4 ) IT was also the case of the appellant that the common passagewhich was shown in red colour in the said map has been also encroachedupon by the respondent in the manner that he had consitructed a tin-shed atthe end of the said common passage just adjacent to the said courtyard andhas been letting out the said tin-shed to the different persons for storing theirgoods and he sought mandatory injunction for demolishing the said tin-shedwhich is constructed in the portion kept for joint user of the parties. Thesaid tin-shed has been marked UHKJ in plan Ex. P-1. He has alsoalleged in the plaint that the said common passage shown in red colourin the partition deed as well as in the map was open to sky but thedefendant-respondent had covered that passage at point REFG which hadthe effect of blocking the light and air in that common passage and thus, heprayed tor relief of mandatory injunction for demolishing the said roofwhich covered the said common passage.
( 5 ) IT was pleaded in the plaint specifically that the said tin-shed andthe said roof had been constructed about 32 months prior to the institutionof the suit. The suit was instituted on 12/12/1970. The 32 monthswould take us back to about March-April 1968
( 6 ) THE respondent contested the suit pleading that in fact the saidcourtyard was kept for common use of both the parties and has been sinceused commonly and it was further pleaded that the tin-shed had been constructed in a portion of the property which had fallen to his share and hadnot been constructed in any joint passage but he remained silent with respectto the covering the common passage. He took some preliminary objectionsthat the suit was liable to be stayed under Section 10 read with Section 151of the Code of Civil Procedure as he had also filed
AI
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
