Delhi District Court
Dr. Rajiv Dhingra vs Vindra Panchpal on 26 September, 2024
CS SCJ 84995/16
DR. RAJIV DHINGRA VS. SMT. VINDRA PANCHPAL & ANR.
IN THE COURT OF MS. KANIKA AGARWAL, CIVIL
JUDGE-01 (SOUTH) SAKET COURT, NEW DELHI
Civil Suit No :- 84995/16
CNR No. :- DLST03-002143-2016
Dr. Rajiv Dhingra
S/o Late Shri R N Dhingra
R/o B-140, Shivalik Enclave,
New Delhi-110017 ......PLAINTIFF
VERSUS
1. SMT. VINDRA PANCHPAL
W/o Shri P S Panchpal
R/o H.No. 70, Type-III
North West Moti Bagh-I
New Delhi ......DEFENDANT NO. 1
2. P S PANCHPAL
S/o Shri D S Panchpal
R/o H.No. 70, Type-III
North West Moti Bagh-I
New Delhi ......DEFENDANT NO. 2
Date of Institution : 03.08.2010
Date of Decision : 26.09.2024
Date of framing of issues : 07.12.2013
Date of final arguments : 21.09.2024
Decision : DISMISSED
SUIT FOR PERMANENT INJUNCTION
Digitally signed
by KANIKA
AGARWAL
KANIKA
Page no. 1 of 36 AGARWAL Date:
2024.09.26
15:34:06
+0530
(Kanika Agarwal)
CJ-01/(South) Saket Court/New Delhi
CS SCJ 84995/16
DR. RAJIV DHINGRA VS. SMT. VINDRA PANCHPAL & ANR.
JUDGMENT
1. This is the suit filed by the plaintiff for the relief of per- manent injunction.
AVERMENTS OF THE PLAINT
2. Succinctly, the case of plaintiff is that he is the owner in possession of the entire first floor with terrace of property bearing no. B-140, Shivalik Enclave, New Delhi (hereinafter referred to as "suit property") having purchased it from its erstwhile owner M/s Dawar Constructions Company Pvt. Ltd. It is pleaded that plaintiff is in lawful and uninterrupted possession of the suit property including the terrace area since the date of purchase. That plaintiff has been using the terrace for multiple purposes and no one has ever objected to his peaceful enjoyment of the terrace area. It is stated that plaintiff has been using and enjoying the possession of the terrace area for celebrating the family functions and holding other programs.
3. It is stated that on 25.07.2010, the defendant alongwith a key maker and one more person namely Mr. Behl tried to enter the suit property with an aim to dispossess the plaintiff from the terrace area on pretext that he is the owner of the terrace area. Subsequently, the plaintiff made a PCR call and both the parties were asked to report to the police station along with their title documents. It is stated that on 27.07.2010, plaintiff reached the police station along with his documents but the defendants did not Digitally signed by KANIKA AGARWAL KANIKA Page no. 2 of 36 Date:
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turn up.
4. It is stated that on 27.07.2010, when the plaintiff returned to his residence, at about 07.30 PM, defendant no. 2 again came to the suit property along with two other persons and started hurling abuses on the plaintiff and also threatened to dispossess him from the terrace area. It is stated that defendants have no valid documents in their favour and are attempting to trespass into the terrace area by breaking the lock of the plaintiff. Having left with no other option, the present suit is filed seeking following reliefs:-
(i) Pass a decree of permanent injunction restraining the defendants, their assigns, attornies, agents, nominees etc. from dispossessing the plaintiff from the terrace i.e. the suit property as shown in red in site plan for First Floor out of property no. B-140, Shivalik Enclave, New Delhi-110017.
(ii) Any other reliefs.
AVERMENTS OF THE WRITTEN STATEMENT
5. Per contra, it is stated that the present suit filed is without any cause of action and is liable to be dismissed under Order VII Rule 11 CPC. It is stated that as per the documents filed by the plaintiff, it is evident that the plaintiff is the owner of only the first floor of the suit property and he has no ownership rights in the terrace area. It is stated that as per the provision of Section 41 of the Specific Relief Act, plaintiff is not entitled to any relief of injunction as sought. It is stated that plaintiff has concealed the correct and Digitally signed by KANIKA Page no. 3 of 36 KANIKA AGARWAL AGARWAL Date:
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material facts from this Hon'ble Court with deliberate intention.
6. It is stated that defendant no. 2 had purchased the roof rights over the first floor of the property bearing no. B-140, Shivalik, New Delhi from Mr. H S Mansukhani vide General Power of Attorney dated 28.01.2004 and Agreement to Sell dated 03.02.2004. It is stated that on 07.02.2004, one temporary room along with the small toilet on the roof was also removed/ demolished by the defendants. It is stated that on 08.02.2004, the defendants conducted puja on the terrace in the presence of the occupants of the ground floor and first floor (i.e. plaintiff) and prasad was distributed to those who attended. It is stated that after puja was performed, the plaintiff requested the defendants to give him the key of the terrace since his water tank was placed on the roof. It is stated that acting in good faith, defendants gave one of their keys to the plaintiff.
7. It is stated that defendants used to visit the property from time to time and after the Shivalik Society won the court case whereby the residents of the society were permitted to carryout construction above the first floor, the defendants decided to construct the second floor, However, in March 2004, plaintiff requested them to defer the constructions for 3-4 months since his children were appearing in Board examinations. It is stated that defendants readily agreed to accommodate the plaintiff and accordingly, the construction plans were deferred. It is stated that Digitally signed by KANIKA Page no. 4 of 36 KANIKA AGARWAL AGARWAL Date:
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around February, 2010, defendants decided to resume their construction plan and requested plaintiff to return the key of the terrace, however, plaintiff on one pretext or the other kept avoiding handing over the key to the defendants. Accordingly, the defendant called a key maker and on objections being raised by the plaintiff, defendants made a police complaint. All the other averments of the plaint are denied. Thus, it is prayed that suit of the plaintiffs is liable to be dismissed.
ISSUES
8. From the pleadings of the parties following issues were framed vide order dated 07.12.2013:-
(i) Whether the suit of the plaintiff is without any cause of action? OPD
(ii) Whether the suit is barred in view of Section 41 of Specific Relief Act? OPD
(iii) Whether the plaintiff is entitled to the relief of permanent injunction, as prayed for? OPP
(iv) Relief, if any.
PLAINTIFF EVIDENCE
9. To prove his case, plaintiff himself stepped into the witness box as PW-1 and tendered his affidavit as Ex.PW1/1. He placed reliance upon the following documents:
(i) Ex.PW1/A (OSR) i.e. GPA dated 01.07.1994;
(ii) Ex. PW1/B (OSR) i.e. Will dated 01.07.1994;Digitally signed by KANIKA
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AGARWAL Date:
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DR. RAJIV DHINGRA VS. SMT. VINDRA PANCHPAL & ANR.
(iii) Ex. PW1/C (OSR) i.e. Agreement to sell dated 01.07.1994;
(iv) Mark A i.e. Site plan;
(v) Ex. PW1/E (colly) i.e. Photographs;
(vi) Ex. PW1/F i.e. Original police complaint;
(vii) Mark A i.e. Copy of GPA dated 08.08.1994; and
(viii) Mark B i.e. Copy of agreement to Sell dated 08.06.2001.
10. During cross-examination of PW1, it is stated by PW1 that he had purchased the property in question in the year 1994. It is stated by PW1 that he had gone through the contents of GPA before signing the same and the same was given in favour of his wife. It is stated by PW1 that he is not aware about the place where the GPA has been prepared/typed. It is stated by PW1 that apart from the GPA there are other document i.e. Agreement to sell, receipt and Will. It is stated by PW1 that he does not remember if he had informed the builder about the blank spaces in the agreement to sell and purchase dated 01.07.94. It is stated by PW1 that it is not written in agreement to sell that he has purchased the suit property with terrace right but it has to be viewed in the light of existing building by laws of the day.
11. It is stated by PW1 that during his meetings with the builder the builder had explained that he will be constructing the building as per by-laws and will consist of the lower ground floor, ground floor and the first floor because the bye-laws does not permit any further construction above that and when he finalized the Digitally signed by KANIKA Page no. 6 of 36 KANIKA AGARWAL AGARWAL Date:
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property, he was the first to buy any part of the property and had the option to select any floor, the builder have quoted Rs. 5,50,000/- for the ground floor and Rs.7,50,000/- for the first floor as no construction was possible above that and it was an inherent part of first floor. It is stated by PW1 that on this mutual understanding, he negotiated the price of the first floor with roof and finalized its for Rs.7,30,000/-.
12. It is stated by PW1 that he is referring to the documents on the basis of which the defendants were claiming their right to the terrace of the suit property. It is stated by PW1 that he has not stated the existence of these bylaws in his pleadings. It is stated by PW1 that in police complaint dated 27.07.2010, he has stated that there can be 10 other claimant to the terrace. It is stated by PW1 that the agreement to sell dated 01.07.1994 Ex. PW1/C and the Will dated 01.07.1994 Ex. PW1/B are not in his favour, however, same are in his wife's favour. It is stated by PW1 that it is not written in the aforesaid documents that he has purchased the terrace rights also.
13. It is stated by PW1 that he has filed the present suit in the capacity of being the owner (alongwith my wife) of the property i.e. First Floor with open terrace at B-140 Shivalik Enclave, New Delhi-110017. It is denied by PW1 that his wife has not filed any suit against defendant no. 1 and 2 in respect of terrace rights. It is stated by PW1 that his wife has applied to be impleaded as a party in case no. 82417/16 which relates claiming terrace rights as against Digitally signed by KANIKA Page no. 7 of 36 KANIKA AGARWAL Date: AGARWAL 2024.09.26 15:34:42 +0530 (Kanika Agarwal) CJ-01/(South) Saket Court/New Delhi CS SCJ 84995/16 DR. RAJIV DHINGRA VS. SMT. VINDRA PANCHPAL & ANR.
defendant no.1 and 2. It is stated by PW1 that he has not pleaded anywhere in the plaint that his wife is a co-owner of B-140, Shivalik Enclave, New Delhi-110017.
14. It is stated by PW1 that he has filed another case referred to above in the year 2013. It is stated by PW1 that his wife is aware of the case as she has applied to be impleaded in the above mentioned case. It is stated by PW1 that he does not remember that he has filed the suit no.82417/16 for declaration after his appeal against order on application under Order 39 Rule 1 & 2 CPC has been dismissed. It is stated by PW1 that he had lodged a police complaint vide DD no.27-B dated 27.07.2010 in Malaviya Nagar Police Station.
15. It is stated by PW1 that he has filed the complaint case against defendant no. 1 and 2 in regard to the terrace floor. It is stated by PW1 that the complaint case against defendant no.1 and 2 was dismissed by the Hon'ble Court, however, he has filed the revision petition against the order of the court and the same is the still pending. It is stated by PW1 that he has given a complaint to Director of Building, DDA and the same is Ex. PWI/D1 which has been signed by him. It is stated by PW1 that complaint Ex. PW1/D2 is written under his signature to the president Shivalik RMECHB Society Ltd. Shivalik alongwith other signatories namely Dr. P. D. Sethi, Ms. Usha Sethi and Mrs. Rajkumari Dhingra. It is stated by PW1 that he has not written in Ex. PW1/D1 and Ex. PW1/D2 that Digitally signed by KANIKA Page no. 8 of 36 KANIKA AGARWAL AGARWAL Date:
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he is an owner of the terrace floor of B-140. Shivalik Encalve, New Delhi. It is stated by PW1 that he has filed photographs of his and his family in possession of the terrace floor. It is stated by PW1 that he has not filed the possession letter in respect of the terrace alongwith the plaint.
16. It is stated by PW1 that he does not know what action police has taken on Ex. PW1/D8 but in the subsequent period for sometime, the problem did not occur. It is stated by PW1 that when the unauthorized construction was being attempted in his property in the year 2004, he along with other resident of the suit property went personally to the police station and filed a written complaint. It is denied by PW1 that he has not filed the completion certificate as the suit property was not constructed as per MCD/ building by-laws. It is stated by PW1 that someone had trespassed the terrace of the suit property then he initiated the Civil suit for injunction and during that suit, he came to know that Mr. O P Dawar (defendant no. 2) had sold the terrace of the suit property unauthorizedly. It is stated by PW1 that defendant no. 2 and he resides in the same colony, however, the time when he bought the suit property, defendant no. 2 was not resides in the same colony. It is stated by PW1 that he purchased the suit property from defendant no. 2 in the year 1994. It is denied by PW1 that he does do not have any document of the terrace of the suit property. PW1 cross-examination was concluded on 03.11.2023.
Digitally signed by KANIKA AGARWALKANIKA Page no. 9 of 36 Date:
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17. Further, Sh. Sandeep Khurana was examined as PW2 who tendered his affidavit of evidence as Ex. PW2/1. PW2 was duly cross-examined by Ld. Counsel for defendants. During cross- examination of PW2, it is stated by PW2 that plaintiff is residing in next property to his house from last 18 years. It is stated by PW2 that he has not seen the title document of the property in dispute. It is stated by PW2 that the ownership of a person is with the registered documents. It is stated by PW2 that he does not have any knowledge whether plaintiff is in possession and owner of the suit property in question. It is stated by PW2 that he has not seen any activity by any person over the terrace except the clothes are kept for drying. It is stated by PW2 that he is not aware whether there was no permission by competent authority for construction of second floor in Shivalik Enclave. It is stated by PW2 that he has not seen the property documents in which he is residing as on date. PW2 cross-examination was concluded on 22.02.2016.
18. Further, Sh. Sanjay Nagpal was examined as PW3 who tendered his affidavit of evidence as Ex. PW3/1. During cross- examination of PW3, it is stated that plaintiff has told him about the pendency of present suit. It is stated by PW3 that he has come to depose at the instance of plaintiff. It is stated by PW3 that he does not see the document at the time of installing the cable junction and amplifier on the roof of the any building. It is stated by PW3 that plaintiff resides at first floor but the lock of the gate installed at Digitally signed by KANIKA KANIKA Page no. 10 of 36 AGARWAL AGARWAL Date:
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terrace is with the plaintiff. It is stated by PW3 that there is no construction at the terrace. PW3 cross-examination was concluded on 22.02.2016.
19. Further, Sh. Mahipal Singh, AE, DDA was examined as PW4 who has brought the copy of notification no. SO 1591(E) Ex. PW4/1 (colly). During cross-examination, it is stated by PW4 that another notification has also come in the master plan of the DDA regarding FAR after the present notification. It is stated by PW4 that the said printout was taken out by the Director (Building DDA) and not by him. PW4 cross-examination was concluded on 29.08.2018. Thereafter, plaintiff evidence was closed. DEFENDANT EVIDENCE
20. On the other hand, in support of their case, defendant no. 2 was examined himself as DW1 who tendered his affidavit of evidence as Ex. DW1/A and relied upon the following documents i.e.
(i) Ex. DW1/1 (OSR) i.e. Registered GPA dated 28.01.2004 (4 pages);
(ii) Ex. DW1/2 (OSR) i.e. Will dated 28.01.2004;
(iii) Ex. DW1/3 (OSR) i.e. Agreement to sell dated 29.05.1995;
(iv) Ex. DW1/4 (OSR) i.e. SPA dated 29.05.1995;
(v) Ex. DW1/5 (OSR) i.e. Affidavit dated 30.05.1995;
(vi) Ex. DW1/6 (OSR) i.e. Undertaking dated 30.05.1995;
(vii) Ex. DW1/7 (OSR) i.e. Affidavit dated 30.05.1995;
Digitally signed by KANIKAPage no. 11 of 36 KANIKA AGARWAL
AGARWAL Date:
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(viii) Ex. DW1/8 (OSR) i.e. SPA dated 29.05.1995;
(ix) Ex. DW1/9 (OSR) i.e. SPA dated 29.05.1995;
(x) Ex. DW1/10 (OSR) i.e. Possession certificate dated 30.05.1995;
(xi) Ex. DW1/11 (OSR) i.e. Indemnity bond dated 30.05.1995;
(xii) Ex. DW1/12 (OSR) i.e. Receipts dated 30.05.1995;
(xiii) Ex. DW1/13 (OSR) i.e. Agreement to sell dated 03.02.2004;
(xiv) Ex. DW1/14 (OSR) i.e. Receipts dated 03.02.2004;
(xv) Ex. DW1/15 (OSR) i.e. Possession letter dated 03.02.2004; (xvi) Mark X1/ Ex. DW1/16 i.e. Letter dated 19.02.2004; (xvii) Mark X2/ Ex. DW1/17 i.e. Letter dated 23.02.2004; (xviii) Mark X3/ Ex. DW1/18 i.e. Letter dated 19.02.2004; (xix) Mark X4/ Ex. DW1/19 i.e. Letter dated 06.02.2004; (xx) Mark X5/ Ex. DW1/20 i.e. Letter issued to director of building DDA; and (xxi) Mark X6/ Ex. DW1/21 i.e. Letter dated 19.02.2004 to SHO PS Malviya Nagar.
21. DW-1 was cross examined by Ld. counsel for plaintiff. It is stated by DW1 that he knew Mr. Mansukhani Panchpal before purchasing the suit property. It is stated by DW1 that he came to know him when he came to him in order to sell out his property. It is stated by DW1 that he have never approached Mr. Mansukhani for the purchase of the terrace floor of the property in question. It is stated by DW1 that since Mr. Mansukhani was in the need of money, he contacted him through a common friend Mr. Suresh Digitally signed by KANIKA Page no. 12 of 36 KANIKA AGARWAL AGARWAL Date:
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Sansanwal and Mr. O.P Dawar. It is stated by DW1 that he had seen the entire chain of the property in question as well as paper of Mr. Mansukhani and even had seen the documents of Mr. Rajiv Dhingra (plaintiff). It is stated by DW1 that he had not perused the complete contents of the document but he had only seen whether terrace rights were available with Dr. Rajiv Dhingra or not.It is stated by DW1 that he had not seen the laws on municipal limit of construction but had seen the other buildings in the vicinity and believed that the same is permissible under law.
22. It is stated by DW1 that he had purchased the property as Mr. Mansukhani was selling it on a lower price. It is stated by DW1 that there was only a temporary structure at the suit property hence, he believed that Mr. Mansuhkani was not residing there. It is stated by DW1 that before purchasing of the terrace floor, he had taken permission from the Transport Department to take the suit property in the name of his wife.
23. It is stated by DW1 that the suit property comes under the jurisdiction of DDA and all the municipal laws formulated by DDA or binding upon the persons making construction. It is stated by DW1 that Ex.DW1/16, Ex.DW1/17, DW1/18, DW1/19, DW1/20 and DW1/21 are the documents which proofs his possession over the suit property. It is stated by DW1 that he himself has availed the services of one labour to dismantle the alleged one room constructed over the first floor of the suit property. It is stated by DW1 that he Digitally signed by KANIKA Page no. 13 of 36 KANIKA AGARWAL AGARWAL Date:
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has not sought any permission from MCD, DDA/ RWA/ Society in order to dismantle the alleged structure.
24. It is stated by DW1 that he had applied for the NOC and accordingly had approached to the owner of the first floor and ground floor because there is mandatory requirement to take the NOC from all the owners of building. It is stated by DW1 that he has never approached Court for issuance of direction to the plaintiff and other occupant after they refused to issue NOC. It is stated by DW1 that he had conducted a small ceremony with 4 to 5 people including both owner of the property, Sh. Suresh Sansanwal, one labourer and one more person however, no proof has been placed on record and the small ceremony was not in the form of Puja.
25. It denied by DW1 that on 25.07.2010, he alongwith one key maker and another person who was being called as a Mr. Behal and tried to intrude in the stair case of the suit property which was objected and simultaneously he called the police. It is further denied by DW1 that on the complaint of the plaintiff, the PCR officials visited at the spot and asked plaintiff as well as him to come at the police station with their relevant ownership documents. It is stated by DW1 that he had visited the plaintiff at his clinic in the month of July, 2010 and due to him being busy in some work, he told him to come later. It is stated by DW1 that on 25.07.2010, he alongwith the key maker and one Mr. Behal came at the suit property. It is stated by DW1 that he had not filed any complaint against missing his key.
Digitally signed by KANIKAPage no. 14 of 36 KANIKA AGARWAL
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It is stated by DW1 that he does not know if plaintiff had paid the extra money towards the first floor as he was getting the rights over the terrace. It is stated by DW1 that he does not know if on account of building by laws at the said time, the terrace right could not have been sold separately due to the said reason despite the fact that the plaintiff had paid extra premium to Dawar Construction Company, in the documents of the plaintiff, the terrace right has not been mentioned however, it was implied consent from the Dawar Construction Company, due to the said reason, the Dawar Construction Company had not reserved their right over the terrace in the property documents of the plaintiff. DW1 cross-examination was concluded on 29.08.2022.
26. Further, Sh. Suresh Kumar Sansanwal was examined as DW2 who tendered his affidavit of evidence as Ex. DW2/A. During cross-examination by Ld. Counsel for plaintiff, DW2 stated that the Special Power of Attorney was prepared in the tehsil of Mehrauli and at the said time, Mr. Mansukhani and Mr. P S Panchpal were present in the Tehsil Mehrauli and the attestation of the said document was also done at Tehsil Mehrauli. It is stated by DW2 that apart from the above two persons besides him, the property dealer Sh. Om Prakash Dawar was also present. It is stated by DW2 that he along with defendant no. 2 had visited the suit property i.e. B-140 Shivalik Enclave, New Delhi. It is stated by DW2 that he got access to the suit property as he had accompanied defendant no. 2 and one Digitally signed by KANIKA AGARWAL Page no. 15 of 36 KANIKA Date:
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more person who had the key to the suit property. It is stated by DW2 that the sale documents were executed on 03.02.2004. It is stated by DW2 that Mr. Mansukhani did not accompany them to the suit property on 03.02.2004. It is stated by DW2 that he did not invite them but they were invited to the puja on 08.02.2004 by defendant no. 2.
27. It is stated by DW2 that he know Raj Kumar Narula as he carries out construction activity at Malviya Nagar and Panchsheel Vihar. It is stated by DW2 that meeting with Mr. Mansukhani never happened on the suit property but at the office of the property dealer. It is stated by DW2 that there was no light in the suit property when he visited the suit property on 03.02.2004 and Only a temporary room was constructed. It is stated by DW2 that he does not know if any intimation was given to RWA of Shivalik Enclave New Delhi before the demolition work was started. It is stated by DW2 that he was not shown any permission sought by defendant no. 2 from DDA regarding demolition work. It is stated by DW2 that he does not know if in 2004, in the Shivalik Enclave as per by laws only two dwelling unit i.e. ground and first floor was permitted to be constructed and beside that there could not be any construction over the terrace of the first floor. It is denied by DW2 that there was no temporary room along with the small toilet on the roof of suit property.
28. It is stated by DW2 that he was present on 07.02.2004 Digitally signed by KANIKA KANIKA AGARWAL Page no. 16 of 36 AGARWAL Date:
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when demolition work was being carried out manually. It is stated by DW2 that defendant no. 2 was present along with persons at puja held on 08.02.2004. It is stated by DW2 that the Special Power of Attorney bears the signatures of Vrinda Panchpal who had accompanied them for attestation of the document. It is stated by DW2 that photographs were clicked at the time when puja was conducted on 08.02.2004, however, Panchpal had never shown him those photographs. It is stated by DW2 that he does not know how the malba after the demolition work was completed was picked up as he had left by then. DW2 cross-examination was concluded on 13.10.2022.
29. Further, Sh. Ankur Aggarwal was examined as DW3 who tendered his affidavit of evidence as Ex. DW3/A. During cross- examination, DW3 has stated that he does not know how much consideration amount was paid as he was standing by the side and only a cheque was given to Mr. Mansukhani by defendant no. 2. It is stated by DW3 that they directly reached the terrace of the suit property as it was open since defendant no. 2 was already present at the terrace. It is stated by DW3 that he does not know how much money was paid by P S Panchpal to Mr. Raj Kumar Narula for the demolition work. It is stated by DW3 that he does not know whether demolition work was carried out manually or mechanically. It is stated by DW3 that he became the associate of Raj Kumar Narula only in 2004 while he was learning the work in 2004. Before that, Digitally signed by KANIKA Page no. 17 of 36 KANIKA AGARWAL AGARWAL Date:
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he only knew Raj Kumar Narula. It is stated by DW3 that who so ever perform any work of demolition and sale of the deberis had to pay VAT tax. It is stated by DW3 that as long as he remained associated with Raj Kumar Narula, he did not came to know whether they had deposited any VAT tax pertaining to demolition of the suit property. It is stated by DW3 that when he visited the suit property on 03.02.2004, there was no electricity in the room and toilet. It is stated by DW3 that he does not know if there was any electricity meter.
30. It is stated by DW3 that he does not know if any permission was sought from DDA and RWA before carrying out the demolition work. It is stated by DW3 that it was Mr. Narula who had hired the labour for the demolition work. It is stated by DW3 that he does not know if during the year 2003-04, dwelling units could be constructed only on ground floor and first floor. It is stated by DW3 that Sh. Om Prakash Dawar is involved in property dealing. It is stated by DW3 that he does not know if the Dawar construction company after constructing the suit property as per then existing by laws had already sold out all portion to the different purchasers, subsequent to that he was not having any right in the suit property.
31. It is stated by DW3 that on 08.02.2004, there was only a boundary which existed at the terrace. It is denied by DW3 that on the terrace, the plaintiff was using as a kitchen gardening and sitting Digitally signed by KANIKA Page no. 18 of 36 KANIKA AGARWAL AGARWAL Date:
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areas as well as his water tank was also installed on the terrace. DW3 cross-examination was concluded on 13.10.2022. Thereafter, DE was closed and matter was fixed for final arguments. FINAL ARGUMENTS
32. Final arguments advanced by both parties were heard on 21.09.2024. Both the sides have also filed their detailed written submissions. Ld. counsel for plaintiff has also relied upon following judgments in support of his contentions i.e.
(i) A. Subramanian & Anr. Vs. Pannerselvam (2011) 8 SCC 617;
(ii) New Delhi Municipal Council Vs. Kanwal Sibal & Ors. 2016 (LPA) 543/2015;
(iii) Raj Kishore Prasad & Ors. Vs. State of Orissa 1993 Supp (4) SCC 51;
(iv) Asha Johri Vs. Nerja Rajput & Anr. RFA No. 75/14;
(v) Munshi Ram & Ors. Vs. Puran Singh & Ors. (1989) 1 SCC 424;
(vi) Alla Seshuumar & Anr. Vs. Alla Radha Krishna (1997) 5 SCC 712;
(vii) Deepak Kumar Mukherjee Vs. Kolkata Municipal Corporation (2011) 12 SCC 211;
(viii) Krishna Ram Mahale Vs. Mrs. Shobha Venkat Rao AIR 1989 SC 2097;
(ix) Laly Yashwant Singh Vs. Rao Jagdish Singh & Ors. AIR 1968 SC 620; and (x) Nahal Chand Laloochand P. Ltd. Vs. Panchali Digitally signed by KANIKA AGARWAL Page no. 19 of 36 KANIKA Date:
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Co-op. Housing Society Ltd. (2018) 10 SCC 595.
33. The file has been carefully and minutely perused and my issue-wise findings with reasons thereof are as under: -
ISSUE NO. 3Whether the plaintiff is entitled to the relief of permanent injunction, as prayed for? OPP
34. The court deems it fit to first address issue no. 3 as same involve the substantial discussion on facts and law. The burden to prove this issue is upon the plaintiff. In nutshell, the case of the plaintiff is based on the footing that he is the owner in possession of entire first floor with terrace of property bearing no. B-140, Shivalik Enclave, New Delhi by virtue of having purchased the same from its erstwhile owner M/s Dawar Constructions Company Pvt. Ltd. It is pleaded that plaintiff is in lawful and uninterrupted possession of the suit property including the terrace area since the date of purchase. That plaintiff has been using the terrace for multiple purposes and no one has ever objected to his peaceful enjoyment of the terrace area. That on 25.07.2010 at about 11.00 AM, the defendant alongwith a key maker and one more person namely Mr. Behl attempted to break the lock of the terrace door in order to take possession of the terrace area. Upon being enquired, the defendants stated that they are the owner of the terrace of the suit property. Subsequently, police complaints were made against the defendants. It is averred that on 27.07.2010, the Digitally signed by KANIKA Page no. 20 of 36 AGARWAL KANIKA Date:
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defendant along with one Mr. Behl had again entered the suit property in order to dispossess the plaintiff, however, with the help of the locals, the plaintiff succeeded in removing the defendants from the suit property. Hence, the present suit.
35. Per contra, it is the case of defendants that they are the owner of the terrace area of the suit property having purchased the same from Mr. H. S. Mansukhani vide General Power of Attorney dated 28.01.2004 and Agreement to Sell dated 29.05.1995. It is stated that defendants are in possession of the terrace area and that on 07.02.2024, the defendants had removed one temporary room along with the small toilet on the terrace. That on 08.02.2024, the defendants had also conducted puja in the presence of the occupants of the ground floor and the first floor i.e. the plaintiff. It is stated that after the puja was performed, the keys to the terrace area was handed over to the plaintiff upon his request. It is stated that defendants used to visit the suit property from time to time to keep a check. It is stated that on 24.07.2010, when the defendants visited the terrace area of the suit property in order to carryout the construction, the plaintiff did not handover the key on one pretext or the other. Later, when the defendants visited the suit property, the plaintiff challenged the authority of the defendants to enter into the suit property and also made a false complaint against the defendants. Thus, it is prayed that plaintiff has filed a false and frivolous case.Digitally signed by KANIKA AGARWAL
KANIKA Page no. 21 of 36 Date:
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36. In this backdrop, the court shall ascertain whether the plaintiff is entitled for relief of permanent injunction. The plaintiff has filed the suit for permanent injunction on the footing that he is the owner in possession of first floor with terrace of property bearing no. B-140, Shivalik Enclave, New Delhi having purchased it from its erstwhile owner namely M/s Dawar Constructions Company Pvt. Ltd. in the year 1994.
37. In so far as the ownership documents of the plaintiff are concerned, a bare perusal of General Power of Attorney (Ex.
PW1/A (OSR)), Will (Ex. PW1/B (OSR)) and Agreement to Sell (Ex. PW1/C (OSR)) would show that the vendor i.e. M/s Dawar Construction Company Pvt. Ltd. had transferred only the first floor of property bearing no. B-140, Shivalik Enclave, New Delhi and no right, title or interest is created in favour of the plaintiff with respect to the terrace area of the said property. Evidently, the ownership documents do not confer any right with respect to the terrace area upon the plaintiff.
38. As far as the possession of the plaintiff with respect to the terrace area of the suit property is concerned, the plaintiff primarily relies upon a single photograph (Ex. PW1/E (colly)) and majorly upon the fact that he has the keys to the terrace area.
39. It is not in dispute that keys to the terrace of the suit property is with the plaintiff as same is admitted by the defendants also. The defendants in paragraph no. 3 of preliminary submissions Digitally signed by KANIKA AGARWAL Page no. 22 of 36 KANIKA Date:
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of their written statement have specifically stated that they had handed one of the key to the terrace of the suit property to the plaintiff upon latter's request as his water tanks were kept there. Hence, the plaintiff's possession in the terrace of the suit property is not denied by the defendants either.
40. However, at the same time, it is to be noted that the defendant no. 1 (wife of defendant no. 2) has also claimed ownership of the terrace area on the strength of Agreement to Sell (Ex. DW1/13 (OSR)), Receipt (Ex. DW1/14 (OSR)) and Possession letter (Ex. DW1/15 (OSR)) (all dated 03.02.2004) executed in her favour by Sh. H. S. Mansukhani s/o Late Sh. K S Mansukhani who in turn had purchased the terrace area of the suit property from Sh. O. P. Dawar vide Agreement to Sell dated 29.05.1995 (Ex. DW1/3 (OSR)) and General Power of Attorney dated 28.01.2004 (Ex. DW1/1 (OSR)).
41. It is a matter of record that sale documents in favour of defendant no. 1 and Sh. H. S. Mansukhani s/o Late Sh. K. S. Mansukhani were filed by the defendants along with their written statement. Although, there is no gain saying that merely on the basis of Agreement to Sell (Ex. DW1/13 (OSR)), Receipts (Ex. DW1/14 (OSR)) and Possession Letter (Ex. DW1/15 (OSR)), there cannot be a valid transfer of an immovable property in favour of defendant no. 1, however, at the same time, the said documents certainly depicts better rights of the defendants over the terrace area. In other Digitally signed by KANIKA KANIKA AGARWAL Page no. 23 of 36 AGARWAL Date:
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words, defendant no. 1 may not the classical owner of the terrace area of the suit property as she would had there been a sale deed in her favour, however, she certainly has better rights over the terrace area of the suit property. Reliance is placed upon the judgment of Hon'ble High Court of Delhi in Shri Ramesh Chand vs Suresh Chand & Anr. RFA No.358/2000 and Hardip Kaur vs Kailash & Anr. (RFA No.648/2006 decided on 18.05.2012).
42. In judgment of Hardip Kaur (Supra), the Hon'ble High Court of Delhi has observed that even though the purchaser of an immovable property by way of Agreement to Sale and General Power of Attorney may not be a classical owner of the property, however, he would by virtue of having paid the entire consideration amount and being put in possession of the property would have better rights qua the person who lacks any entitlement to reside in the property. The relevant paragraph from the judgment is quoted herein-below:
"Applying the aforesaid principles of law to the facts of the present case, the findings of this Court are as under:-
(i) Vide agreement to sell dated 5th June, 1989, the plaintiff agreed to sell first, second and terrace floors of the suit property to Mohinder Kaur for a total consideration of Rs.
4,50,000/-. The plaintiff received the entire sale consideration from Mohinder Kaur, handed over the vacant and peaceful possession to her and simultaneously executed the agreement to sell, receipt, affidavit, will, indemnity bond and irrevocable General Power of Attorney all dated 5th June, 1989. The plaintiff declared in the agreement that she is not left with any right, title or interest in the suit property. The plaintiff authorized defendant No.1 to make construction, additions and alterations in the suit property. The General Power of Attorney authorized the attorney to sell the suit property as well as to carry on additions and alterations. Clause 19 of the Digitally signed by KANIKA Page no. 24 of 36 KANIKA AGARWAL AGARWAL Date:
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General Power of Attorney declared it to be irrevocable. The plaintiff also deposed on oath in her affidavit that she would not withdraw or cancel any of the documents under any circumstances. The agreement to sell, receipt, indemnity bond and affidavit are legal, valid and subsisting and have not been cancelled by the plaintiff. The plaintiff has no interest left in the suit property and, therefore, cannot claim the possession or mesne profits in respect of the suit property.
(ii) The agreement to sell „of itself‟ may not create any interest in the property under Section 54 of the Transfer of Property Act, 1882 but the agreement along with the payment of the entire sale consideration, handing over of the possession, execution of the receipt, affidavit, will, indemnity bond and irrevocable General Power of Attorney create "an interest in the property" within the meaning of Section 202 of the Contract Act.
(iii) The words "an interest in property which forms the subject matter of the agency" in Section 202 of the Contract Act, 1872 are of wider amplitude than the words "an interest in or charge on such property" in Section 54 of the Transfer of Property Act, 1882. Where the seller has received the sale consideration in pursuance of the agreement to sell and has delivered the possession to the purchaser, the purchaser would have interest in the property within the meaning of Section 202 of the Contract Act.
(iv) The Power of Attorney has been conferred not for the benefit of the plaintiff but for the benefit of the agent representing the purchaser and not as representing the principal and, therefore, it is irrevocable. The reason to appoint Surinder Jit Singh, the son and nominee of the purchaser, obviously was that the attorney was regarded as a person interested in the purchaser rather than in the plaintiff whose interest was opposed to that of the purchaser. It is only in law that the attorney became an agent of the plaintiff. But this agency was only with a view to serve the purpose of the purchaser. His interest in this transaction was the same as that of the purchaser. It was, therefore, the interest of the attorney that the property which was the subject-matter of the agency should be conveyed by the plaintiff to the purchaser.
(v) The Power of Attorney was granted only because an agreement to sell was entered in favour of the purchaser. The attorney no less than the purchaser was, therefore, interested in the subject-matter of the agency, namely, the suit property.
If the agency was to be terminated, prejudice would have been caused to the interest not only of the purchaser but also of the attorney.
(vi) The agreement to sell, General Power of Attorney, receipt, affidavit, will and indemnity bond executed contemporaneously constitute one transaction and they have Digitally signed by KANIKA AGARWAL KANIKA Page no. 25 of 36 Date:
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to be read and interpreted together as if they are one document. The true nature of the transaction between the parties is the agreement to transfer the suit property by the plaintiff to defendant No.1. There is no clause in any of the documents that the plaintiff can claim back the possession of the suit property in any situation. Rather, the plaintiff has agreed not to cancel/revoke any document and not to claim back the possession under any circumstances. The plaintiff is, therefore, not entitled to recover the possession of the suit property. If the plaintiff was aggrieved by any unauthorised construction, the plaintiff‟s remedy was to seek injunction to stop the alleged unauthorized construction or to have approached the Municipal Authorities to take action against the unauthorized construction.
(vii) The plaintiff has argued that the purchaser and her attorney are two different persons in the eye of law. This may be so. But their interests are identical. It cannot be said that the attorney had no interest in the property which is the subject-matter of the agency. The interest does not mean ownership or title in the immovable property. It means an advantage or a benefit or a legally enforceable right. The Power of Attorney was executed only to facilitate the execution of the sale deed in favour of the purchaser and, therefore, the attorney was interested in the subject-matter of agency, namely, the suit property.
(viii) The object of giving validity to a Power of Attorney given for consideration even after death of the executants is to ensure that entitlement under such Power of Attorney remains because the same is not a regular or a routine Power of Attorney but the same had elements of a commercial transaction which cannot be allowed to be frustrated on account of death of the executant of the Power of Attorney.
(ix) The purchaser would though not be the classical owner of the suit property as would an owner be under a duly registered sale deed, but surely he would have better rights/entitlement of possession of the suit property than the plaintiff. A right to possession of an immovable property arises not only from a complete ownership right in the property but having a better title or a better entitlement/right to the possession of the property than qua the person who is in actual physical possession thereof.
(x) All the conditions of irrevocability are satisfied in the present case. The authority to the agent was given for valuable consideration which proceeded from Mohinder Kaur. It was given to Surinder Jit Singh, son and nominee of Mohinder Kaur to ensure and secure the performance of the contract by the plaintiff in favour of Mohinder Kaur.
(xi) The General Power of Attorney dated 5 th June, 1989 is irrevocable in view of Section 202 of the Contract Act. The Digitally signed by KANIKA Page no. 26 of 36 AGARWAL KANIKA Date:
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plaintiff, therefore, had no right to terminate the said General Power of Attorney. The General Power of Attorney is legal, valid and subsisting. The revocation of the General Power of Attorney by plaintiff is, therefore, of no consequence.
(xii) The defendants are protected by Section 53A of the Transfer of Property Act, 1882 and, therefore, the plaintiff is not entitled to the recovery of possession of the suit property.
(xiii) The mere fact that the defendants did not file a Counter-
claim or suit for specific performance cannot lead to a conclusion that they have given up all their rights in the suit property. It can, at best, be said that the defendants have lost the opportunity of perfecting their title but it would not entitle the plaintiff to claim the possession."
43. Thus, in light of principles as laid down by Hon'ble High Court in judgement as referred above, the defendant no. 1 may not the dejure owner of the suit property owing to absence of registered sale deed in her favour, she nonetheless has superior rights to occupy the terrace area of the suit property as compared to the plaintiff who has failed to show any legal right in his favour to occupy the terrace area.
44. Further, the sale documents of the defendant no. 1 does raise reasonable cloud over the alleged ownership of the plaintiff to occupy the terrace area. Hence, the plaintiff ought to have amended his suit in order to seek relief of declaration with respect to his alleged ownership rights in light of judgment of Hon'ble Supreme Court of India in Anathula Sudhakar v. P. Buchi Reddy (2008) 4 SCC 594 wherein it has been observed as follows:-
"11. The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well settled. We may refer to them briefly.Digitally signed by KANIKA
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11.1) Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner. 11.2) Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession. 11.3) Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.
12. We may however clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to plaintiff's title raises a cloud on the title of plaintiff to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff's title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient. Where the plaintiff, believing that defendant is only a trespasser or a wrongful claimant without title, files a mere suit for injunction, and in such a suit, the defendant discloses in his defence the details of the right or title claimed by him, which raises a serious dispute or cloud over plaintiff's title, then there is a need for the plaintiff, to amend the plaint and convert the suit into one for declaration.
Alternatively, he may withdraw the suit for bare injunction, with permission of the court to file a comprehensive suit for declaration and injunction. He may file the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the suit raised only the issue of possession and not any issue of title.
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13. In a suit for permanent injunction to restrain the defendant from interfering with plaintiff's possession, the plaintiff will have to establish that as on the date of the suit he was in lawful possession of the suit property and defendant tried to interfere or disturb such lawful possession. Where the property is a building or building with appurtenant land, there may not be much difficulty in establishing possession. The plaintiff may prove physical or lawful possession, either of himself or by him through his family members or agents or lessees/licensees. Even in respect of a land without structures, as for example an agricultural land, possession may be established with reference to the actual use and cultivation. The question of title is not in issue in such a suit, though it may arise incidentally or collaterally.
45. From the said judgment, it is evident that the plaintiff's simplicitor suit for injunction is not maintainable in light of the reasonable cloud being raised by the sale documents of the defendant no. 2 over the plaintiff's alleged ownership in the suit property.
46. At this juncture, it is pertinent to mention that the plaintiff has challenged the sale documents of the defendant no. 1 on grounds that same were prepared by M/s Dawar Construction Company Pvt. Ltd. with malafide intention to defeat the legal rights of the plaintiff with respect to the terrace area. It is argued that in the year 1994, when the sale documents were executed by M/s Dawar Construction Company Pvt. Ltd. in favour of the plaintiff, the height of the buildings in Shivalik Enclave, New Delhi was restricted to 11.5 meters. However, subsequently, vide Gazette notification dated 20.05.1995, the height was increased to 12.5 meters and the Floor Digitally signed by KANIKA AGARWAL KANIKA Page no. 29 of 36 Date:
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Area Ratio (FAR area) was also increased. It is thus argued that the original owner of the property i.e. M/s Dawar Construction Company Pvt. Ltd. has taken advantage of the increase in building height to 12.5 meters and the Floor Area Ratio by executing sale document in favour of Sh. H. S. Mansukhani who in turn executed sale documents in favour of defendant no. 1.
47. It is further argued that whenever there is an increase in floor area ratio, the benefit of the same has to be given to the existing owners only and the builder cannot under the garb of increase in height or the Floor Area Ratio area can raise further construction upon the suit property.
48. In this regard, the plaintiff has relied upon the judgment of Hon'ble High Court of Delhi in New Delhi Municipal Council Vs. Kanwal Sibbal & Ors. (LPA 543/2015) wherein it has been observed as follows:-
"12. The reflection of this jural concept, in the context of the building bye- laws and the Master Plan for Delhi-2021, would be that since a plot of land is made indivisible and hence would be treated as a single entity plot, ownership in the land by different persons would be with reference to the proportionate share they may have in the land, as an impartible and indivisible interest, but as regards the building constructed thereon, to which would be linked the right to utilize the FAR, different floors would be treated as different buildings and entitled to the proportionate FAR, not requiring the owners of different floors to sign jointly an application submitted by the owner of a floor to effect additions and alterations in his part of the building. Of course, while considering the application it would be the duty of the Council to ensure that the applicant limits his request for additional construction to the proportionate benefit of the increased FAR allocable to his share. We note that in the instant case, it is the case of Kanwal Sibal that the proposal Digitally signed by KANIKA AGARWAL Page no. 30 of 36 KANIKA Date:
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submitted by him limits the additional construction which he intends to make to his 1/3 rd share in the additional FAR. Notwithstanding said stand taken by Kanwal Sibal, which may possibly be treated as a concession made by him, even if Kanwal Sibal was not to take that stand, even as per law the distribution of the FAR would so warrant. The reason is that as per bye-law 2.36 of the building bye-laws 1983, FAR is defined as the quotient obtained by dividing the total covered area (plinth area) on all floors multiplied by 100 by the area of the plot. This is subject to the modification under the Master Plan for Delhi. In the instant case the multiplier of 100, taken to the unit value 1 was earlier on increased to 1.5 and thereafter to 2.25 as per MPD-2021. The total area of the plot being 349.99 square meters the total construction permissible would be 787.48 square meters i.e. 349.99 x 2.25. As per condition No.X under para 4.4.3 of MPD-2021, for plots above 250 square meters and up to 500 square meters the minimum setbacks in the front and the rear have to be 3 meters each. Further, one setback on the site has to be of 3 meters. In other words on three sides of the plot 3 meters open area has to be maintained. The total height of the building as per MPD-2021 has to be 15 meters. Thus, the height restriction and the restriction of permissible coverage of the plot would be further requirements of law which would impact the distribution of the FAR on the plot of land, and since there are three co-owners of the plot of land who own in severalty the ground, first and the second floor of the building (with the terrace rights being with the owner of the second floor) the FAR benefit even as per law has to be made available equally to the three owners of the plot, to be utilized by them on their respective floors. Further, the owner of the second floor would additionally be bound by the height restriction on the building. The issue of structural stability will have to be kept in mind by the Council. Applicability of any other bye-law or any provision of MPD-2021 concerning the height of the building would also have to be kept in mind by the Council. In other words, the rejection of the application submitted by Kanwal Sibal on the ground that it has not been signed by the owners of the ground floor and the first floor is illegal, and we accord our concurrence with the view taken by the learned Single Judge who has returned the finding to said effect. As directed by the learned Single Judge, the proposal submitted by Kanwal Sibal would need application of mind by the Council in the context of the building bye-laws applicable and the MPD-2021."
49. In so far as the above-stated judgment of Hon'ble High Court of Delhi is concerned, the said judgment only deals with the Digitally signed by KANIKA KANIKA AGARWAL AGARWAL Date:
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issue that when there are three co-owners of the plot who own in severalty the ground, first and the second floor of the building (with terrace rights being with the owner of the second floor), the increase in FAR benefit has to be made available equally to the owners of the plot to be utilized by them on their respective floors. Thus, it is clear from the judgment that the co-owners of the plot shall be equally entitled to increase in Floor Area Ratio. However, the facts of that case is different from the facts of the captioned suit as in the case before the Hon'ble Court, the second floor owner was also the owner of the terrace area and thus, he was granted right to raise further construction. In the case at hand, it is clear from the record that ownership of the terrace area was with the builder only and thus, he was also equally entitled to take advantage of increase in building height and Floor Area Ratio.
50. Nevertheless, the issue whether the benefit of increase in Floor Area Ratio had to be exclusively granted to the existing owners could only be decided when the plaintiff had sought a relief of declaration either to get himself declared as owner of the property or to seek declaration for setting aside of the sale documents of the defendants. Merely, in a suit for injunction, the court cannot give its conclusive finding whether the documents executed by M/s Dawar Construction Company Pvt. Ltd. in favour of Sh. H. S. Mansukhani were without any legal sanctity or not.
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51. Be that as it may, even if it is assumed that the plaintiff has been enjoying the exclusive possession of the terrace area of the suit property since the date of purchase, the plaintiff cannot seek relief of injunction against the true owner of the property or someone who has better rights and entitlement to occupy it.
52. In this context, the court deems it fit to refer to judgment of Hon'ble Supreme Court of India in Padhiyar Prahladji Chenaji(Deceased) Through L.R.s Vs. Maniben Jagmalbhai (Deceased) Through L.R.s and Ors. CA No. 1382/2022 wherein it has been held as follows:-
"9.1 At this stage, the decision of this Court in the case of Jharkhand State Housing Board Vs. Didar Singh and Anr., (2019) 17 SCC 692 is required to be referred to. In the said decision, it is observed and held by this Court that though a bare suit for injunction in the absence of declaration relief would be maintainable and in each and every case where the defendant disputes the title of the plaintiff, it is not necessary that in all those cases, the plaintiff has to seek the relief. It is further observed and held that, however, when the defendant raises a genuine dispute with regard to title and when he raises a cloud over the title of the plaintiff, then necessarily in those circumstances, plaintiff cannot maintain a suit for bare injunction.
9.3 In the case of A. Subramanian Vs. R. Pannerselvam, (2021) 3SCC 675, it is observed by this Court that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. Therefore, the plaintiff is not entitled to any injunction and/or protect his possession against the rightful owner, more particularly, when he fails to get the declaratory relief and the dispute with respect to the title comes to an end.
10. Now, so far as the reliance placed upon the decision of this Court in the case of Anathula Sudhakar (supra) by the learned Advocate appearing on behalf of the original plaintiff in support of his submission that in a suit for permanent injunction to restrain the defendant to interfere with the plaintiff's possession, the only thing the plaintiff will have to Digitally signed by KANIKA KANIKA Page no. 33 of 36 AGARWAL AGARWAL Date:
2024.09.26 15:37:49 +0530 (Kanika Agarwal) CJ-01/(South) Saket Court/New Delhi CS SCJ 84995/16 DR. RAJIV DHINGRA VS. SMT. VINDRA PANCHPAL & ANR.
establish is that as on the date of the suit, he was in lawful possession of the suit property and the defendant has tried to interfere or disturb his possession is concerned, what is observed by this Court in paragraph 15 is the "lawful possession" of the plaintiff. In the present case the plaintiff, who has failed to get any declaratory relief and the defendant No.1 is held to be a true and absolute owner on the basis of the registered sale deed on payment of full sale consideration thereafter the plaintiff's possession cannot be said to be "lawful possession".Therefore, the plaintiff is not entitled to any permanent injunction against the true owner in the instant case."
53. The Apex Court in the said judgment has held that the plaintiff is not entitled to any injunction to protect his possession against the rightful owner more particularly when he fails to get the declaratory relief. Further, it was also held by the Hon'ble Supreme Court of India that an injunction can be granted even against the true owner of the suit property only when the person seeking the relief is in lawful possession or enjoyment of the property and also legally entitled to be in possession. From the record of the case, it is evident that plaintiff has failed to file even a single document to show that his possession over the terrace area is lawful or that he was legally entitled to be in possession. One of the argument taken by the plaintiff to prove that he is the lawful owner of the terrace area is that he has paid a higher consideration amount towards purchase of the second floor than the other residents of the property. In the opinion of the court merely because the plaintiff has paid slightly a higher consideration amount, it cannot be assumed and inferred that the terrace rights were also sold to the plaintiff.
Digitally signed by KANIKA AGARWALPage no. 34 of 36 KANIKA Date:
AGARWAL 2024.09.26
15:37:56
+0530
(Kanika Agarwal)
CJ-01/(South) Saket Court/New Delhi
CS SCJ 84995/16
DR. RAJIV DHINGRA VS. SMT. VINDRA PANCHPAL & ANR.
54. Thus, in view of the observation above, the court is of the opinion that plaintiff has failed to prove that his possession of the terrace area is lawful. Further, the plaintiff cannot be granted the relief of injunction in light of the sale documents in favour of defendant no. 1 as the plaintiff ought to have amended the suit in order to file a suit for declaration. Hence, issue no. 3 is decided against the plaintiff and in favour of the defendants.
ISSUE NO. 1Whether the suit of the plaintiff is without any cause of action?
OPD AND ISSUE NO. 2 Whether the suit is barred in view of Section 41 of Specific Relief Act? OPD
55. The onus to prove both these issues is upon the defendants. In the opinion of the court, merely because the plaintiff has failed to prove his case would not suffice to hold that he has approached the court without any cause of action. Further, the defendants have also failed to prove on the anvil of preponderance of probabilities that the plaintiff has approached the court with unclean hand. Accordingly, issues no. 1 and 2 are decided against the defendants and in favour of plaintiff .
ISSUE NO. 4Relief Digitally signed by KANIKA AGARWAL KANIKA Page no. 35 of 36 Date:
AGARWAL 2024.09.26 15:38:03 +0530 (Kanika Agarwal) CJ-01/(South) Saket Court/New Delhi CS SCJ 84995/16 DR. RAJIV DHINGRA VS. SMT. VINDRA PANCHPAL & ANR.
56. In view of the findings on the aforesaid issues, docu- ments on record, pleadings of the parties, and evidence led, the plaintiff is not entitled for relief of injunction. Accordingly, suit of the plaintiff is dismissed. No order as to costs.
57. Decree sheet be prepared accordingly.
58. File be consigned to record room after due compliance.
Pronounced in open court: KANIKA
Digitally signed
by KANIKA
AGARWAL
AGARWAL Date: 2024.09.26
Dated: 26.09.2024 15:38:10 +0530
(Kanika Agarwal)
CJ-01(South)Saket/New Delhi/26.09.2024 Note :-This judgment contains thirty six pages and all the pages have been checked and signed by me.
Digitally signedby KANIKA KANIKA AGARWAL AGARWAL Date: 2024.09.26 15:38:15 +0530 (Kanika Agarwal) CJ-01(South)Saket/New Delhi/26.09.2024 Digitally signed by KANIKA Page no. 36 of 36 KANIKA AGARWAL Date:
AGARWAL 2024.09.26 15:38:21 +0530 (Kanika Agarwal) CJ-01/(South) Saket Court/New Delhi