The burden of proof lies with the plaintiff to establish the damage caused to the property and the illegality of the construction. Lack of credible evidence and failure to prove damages can lead to the dismissal of the suit.

VALMIKI J. MEHTA, J.

1. This Regular First Appeal is filed under Section 96 of the Code of Civil Procedure, 1908 (CPC) by the plaintiff in the suit impugning the judgment of the trial court dated 24.8.2017 by which the trial court has dismissed the suit for recovery of damages of Rs.9,51,775/-filed by the appellant/plaintiff against the respondent/defendant no.1. Appellant/plaintiff sought compensation on account of the claim of the appellant/plaintiff that his property was damaged on account of construction being made by the respondent/defendant no.1 in its property.

2. The facts of the case are that the appellant/plaintiff is the owner of the first floor of the property bearing H.No.957, Nai Wala, Karol Bagh, New Delhi situated on a plot admeasuring 50 sq. yards. The respondent (defendant no.1 in the trial court) was the owner of the adjoining property bearing no.958/4, Nai Wala, Karol Bagh, New Delhi situated on a plot of 200 sq. yards. It was pleaded in the plaint that in around December 2008, the respondent/defendant no.1 company demolished the existing superstructure on its property and started constructing basement and other floors. Appellant/plaintiff filed a suit for permanent injunction against the respondent/defendant no.1 and the Municipal Corporation of Delhi (MCD) for the respondent/defendant no.1 not to carry out construction allegedly because construction was being made without any sanction plan. The civil court which dealt with earlier suit filed by the appellant/plaintiff called for the report from the MCD and it transpired that there was a sanctioned plan and that the respondent/defendant no.1 had committed certain compoundable deviations in construction. Since the position emerged that the respondent/defendant no.1 had already completed its building and no further construction was to take place, therefore, the appellant/plaintiff’s earlier suit was disposed of. Appellant/plaintiff pleaded in this suit that on account of the illegal and unauthorized construction carried out by the respondent/defendant no.1 in its property several cracks appeared in the property of the appellant/plaintiff in the roof, walls and floor, and they were damaged. The respondent/defendant no.1 did not stop the construction activity in spite of requests of the appellant/plaintiff. Appellant/plaintiff got the property inspected through M/s A.K. Gupta & Associates to ascertain the quantum of damages, and who assessed the cost of repairs at Rs.4,46,275/-. Appellant/plaintiff also claimed an amount of Rs.5,00,000/- as compensation and notice charges of Rs.5,500/-. Hence the appellant/plaintiff filed the subject suit.

3. Respondent/defendant no.1 contested the suit and pleaded that it had not carried out any illegal construction and that construction was being carried out after obtaining sanction of the plans from the municipal authorities. It was also pleaded by the respondent/defendant no.1 that construction was carried out as per municipal bye-laws and the suit was only filed in order to pressure the respondent/defendant no.1 to shell out an amount to the appellant/plaintiff. Respondent/defendant no.1 pleaded that it got inspected the suit property of the appellant/plaintiff through the Architect M/s Gogia & Associates who has filed a report that the property of the appellant/plaintiff was lying constructed unauthorizedly, was not properly maintained, and was a semi pacca/permanent construction only and there was no damage to the property of the appellant/plaintiff on account of construction by the respondent/defendant no.1. Suit was therefore prayed to be dismissed.

4. After pleadings were complete the following issues were framed:-

“Issues:

(i) Whether the suit suffers from non-joinder of builder? If so, to what effect? OPP

(ii) Whether the defendant No.1 has carried out construction over plot No.1229/1140, QQ Block, House No.