Delhi District Court
Smt. Meera Verma vs Vinod Kumar Chhabra on 30 July, 2018
Smt. Meera Verma & Ors. v. Vinod Kumar Chhabra & Ors.
Suit No. 84144/16
IN THE COURT OF MS. NEHA PRIYA, CIVIL JUDGE01
(SOUTH) SAKET COURTS, NEW DELHI
In the matter of:
Suit no. 84144/16
CNR No. DLST030010862015
1. Smt. Meera Verma
W/o Sh. Satish Verma
R/o Flat no. S1,
Upper Ground Floor,
Muskan Apartments,
886, Ward no.8,
Mehrauli,
New Delhi110030.
2. Satish Kumar
S/o Late Sh. Prahlad Singh
R/o Flat No. S1,
Upper Ground Floor,
Muskan Apartments,
886, Ward No.8,
Mehrauli,
New Delhi110030. ........Plaintiffs
Versus
1. Vinod Kumar Chhabra
S/o Sh. Wal Chand Chhabra
R/o 897/8, Mehrauli,
New Delhi110030
2. Dharam Singh
S/o Sh. Roop Chand
R/o T67/6, Mehrauli,
New Delhi110030.
3. South Municipal Corporation of Delhi
Through Its Commissioner,
Green Park,
New Delhi .......Defendants
Page no. 1 of 18
Smt. Meera Verma & Ors. v. Vinod Kumar Chhabra & Ors.
Suit No. 84144/16
Date of Institution : 29.10.2015
Date of Pronouncement : 30.07.2018
Decision : Decreed
SUIT FOR DECLARATION AND PERMANENT INJUNCTION
Present: None.
JUDGMENT:
1. This suit for declaration and permanent injunction has been filed by the plaintiff against the defendants seeking (i) relief of the permanent injunction restraining the defendants from taking forcible of possession of the entire ground floor in the Muskan Apartment, property bearing no. 886 in Ward No. 8, in Khasra No. 1151/3 min. situated in abadi of Laldora of Village Mehrauli, Tehsil Hauz Khas, New Delhi110030, as shown in red in site plan (hereinafter referred as 'Suit Property'), restricting them from creating third party interest in the Suit Property, restraining them from making unauthorized construction/ structural changes and restraining them entering/interfering into the peaceful possession of the plaintiffs of the Suit Property; and (ii) relief of declaration declaring that defendant no.1 and 2 have no right, title or interest in the Suit Property.
Averments in plaint:
2. By virtue of the plaint, it is submitted that the plaintiffs have been residing in flat no. S1, Upper Ground Floor in Muskan Apartments and plaintiff no.1 is the owner of the said flat which he had purchased vide registered sale deed on 17.07.2011 after paying the consideration to defendant no.1. The details were wrongly mentioned in the sale deed as the "upper ground floor" was written as "first floor", and common terrace was also not mentioned but the plaintiff had purchased the flat along with rights Page no. 2 of 18 Smt. Meera Verma & Ors. v. Vinod Kumar Chhabra & Ors.
Suit No. 84144/16to the common terrace. The plaintiff requested defendant no.1 to rectify the sale deed but the defendant no.1 lingered on the matter and assured the plaintiff that he has already got the sanctioned plan from MCD for the construction according to the bylaws of the MCD. After the purchase of the property, the plaintiff came to know that the property have been booked by the MCD for carrying out unauthorized construction in the property prior to purchase of the flat by plaintiff no.1. Defendant no.1 had even carried out unauthorized construction in the basement in the same property. There is a septic tank at the ground floor with common scooter/bike parking and other facilities. The entire ground floor comprises of common portion for all the residents of the building which is being used by the residents parking, common passage, stair case, water and septic tank in Muskan Apartments. The legal notice was issued to defendant no.1 and he had assured the plaintiff that as the basement was not in accordance with the byelaws he would never use the same but he started using the basement for the purpose of godown from JuneJuly 2013.
3. It is further averred that the terrace consisting of two rooms and common space was in common possession of all the residents of the said building. However, the rights of the plaintiff on the terrace and of the ground floor were interrupted by defendant no.1 and Mr. Sanjeev Mehta and therefore, the plaintiff no.1 had instituted a suit against defendant no.1 and Sh. Sanjeev Mehta which is pending before the court of Ld. Senior Civil Judge South, Saket East. Criminal prosecution is also pending between the parties. Defendant no.1 has started misusing the basement in the building and therefore, another suit was filed which is also pending before Ld. Senior Civil Judge, South Saket. In that matter, the counsel for defendant no.1 had apprised the court that defendant no.1 had already sold Page no. 3 of 18 Smt. Meera Verma & Ors. v. Vinod Kumar Chhabra & Ors.
Suit No. 84144/16the property to defendant no.2 and also placed General Power of Attorney, Agreement to Sell, Affidavit, Will and Receipt dated 22.01.2015. On perusal of the documents, it was revealed that the documents were executed for the ground floor measuring 60 Sq. Yards in the same building. Ld. counsel for defendant no.1 and 2 in that matter had even made a statement that they would fill the entire basement. Defendant no.1 even filled the basement to some extent but on 23.10.2015, the plaintiff came to know that defendant no.1 and 2 were trying "cut the lentre" of the ground floor in order to make structural changes in the Suit Property. Plaintiff no.1 had again sent the legal notice to defendant no.1 on 16.04.2012 being aggrieved from the conduct of the defendant. Defendant no.1 also executed rectification of the sale deed on 11.05.2012 which was also duly registered wherein the common facilities like stair case, common passage, entrance, and common water were recognized. However, the plaintiff again found that certain construction were carried out in the property on 27.10.2015 in violation of the byelaws and hence, police was called.
4. It is case of the plaintiff that defendant no.1 or 2 do not have any rights, title or interest in the Suit Property and the property has been used by the plaintiff and other residents of the building for common purposes and for parking their vehicles and therefore, the defendant no.1 and 2 do not have any right to carry out any activity at the ground floor. It was also submitted that on 28.10.2015, defendant no.1 and 2 had threatened the plaintiff to put their lock on the rolling shutter shown in the site plan at point B in order to restrict the entry of the plaintiffs at the Suit Property. Having left with no other option, this suit is filed by the plaintiffs.
Written Statement on behalf of defendants no. 1 and 2:
Page no. 4 of 18 Smt. Meera Verma & Ors. v. Vinod Kumar Chhabra & Ors.Suit No. 84144/16
5. By virtue of written statement on behalf of defendants, the plaint has been opposed and its contents have been denied. Written statement was filed by defendant no.1 and 2 wherein the maintainability of the suit was questioned and it was submitted that plaintiff no.2 has no right to file the present suit. Even plaintiff no.1 does not have any right, title or interest at the ground floor to the extent of 60 Sq. Yards which was sold by defendant no.1 to defendant no.2 by GPA, Agreement to Sell, Affidavit, Will, Possession Letter, receipt etc all dated 22.01.2015. It was further mentioned that the suit is barred by law of limitation and relief of declaration is not maintainable as consequential relief has not been sought. It was further contended that even if in the rectification deed, common services were recognized however, these services are in the area of 50.25 Sq. Yards and entire ground floor measures 110.25 Sq. Yards. Valuation was also questioned and it was also submitted that the defendant no.1 has never constructed any basement rather due to passage of time the road level in front of the property has been raised therefore, the property seems to be basement. On merits, the averments of the plaint were denied rather it was prayed that the suit be dismissed.
Replication:
6. By virtue of the replication, the contents of the plaint are reiterated and contents of the written statement have been denied. Issues:
7. Vide order dated 20.07.2016, following issues were framed in this matter:
Issue no.1 Whether the plaintiff is entitled to relief of permanent injunction against defendant no. 1 and 2 restraining them from taking over the forcible possession of the suit property or creating any third party interest as prayed for ? OPP Page no. 5 of 18 Smt. Meera Verma & Ors. v. Vinod Kumar Chhabra & Ors.Suit No. 84144/16
Issue no.2 Whether the plaintiff is entitled to relief of permanent injunction against defendant no. 1 and 2 restraining them from making any unauthorized construction in the suit property as prayed for ? OPP Issue no. 3 Whether the plaintiff is entitled to relief of declaration as prayed for?OPP Issue no. 4 Whether the present suit is not maintainable for want of cause of action?OPD 1 and 2 Issue no. 5 Whether plaintiff no. 2 has no locus standi to file the present suit?OPD 1 and 2 Issue no.6 Whether the present suit is barred by law of limitation?OPD 1 and 2 Issue no.7 Whether the present suit is not maintainable in its present form as consequential relief has not been sought as suit for declaration is not maintainable?OPD1 and 2 Issue no. 8 Whether the suit has not been valued properly and court fees filed is insufficient? OPD 1 and 2 Issue No.9 Relief.
8. Vide order dated 30.07.2018, Issues no. 6 and 7 have been struck out.
Plaintiff's evidence:
9. In support of its case, plaintiff examined himself as PW1 and tendered her evidence by way of affidavit Ex. PW1/A. She relied upon following documents i.e.
(i) Ex. PW1/1 (OSR) i.e. sale deed dated 27.06.2011;
(ii) Ex. PW1/2 (OSR) i.e. rectification deed dated 10.05.2012; and
(iii) Ex. PW1/3 i.e. site plan.
10. Sh. Satish Verma was examined as PW2 who tendered his evidence by way of affidavit Ex. PW2/A.
11. Sh. Narender Kumar record keeper, SubRegistrar V, Kalkaji was examined as PW3 who brought the sale deed registered vide registration no. 10736 book no. 1, volume no. 11298 on page 175 to 182 on 12.07.2011 and rectification of the sale deed registered vide registration no.
Page no. 6 of 18 Smt. Meera Verma & Ors. v. Vinod Kumar Chhabra & Ors.
Suit No. 84144/167694 in book no. 1 volume no. 12203 on page 86 to 88 on dated 11.05.2012. PW3 stated that documents Ex. PW1/1 and Ex. PW1/2 are true and correct as per the original record.
12. PW1 and PW2 were duly crossexamined by ld. Counsel for defendant no. 1 and 2. Despite opportunity, PW3 was not crossexamined by defendants.
13. Vide a separate statement, plaintiff's evidence was closed.
14. Despite several opportunities, evidence was not led on behalf of the defendants. Vide separate statement of ld. Counsel for defendants no. 1 and 2 dated 06.06.2018, defence evidence was closed. Findings:
15. Final arguments on behalf of parties were heard. Ld. Counsels presented their arguments in accordance with their pleadings. I have carefully perused the entire case record including the pleadings and evidence. I have also gone through the prevailing law in this regard and have heard the submissions of the learned counsels for both the sides. My issueswise findings are as under:
Issue no.1 & 2 Whether the plaintiff is entitled to relief of permanent injunction against defendant no. 1 and 2 restraining them from taking over the forcible possession of the suit property or creating any third party interest as prayed for ? OPP Whether the plaintiff is entitled to relief of permanent injunction against defendant no. 1 and 2 restraining them from making any unauthorized construction in the suit property as prayed for ? OPP
16. Since, common points are involved in both these issues, these are being dealt with together. The onus of proof of these issues is on the plaintiff. In order to discharge this onus, plaintiff has relied on Ex. PW1/1 i.e. sale deed dated 27.06.2011 as well as Ex. PW1/2 which is the Page no. 7 of 18 Smt. Meera Verma & Ors. v. Vinod Kumar Chhabra & Ors.
Suit No. 84144/16rectification deed executed on 10.05.2012 in respect of the aforesaid sale deed. Both Ex. PW1/1 and Ex. PW1/2 are registered documents and PW3 produced the original record from the SubRegistrar office. By virtue of Ex. PW1/1, "Unit no. S1 in Muskan Apartments situated at Ward no. 8, Mehrauli, Tehsil Hauz Khas, New Delhi110030" had been sold by defendant no. 1 to the plaintiff no. 1. By virtue of the rectification deed Ex. PW1/2, the description of the property had been rectified and its actual description was stated as "Unit No. S1 on Upper Ground Floor, Measuring 50 sq. yards, i.e. 41.81 sq. mtrs., consisting of one bedroom, one drawing / dining, one kitchen, one bathroomcumtoilet with balcony alongwith proportionate, undivided, indivisible and impartible ownership rights in the land underneath with all common facilities like staircase, common passage, common entrance, common terrace, common water tank and septic tank on ground floor, common scooter/ bike parking on the ground floor, and other services and facilities provided in the building (hereinafter called the said (demised portion) of property bearing No. 886, in Ward No. 8, measuring 110.25 sq. yards, in Khasra No. 1151/13 min; situated in abadi of Lal Dora (19081909), of Village Mehrauli, Tehsil Hauz Khas (Mehrauli), New Delhi110030". PW1 and PW2 deposed as per plaint. Both PW1 and PW2 were crossexamined on the same lines. They have both stated that the property at Muskan Apartments (including the Suit Property) was purchased by them on 12.07.2011 for a total sale consideration of Rs. 5.80 lacs and that since then, they are in possession of the same. Further, they had purchased the property from defendant no. 1. They have also stated that the plinth area of the property on which Muskan Apartments is constructed is 110 sq. yards and the area of their flat is 50 sq. yards. Further, they have parking right on the ground floor along with Page no. 8 of 18 Smt. Meera Verma & Ors. v. Vinod Kumar Chhabra & Ors.
Suit No. 84144/16seven other flat owners. They have denied the suggestion that they did not have parking right on the entire ground floor. No suggestion was put to them disputing their ownership or possession of the property, or the execution of Ex. PW1/1 and Ex. PW1/2, which therefore stands admitted. In fact, both these documents are admitted by the defendant in the written statement, and are therefore proved.
17. On the basis of the rectification deed, the plaintiff claims right to the entire ground floor because a right to enjoy common facilities like staircase, common passage, common entrance, common terrace, common water tank and septic tank, common scooter/ bike parking and other services on the ground floor have been provided for by the rectification deed Ex. PW1/2. On the other hand, defendant no. 1 contends that the only right that had been conferred by the rectification deed was with respect to common services and facilities i.e. common staircase, common passage, common entrance, common scooter/ bike parking, etc., on the ground floor extending only upto 50.25 sq. yards area and not the entire ground floor measuring 110.25 sq. yards. With respect to the remaining 60 sq. yards, the plaintiff has no right and defendant no. 1 continued to be the owner of the said 60 sq. yards on the ground floor which, he was free to sell to any other party and has now sold to defendant no. 2 by virtue of agreement to sell, GPA, Will, possession letter, receipt dated 22.01.2015. Thus, the main issue involved here is with respect to the interpretation of the actual description of the property that was sold by defendant no. 1 to plaintiff no. 1 on a combined reading of the sale deed Ex. PW1/1 and the rectification deed Ex. PW1/2.
18. As per para 1 of the rectification deed Ex. PW1/2, unit no. S1 on upper ground floor measuring 50 sq. yards along with proportionate Page no. 9 of 18 Smt. Meera Verma & Ors. v. Vinod Kumar Chhabra & Ors.
Suit No. 84144/16undivided, indivisible and impartible ownership rights in the land underneath had been given to the plaintiff. Besides, all common facilities like staircase, common passage, common entrance, common terrace, common water tank and septic tank on ground floor, common scooter/ bike parking on the ground floor and other services and facilities in the building were provided to the plaintiff.
19. Collectively these were regarded as "demised portion" of property bearing no. 886 measuring 110.25 sq. yards. There is no differentiation in this description that only 50.25 sq. yards of the ground floor contain the common facilities, and that rights over only 50.25 sq. yards had been given to the plaintiff. Thus, from a bare reading of the actual description of the property, common facilities on the entire ground floor were given to the plaintiff along with proportionate ownership right in the land underneath. The reference to 50.25 sq. yards is with respect to proportionate land ownership and not common facilities on ground floor.
20. It is settled that 'he who asserts, must prove'. Since the defendant is asserting that only 50.25 sq. yards of the ground floor was to be used for common facilities, burden was on him to prove the same. Defendant has failed to lead any evidence in this regard. Besides, it is settled law that oral evidence varying the terms of a written contract cannot be admitted.
21. As per the provisions of the said rectification deed Ex. PW1/2 read along with Ex. PW1/1, the following property has been sold by defendant no. 1 to plaintiff no. 1: "Unit No. S1 on Upper Ground Floor, Measuring 50 sq. yards, i.e. 41.81 sq. mtrs., consisting of one bedroom, one drawing / dining, one kitchen, one bathroomcumtoilet with balcony alongwith proportionate, undivided, indivisible and impartible ownership Page no. 10 of 18 Smt. Meera Verma & Ors. v. Vinod Kumar Chhabra & Ors.
Suit No. 84144/16rights in the land underneath with all common facilities like staircase, common passage, common entrance, common terrace, common water tank and septic tank on ground floor, common scooter/ bike parking on the ground floor, and other services and facilities provided in the building (hereinafter called the said (demised portion) of property bearing No. 886, in Ward No. 8, measuring 110.25 sq. yards, in Khasra No. 1151/13 min; situated in abadi of Lal Dora (19081909), of Village Mehrauli, Tehsil Hauz Khas (Mehrauli), New Delhi110030 (emphasis supplied)".
22. Therefore, by way of this registered rectification deed, common facilities on the entire ground floor of property no. 886, in Ward no. 8, measuring 110.25 sq. yards i.e. the Suit Property has been sold to plaintiff no. 1. The defence now set up by defendants no. 1 and 2 is that the common facilities were only for 50.25 sq. yards area on the ground floor, and not in respect of remaining 60 sq. yards on the ground floor. This differentiation and demarcation of rights of the plaintiffs on the ground floor is completely contrary to the terms of the registered document Ex. PW1/1 and Ex. PW1/2. Section 92 of the Indian Evidence Act inter alia provides that where the terms of a grant or other disposition of the property have been proved according to Section 91 (and in this case the execution and registration of Ex. PW1/1 and Ex. PW1/2 is admitted by the defendants), no evidence of any oral agreement or statement shall be admitted, as between the parties to such instrument, for the purposes of contradicting varying, adding to or subtracting on its terms. The defendants in the present case are seeking to do precisely this. The defence set up clearly contradicts and varies the terms of duly executed and registered instrument i.e. Ex. PW1/1 and Ex. PW1/2. Therefore, in face of the registered instruments, the defendants are barred u/s 91 and 92 of the Page no. 11 of 18 Smt. Meera Verma & Ors. v. Vinod Kumar Chhabra & Ors.
Suit No. 84144/16Indian Evidence Act from setting up the defence as they are proposing to do. Therefore, oral evidence, if any, to prove that only 50.25 sq. yards of the ground floor was meant to be used by the plaintiffs for common facilities in light of Ex. PW1/1 and Ex. PW1/2, would not have been admissible in evidence.
23. In this view of the matter, the entire ground floor spread on 110.25 sq. yards i.e. the Suit Property must be held to be open to the plaintiff to enjoy all common facilities including interalia parking thereon. The agreement confers right to all common facilities in favour of the plaintiff on the ground floor. It is not the case that there is a designated parking space on the ground floor. There is also no demarcation with respect to a particular area on the ground floor set aside for common services and facilities. Since the rights are not demarcated, and all flats owners enjoy common right to the said ground floor, for the plaintiff along with other flat owners to be able to exercise this right, it is of utmost importance that the ground floor i.e. the Suit Property remains as it is. No alteration or construction can be made thereon since that will impede/ restrict the right of the plaintiff to enjoy the ground floor. Therefore, it is necessary to restrain the defendant from carrying out any construction on any area of the Suit Property. Besides, the plaintiff has also been given proportionate right in the land underneath and similar rights are stated to be enjoyed by all the flat owners. In case any portion of the ground floor i.e. the Suit Property is sold to a third party, the right of proportionate ownership in the land underneath cannot be given effect to. In fact, it would create multiple claims on the same piece of land which would lead to further dispute and litigation.
24. Besides, there is nothing on record to show that despite the Page no. 12 of 18 Smt. Meera Verma & Ors. v. Vinod Kumar Chhabra & Ors.
Suit No. 84144/16execution of rectification deed Ex. PW1/2, defendant no. 2 continued to retain any ownership right in respect of any portion of the Suit Property i.e. the ground floor. Therefore, even otherwise, defendant no. 2 is not entitled to sell any part of the Suit Property to a third party. Since defendant has failed to establish any right on the Suit Property whilst the plaintiff has been able to establish his rights thereto by virtue of Ex. PW1/1 and Ex. PW1/2, defendant has no right to possession on the ground floor i.e. the Suit Property, and therefore cannot take forcible possession of the Suit Property. Both these issues are accordingly decided in favour of plaintiff and against the defendant no. 1 and 2.
Issue no. 3 Whether the plaintiff is entitled to relief of declaration as prayed for?OPP
25. Onus of proof of this issue is on the plaintiff. Plaintiff has sought a declaration to the effect that defendants no. 1 and 2 have no right, title or interest in the Suit Property. As per findings in issues no. 1 and 2 above, the Suit Property i.e. entire ground floor of Muskan Apartments is available to the plaintiff along with other flats owners for enjoying the common facilities thereon in terms of Ex. PW1/2. No evidence has been led by the defendant no. 1 to prove that despite execution of rectification deed Ex. PW1/2, defendant no. 1 continued to retain any ownership rights in respect of any portion of the Suit Property. No other documents showing any right of ownership in respect of the Suit Property have been put forward by the defendants. On the other hand, by virtue of Ex. PW1/2, rights of plaintiff over the ground floor stand established. Therefore, defendant no. 1 has no right, title or interest in the Suit Property and, therefore, is not entitled to sell any part of the Suit Property to any third party.
Page no. 13 of 18 Smt. Meera Verma & Ors. v. Vinod Kumar Chhabra & Ors.
Suit No. 84144/1626. As far as the rights of defendant no. 2 are concerned, it is settled that no one can transfer a better title than he himself has. In the written statement, defendant no. 1 claims to have sold 60 sq. yards of the ground floor to defendant no. 2 vide GPA, agreement to sell, affidavit, Will, possession letter, receipt, etc., dated 22.01.2015. Since defendant no. 1 himself had no rights to the said 60 sq. yards of ground floor, he could not have sold the same to defendant no. 2. Even otherwise, neither the existence of these documents nor their execution has been proved by the defendants. Further, in light of Suraj Lamp & Industries Pvt. Ltd v. State of Haryana and Anr.1, these documents do not transfer any ownership rights in favour of defendant no. 2. Thus, the said 60 sq. yards continues to be a part of the ground floor over which the plaintiff has right to enjoy common facilities. Thus, defendant no. 1 and 2 do not have any right, title or interest in any part of the Suit Property. This issue is accordingly decided in favour of plaintiff and against the defendant.
Issue no. 4 Whether the present suit is not maintainable for want of cause of action?OPD 1 and 2
27. Onus of proof of this issue is on defendants no. 1 and 2. The cause of action set up in the plaint is that the defendants have no right over the Suit Property, plaintiff along with other flat owners have a common right over the entire ground floor i.e. Suit Property, and now defendants no. 1 and 2 are trying to take forcible possession of a part of the ground floor and raising unauthorized construction on the Suit Property. The same has been stated on oath by the plaintiff by way of affidavit Ex. PW1/A and Ex. PW1/B. Paragraphs 20 to 26 set out the above cause of action, and no suggestion as to the occurrence of the incidents specified in the aforesaid paragraphs was put to PW1 and PW2 during crossexamination. 1 2009 (7) SCC 363 Page no. 14 of 18 Smt. Meera Verma & Ors. v. Vinod Kumar Chhabra & Ors.
Suit No. 84144/16Defendants no. 1 and 2 have also not led any evidence to rebut the same. Defendant no. 1 and 2 have failed to discharge their onus. This issue is accordingly decided against defendants no. 1 and 2 and in favour of the plaintiff.
Issue no. 5 Whether plaintiff no. 2 has no locus standi to file the present suit? OPD 1 & 2
28. Onus of proof of this issue is on defendants no. 1 and 2. It is contended by the defendants that since the sale deed as well as the rectification deed Ex. PW1/1 and Ex. PW1/2 are in favour of plaintiff no. 1 and not in favour of plaintiff no. 2, plaintiff no. 2 does not have any locus standi to file the present suit. It is noted that the suit has been filed by the plaintiffs on the strength of these documents claiming ownership and possession of the property i.e. Flat no. S1 at Muskan Apartments, and rights over the ground floor thereat i.e. the Suit Property. The possession of the plaintiffs on the aforesaid property is admitted by defendants no. 1 and 2 before the court vide statement dated 20.07.2016. Therefore, even though the documents Ex. PW1/1 and Ex. PW1/2 are not in favour of plaintiff no. 2, he is in joint possession of the aforesaid property along with plaintiff no. 1 and, therefore, has an interest in the ground floor of Muskan Apartments i.e. the Suit Property where the defendants are alleged to be raising unauthorized construction and taking forcible possession. Any outcome of this suit will have a direct bearing on the rights of plaintiff no. 2, who is also residing at the aforesaid property at Muskan Apartments.
29. Further, as per Order I Rule 1 CPC:
"1.Who may be joined as plaintiffs All persons may be joined in one suit as plaintiffs where
(a) any right to relief in respect of, or arising out of, the same act or transaction or series of acts or transactions is Page no. 15 of 18 Smt. Meera Verma & Ors. v. Vinod Kumar Chhabra & Ors.Suit No. 84144/16
alleged to exist in such persons, whether jointly, severally or in the alternative; and
(b) if such persons brought separate suits, any common question of law or fact would arise."
The right to relief in respect of the Suit Property is arising from the same transaction i.e. execution of Ex. PW1/1 and Ex. PW1/2, on the basis of which, plaintiff no. 2 being the husband of plaintiff no. 1 is residing at Muskan Apartments, and if a separate suit was brought by plaintiff no. 2, it would involve the same question that is involved in the present suit. The plaint also sets out specific instances where plaintiff no. 2 has been threatened by defendants no. 1 and 2, when he asserted his rights on the basis of Ex. PW1/2 on the ground floor i.e. the Suit Property. Therefore, defendants no. 1 and 2 have failed to prove that plaintiff no. 2 does not have any locus standi to file the present suit. This issue is accordingly decided against defendants no. 1 and 2 and in favour of the plaintiff.
Issue no.6 Whether the present suit is barred by law of limitation?OPD 1 and 2 Issue no.7 Whether the present suit is not maintainable in its present form as consequential relief has not been sought as suit for declaration is not maintainable?OPD1 and 2
30. Vide joint statement dated 30.07.2018, parties have sought permission to drop these issues. In exercise of powers under Order XIV Rule 5 (2) CPC, issues no.6 and 7 have been struck out.
Issue no. 8 Whether the suit has not been valued properly and court fees filed is insufficient? OPD 1 and 2
31. Onus of proof of this issue is on defendant no. 1 and 2. It is contended by defendant no. 1 and 2 that in the plaint, relief of declaration along with reliefs for injunction has been sought. However, the relief for Page no. 16 of 18 Smt. Meera Verma & Ors. v. Vinod Kumar Chhabra & Ors.
Suit No. 84144/16declaration has not been valued separately, and court fees only on the reliefs for injunction has been paid. It is noted that as per para 30 of the plaint, the suit has been valued for "each relief", which would also include the relief of declaration. Further, the court fees affixed is Rs. 80/ which is in excess of the court fees actually required to be paid in respect of all the three reliefs sought. Therefore, there is no merit in the contention of the defendant that suit is not properly valued and the court fees is insufficient. This issue is accordingly decided against defendants no. 1 and 2 and in favour of the plaintiff.
Issue No. 9Relief
32. In view of the findings on the aforesaid issues, documents on record, pleadings of the parties, and evidence led, the plaintiffs have proved their case against defendant no. 1 and 2 on the scale of preponderance of probabilities.
33. Accordingly, suit of the plaintiff is decreed as follows:
(a) a decree of permanent injunction is passed in favour of the plaintiffs and against defendant no. 1 and 2, and defendant no. 1 and 2 are hereby restrained from taking over the forcible possession of any portion of the Suit Property i.e. entire ground floor in the Muskan Apartment, property bearing no. 886 in Ward No. 8, in Khasra No. 1151/3 min. situated in abadi of Laldora of Village Mehrauli, Tehsil Hauz Khas, New Delhi110030 (as shown in red in site plan Ex. PW1/3), and also from selling, disposing or creating any third party interest in any portion of the Suit Property;
(b) a decree of permanent injunction is passed in favour of the plaintiffs, and against defendant no. 1 and 2, and defendant no. 1 and 2 are hereby restrained from making any unauthorized construction/ Page no. 17 of 18 Smt. Meera Verma & Ors. v. Vinod Kumar Chhabra & Ors.Suit No. 84144/16
structural changes in any portion of the Suit Property i.e. entire ground floor in the Muskan Apartment, property bearing no. 886 in Ward No. 8, in Khasra No. 1151/3 min. situated in abadi of Laldora of Village Mehrauli, Tehsil Hauz Khas, New Delhi110030 (as shown in red in site plan Ex. PW1/3), and from interfering with the peaceful possession of the plaintiffs in the aforesaid Suit Property.
(c) a decree of declaration is passed in favour of the plaintiffs, and against defendant no. 1 and 2, and it is hereby declared that defendant no. 1 and 2 have no right, title or interest in any portion of the Suit Property i.e. entire ground floor in the Muskan Apartment, property bearing no. 886 in Ward No. 8, in Khasra No. 1151/3 min. situated in abadi of Laldora of Village Mehrauli, Tehsil Hauz Khas, New Delhi110030 (as shown in red in site plan Ex. PW1/3).
34. Costs of the suit are also awarded in favour of the plaintiff.
35. Decreesheet be drawn accordingly.
36. File be consigned to record room after due indexing and completion.
(NEHA PRIYA) Civil Judge01(South) Saket Courts/New Delhi 30.07.2018 Announced by me in the open court today on 30.07.2018. All the eighteen pages of this order have been checked and signed by me.
Digitally signed (NEHA PRIYA)
NEHA by NEHA PRIYA
Date: Civil Judge01 (South)
PRIYA 2018.07.31 Saket Courts/New Delhi
15:17:04 +0530
30.07.2018
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