Delhi High Court
Krishan Garg vs Hari Om Gupta on 7 July, 1999
Equivalent citations: 1999IVAD(DELHI)772, 80(1999)DLT635, 1999(50)DRJ732
Author: Dalveer Bhandari
Bench: Dalveer Bhandari
ORDER Dalveer Bhandari, J.
1. This order shall dispose of the plaintiff's applications No. 10005/96 filed under Order 39 Rules 1 & 2.
2. The plaintiff has filed a suit for possession, damages (mesne profits), declaration and injunction. It is incorporated in the plaint that the plaintiff and his uncle, Kale Chand jointly purchased a plot of land measuring 240 sq. yards bearing No.16 in block 'C' of the layout plan of Bhagwan Dass Nagar, Rohtak Road, New Delhi. They mutually divided the plot into two portions, each portion to have an area of 120 sq. yards and they raised construction on their respective portions. The plaintiff constructed the ground floor on his side of the plot in the year 1968-69 and started living there. He constructed the first floor thereon in the year 1976.
3. The defendant is the Younger brother of the plaintiff and was a student during the said period of 1968-69. It is stated in the plaint that the plaintiff financed the education of the defendant and he completed his graduation in the year 1970. The defendant got married in the year 1977. After the marriage of the defendant, the plaintiff allowed him to stay in the first floor portion of the said property purely out of love and affection for his Younger brother.
4. Admittedly the defendant's date of birth is 3.5.1950 and at the time of the purchase of the land the defendant was about 17 years of age. At the time of construction on the said plot the defendant was of the age of 18 years and 5 months. The land was purchased by the plaintiff jointly with his uncle and on his portion out of his own money the plaintiff got the house constructed and there has been no contribution whatsoever by the defendant. As a matter of fact, he was a minor at the time when the land was purchased in the year 1967 and he possibly could not contribute either in purchase of the land or in carrying out any construction on that plot. According to the plaintiff in fact the defendant did not contribute any amount either for the purchase of land or on construction of that plot.
5. The plaintiff permitted the defendant to stay on the first floor after his marriage. In July, 1995 when the plaintiff in order to meet the growing needs of his family, desired to construct two toilets within the size of the existing toilet at the ground floor, the defendant dragged the plaintiff to litigation and sought for an injunction restraining the plaintiff from raising/covering the back portion of the ground floor and not to interfere in the use and enjoyment of common areas at the ground floor. It is mentioned that the occupation of the defendant was absolutely permissive in nature. The defendant lost the privilege to hold, remain and continue in possession of the said portion of the property by and after dragging the plaintiff to litigation by filing of the suit. The plaintiff revoked the privilege allowed to the defendant.
6. It is further mentioned that at the time of purchase of the plot the defendant was a minor and he could not have contributed towards the purchase of the plot or contribution thereon. The defendant got his first employment only in October 1977. No property tax has ever been paid by the defendant. No addition or alteration have been made by the defendant on the first floor of the property.
7. It is mentioned in the plaint that to preserve the image of the family and to demonstrate harmony, the plaintiff signed an agreement with the defendant. It is alleged that the agreement dated 17.10.1977 was signed by the plaintiff under coerced circumstances and it was not a result of his free will or willing consent.
8. It is also alleged that the defendant without the consent either of the plaintiff or the Municipal Corporation had constructed a stair-case on the front side of the premises going from the ground floor to the first floor. It is further alleged that the defendant is creating obstruction for the plaintiff in developing and carrying out construction on the second floor of the property. According to the plaintiff, the defendant is even acting in breach of the said agreement dated 17.10.79.
9. In this application the plaintiff has prayed that the defendant may be directed to remove the stair-case erected in open space on the road side as shown in the photograph, Annexure-A, to the present application, and or direct the Municipal Corporation of Delhi to remove the same. It is also alleged by the plaintiff that the property has been mutated in his name in the municipal record. Learned counsel for the plaintiff Mr. A.K. Singla submitted that the construction and erection of stair-case is without the permission of the plaintiff or the Municipal Corporation of Delhi. The construction of the stair-case is also in violation of the building plans. Learned counsel for the plaintiff submitted that unless the unauthorised construction is removed, the plaintiff cannot enjoy his property. He submitted that the construction of the stair-case is also contrary to the agreement dated 17.10.1979. The plaintiff submitted that there is a stair-case in the back side of the property which is property sanctioned according to the building plans. The said stair-case has been used by the parties all these years. There is no hindrance or any kind of obstruction in using the stair case existing in the back side of the property. Even according to the said agreement the parties shall use the stair-case on the back side of the property. Clause 4 of the agreement dated 10.10.1979 reads as under:-
"4. That the stair-case are towards backside and the said stair-case will be utilised by the second party and the first party commonly."
10. In view of the agreement also the parties agreed to use the stair-case in the backside and, therefore, there is no question of permitting the defendant to construct and use the stair-case in front, particularly when the stair case is totally contrary to the building bye-laws and has been constructed in a clandestine manner by the defendant without obtaining prior permission of the Municipal Corporation of Delhi. The counsel for the plaintiff reiterated that the plaintiff wants the unauthorised construction of stair-case removed so that he can get permission for further constructing and developing his property.
11. Learned senior counsel for the defendant, Bawa Shiv Charan Singh, submitted that the plaintiff has no prima facie case and is not entitled to any injunction in his favor. He has also submitted that no direction can be issued against the Municipal Corporation of Delhi as the MCD is not a party in the main suit though the MCD has been made a party in the application.
12. Learned counsel for the defendant has not disputed that the defendant was a minor at the time of purchasing of the land, but he contended that he had contributed to the purchase of the plot and construction of the building by selling his village property and the shops. No details of the village property or shop have been given.
13. Learned counsel for the defendant submitted that notice of demolition has not been received from the MCD. Therefore, the apprehension of the plaintiff is without any foundation that no permission can be granted for developing the property unless the unauthorised construction is removed.
14. It is also submitted that by removing the stair-case the plaintiff may not receive any particular benefit, but it would cause great inconvenience and hardship to the defendant.
15. Learned counsel appearing for the defendant also submitted that the construction of stair-case took place a long time ago and the consent of the plaintiff has to be inferred from the facts and circumstances of the case.
16. I have heard the learned counsel for the parties and perused the relevant documents on record. The undisputed facts having material bearing on the controversy are re-capitulated as under:-
(A) The property is mutated in the name of the plaintiff in the Municipal record.
(B) At the time of purchase of the said plot, the defendant was a minor.
(C) The defendant has given no particulars of the village property or shops which was sold by the defendant in order to make the payment for the purchase of the said plot.
(D) Even according to the letter agreement dated 17.10.79 the parties were to use the stair-case located on the back side of the premises.
(E) The defendant has never paid the property tax of the said house and the plaintiff may not be able to get permission to construct and develop the property unless unauthorised construction (stair-case) is removed by the defendant.
(F) The construction of the stair-case has been carried out in a clandestine manner, without obtaining the permission of the Municipal Corporation of Delhi.
17. On consideration of the totality of the facts and circumstances and particularly in view of the aforesaid undisputed facts of this case, I am of the considered opinion that the stair-case which is constructed without the permission of the Municipal Corporation of Delhi, is liable to be removed and accordingly I direct the defendant to remove the stair-case erected in the open space on the road side as shown in photograph, Annexure-A to the application within two months from today.
18. In case, the stair-case is not removed within two months from today, in that event the Municipal Corporation of Delhi, West Zone Rajouri Garden, New Delhi, shall remove the said stair-case constructed without the permission of the MCD by the defendant.
19. The plaintiff is also directed not to create any obstruction or hinderance for the defendant in the use of existing stair-case on the backside of the property.
20. The application is accordingly allowed and disposed of and the main suit to come up for further proceedings before the learned Joint Registrar on 31.8.1999.