Delhi District Court
Saji Joseph & Ors vs . Manoj Kumar Jha Page No. 1 Of 34 on 17 April, 2015
IN THE COURT OF Ms. TANVI KHURANA, CIVIL JUDGE01 (South)
SAKET COURTS NEW DELHI
In the Matter of:
Civil Suit No.479/14
Case ID No.02406C0320472013
1. Mr. Saji Joseph
S/o Late Sh. K.P. Joseph
R/o First Floor, Plot No. 886/1C,
Ward No.8, Min, Mehrauli,
Tehsil Hauz Khas, New Delhi.
2. Mr. Lais John
S/o Sh. M.J. John
R/o IInd Floor, Plot No. 886/1C,
Ward No.8, Min, Mehrauli,
Tehsil Hauz Khas, New Delhi.
3. Smt. Soumya Lais
W/o Mr. Lais John
(through Power of Attorney of Mr. Lais John)
R/o IInd Floor, Plot No. 886/1C,
Ward No.8, Min, Mehrauli,
Tehsil Hauz Khas, New Delhi.
4. Mrs. Leena Kurian
W/o Mr. Sunny Thomas
(Through Power of Attorney Mr. Sunny Thomas)
R/o IIIrd Floor, Plot No. 886/1C,
Ward No.8, Min, Mehrauli,
Tehsil Hauz Khas, New Delhi.
5. Mr. Umesh Kumar Singh
R/o Upper Ground Floor
Plot No. 886/1C,
Ward No.8, Min, Mehrauli,
Tehsil Hauz Khas, New Delhi.
Suit No.479/14
Saji Joseph & Ors Vs. Manoj Kumar Jha Page no. 1 of 34
6. Smt. Poonam Singh
W/o Sh. Umesh Kumar Singh
R/o Upper Ground Floor
Plot No. 886/1C,
Ward No.8, Min, Mehrauli,
Tehsil Hauz Khas, New Delhi. .............Plaintiffs
Versus
1. Sh. Manoj Kumar Jha
S/o Sh. Lootan Jha
D29A, Rajpur Khurd Colony
Behind Tiboli Garden,
Chattarpur, New Delhi74.
2.Mrs. Meenu Jha
W/o Sh. Manoj Kumar Jha
D29A, Rajpur Khurd Colony
Behind Tiboli Garden,
Chattarpur, New Delhi74. ............Defendants
Date of institution :20.11.2013/ 17.01.2014
Date of reserving the judgment :06.04.2015
Date of pronouncement :17.04.2015
Decision :Decreed
SUIT FOR DECLARATION, PROHIBITORY, MANDATORY
AND PERPETUAL INJUNCTION AND DAMAGES
Present: None for plaintiff.
Mr. Arun Srivastava, Ld. Counsel for defendant with
defendant No.1.
JUDGMENT:
The present suit has been filed for Declaration seeking the Sale Deed dated 04.06.2009 registered vide registration No. 6952, Addl Book No.1, Vol No. 9298 pages 84 to 91 dated 08.06.2009 in the name of defendant no.2 be declared null and void ab initio. In Suit No.479/14 Saji Joseph & Ors Vs. Manoj Kumar Jha Page no. 2 of 34 addition to this, relief of Prohibitory Injunction against demolition of wall, digging of floor, new construction in the parking area and selling, alienating the parking area to the third party, Mandatory Injunction directing defendants to remove the walls, bricks and other materials dumped by them in parking area, Perpetual Injunction restraining defendants from alienating, selling or creating third party interest or from entering the premises of the suit building or parking area and doing any construction work or occupying the parking area i.e. the ground floor and from obstructing the peaceful use and enjoyment of the parking area at the Plot No. 886/1C, Ward No.8, Min, situated in Abadi of Lal Dora of Village Mehrauli, Tehsil Hauz Khas, New Delhi (hereinafter referred as suit property) and damages have been sought.
Plaintiff's version as averred in the plaint:
2. Succinctly, it is averred that plaintiff No.1 is the owner of First Floor and plaintiff no.2 and 3 are owners of second floor.
Plaintiff No.2 is stated to be the constituted attorney of plaintiff no.
3. Plaintiff No.4 is averred to be the owner of third floor and her husband, Mr. Sunny Thomas is her attorney. Plaintiff No.5 and 6 are the owners of upper ground floor. Plaintiff No.2 is also the authorized attorney of plaintiff no.5 and 6. These floors are constructed at the suit property.
Suit No.479/14 Saji Joseph & Ors Vs. Manoj Kumar Jha Page no. 3 of 34
3. It is further averred that defendant no.1 trespassed into the parking area and has constructed his room by demolishing the guard room which was located at the inner corner of the parking area.
4. The relevant sequence of events is listed in brief below : a. Sh. Ashok Kumar Khatter was the original owner of the property who had purchased the entire building from Sh. Sanjay Mehta through a Registered Sale Deed and sold the respective floors with car parking at the ground floor to plaintiff no.1 vide Sale Deed dated 27.01.2009, to Sh. Sushil Kumar Aggarwal from whom plaintiffs no.2 and 3 purchased vide Sale Deed dated 27.09.2011, to plaintiff no.3 through his attorney, Mrs. Pushpa Rani vide Sale Deed dated 27.03.2012 and to Sh. Umesh Kumar and Smt. Poonam Singh vide Sale Deed dated 29.10.2009 ( plaintiff no.5 and 6).
b. All the plaintiffs were given the right of parking facility at ground floor (stilt parking).
c. In first week of November 2013, defendant no.1 started dumping bricks, sand and cement inside the parking area. On enquiry, defendant no.1 told the plaintiffs that he is the owner of back portion of the parking area. On next day, he started demolishing the wall of the guard room which was objected by the plaintiffs and complaint to that effect was made to the police authorities.
Suit No.479/14Saji Joseph & Ors Vs. Manoj Kumar Jha Page no. 4 of 34 d. The plaintiffs called Sh. Ashok Kumar Khatter through telephone to ask about the trespass and Mr. Khatter stated that he did not have any knowledge and also that defendant no.1 had no right in the parking area.
e. On 07.11.2013, plaintiffs again approached the police authority to file an FIR but no action was taken. Complaint was also made to SDMC but again in vain.
f. On 16.11.2013 and 18.11.2013, defendant no.1 forcefully started construction and further demolition of the room in the car parking area causing danger and damage to the entire building. g. It is averred that the alleged Sale Deed dated 04.06.2009 of defendant no.2 is a fabricated document and the entire transaction is bogus. The plinth area mentioned in the impugned sale deed is 33.45 sq. meters and it is not a part of total plinth area of the said building. It was averred that the documents of the plaintiffs and the other documents show that the total area of the plot is 87.82 sq.meters and the building consist of 4 flats i.e. upper ground floor, first floor, second floor and third floor with measured area of 87.82 sq. meters. The total plinth area is clearly mentioned as 351.30 sq. meters, therefore, the alleged 33.45 sq. meters at the ground floor is not calculated in the said total plinth area thereby reflecting that the alleged Sale Deed is forged and fabricated. It is also submitted that the ground floor is common parking space and cannot be sold U/S. 13 Delhi Building Byelaws.
Suit No.479/14Saji Joseph & Ors Vs. Manoj Kumar Jha Page no. 5 of 34
5. It is alleged that defendants are trespassers and have no right in the suit property, therefore, the present suit has been filed seeking Declaration and consequent injunctions. Defendants' version as per written statement:
6. On notice, defendants filed the written statement objecting to the maintainability of the present suit on the grounds that the plaint does not disclose any cause of action and is barred by Section 41, Specific Relief Act, 1963 and Proviso to Section 34 of the same Act. The suit was also questioned on the ground of limitation. It was submitted that the defendants have only repaired the property, therefore, there is no right of the plaintiffs to object to the repairs. Nonjoinder of Mr. Ashok Khatter was also questioned.
7. It was submitted that defendant no.2 had purchased area measuring 33.45 sq. meters from Sh. Ashok Kumar Khatter built on 105 sq. yds plot (87.82 sq. meters) vide Registered Sale Deed No. 6952 dated 04.06.2009 comprising of "ground floor alongwith common roof rights, undivided, proportionate, indivisible and impartible ownership right in land underneath with all fittings, fixtures, common water connection and separate electricity meter, structure standing thereon and all common facilities like staircase, common passage, common parking on parking area".
8. It is also submitted that defendant no.2 started tuition centre in the name and style of M/s Divine Study Centre which defendant no.2 ran successfully till 2013. Thereafter, defendant no. Suit No.479/14 Saji Joseph & Ors Vs. Manoj Kumar Jha Page no. 6 of 34 1 started repair works for his office at the premises in question as by then he had become an Advocate. It was also mentioned that since April, 2010 to March, 2011, one room with common bathroom and toilet were let out to Sh. Himanshu Sachan @ Rs. 3,500/ per month. In April, 2011 one room was let out to Sh. Sanjeet Sharma @ Rs.5,000/ who started the work of marketing of water purifiers.
9. It is submitted that in first week of November, 2013, the defendants with the view of repairing the property according to Vaastu Principles started the repair works for interchanging the place of the window and the main entrance in order to enjoy the property conveniently. The ground floor is stated to be divided into two portions, one is the entrance, ramp, staircase and common parking and other is two rooms of flat measuring 33.45 sq. meters owned and possessed by the defendants.
10. On merits, the contents of the plaint were admitted to the extent of the status and title of the plaintiffs of their respective floors but the authorized representative were denied. Rest of the contents were also denied and it was submitted that the structure of defendants' flat is very old. The title of the defendants were maintained. It was denied that the Delhi Building Byelaws bar the selling of the portion of the suit property in question. Rest of the averments and allegations were denied and dismissal of the suit was prayed for.
Suit No.479/14Saji Joseph & Ors Vs. Manoj Kumar Jha Page no. 7 of 34 Replication:
11. Plaintiffs had filed the replication to the written statement filed by defendants denying the contents of the written statement maintaining the maintainability of the present matter. The claim sought in the plaint was reaffirmed and maintained. It was also mentioned that there is no kitchen or toilet in the premises in question. It was again mentioned that there is no other parking space available to the plaintiffs and defendants have created false documents. It was prayed that the declaration and injunctions be granted.
Identification of issues:
12. Admission/ denial of the documents was conducted by the parties. Parties had not opted for any of the means provided u/s 89 CPC. From the pleadings of the parties following issues were framed vide order dated 04.04.2014.
Issue no. 1 Whether the plaintiff is entitled to the declaration declaring the sale deed dated 04.06.2009 in favour of defendant no. 2 is null and void? OPP Issue no. 2 Whether the plaintiff is entitled to prohibitory injunction against the defendant etc. to stop the demolition of wall , digging of floor, stop construction of new wall and room in parking area and from alienating the parking area as prayed for ? OPP Issue no. 3 Whether the plaintiff is entitled to mandatory injunction as prayed for ? OPP Suit No.479/14 Saji Joseph & Ors Vs. Manoj Kumar Jha Page no. 8 of 34 Issue no. 4 Whether the plaintiff is entitled to perpetual injunction as sought in prayer (c) as prayed for ? OPP Issue no. 5 Whether the suit is not maintainable in the present form as the suit has been filed without any cause of action? OPD Issue no. 6 Whether the present suit is not maintainable as being barred Section 41 Specific Relief Act, 1963 and Proviso Section 34 SRA and law of estoppel?OPD Issued no.7 Whether the suit is barred by law of limitation? OPD Issue no.8 Whether the suit is bad for nonjoinder of necessary parties, if yes, its effect?OPD Issue no.9 Whether the suit is not maintainable as proper valuation has not done and court fees has not been filed. ?OPD Evidence:
13. Plaintiff examined following witnesses:
(i) PW1 : Sh. Sunny Thomas who deposed vide his affidavit, Ex. PW1/A and placed reliance upon :
S. No. Exhibit / Mark Nature of Document
1 Ex. PW1/1 Special Power of Attorney dated
19.11.2013.
2 Ex. PW1/2 Copy of Sale deed dated 17.04.2008
(admitted).
3 Mark A (marked as Ex. Copy of sale deed dated 13.07.2009.
PW1/3 in the affidavit)
4 Mark B (marked as Ex. Copy of sale deed dated 18.12.2008.
PW1/4 in the affidavit)
5 Ex. PW1/5 (colly) (OSR) Receipts of property tax, electricity bill,
telephone bill etc. (9 pages)
Suit No.479/14
Saji Joseph & Ors Vs. Manoj Kumar Jha Page no. 9 of 34
6 Mark C (marked as Ex. Photographs (4 in number)
PW1/6 in the affidavit)
(ii)PW2 : Mr. Saji Joesph ( Plaintiff No.1) who deposed vide his affidavit Ex.PW2/A and placed reliance upon : S. No. Exhibit / Mark Nature of Document 1 Ex. PW2/1 (OSR) The certified copy of the sale deed dated 27.01.2009 2 Mark A Tax receipt dated 18.06.2013 3 Mark B Tax receipt dated 25.06.2013 4 Ex. PW2/2 Electricity bill date 29.03.2014.
(iii) PW3 : Mr. Lais John ( Plaintiff No.2) who deposed vide his affidavit Ex.PW3/A and placed reliance upon : S. No. Exhibit / Mark Nature of Document 1 Ex. PW3/1 Special Power of Attorney dated 19.12.2013 2 Ex. PW3/2 (colly) Email dated 11.02.2014 (certificate under Section 65 B IEA Annexed) 3 Ex. PW3/2 (colly) Special Power of Attorney 07.04.2014 4 Ex. PW3/3 Sale deed dated 27.09.2011 (true copy) 5 Ex. PW3/4 Sale deed dated 29.10.2009 (true copy) 6 Ex. PW3/5 (colly) Receipt from MCD/property tax containing (OSR) three pages 7 Ex. PW3/6 (colly) Electricity bill 8 Mark P3 (Marked as Ex. Rent Agreement.
PW3/7 in the affidavit)
14. Thereafter the evidence of the plaintiff was closed vide a separate statement.
Suit No.479/14 Saji Joseph & Ors Vs. Manoj Kumar Jha Page no. 10 of 34
15. Defendant no. 1 stepped into witness box as DW1 and deposed vide his affidavit Ex.DW1/1 and placed reliance upon the following documents :
S. No. Exhibit / Mark Nature of Document
1 Ex. DW1/A Special Power of Attorney
2 Ex. PW1/2 Sale deed dated 17.04.2008 (already exhibited by
plaintiff)
3 Ex.DW1/B Sale deed dated 04.06.2009 (document objected
(OSR) by Ld. Counsel for plaintiff as paragraph no. 3 of
the affidavit mentions the date of the sale deed as 04.06.2008 in stead of 04.06.2009. Objection to be decided at the final stage) 4 Ex. DW1/C Site plan 5 Ex. DW1/D Electricity bill dated 27.10.2013 6 Ex. DW1/E Envelopes stating address (03) (colly)
16. This is entire evidence produced by the parties in the present case.
Arguments:
17. Ld. Counsel for plaintiff argued that defendant no. 1 and 2 trespassed in the property in first week of November and claimed to be owner and also started construction whereas area in question was the common parking area. He placed reliance upon judgment of Nihalchand Laluchand Vs. Cooperative Society to argue that no construction can be carried out in the stilt area. He further argued that there is no Ground Floor at the property rather there is parking area and the floor above is Upper Ground Floor and so on in the property. Basic thrust of the arguments were placed the Suit No.479/14 Saji Joseph & Ors Vs. Manoj Kumar Jha Page no. 11 of 34 plinth area calculation mentioned in the title documents of the plaintiffs. It was mentioned that total area of the Plot is 87.82 Sq. Meters and total plinth area in the property is 351.30 Sq. Meters. Therefore, it was argued that calculation of plinth area itself shows that there is no space for any construction as alleged by defendant rather the total area constructed are floors and ground floor (parking area) was left unconstructed for parking cars etc. It was also argued that it was clearly mentioned in title deeds that all plaintiffs have common parking area then the common parking area become unsaleable and sale deed of the defendant no.2 should be declared null and void.
18. It was further argued that defendant no. 2 in whose name the document is executed has not stepped into the witness box to prove the contentions taken in written statement. He further argued that the documents have not been proved. He placed reliance upon Sudhir Engineering Company Vs. Nitco Roadways and Ltd., 1995 (34) DRJ 86. It was also argued that mere signature of executant on a sale deed will not prove the authenticity of the deed. Reliance was placed upon Prakash Cotton Mills Vs. Mumbai Commissioner, AIR 1982 Bom 387. It was also argued that none of the executants have been examined therefore the document is not proved. Reliance was placed upon ESIC Vs. M/s Pahalwan Hotel FAO No. 217/2002 decided on 14.12.2009 by Hon'ble High Suit No.479/14 Saji Joseph & Ors Vs. Manoj Kumar Jha Page no. 12 of 34 Court at New Delhi. Reliance was also placed on Smt. Sheila Devi & Anr. Vs. Smt. Santosh Devi, RSA No. 104/2011 decided on 03.01.2014 by Hon'ble High Court at New Delhi.
19. It was argued that Registrar has not been summoned to prove the registration, executants did not come to the court and defendant no. 1 could have only deposed for himself and not for defendant no. 2. He also questioned the contention of the tuition center being run at the property. He also argued that the none of witnesses were called despite their names being mentioned in the list of witnesses and rent agreement, if any was also not placed on record. He also raised questions upon the possession of the plaintiffs questioning that there is no ration card, house tax receipt, voter ID, utility bill or any identity card in the name of either of defendants from the same property.
20. It was further argued that there was no delay in filing the suit and suit was subsequently amended to include declaration. It was also mentioned that common areas are not clarified. Reliance was placed upon the judgment of Sandra Les Ley Ann Bartels Vs. Sri Paul Manoharan Moses, RFA No. 1809/2013 decided on 17.03.2015 by Hon'ble High Court of Kanataka.
21. It was also argued that court fees was not correct and reliance was placed on the judgment of Suhrid Singh @ Sardool Singh Vs. Randhir Singh and Ors, in Civil Appeal Nos. Suit No.479/14 Saji Joseph & Ors Vs. Manoj Kumar Jha Page no. 13 of 34 28112813 of 2010 decided on 29.03.2010 by Hon'ble Supreme Court of India, Mumbai International Airport Vs. Regency Convention Centre & Hotels in Civil Appeal No. 4900 of 2010 decided on 06.07.2010 by Hon'ble Supreme Court of India was relied in order to support the contention that Mr. Ashok Kumar Khattar was not a necessary party as no relief was claimed from him. He pointed out to the cross examination of the witnesses. He questioned the envelopes placed on record by defendant no. 1 wherein address of the suit property is also mentioned. It was argued by Ld. Counsel for plaintiff that this address is mentioned merely as secondary address and no conclusion can be drawn from envelopes placed on record.
22. Per contra, Ld. Counsel for defendant argued placing reliance upon Section 110, Indian Evidence Act questioning the burden of proof in this matter. He argued that burden was upon the plaintiff to show that defendant is not owner of the property. He further mentioned that DW1 is not only husband of the owner but also witness to the document, Ex. DW1/B (OSR). He further argued that suit in present form is not maintainable as plaintiffs have not sought possession of the suit property. Also declaration is only sought for declaring sale deed of defendants as null and void. However, declaration that entire ground floor is parking area and plaintiffs are owners thereof has not been sought. Not making Mr. Suit No.479/14 Saji Joseph & Ors Vs. Manoj Kumar Jha Page no. 14 of 34 Ashok Kumar Khattar as a party to the present suit was also questioned. It was further argued that the allegations of the plaintiffs are merely bald statements and have not been accompanied by any complaints to the police/SDMC or other authorities.
23. Ld. counsel also argued that height of the premises in question is habitable height it is beyond eight feet therefore, the Ground Floor is proper Ground Floor and not merely a stilt area. He also pointed out to the original sale deed Ex. PW1/2 and argued that the original seller also did not mention the area as parking area or car parking rather it was clearly mentioned to be Ground Floor. He also mentioned that Guard Room is not mentioned in any of the sale deeds. He pointed out that in cross examination, PW1 had mentioned that point X as the Guard Room whereas later PW3 mentioned point P, Q,S as Guard Room. He argued that in fact there was no Guard Room at all. He also mentioned that there was no demolition or construction done at the property rather only minor renovation work whereby the place of the window and door of the property of the defendant were interchanged and other such small changes was carried out. He further summed it up by arguing that Ground Floor is in existence. It is not merely stilt area. There were no documents to show any trespass. Even existence any Guard Room was challenged. It was stated that plaintiffs could not establish that the sale deed was Suit No.479/14 Saji Joseph & Ors Vs. Manoj Kumar Jha Page no. 15 of 34 under valued or was executed in connivance with Mr. Ashok Kumar Khattar. He also mentioned that there is no cross examination carried out on the point of ownership of the defendant no. 2. He placed reliance Sudeep Singh Sabharwal Vs. Shahnaz Arfi, RFA No. 217/2012 by the Hon'ble High Court of Delhi.
24. I have heard the arguments in detailed and also have gone through the written submissions filed. I have perused the entire case record meticulously including pleadings of the parties, testimonies on record and documents filed as documentary evidence in the present matter. My issue wise findings are as below:
Issue no. 1:
Whether the plaintiff is entitled to the declaration declaring the sale deed dated 04.06.2009 in favour of defendant no. 2 is null and void?
25. The onus to prove this issue was upon the plaintiffs. The plaintiffs have sought declaration that sale deed dated 04.06.2009 in favour of defendant no. 2 be declared as null and void. The grounds sought for declaring Sale Deed as null and void are stated to be firstly, that the plaintiffs are the owners of the parking area by virtue of their sale deed wherein it is mentioned that common parking has been granted to the purchasers. It is the case of the plaintiffs that once the area has been designated as common parking, the sale deed of the defendant no. 2 becomes null and void as that area could not be sold. Secondly, it is the case of that Suit No.479/14 Saji Joseph & Ors Vs. Manoj Kumar Jha Page no. 16 of 34 plaintiffs that documents are sham documents and have been fabricated by defendants.
26. It was upon the plaintiffs to establish both grounds for seeking declaration that the alleged documents i.e. sale deed dated 04.06.2009 executed by Sh. Ashok Kumar Khattar in favour of Smt. Meenu Jha for sale of "flat on the ground floor along with common roof right measuring approximately 360 Sq. feet i.e. 33.45 Sq. Meters in property no. 886/1C, Ward No. 8, being part of Khasra No. 1151/3 min situated in abadi of Lal Dora of Village Mehrauli, Tehsil Hauz Khas, New Delhi along with the undivided, proportionate, indivisible & impartible ownership rights in the land underneath with all fitting, fixtures, common water connection and separate electricity meter, structure standing thereon and all common facilities like staircase, common passage, common parking at the parking area " is null and void.
27. The document was duly registered on 04.06.2009. Vide certificate No. INDL01370225198622 H and registration No. 6952 in additional Book No. 1 Volume no. 9, 298 on page no. 8491 on 08.06.2009. The document is duly registered document therefore by law presumption is attached to the authenticity of the document. In order to rebut the presumption, plaintiffs placed reliance upon their own sale deed which mentioned "common parking." Suit No.479/14 Saji Joseph & Ors Vs. Manoj Kumar Jha Page no. 17 of 34
28. The document filed, Ex. PW1/2 is the sale deed between Mr. Sanjay Mehta and Mr. Ashok Kumar Khattar, by dint of which the entire building was sold. Area mentioned in this sale deed was Ground floor, Upper Ground Floor, First Floor, Second Floor and Third Floor. It is pertinent to note that this sale deed does not mention the area in question to be parking area or stilt parking rather it is mentioned to be the Ground Floor. The total area of the plot is mentioned as 88 Sq. meters, total plinth area of the building is recorded as 440 Sq. meters and each Flat is mentioned as 88 Sq. meters.
29. Ex. PW2/X is registered General Power of Attorney dated 23.04.2008 by dint which Sh. Ashok Kumar Khattar made Smt. Pushpa Rani as his attorney for Second and Third Floor of the building. This documents mentions that "common parking" was also transferred as a right in the property. Total area of the Plot was mentioned to be 87.8 Sq. meter the total plinth area was mentioned to be 351.359 Sq. meters and plinth area of two flats at Second Floor and Third Floor were mentioned as 175.6 Sq. meters. It is pertinent to note that none of the plaintiffs have averred that Mr. Ashok Kumar Khattar had demolished any part of the construction before selling the property or any modification was carried out for reducing the constructed area by Mr. Khattar from 17.04.2008 to 23.04.2008 i.e. date of purchase to the date of Suit No.479/14 Saji Joseph & Ors Vs. Manoj Kumar Jha Page no. 18 of 34 executing attorney in favour of Smt. Pushpa Rani. However, still total plinth area of the building was mentioned as 351.359 Sq. meters though the original sale deed between Mr. Sanjay and Mr. Ashok Kumar Khattar i.e. Ex. PW1/2 mentioned total plinth area to be 440 Sq. meters.
30. Ex. PW1/4 is sale deed dated 18.12.2008 wherein the Upper Ground Floor has been sold by Mr. Ashok Kumar Khattar to Ms. Babita. Plot area and plinth area of the Flat is mentioned as 87.82 Sq. meters and total plinth area mentioned as 351.30 Sq. meters. The sale deed also provides that Upper Ground Floor was sold with "common parking".
31. Ex. PW1/3 is sale deed dated 13.07.2009 for the second floor wherein Smt. Pushpa Rani attorney of Mr. Ashok Kumar Khattar had sold the second floor to Sh. Sushil Kumar Aggarwal. In this sale deed for the very first time it was mentioned that sale transaction was for second floor along with common "Car" parking. The total area and plinth area of the second floor was mentioned as 87.7905 Sq. meters and plinth area of the building was mentioned to be 351.162 Sq. meters. There are minor variations in total area and plinth area in this sale deed from General Power of Attorney i.e. Ex. PW2/X wherein plinth area was mentioned to be 351.3 Sq. Meters for entire building and area was mentioned to be 87.82 Sq. Meters whereas in this deed there Suit No.479/14 Saji Joseph & Ors Vs. Manoj Kumar Jha Page no. 19 of 34 are variations as have been mentioned above. There is nothing in pleadings to show how these variations crept into the sale deed. Though presumably no modifications were done.
32. Ex. PW2/1 (OSR) is sale deed for the first floor dated 23.09.2009 between Sh. Ashok Kumar Khattar and Sh. Saji Joseph. The plinth area of the entire property is mentioned to be 351.30 Sq. Meters and area of the plot and plinth area of the flat at first floor is mentioned as 87.82 Sq. Meters. Though this measurement matches with the sale deed of Upper Ground Floor but it is in variance with the sale deed of the Second Floor and original sale deed Ex. PW1/2 of the entire building. Moreover, for the very first time it appears in sale deed that transfer of the First Floor was done along with "common parking on parking area". Nonetheless, recital of the sale deed does not describe the parking area.
33. Ex. PW3/4 is sale deed of Upper Ground Floor dated October 2009 from Mrs. Babita to Mrs. Poonam and Mr. Umesh. The measurement of the total plinth area and total area of the plot and floor matches with Ex. PW1/4 which was the earlier sale deed of the same flat. However, in Ex. PW1/4 the word was only "common parking" but in this sale deed phrase was modified to "common parking at parking area".
34. Ex. PW3/3 is sale deed of the second floor between Mr. Sushil Kumar and Mr. Lais John and Smt. Soumya Lais John. The Suit No.479/14 Saji Joseph & Ors Vs. Manoj Kumar Jha Page no. 20 of 34 total area of the plot and plinth area is now mentioned as 87.80 Sq. meters and plinth area of the entire building is mentioned as 439 Sq. meters. It is pertinent to note that seller in this transaction derived his rights from Ex. PW1/3 wherein the measurements were written to be different as area of the plot and flat was mentioned as 87.7905 Sq. meters. It is a very minor deviation which can be completely ignored. Nevertheless plinth area has drastically changed of the entire building from 351.162 Sq. meters to 439 Sq. meters. Witness PW3 had tried to explain the deviation and had stated that it was result of clerical error in drafting of the sale deed. He also mentioned during the cross examination that it was not rectified as rectification was expensive. Despite deposition, sale deed is a registered documents and rectification was considered. It cannot be forgotten that Section 92, Indian Evidence Act bars oral testimony for any modification etc. in case of a written document such as Ex. PW3/4. Further, deposition by PW3 also do not fall with in the exception provided in Section 92, Indian Evidence Act. Another important fact to be noted from this sale deed dated 20.09.2011 is that here phrase used is "Common Car Parking at Ground Floor".
35. Ex. D1 is sale deed for Third Floor wherein Smt. Pushpa Rani Attorney holder of Mr. Ashok Kumar Khattar sold the property on 23.03.2012 to Smt. Leena Kurian. In this document the Suit No.479/14 Saji Joseph & Ors Vs. Manoj Kumar Jha Page no. 21 of 34 total plinth area of the building and total plinth area of the flat completely matches identically with the Ex. PW1/3 which was sale deed executed for the Second Floor by Smt. Pushpa Rani. Despite matching with the EX. PW1/3 measurements defer from the Ex. PW1/4, Ex. PW2/1, Ex. PW3/3 and Ex. PW3/4. Further it also defers from Ex. PW1/2. These are various documents of the plaintiffs produced on record for convenience. This court has summarized the documents in the table below.
S. No. Document no. Parties Floor Total Plinth Parking
Area (in sq.
M)
1 Ex.PW1/2 Mr. Sanjay Entire 440 No mention
(Sale deed) Mehta & Mr. building (ground
Ashok Kumar floor)
Khattar
2 Ex.PW1/X Sh. Ashok Kr. II & III 351 Common
(GPA) Khattar & Smt. parking
Pushpa Rani
3 Ex.PW1/4 Sh. Ashok Kr. UGF 351.30 Common
(Sale deed) Khattar & Ms. parking
Babita
4 Ex.PW1/3 Smt. Pushpa II 351.62 Car parking
(Sale deed) Rani & Sh.
Sushil Kr.
Aggarwal
5 Ex.PW2/1 Sh. Ashok Kr. I 351.30 Common
(OSR) Khattar & Sh. parking on
(Sale deed) Saji Joseph parking area
6 Ex.PW3/4 Mrs. Babita & UGF 351.30 Common
(Sale deed) Mrs. Poonam parking at
Mr. Umesh parking area
7 Ex.PW3/3 Mr. Sushil II 439 Common car
(Sale deed) Kumar & Mr. parking at
Lais John ground floor
Smt. Sommya
Lais John
Suit No.479/14
Saji Joseph & Ors Vs. Manoj Kumar Jha Page no. 22 of 34
8 Ex.D1 Smt. Pushpa III 351.162 Common car
(Sale deed) Rani parking at
& ground floor
Smt. Leena
Kurian
36. From close perusal of all these documents conclusions that can be drawn relevant for disposal for the present issue are:
(a) Plinth area of the total building differs in sale deeds. Original sale deeds of the entire building mentioned it as 440 Sq. meters and with time it differs. The best example is the GPA of Second Floor and Third Floor which was executed almost a week later and total plinth area changed to 351.30 Sq. meters. It is mentioned as 351.162 Sq. meters in two of the sale deeds and 439 Sq. meters in one of the sale deed. It is indicatory factor that concrete conclusions can not be drawn upon the plinth area of the premises from these documents. Further, during the course of cross examination plaintiffs had agreed that property also has a basement like structure therefore in such case merely by calculating the plinth area of all the Flats, no conclusion can be drawn towards the total plinth area of the property.
(b) Further the original sale deed Ex. PW1/2 does not mentioned about any specific parking area rather it is described as "Ground Floor" only. The sale deeds before June, 2009 (04.06.2009 is the date of execution of the documents of defendant no. 2) mentioned only common parking. In Ex. PW1/3 dated 13.07.2009 the phrase Suit No.479/14 Saji Joseph & Ors Vs. Manoj Kumar Jha Page no. 23 of 34 is changed to "car parking". In Ex. PW2/1 (OSR) dated 23.09.2009 it changes to "common parking on parking area" which is repeated in Ex. PW3/4 dated October, 2009 in Ex. PW3/3 dated 20.09.2011 the phrase is modified as "common car parking on Ground Floor" which is again repeated in Ex. D1 dated 23.03.2012.
37. From the above two conclusions drawn from the documents it can be inferred that document do not speak cogently about the plinth area therefore complete reliance can not be placed upon the recital of plinth area in the documents. Further none of the documents mentioned the area of the parking space. The documents without fail mentioned that common parking rights are attached with the Floor/ Flat purchased but area of the parking lot has not been mentioned in any of the sale deeds. Surprisingly, phrase of "common parking" changes in sale deeds subsequent to the sale deed executed in favour of defendant no. 2. The first ground of plinth area and also about parking lot has been been comprehensively established by plaintiffs. Moreover due to no site plan attached to any of the sale deed, no conclusion can be drawn upon the parking area at the Ground Floor. It can not be determined only from above sale deeds that as rights at common parking vested with the plaintiffs hence, the Ground Floor could not have been sold thereby necessarily implying that sale deed would have been null and void in such a case.
Suit No.479/14Saji Joseph & Ors Vs. Manoj Kumar Jha Page no. 24 of 34
38. The second ground mentioned for declaration was that the document is a sham document fraudulently fabricated by defendants. In catena of judgments on the similar issue Hon'ble Supreme Court has categorically held that onus to prove fraud, misrepresentation, mistake and such like circumstances is upon th person who asserts fraud etc. Therefore onus was on the plaintiffs to establish the circumstances of fraud cogently and coherently on the record. Court seeks guidance from various judgments such as Alva Aluminium Limited Vs. Gabriel India Limited, (2011) 1 SCC 167, S. Kaliyammal Vs. K. Palaniammal, AIR 1999 Mad. 40 and Chopra Hospital Vs. Usha Chopra, 141 (2007) DLT 693.
39. In order to discharge the onus of proving the fraud, plaintiffs did not lead any specific evidence which might have reflected upon the circumstances of alleged fraud. Executor of the sale deed i.e. Sh. Ashok Kumar Khattar was also not called into the witness box to prove the recitals of the sale deeds. From the face of the record and also from perusal of the documents in question this court can not observe the element of fraud. The sale deed in question is dated 04.06.2009 i.e. prior to the sale deeds of all the plaintiffs. Plaintiff no. 5 and 6 had purchased the property in October 2009. Plaintiff no. 1 had purchased the property on 23.09.2009, plaintiff no. 2 and 3 had purchased the property on 29.09.2011 and plaintiff no. 4 had purchased the property on Suit No.479/14 Saji Joseph & Ors Vs. Manoj Kumar Jha Page no. 25 of 34 23.03.2012. Therefore impugned sale deed of defendant no. 2 is prior in time has also been registered prior to sale deed of the plaintiffs. Plaintiffs could not rebut the presumption of authenticity attached with the registered document Ex. DW1/B (OSR).
40. It is an admitted fact that defendants are in possession over the disputed portion. It has been mentioned in plaint that defendants had trespassed into the property in November, 2013. It clearly implies that possession was with the defendants at the time of filing of the present suit. Therefore, the relief of possession was a consequential relief necessary for seeking the relief of declaration. Section 34, Proviso clearly provides that declaration can not be granted unless consequential relief has been sought. Legislature itself exercise of its wisdom has laid that "further relief" in Section 34 Specific Relief Act should be sought for the grant of declaration. This "further relief" has been later amply clarified and construed in plethora of judgments which have held that further relief mentioned in Proviso to Section 34, Specific Relief Act refers to consequential relief.
41. In this case relief of possession should have been the consequential relief therefore again declaration can not be granted. Even if this is not considered still, the plaintiffs have failed to establish both the grounds stated for seeking declaration of the sale deeds as null and void.
Suit No.479/14 Saji Joseph & Ors Vs. Manoj Kumar Jha Page no. 26 of 34
42. Another question that is arisen in this issue is that whether the area in question in possession of the defendants is only stilt parking area or is the entire ground floor. None of the sale deed show the area merely as stilt parking rather sale deed Ex. PW1/2 which lays down the entire structure of the building floor wise recites land to be "Ground Floor". However, height of the ground floor seems to be habitable height and portion in question i.e. having area 33.45 Sq. meters does not appear to be merely stilt parking. This issue is therefore decided against plaintiffs and in favour of defendants.
Issue no. 2:
Whether the plaintiff is entitled to prohibitory injunction against the defendant etc. to stop the demolition of wall , digging of floor, stop construction of new wall and room in parking area and from alienating the parking area as prayed for ? OPP
43. The onus to prove this issue was upon the plaintiffs as plaintiffs had sought permanent injunction against any kind of demolition of walls, digging of floor, construction of new walls, room in parking area and further restraining from alienating the parking area to the third party.
44. The same evidence was led to establish this issue. The documentary evidence of the sale deeds is dominant evidence in this matter. Defendants can only assert their rights over their portion of 33.45 Sq. meters as per their sale deed Ex. DW1/B Suit No.479/14 Saji Joseph & Ors Vs. Manoj Kumar Jha Page no. 27 of 34 (OSR). Further any construction in portion has to be with due care to the structure of the building. It can not be forgotten that in major demolition at the Ground Floor can affect the super structure. However, no such apprehension is revealed from the pleadings.
45. Plaintiffs have based their case on a photograph which shows cracks in plaster. Photographs have not been duly established therefore not much reliance can be placed upon the one photograph to show that damage is caused to the building.
46. This issue is accordingly decided in favour of the plaintiff to the extent of portion of the Ground Floor as car parking barring the land mesauring 33.45 sq. Meters towards the end. Issue no. 3:
Whether the plaintiff is entitled to mandatory injunction as prayed for ? OPP
47. The onus to prove this issue was also upon plaintiffs.
Plaintiffs seeking removal of the wall of the rooms constructed by defendants, bricks lying there and other material dumped by him in the parking area.
48. As far as the wall of the rooms in that area of 33.45 Sq.
meter at the end of Ground Floor is concerned, plaintiffs have failed to show that defendants do not have any right other it. However, any bricks or material or other debris if have been dumped in parking area i.e. front portion of the Ground Floor after leaving 33.45 Sq. meters area towards the back needs to be Suit No.479/14 Saji Joseph & Ors Vs. Manoj Kumar Jha Page no. 28 of 34 removal. Hence, this issue is accordingly decided in favour of plaintiff.
Issue no. 4:
Whether the plaintiff is entitled to perpetual injunction as sought in prayer (c) as prayed for ?
49. The onus to prove this issue was upon plaintiffs. Plaintiffs have sought restraint order against alienating, selling or creating third party interest. This issue has already been dealt in issue no. 2.
50. Plaintiffs have also sought restraint order against defendant stopping them from entering premises, parking area and doing construction work and occupying the parking area and obstructing the peaceful enjoyments of the parking area.
51. Plaintiff have failed to establish that the defendants do not have any interest on the Ground Floor therefore this issue is decided against plaintiff. Further reason mentioned in issue no. 1 and 2 be read part and parcel of this issue. Court is not mentioning it again to avoid repetition. Though, it is not mentioned in issue however, plaintiffs have also claimed damages, no reason can be observed for claiming damages. No evidence has been led and also damages have not been quantified. This relief is also not to be granted.
Issue no. 5:
Whether the suit is not maintainable in the present form as the suit has been filed without any cause of action? Suit No.479/14 Saji Joseph & Ors Vs. Manoj Kumar Jha Page no. 29 of 34
52. The onus to prove this issue was upon defendants. Basic premise behind this issue was that there is no cause of action in favour of plaintiffs. Relief of declaration has been duly discussed in issue no. 1 wherein this court did not find any cause of action in favour of the plaintiff. However, plaintiffs have shown their cause of action as far as the relief of injunction in front portion of the Ground Floor is concerned which can be distinguished as parking area in this case (after leaving 33.45 Sq. meter towards the end of the Ground Floor). Therefore, this issue is accordingly decided against the defendants.
Issue no. 6:
Whether the present suit is not maintainable as being barred Section 41 Specific Relief Act, 1963 and Proviso Section 34 SRA and law of estoppel?
53. The onus to prove this issue was upon defendants. There are three points of contention in this issue: (1) that suit is barred by Section 41 Specific Relief Act, 1963.
(2) suit is barred by Section 34 Specific Relief Act (3) that suit is barred by law of estoppel.
For sake of convenience each of these contentions is dealt separately.
First : Section 41 Specific Relief Act:
54. The defendants have stated that plaintiffs have acquiesced with the sale deed of defendants. Therefore there is no ground for Suit No.479/14 Saji Joseph & Ors Vs. Manoj Kumar Jha Page no. 30 of 34 granting injunction. Further it was submitted that there is equally efficacious relief and conduct of the plaintiffs disentitled them from seeking injunction. It was also submitted that plaintiffs have no personal in interest in the matter. It can be noted that plaintiffs also reside and own the premises in the same building therefore they definitely have right in case their building is damaged hence, relief of injunction sought can not be held to be barred. Further this court can not see any circumstances wherein the plaintiffs have acquiesced the breach or the sale deed of the defendants. This contentions is not tenable.
Second: 34 Specific Relief Act:
55. This contention has already been discussed and decided in issue no. 1. However, it will not render the entire case not maintainable as Section 34 Specific Relief Act only applies to relief of declaration and not to relief of injunctions. Third: Estoppel:
56. Defendants have not shown any documentary or oral testimony to establish to estoppel in this matter. It can not be concluded that it was representation of the plaintiffs upon which the defendants had acted. Therefore, the contention pertaining law of estoppel does not hold water.
57. Hence, this issue is decided against defendants.
Issue no. 7:
Whether the suit is barred by law of limitation? Suit No.479/14 Saji Joseph & Ors Vs. Manoj Kumar Jha Page no. 31 of 34
58. The onus to prove this issue was upon defendants. The defendants have claimed that the reliefs are barred by law of limitation. It is true that sale deed sought to be declared as null and void dates back to the year 2009 whereas suit was filed on 20.11.2013. However, period of limitation would be stated to accrue from the knowledge of the sale deed. The plaintiffs claimed knowledge from November, 2013 therefore, this court can not hold the suit to be barred by limitation rather to the contrary it appears promptly filed and well within period of limitation.
59. Further defendants could not established that knowledge of the document dated back to 2009. Hence, this issue is decided against defendants.
Issue no. 8:
Whether the suit is bad for nonjoinder of necessary parties, if yes, its effect?
60. The onus to prove this issue was upon the defendants. The premise behind this issue was nonjoinder of Mr. Ashok Kumar Khattar. It is agreed that all parties to the present suit be it plaintiffs or defendant no.2 claim their title either directly from Mr. Ashok Kumar Khattar or indirectly through his Power of Attorney holder or through purchaser who had purchased the property from Power of Attorney holder. He would have been best person to throw some light on the facts of the case as ultimately he was one who had sold property of all the parties. Nevertheless at Suit No.479/14 Saji Joseph & Ors Vs. Manoj Kumar Jha Page no. 32 of 34 the same time, no relief has been sought against him and he would not have been the person in absence of whom decree if pronounced could not have been executed. This court does not hold him to be necessary party rather he would have been important as a witness. Be that as it may, suit is not bad for nonjoinder of necessary party. This issue is therefore decided against defendants. Issue no. 9:
Whether the suit is not maintainable as proper valuation has not done and court fees has not been filed. ?OPD
61. The onus to prove this issue was upon defendants. They have claimed that suit has been properly valued and court fees is not correct.
62. It can be observed that present suit has been filed seeking declaration and injunctions. Possession has not been sought. According to relief of declaration and injunctions the court fees seems to be correct. Guidance is sought from judgment Suhrid Singh @ Sardool Singh (supra). Therefore, this issue is decided against defendants.
Relief:
63. In light of findings of all issues as have been decided above, the suit of plaintiffs is only decreed to the extent of injunction against defendant from demolition of wall, digging of floor, construction of new rooms in parking area or alienating Suit No.479/14 Saji Joseph & Ors Vs. Manoj Kumar Jha Page no. 33 of 34 parking area. It is clarified that parking area is the front portion of the Ground Floor once area of 33.45 Sq. Meters is left from rear wall of the Ground Floor towards front portion and also for removal of debris or other material kept in this area of the Ground Floor (Parking Area). Decreesheet be drawn accordingly. No order as to costs. File be consigned to record room after due indexing, paging and completion.
Announced in the open court on 17th April 2015. (TANVI KHURANA) The judgment contains 34 pages, Civil Judge01 (South) all checked and signed by me. Saket Courts/New Delhi 17.04.2015 Suit No.479/14 Saji Joseph & Ors Vs. Manoj Kumar Jha Page no. 34 of 34