Delhi District Court
Sh. Vidhya Bhushan Bansal vs Municipal Corporation Of Delhi on 13 March, 2012
1of 7
IN THE COURT OF SHRI J.P.S. MALIK : ADDITIONAL DISTRICT
JUDGE04 : SOUTH DISTRICT : SAKET COURT COMPLEX
NEW DELHI
RCA NO.15/10
IN THE MATTER OF :
1. Mrs. Mridula Bansal
W/o Sh. Vidhya Bhushan Bansal
R/o 209A, Beverly ParkI,
DLF City, PhaseII,
Main Mehraulil Gurgaon Road,
(Commonly known as M. G Road)
Gurgaon.
1. Sh. Vidhya Bhushan Bansal
S/o Late Sh. P. L Bansal
Through his attorney Mr. Sanyam Bhushan
R/o 209A, Beverly ParkI,
DLF City, PhaseII,
Main Mehraulil Gurgaon Road,
(Commonly known as M. G Road)
Gurgaon. .....Plaintiffs
Versus
1.Municipal Corporation of Delhi
2of 7
Through the Commissioner,
Town Hall, Delhi110006
Second Address:
Deputy Commissioner,
Municipal Corporation of Delhi
South Zone, Green Park,
New Delhi110016
2. Dr. Harish Chand Bansal
S/o Late Sh. P. L Bansal
R/o M12, Green Park Extension,
First Floor,
New Delhi110016
3. Smt. Nalini Tripathi
W/o Sh. Rajesh Dutt Tripathi,
R/o A2/70, Safdarjung Enclave,
New Delhi110027 .... Defendants
Date of institution of case : 21.05.2009
Date of Reserving order : 06.03.2012
Date of Judgment : 13.03.2012
JUDGMENT
1. This is an appeal filed by appellants against the order dated 13.04.09 vide which the application moved by respondent no. 3 3of 7 Smt. Nalini Tripathi U/o VII Rule 11 was allowed and the suit filed by the plaintiff was dismissed. The suit filed was dismissed primarily on the ground that same did not disclose a clear cause of action to sue, sufficient enough to prevent plaintiff from obtaining the equitable relief of injunction. In brief, facts are that respondent no. 2, Dr. Harish Chand Bansal, and respondent no. 3, Smt. Nalini Tripathi, had raised unauthorized construction in the suit property i.e M12, Green Park, New Delhi. Respondent no. 1 is MCD. Appellants are claiming that appellant no. 1 is the absolute owner of the rear terrace of the suit property and likewise appellant no. 2 is also owner of the part of the terrace. The property was initially owned by one P. L Bansal, being father of appellant no. 2, Vidya Bhushan Bansal. Appellant no. 1 is the wife of appellant no. 2. As per the will dated 25.11.78, Late Smt. Draopadi Devi, became owner of the suit property after the death of Late Sh. P. L Bansal on 28.04.79. It was claimed that a registered gift deed dated 30.05.2000 was executed by Late Smt. Draopadi Devi and the rear portion of the terrace upon the 3rd floor was gifted to Smt. Kusum Bansal, wife of V. K Bansal and her grand son Vikram Bansal, son of V. K Bansal, alongwith substantial portion of the ground floor of the suit property. Late Smt. Draopadi Devi had executed a registered will dated 30.05.2000 and bequeathed various portion of the suit property to her sons namely, Rajender Kumar Bansal, Vidhya Bhushan Bansal and Dr. Harish Chand Bansal. Dr. Harish Chand Bansal is respondent no. 2. The portion gifted to Smt. Kusum Bansal, wife of V. K Bansal and Vikram Bansal, son of V. K Bansal, were purchased by appellant no. 1 Smt. 4of 7 Mridula Bansal, wife of respondent no. 2. Vide registered sale deed dated 30.06.01, appellants are claiming that respondents have no right to raise any construction over the terrace as construction on terrace floor is prohibited by will dated 30.05.2000 of Smt. Draopadi Devi. Apart from the unauthorized construction allegedly made by Dr. Harish Chand Bansal, respondent no . 2 and brother of appellant no. 2, on the Ist floor of the suit property, it is alleged that Smt. Nalini Tripathi, respondent no. 3 has extended the lounge on the ground floor unauthorizedly. Respondent no. 1 has been made party regarding its failure to perform its statutory duty to demolish the unauthorized construction in the suit property, despite notice.
2. In the written statement filed on behalf of respondent no. 2 before the Ld. Trial Court, the stand taken was that appellant no. 1 has sold the portion belonging to her in the suit property by registered sale deed, which she had acquired from Smt. Kusum Bansal and Vikram Bansal and is left with no right title or interest in the suit property. Further, it is stated that appellant no. 2 is claiming ownership of the portion of the property by virtue of will dated 30.05.2000 of Smt. Draopadi Devi , which had already been sold by Smt. Dropadi Devi to respondent no. 3. Respondent no. 3 had filed the application U/o VII Rule 11 CPC claiming that she had purchased portion of the property in the suit property from the appellants and there had been no construction, except renovation and repair of her portion, with due intimation to MCD since purchase.
5of 7
3. Formal reply to the appeal was not filed on behalf of the respondents. Arguments were heard on behalf of the appellants as well as for the respondents and I hold as under:
4. It is not the case of the appellants that they are in possession of any portion of the suit property at present and they are only claiming certain interest in the terrace of the suit property, appellant no. 1 claiming ownership as regard the rear portion of the terrace having purchased the same from Smt. Kusum Bansal and Vikram Bansal in whose favour gift was made by Late Smt. Draopadi Devi. Appellant no. 2 is claiming ownership of a part of the terrace by virtue of registered sale deed dated 30.05.2000 of Late Smt. Draopadi Devi. No where in the suit filed, it was disclosed on behalf of the appellants, how respondent no. 3 came into occupation of ground floor of suit property. It was only the written statement filed by defendant no. 2 which disclosed that portion of the property bequeathed to appellant no. 2 by Late Smt. Draopadi Devi has already been sold by her during her lifetime to respondent no. 3, Smt. Nalini Tripathi. In the application U/o VII Rule 11 CPC moved by respondent no. 3 before the Ld. Trial Court, the stand taken was that no construction whatsoever was made by respondent no. 3. Since suit property was purchased, except renovation and repair. In the plaint filed, the appellants have not disclosed when they came to know about the unauthorized construction made in the suit property by respondents no. 2 and 3, simply stating that cause of 6of 7 action arose in their favour when they came to know that unauthorized construction have been made in the suit property. How the alleged unauthorized construction affects the rights of the appellants, are the residents in the vicinity is not disclosed, except stating that extensions have been made on the ground floor as well as on the Ist floor of the suit property, unauthorizedly. The appellants having been not in possession of the suit property, and having failed to disclose in what manner their rights are being affected by alleged construction, clearly have no right and no cause of action in their favour to file the present suit. On behalf of the appellants reliance was placed on a case decided by Hon'ble Delhi High Court titled as Omkar Nath Vs. Ram Nath & Ors. AIR 1985, Delhi 293 where it was held that neighbour has right to get injunction restraining party proceeding with construction but that was on the ground that illegal, unauthorized construction would materially effect the rights and enjoyment of his property by the neighbour. It is not the case of the appellants that because of the alleged unauthorized construction, right and enjoyment of their property is being affected. Reliance was also placed on behalf of the appellants on a case titled as K. Ramadass Shenoy Vs. Chief Office Town Municipal Council Udipi & Ors. The facts as per the case were that sanction has been given for construction of a cinema building in contravention of by laws of the municipality, when it was held that right of the resident in area were invaded by the illegal construction of a cinema building and so, the intervention by the courts. Nothing of the sort is apprehended in the present 7of 7 case.
5. As such, the order dated 13.04.09 passed by Ld. Trial Court dismissing the suit of the plaintiff is upheld. The appeal filed is dismissed. Copy of the judgment be sent to the Ld. Trial Court. Trial Court record be sent back.
Announced in the open Court (J.P.S. MALIK)
on 13.03.2012 ADJ04 : SOUTH DISTRICT
All pages signed NEW DELHI
8of 7
RCA. No.15/10
13.03.2012
Present: None.
Vide separate judgment of the date, the appeal filed is dismissed. Trial Court record be sent to Ld. Trial Court. Appeal file be consigned to record room.
(J.P.S. MALIK) ADJ04 : SOUTH DISTRICT NEW DELHI : 13.03.2012