Delhi District Court
Surender Singh vs Dinesh Kumar on 11 February, 2025
IN THE COURT OF SH. HARJYOT SINGH BHALLA
DISTRICT JUDGE-05, SOUTH DISTRICT,
SAKET COURTS, NEW DELHI
Appeal No. : RCA DJ/74/2024
CNR No. : DLST01-015313-2024
Date of Institution : 12.02.2024
Date of order : 11.02.2025
IN THE MATTER OF:
1. Surender Singh
Aged about 62 years
S/o Sh. Late Rewat Singh
R/o B-11, First Floor,
Shivalik, Malviya Nagar,
New Delhi-110017
2. Virender Singh
Aged about 58 years
S/o Sh. Late Rewat Singh
R/o B-11, Second Floor,
Shivalik, Malviya Nagar,
New Delhi-110017
......Appellants
Versus
1. Dinesh Kumar
S/o Sh. Late Rewat Singh
R/o B-11, Ground Floor,
Shivalik, Malviya Nagar,
New Delhi-110017
........Respondent
JUDGMENT (ORAL)
RCA DJ 74/2024 Page no. 1 of 14
1. Vide this judgment, I shall dispose of the present appeal filed under Section 96 of Civil Procedure Code, 1908 on behalf of the appellants/plaintiffs against judgment/order dated 12.01.2024, passed by the Ld. ASCJ-Cum-JSCC GJ (South), Saket District Courts, New Delhi.
2. Plaintiffs had filed a suit for permanent injunction seeking to restrain the defendant and his agents, assignees, representatives, legal heirs, authorized persons from alienating the plaintiffs (sic) or dispossessing them and creating any third party rights/interest on the terrace of the second floor of property bearing no. B-11, Shivalik, Pocket-B, Malviya Nagar, New Delhi-110017.
3. Briefly stated, case of the plaintiffs is that plaintiff no. 1 and 2 are government employees working under Income Tax Department and Central Govt. Health Scheme, respectively. That father of the plaintiffs late Sh. Rewat Singh was allotted a land measuring 160.53 sq.mtrs (192 sq.yds) bearing no. B-11 at Shivalik, Pocket- B, Malviya Nagar, New Delhi-110017 (hereinafter referred to as 'suit property') by Ministry of Rehabilitation (Government of India) vide perpetual sub-lease deed dated 16.11.1990 registered at serial no. 7612 in Addl. Book No. 1, Volume No. 6871 at page 1 to 7 on 22.11.1990 at Sub Registrar, New Delhi.
4. That father of the plaintiffs constructed a residential building comprising of ground floor, first floor and second floor with all fixtures and fittings on the suit property from his own funds and resources.
5. That plaintiff no. 2 spent money from his provident funds account towards the construction of one room, one attached toilet on the second floor of the suit property.
RCA DJ 74/2024 Page no. 2 of 14
6. That father of the plaintiffs expired on 23.05.2003 leaving behind his legal heirs. That he had executed a will dated 22.04.2003 by which the ground floor of the suit property was bequeathed to the defendant, first floor to plaintiff no. 1 and second floor to plaintiff no. 2. Parties, thus, became exclusive owners of each floor of the property as their respective share.
7. That the plaintiffs were not aware about the said will until the year 2016 when one of the attesting witnesses namely Sh. Deergh Pal Singh informed them about the execution of the said will by their father. Original will was under the possession of the defendant.
8. That the defendant let out the suit property on rent from 2003 to 2017 from which he collected an amount of Rs. 71,43,300/- as rent and also agreed to share it equally with the plaintiffs but till date has not shared the same with the plaintiffs.
9. That in the year 2010, defendant persuaded the plaintiffs to execute relinquishment deeds in his favour for converting the suit property into freehold and getting it mutated. Plaintiffs executed a relinquishment deed dated 19.04.2010 in his favour for this purpose. That defendant had an ulterior motive and wanted to usurp the suit property. That plaintiffs requested the defendant to honour the last wish of their late father and give them their respective share in the suit property and he refused. Ultimately, after some dispute and after persistent demands the defendant executed a gift deeds dated 01.09.2017 and 29.03.2019 in favour of plaintiff no. 1 and plaintiff no. 2 respectively and transferred all ownership and possessory rights, title and interest of the first floor and second floor of the said property to them. That plaintiff no. 2 constructed a room with attached toilet at the roof of RCA DJ 74/2024 Page no. 3 of 14 the second floor for the use of his family members from his own resources and savings.
10. That plaintiffs came to know that the defendant and his wife had taken a loan of Rs. 70 lakhs from PNB Housing Finance Limited and Rs. 71 lakhs from ICICI Bank, respectively having mortgaged the entire property. That wife of the defendant was well aware that she was not the owner of any floor of the suit property and thereby committed fraud upon the plaintiffs. That defendant alongwith his wife in connivance with the bank officials have tried to grab the property belonging to the plaintiffs.
11. That plaintiff filed a compliant dated 12.09.2019 before the SHO Malviya Nagar in this regard but to no avail. That plaintiff again filed a written compliant before the DCP on 17.09.2019 but in vain and it is for this reason plaintiffs filed a criminal compliant u/s 156 (3) before Ld. MM, Saket.
12. That defendant forcefully trespassed upon the room situated at terrace of second floor and broke open the lock and entered into the room of plaintiff no. 2. That defendant can sell out the roof/terrace of the second floor and create third party interest on the suit property and on 21.10.2019, a property dealer came to see the property. That plaintiffs have a strong apprehension that the defendant is intentionally trying to create third party interest on the terrace/roof of the second floor ignoring the terms and conditions of the will dated 22.04.2003 and the gift deeds executed in favour of the plaintiffs in which they have got the common terrace rights upon the roof of the second floor. That defendant is only having 1/3rd share upon the roof of the second floor and both the plaintiffs are having 1/3rd share each.
Written Statement RCA DJ 74/2024 Page no. 4 of 14
13. Summons of the present suit were issued to defendant. Upon appearance, defendant filed his written statement (hereinafter referred to as 'WS') stating therein that there is no cause of action which had ever arisen in favour of plaintiffs and the same is liable to be dismissed. That father of the defendant was allotted a plot of land admeasuring 160.53 meters bearing plot no. B-11, Shivalik, Malviya Nagar, New Delhi-110017 through Rehabilitation Division. That father of the parties did not have sufficient funds for construction of the said plot for which he sold the basement rights and from that sale consideration he was able to construct only ground floor and some part of the first floor, however, the sale consideration was not sufficient and defendant and his father obtained friendly loan from some of their friends and relatives and completed the construction of the first floor of the said plot. That before the death of their father, he had already executed a will to avoid any dispute among his children and the said registered will was in exclusive possession of mother of the parties Smt. Sheela Devi who has informed about the said will to the parties. That after the demise of their father, all the legal heirs of Late Sh. Rewat Singh executed a relinquishment deed dated 20.04.2010 in favour of the defendant without any pressure. That defendant had applied for getting the said property freehold and in this regard a conveyance deed dated 05.07.2021 was duly registered in favour of him for which he had paid an amount of Rs. 20,00,000/- by taking loans from friends and relatives.
14. That defendant never resided in the said property, plaintiff no. 1 got shifted to Sarojini Nagar in the year 2002 and only plaintiff no. 2 alongwith his family and their mother resided at the first floor of the suit property and also looked after their mother RCA DJ 74/2024 Page no. 5 of 14 for which defendant was also contributing. That plaintiff no. 1 insisted his mother and defendant to construct the second floor of the suit property. Plaintiff no.1 even got annoyed and filed a suit for declaration, partition and rendition of accounts against the defendant and other legal heirs of deceased Rewat Singh. However, after receipt of notice from the Hon'ble High Court of Delhi, a meeting was held upon which it was decided that defendant will obtain a bank loan against the property and from the said amount, second floor of the suit property will be constructed. After which first floor will be given to plaintiff no. 1 vide a gift deed and second floor to plaintiff no. 2 in which plaintiff no. 2 alongwith his family and mother will reside and upon asking of their mother it was agreed that the said loan will be paid by all three brothers equally. That after the said agreement, plaintiff no. 1 had withdrawn the suit filed before the Hon'ble High Court of Delhi and it is for this reason the present suit is not maintainable before the court as the same is barred by res judicata.
15. That defendant had also given a sum of Rs. 4,14,000/- to plaintiff no. 1 for payment of stamp duty towards registration of gift deed in his favour. That first and second floor of the suit property were given to plaintiff no. 1 and plaintiff no. 2, respectively by way of gift deed without the roof rights.
16. That the greed of the plaintiffs has increased and they asked for the roof rights in the second floor of the suit property and started harassing their mother to ask the defendant to transfer the roof rights in their favour. That plaintiff no. 1 and 2 also refused to contribute in the repayment of loan after getting their respective shares.
RCA DJ 74/2024 Page no. 6 of 14
17. That on 17.04.2019, plaintiff no. 2 threw their mother out of the house and defendant rushed towards her. That defendant then shifted the mother to a room at third floor of the suit property vide GPA in favour of his mother as his mother was residing there. That plaintiff no. 2 started abusing his mother and attempted to hurt her and also tried to grab the keys of the room for which police officials were called and they after looking at the GPA gave the keys of the room at third floor of the suit property to his mother. That plaintiff no. 2 and his family are trying to create hurdles for his mother and other visitors who come to visit her.
18. That defendant is re-paying the loan all alone taken to get the property free hold. That defendant is a true and lawful owner of the suit property and hence, legally competent to sell the property without the intervention of plaintiffs. That plaintiffs are not the owners of the third floor of the property. That there is no merit in the present suit and the same be dismissed.
19. On the basis of pleadings, following issues were framed vide order dated 26.10.2021:
1. Whether plaintiffs are entitled for relief of permanent injunction as claimed in para (a) of the prayer clause of the plaint? OPP
2. Whether plaintiffs have have no cause of action to file the present suit and the same is liable to be dismissed under Order VII Rule 11 CPC? OPD
3. Relief
20. In order to prove their case, plaintiffs examined themselves as PW1 and PW2 as their only witnesses.
RCA DJ 74/2024 Page no. 7 of 14
21. Plaintiff no.1 examined himself as PW-1. He tendered his evidence by way of affidavit Ex. PW1/A. He relied upon the following documents:
1. Site plan of the suit property Ex. PW1/1;
2. Registered gift deed dated 01.09.2017 as Ex. PW1/3 (OSR);
3. Copy of police complaint dated 12.09.2019 as Ex. PW1/4 (OSR);
4. Copy of police complaint dated 16.09.2019 as Ex. PW1/5 (OSR);
5. Copy of police complaint dated 17.09.2019 as Ex. PW1/6 (OSR);
6. Copy of income from house property of defendant bearing no. B-11, Shivalik, Malviya Nagar as Mark A;
7. Copy of home loan sanction documents as Mark B (colly.); and 8. Copy of will dated
22.04.2003 as Mark C.
22. Plaintiff no.2 stepped into the witness box as PW2 and tendered his evidence by way of affidavit Ex. PW2/A. He relied upon the documents exhibited/marked by plaintiff no. 1 in his affidavit i.e., Ex. PW1/1, Ex. PW1/4, Ex.PW1/5, Ex. PW1/6, Mark A, Mark B and Mark C. He also relied upon registered gift deed dated 29.03.2019 as Ex. PW2/1 (OSR).
23. No other witness was examined by plaintiffs. Vide order dated 14.08.2023, plaintiff evidence was closed.
24. Defendant examined himself as DW1, who stepped into the witness box and tendered his affidavit Ex. DW1/A. He relied upon various documents"
1. Copy of relinquishment deed executed on 20.04.2010 as Ex. DW1/1;
2. Copy of payment receipt as Ex. DW1/3 (OSR); and
3. Copy of suit filed by plaintiff no. 1 before Hon'ble High Court of Delhi as Ex. DW1/4.
RCA DJ 74/2024 Page no. 8 of 14
25. No other witness was examined by defendant. Hence, vide order dated 29.11.2023, defendant evidence was closed and matter was listed for final arguments.
26. Arguments heard on the appeal.
27. The appellant is aggrieved by the dismissal of the suit by Ld. Trial Judge. It is urged that the Trial Court erroneously relied on Section 41(h) of Specific Relief Act and held that a suit for declaration and cancellation of documents was the alternative efficacious remedy and additionally that a suit for injunction simplicitor was not maintainable without seeking declaration and cancellation.
28. Ld. Counsel for the appellant has further urged that the Trial Court has wrongly interpreted the words "common terrace rights" and that the same does not confer 1/3rd share over the roof of the 2nd Floor. That the Trial Court wrongly interpreted that the common terrace rights only referred to common easementary rights and not more.
29. I have gone through the record.
30. From the evidence adduced by the parties, following undisputed facts can be culled out:
31. That the property was owned by the father of the parties who left behind a Will granting equal share to the parties in the suit property.
32. That pursuant to some arrangements between the parties, the plaintiffs had relinquished their share in the suit property in favour of the defendant without any consideration amount. Immediately thereafter, the defendant get the property RCA DJ 74/2024 Page no. 9 of 14 converted into freehold and a conveyance deed was executed in his name.
33. The plaintiffs demanded their share in the property, which was declined, which led to the filing of the suit before the Hon'ble High Court of Delhi, during the pendency of which, a settlement was arrived and defendant executed two gift deeds i.e. one in favour of each plaintiff giving 1st and 2nd floor of the suit property to them respectively. The gift deeds are admitted documents and to the extent the rights and obligations of the parties can be ascertained from mere interpretation of the gift deed, I am of the view that no specific relief of declaration is called for.
34. In my view, the Ld. Trial Court has wrongly interpreted the principle laid down in Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by LRs. & Ors, AIR 2008 SC 2033.
35. The reading of the said judgment would reveal that only where a cloud is looming over the title of the plaintiff, as a result of actions of the defendant or otherwise, that the plaintiff is bound to seek the relief of declaration before he can be entitled to injunction.
36. In the present case, the gift deeds conferring the title on the plaintiff is not in dispute, but is rather an admitted document.
The question is only of its interpretation and logical conclusion. Therefore, I am of the view that the Trial Court wrongly dismissed the suit on the ground that the plaintiff was bound to seek declaration and cancellation of the gift deeds and suit was barred by Section 41(h) of Specific Relief Act. The plaintiff is suing on the basis of gift deeds and the question of cancellation thereof does not arise.
RCA DJ 74/2024 Page no. 10 of 14
37. Now how is a gift deed be interpreted. The gift deed executed on 01.09.2017, uses the expression and relevant portion I quote:
AND WHEREAS the DONOR is desirous and has agreed to transfer all his ownership and possessory rights, liens, titles and interests whatsoever in the entire First Floor (without roof rights) of Freehold property bearing No.11, in Pocket 'B' built on a plot of land measuring 160.53 sq. mtrs. (192 sq.yards), situated at Shivalik Colony, New Delhi-110017, with structure, fixtures, fittings necessary amenities like separate electricity and water connections, overhead water tank alongwith proportionate undivided and indivisible freehold ownership rights/share in the land underneath together with the right to use/avail common entrance, passage, staircase, services and facilities provided in the building and easements attached thereto, by way of Gift unto the DONEE, due to natural love and affection, who is his real brother and without any monetary consideration (hereinafter called the SAID PORTION OF THE SAID PROPERTY) AND WHEREAS after the execution of the present gift deed, the DONEE will not be entitled for any other property except First Floor and common terrace rights/benefits, will arise/arising/arisen from the property bearing no.11, in Pocket 'B', measuring 160.53 sq. mtrs. (192 sq.yards), situated at Shivalik Colony, New Delhi-110017 and after the execution of the present gift deed all claims of the Donee will be treated as settled.
...
RCA DJ 74/2024 Page no. 11 of 14
15. That the Donee shall have common terrace rights of the said property.
38. The gift deed executed on 29.03.2019, uses the expression and relevant portion I quote:
AND WHEREAS the DONOR is desirous and has agreed to transfer all his ownership and possessory rights, liens, titles and interests whatsoever in the Entire Second Floor of Freehold property bearing No.11, in Pocket 'B' built on a plot of land measuring 160.53 sq. mtrs. (192 sq.yards), situated at Shivalik Colony, New Delhi-110017, without roof rights, with structure, fixtures, fittings necessary amenities like separate electricity and water connections, overhead water tank alongwith proportionate, undivided and indivisible freehold ownership rights/share in the land underneath together with the right to use/avail common entrance, passage, staircase, services and facilities provided in the building and easements attached thereto, by way of Gift unto the DONEE, due to natural love and affection, who is his real brother and without any monetary consideration (hereinafter called the SAID PORTION OF THE SAID PROPERTY) AND WHEREAS after the execution of the present gift deed, the DONEE will not be entitled for any other property/benefits, will arise/arising/arisen from the property bearing no.11, in Pocket 'B', measuring 160.53 sq. mtrs. (192 sq.yards), situated at Shivalik Colony, New Delhi-110017, and after the execution of the present gift deed all claims of the Donee will be treated as settled.
...
17. That the Donee shall have common terrace rights of the said property.
RCA DJ 74/2024 Page no. 12 of 14
39. Therefore, the gift deed, in the recital states a the floor was being given with proportionate land right but without roof rights and secondly a subsequently, the grant indicates that common terrace rights were being conferred.
40. It is to be noticed that the floor has been given alongwith proportionate land rights in the property which was built up to 2nd floor. Therefore, each of the parties can be said to be vested with one floor of the property i.e., defendant the ground floor and plaintiffs the 1st and 2nd floor respectively alongwith proportionate land rights, which would work out to be 1/3 rd each in the facts and circumstances of the case.
41. It is in this view of the matter terrace rights were not conferred on any other party, but were left as common. It is to be seen that the gift deeds were executed because of the pendency of the suit between the parties and as an arrangement/settlement of claims and disputes. The background of execution of the document cannot be ignored and therefore, it is evident that the property was being divided amongst the brothers, albeit by way of gift deeds. It is not to be forgotten that the plaintiffs had relinquished their share in the property and I have no reason to believe that it was not done for the purposes of getting the property to freehold so that a conveyance deed be executed in the name of the defendant. That was also a family arrangement.
42. In these circumstances, the expression "common terrace rights" used in the grant have to be given a logical meaning i.e., terrace was to be common to all the parties for all purposes. It cannot be considered that the defendant had retained the terrace rights with himself. Further, the recital cannot control the grant.
RCA DJ 74/2024 Page no. 13 of 14
43. In view thereof, I am of the view that once the terrace rights are declared common, it cannot be said that mere easementary rights were being conferred. If the language in the grant was defective, it was for the defendant to seek alteration/correction in the gift deed in terms of Specific Relief Act.
The defendant has not filed any counter claim, nor questioned the language of the gift deed. The plaintiffs, even if, cannot be declared as 1/3rd owner of the terrace, however, the plaintiffs can always seek relief of injunction retraining the defendant from alienating or creating any third party interest in the common terrace. Issue no.1 is decided accordingly in favour of the plaintiff.
44. The suit of the plaintiff is accordingly decreed restraining the defendant from creating any third party interest or alienating the terrace of the property in any manner to any third party.
45. Issue no.2 has become otiose in view of the clear finding on issue no.1.
44. The entire order has been dictated in the presence of the parties and their counsel.
46. TCR be sent back.
47. Appeal file be consigned to Record Room.
Digitally signedHarjyot by Harjyot Singh Bhalla Singh Date:
Dictated in the open court 2025.02.18
Bhalla 16:12:10
on 11.02.2025
+0530
HARJYOT SINGH BHALLA
DJ-05, SOUTH SAKET COURTS
NEW DELHI
RCA DJ 74/2024 Page no. 14 of 14