Delhi District Court
Mrs Jeet Kaur Bindra vs Mrs Pawan Deep Kaur on 30 August, 2024
IN THE COURT OF MS. TANIA SINGH
JSCC/ASCJ/GJ (WEST),
TIS HAZARI COURTS, DELHI.
Suit No. 13157/2016
CNR No. DLWT03-002969/2016
MRS. JEET KAUR BINDRA
W/o MR. DAVINDERJEET BINDRA
R/O J-8/120, FIRST FLOOR,
RAJOURI GARDEN, NEW DELHI-110027
2. MRS. SARLA RANI CHOUDHARY
W/o MR. KAILASH CHOUDHARY
R/O J-8/120, SECOND FLOOR,
RAJOURI GARDEN, NEW DELHI-110027
.....PLAINTIFFS
VERSUS
1. MRS. PAWAN DEEP KAUR
W/o DR. SATPAL SINGH
2. SH. GURPAL SINGH SANDHU
S/o S. KIRPAL SINGH SANDHU
BOTH R/O
H.NO. 18A, NEAR K.V.M. SCHOOL,
TAGORE NAGAR, CIVIL LINES LUDHIANA,
PUNJAB-141001
ALSO AT:-
J-8/120, GROUND FLOOR,
RAJOURI GARDEN, NEW DELHI-110027.
Smt. Jeet Kaur Bindra Vs. Smt. Pawan Deep Kaur 1/12
3. SOUTH DELHI MUNICIPAL CORPORATION
17TH FLOOR, CIVIC CENTRE,
MINTO ROAD, NEW DELHI
THROUGH COMMISSIONER.
.....DEFENDANTS
Date of filing of the suit : 15.09.2016
Date of reserving judgment : 29.08.2024
Date of pronouncement : 30.08.2024
JUDGEMENT
SUIT FOR PERMANENT & MANDATORY INJUNCTION
1. Vide this judgment, I shall decide the present suit filed by the plaintiff for Permanent and Mandatory Injunction.
2. It is the case of the plaintiff that defendant no.1 was the absolute owner of built up property no. 120, Block-J-8 measuring 160 sq. yds. Rajouri Garden, New Delhi (hereinafter referred to as Suit Property). Defendant no.1 & 2, upon passing of the sanctioned building plan by the MCD, had constructed the said property upto three floors with stilt parking and basement. Defendant no.1 had transferred the first floor to one Mr. Rahul Bhalla vide Sale Deed dated 18.07.2014 and second floor to Sh. Ashok Bhalla and Sh. Janak Bhalla vide Sale Deed dated 18.07.2014. Defendant no.1 & 2 are, however, in possession of the ground floor. Sh. Rahul Bhalla had transferred the first floor of the Suit Property to plaintiff no.1 vide sale deed dated Smt. Jeet Kaur Bindra Vs. Smt. Pawan Deep Kaur 2/12 05.07.2016 along with a separate and exclusive parking space measuring 8x24 ft. in the stilt parking area with the right to use the common area as well. The physical possession of the first floor of the Suit Property was handed over to her. Mr. Ashok Bhalla and Sh. Janak Bhalla had transferred the second floor of the suit property to defendant no.2 vide sale deed dated 09.08.2016 along with another exclusive parking space in the stilt area measuring 8x24 ft. with the right to use the common area. Therefore, plaintiffs are owner and in possession of the first and second floor of the Suit Property, and entitled to two separate exclusive parking space in the stilt area.
3. It is alleged that defendant no. 1 & 2 have divided the stilt area by way of fencing and therefore, creating obstruction in the common passage of the plaintiffs to the staircase and lift. A police complaint regarding this has also been filed on 23.08.2016. It is alleged that defendant no. 1 & 2 have locked the gates of the main door and therefore, causing hindrance to the use of the common portion of the stilt area for the plaintiff. It is further stated that plaintiffs have to go through the main road outside the Suit Property after parking their cars in the exclusive parking spaces in order to reach to the lift and the staircase.
4. By way of this suit, plaintiff has prayed that a decree of permanent injunction be passed restraining the defendant no.1 & 2 from creating any hindrance to the plaintiffs from using the Smt. Jeet Kaur Bindra Vs. Smt. Pawan Deep Kaur 3/12 common area of the stilt parking for common passage as well as in the ingress and egress of the plaintiffs to and from the Suit Property. Further, it is prayed that defendant no.1 & 2 be restrained from creating third party interest in the stilt area shown in red colour in the site plan annexed with the plaint. Further, it is prayed that a decree of mandatory injunction be passed against the defendants directing them to remove the illegal structure raised by defendant no.1 & 2 in the stilt parking area shown in the red colour in the site plan annexed with the plaint.
5. Upon institution of this case, summons were issued to the defendants. Thereafter, Written Statement was filed.
6. In the Written Statement, defendant no. 1 & 2 have admitted that plaintiff no.1 and 2, are owners in the Suit Property of their respective floors. However, it is denied that any exclusive parking space measuring 8x24 ft. is reserved for the plaintiff no.1 & 2 in the stilt parking area and that they have right to use the common area of the stilt. It is further stated that the parking area of the plaintiff no.1 & 2 is clearly described in the site plan attached with their respective Sale Deeds and in garb of filing the present suit, they cannot be allowed to usurp the area in the exclusive possession of defendant no.1 & 2. It is further stated that the Suit Property is measuring 60 Sq. yds. and it is open from three sides and the builder who has constructed the building Smt. Jeet Kaur Bindra Vs. Smt. Pawan Deep Kaur 4/12 has given separate car parking to all the owners. It is denied that act of defendant no. 1 & 2 by fencing the stilt area is creating any obstruction in area available for the common use of the plaintiffs.
7. In the Written Statement filed by defendant no. 3/MCD, it is stated that defendant no.1 & 2 have constructed a wooden partition in the stilt portion of the Suit Property which is not permissible under law and the Suit Property has also been booked vide file no. EE(B-1)/WZ/UC/14/338 dated 14.07.2014 for deviation and excess coverage against the sanctioned building plan from the basement upto third floor.
8. In the replication, the plaintiff has controverted the contentions raised in the Written Statement of the defendant no.1, 2 & 3 and reaffirmed the averments made in the plaint.
9. Upon the pleadings, the following issues were framed for trial.
1. Whether the plaintiff is entitled to decree of permanent injunction, as prayed for? OPP
2. Whether the plaintiff is entitled to decree of mandatory injunction, as prayed for? OPP
3. Whether the suit filed by the plaintiff is not maintainable for want of service of statutory notice under Section 477 and 478 of DMC Act? OPD3
4. Whether the suit filed by the plaintiff is liable to be Smt. Jeet Kaur Bindra Vs. Smt. Pawan Deep Kaur 5/12 dismissed for want of cause of action? OPD3
5. Relief.
10. In order to prove their case, plaintiffs have examined plaintiff no. 2 Smt. Sarla Rani Choudhary as PW-1 and she has reiterated the averments of the plaint by way of affidavit Ex.
PW1/A. She has also proved documents i.e.
(i) Sale Deed dated 11.08.2016 -Ex. PW1/1
(ii) Site plan - Ex. PW1/2
(iii) Copy of complaints - Ex. PW1/3, Mark A, B & C.
11. Thereafter, PE was closed vide order dated 23.05.2018 and matter was fixed for DE. Vide order dated 05.07.2024, right to lead defence evidence on behalf of defendant no.1 was closed and right to lead evidence on behalf of defendant 3 was closed vide order dated 10.10.2022. DE was closed on behalf of defendant no.2 on 05.05.2024 and matter was proceeded for final arguments.
12. I have heard the arguments on behalf of the parties and have perused the record. My issue wise findings are as under:-
Issue no. 1 & 2
1.Whether the plaintiff is entitled to decree of permanent injunction, as prayed for? OPP
2.Whether the plaintiff is entitled to decree of Smt. Jeet Kaur Bindra Vs. Smt. Pawan Deep Kaur 6/12 mandatory injunction, as prayed for? OPP
13. Both the issues are taken up together as they involve common discussion. The onus to prove both the issues was upon the plaintiffs.
14. It is an admitted position that plaintiff no.1 & 2 are the owners of the first floor and second floor of the Suit Property. D- 1 and D-2 are owners of the ground floor. Ex. PW1/1 i.e the sale deed executed in favour of PW-1, records that plaintiff no.1 is the owner of entire first floor of the Suit Property without roof rights. The vendor has also transferred the exclusive right of one parking space measuring 8x24 ft. in stilt parking area along with right to common use of lift and the common passage.
15. Plaintiffs have prayed that a decree of permanent injunction be passed restraining the defendant no.1 & 2 from creating any hindrance to the plaintiffs in using the common passage of the parking area as well as in the ingress and egress of the plaintiffs and from the Suit Property and also from creating third party interest in the area shown in red colour in the site plan. As far as a decree of mandatory injunction is concerned, it is prayed that defendants be directed to demolish the illegal construction/structure raised by defendant no.1 & 2 in the stilt parking area shown in the red colour in the site plan annexed with the plaint. Basically, it is the case of the plaintiffs that they Smt. Jeet Kaur Bindra Vs. Smt. Pawan Deep Kaur 7/12 are owners of two out of four floors in the Suit Property. The Suit Property is measuring 160 sq.yds. It is a three side open plot having gates opening to all three sides and by virtue of Sale Deed executed in favour of plaintiff no.2 i.e. Ex. PW1/1, plaintiff no.2 has been given exclusive right to park one vehicle at specific area measuring 8x24 ft in the stilt parking area of the Suit Property along with common right to use the entrance, lift, staircase, passage and submersible pump. By virtue of status report filed by MCD dated 20.02.2024 it has come on record that there is a wooden partition in the stilt parking area of the Suit Property which is not permissible under law and same is an unauthorized construction. It has further come on record that entire Suit Property has been booked for deviations from the standard building plan and excess coverage. The question of excess coverage and deviation is not a matter in issue in the present case and action may be taken by the MCD as per law against the same.
16. It has come on record that two adjacent separate parking in the stilt area are allotted to plaintiff no.1 & 2 and the remaining area which has come to the share of defendant no.1 & 2 have been separated by way of a wooden partition. The lift and staircase is on the side of the area of the defendants no. 1 and 2. This has led to a situation that plaintiffs after parking their car at their allotted spaces have to go outside the suit building and enter from different gate to access the lift and the staircase to enter into Smt. Jeet Kaur Bindra Vs. Smt. Pawan Deep Kaur 8/12 their own house. This situation which has been created by the construction of partition by defendant no.1 &2 is obstructing the right of the plaintiffs to use to the common passage at the stilt area and is completely impermissible as per the Unified Building Bye Law, Delhi 2016.
17. As per Clause 1.4111 dealing with stilt parking, the stilt parking is defined as " stilt or stilt floor means non habitable portion of a building above ground level consisting of structural columns supporting the super structure with at least two sides open for the purpose of parking cars, scooters, cycles and landscaping". And as per the clause 7.22 (h) construction of only one toilet is permitted in the stilt are with appropriate ventilation, drainage and sanitation provided that the maximum size does not exceed 4 sq. meter which shall not be counted towards F.A.R.
18. It has come on record on 14.03.2024 that D-3/MCD in a demolition action programme had demolished the said wooden partition in the stilt portion at the Suit Property and a wooden gate near the lift portion on 04.03.2024. Further, it has come on record that one Watch and Ward notice in respect of any further illegal construction in the Suit Property has been issued to the concerned SHO on 07.03.2024. Since the illegal unauthorized construction at the stilt portion of the Suit Property has been demolished by the MCD during the pendency of the case, therefore, relief with respect to decree of mandatory injunction Smt. Jeet Kaur Bindra Vs. Smt. Pawan Deep Kaur 9/12 has already been infructuous. Ld. Counsel for defendant no.1 & 2 had argued that the plaintiff have been allotted a specific area for parking of their vehicle in the stilt area and therefore, they have no locus to file this case claiming their right to use the area on which they have no right, title or interest and which falls in the share of defendant no.1 &2 for the purpose of parking for their own vehicles. It has to be borne in mind that stilt parking is supposed to remain open and it is not a habitable area and raising of partition walls even if temporary in the said area which has caused hindrance to the plaintiffs to access the lift and staircase for entering to their own property from inside the Suit Property, cannot be allowed. There is an apparent injury cause to the legal rights of the plaintiffs making them entitled to the relief of injunction as prayed for.
19. There is nothing on record to show that defendant no.1 & 2 are about to create third party interest in the area shown red color in the site plan. Such apprehension of the plaintiffs is not well founded from the evidence on record and therefore, injunction with respect to aforesaid relief is not granted. In view of the above, issue no.1 is partly decided in favour of the plaintiff and issue no.2 is dismissed as being in-fructuous.
Smt. Jeet Kaur Bindra Vs. Smt. Pawan Deep Kaur 10/12 ISSUE NO. 3 "Whether the suit of the plaintiff is barred under Section 477 and 478 of DMC Act? OPD3"
20. The onus of proving this issue was upon the defendant no. 3/MCD. It is pertinent to state that present suit has been filed seeking relief of permanent Injunction and mandatory Injunction. It is necessary to reproduce Section 478(3) of DMC Act, 1957:-
"Nothing in sub-section (1) shall be deemed to apply to a suit in which the only relief claimed is an injunction of which the object would be defeated by giving of the notice or the postponement of the institution of the suit".
21. Perusal of aforesaid provision reveals that the notice under Section 478 DMC Act may not be given in case the only relief claimed in the suit is injunction, provided the purpose of filing the suit shall itself be defeated upon giving the notice. The present suit is filed for relief of permanent and mandatory injunction only. The relief sought was thus of urgent nature & the purpose would have otherwise been defeated. Hence, this case is covered under Section 478(3) DMC Act and thus this issue is decided against defendant no.3.
ISSUE NO.4:
"Whether the suit filed by the plaintiff is liable to be dismissed for want of cause of action? OPD3".
Smt. Jeet Kaur Bindra Vs. Smt. Pawan Deep Kaur 11/12
22. The onus of proving issue no. 4 is on defendant no.3. No such evidence has been brought on record to prove this issue. As observed above, the plaintiffs have a valid cause to action to file this suit. Accordingly, this issue is decided against defendant no.3 and in favour of the plaintiffs.
RELIEF :-
23. In view of aforesaid discussion on the above said issues, present suit stands partly decreed and plaintiffs are held entitled to only the following reliefs:-
(i) A decree of permanent injunction is passed against defendant no.1 & 2 restraining them from creating any hindrance or obstruction in right of the plaintiffs in using the common open space at stilt area of the Suit Property bearing no. 120, Block-J-8 measuring 160 sq. yds. Rajouri Garden, New Delhi for their ingress and egress, to and from the Suit Property.
No order as to cost.
Decree sheet be prepared accordingly.
File be consigned to the Record Room as per rules.
Pronounced in the open court (Tania Singh)
On 30.08.2024. JSCC/ASCJ/GJ (WEST)
Delhi
Smt. Jeet Kaur Bindra Vs. Smt. Pawan Deep Kaur 12/12