Second appeal against decree restraining unauthorized construction on the third-floor roof and directing its demolition. The first appellate court had affirmed the permanent and mandatory injunction findings but set aside the repair direction. The High Court found no substantial question of law and dismissed the appeal.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
$~4
SURESH KUMAR .....Appellant
Through: Mr. Rishi Kumar and Mr. Jitender Tanwar, Advs. with appellant in person.
versus
MR RAKESH THAKUR AND ORS .....Respondents Through: None.
CORAM:
HON'BLE MR. JUSTICE PURUSHAINDRA KUMAR KAURAV
O R D E R % 19.11.2024
This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 03/07/2025 at 06:56:47
construction to the appellant/defendant.
“As the issue no. (i) and (ii) are inter connected so both are taken up together. The onus to prove both the issues were upon the plaintiff and in order to discharge the onus plaintiff got examined himself as PW-1. PW-1 specifically proved the affidavit as Ex. PW1/A and deposed that construction at third floor is not sanctioned by defendant no. 3MCD. Therefore any construction based over the roof of top floor i.e. third floor is unauthorized construction. PW-l has brought on record the house tax receipt Ex. PW-1/2. PW-1 also proved the photographs as Ex. PW-1/4 thereby showing the raising of columns by tying of fresh iron bars at already constructed roof surrounded by parafit and installation of already painted iron grill. The photographs also show the existence of ground plus three floors at the property in question which contains the painted iron grill on the front side roof of top floor i.e. the third floor. The defendant also failed to bring on record that he was having the sanctioned construction plan over the roof of third floor which further gives weightage to testimony of PW-l. On the golden scale of preponderance of
This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 03/07/2025 at 06:56:47
probability the plaintiff has brought on record that the defendant was raising the construction at roof of top floor/third floor of the property in question without having the construction Sanction plan to that effect. During cross examination of DW-l, the DW-1 himself has admitted that there is no reference of any construction upon fourth floor in the sale deed executed in his favour. DW-1 further stated that the property dealer assured him that the fourth floor is of defendant no. 1 and he can raise the construction upon same. DW-1 further admitted that he started construction at the top floor in July 2014 and gave the contract for said construction to defendant no. 2. DW-1 further admitted the suggestion that he had started the said construction at the roof of third floor and he did not ask the SDMC before starting the construction. He also not asked any other public authority before starting the construction. DW-l further admitted that he not paid house tax regarding the floor in which he is residing or the floor above that where he is raising the construction. DW-l further admitted that he do not have any written document to show that there was existing construction at the top floor when he purchased the said floor. Thus plaintiff has discharged his onus to prove both the issues. Accordingly, issue no. (i) and (ii) are decided in favour of plaintiff and against defendant. Defendant no. 1 is hereby restrained permanently from making any fresh construction including structural changes, in the suit property i.e. on the roof of third floor of the property in question (though named as second floor by builder/erstwhile owner counting the floor as ground floor, upper ground floor, first floor and second floor) of the property in question namely D-1/30, Third floor, Mahavir Enclave Part-I, Gali no. 6, New Delhi-110045. The defendant no. 1, 2 and 3 are hereby directed to remove/demolish the entire illegal and unauthorized construction, including the newly fixed iron columns at the roof of third floor of the property in question. ”
5. The first Appellate Court, on an appeal filed by the appellant/defendant, vide judgment dated 07.02.2024, affirmed the findings of the Trial Court. However, the findings of the Trial Court with respect to issue no. 3 were set aside by the Court on ground that in absence of any report of the structural engineer and precise identification of the damage on the common wall or flat of the respondents/plaintiffs, the appellant/defendant could not be directed to repair the entire flat of the respondents/plaintiffs or the suit property. The relevant issue no. 3 reads as under:-
This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 03/07/2025 at 06:56:47
“ Whether the Plaintiff is entitled to decree of mandatory injunction in his favour and against defendant no.1 whereby, defendant no. 1 may be directed to rebuild/reconstruct the partially dismantled wall(s) at common stairs and repair the cracks at internal roof and bathroom of plaintiff, as prayed in para no. 3 of prayer?”
PURUSHAINDRA KUMAR KAURAV, J
NOVEMBER 19, 2024/p/dp
This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 03/07/2025 at 06:56:47
1 issue framed by the court
Whether the appeal raised any substantial question of law against concurrent findings that the appellant's construction on the roof of the third floor was unauthorized.
Suresh Kumar
Mr Rakesh Thakur
Ors
Purushaindra Kumar Kaurav
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
