Delhi District Court
Sh. Anil Kumar Gupta vs Mrs. Anju Sarin on 1 February, 2020
IN THE COURT OF SH. NITISH KUMAR SHARMA
CIVIL JUDGE01 (WEST), TIS HAZARI COURTS, DELHI
CS SCJ No. 611154/16
Date of institution of suit : 21.11.2015
Date of reservation of Judgment : 25.01.2020
Date of pronouncement of Judgment : 01.02.2020
1.Sh. Anil Kumar Gupta S/o Late Sh. Jai Parkash
2. Mrs. Aruna Gupta W/o Sh. Anil Kumar Gupta Both R/o A2/97, Second Floor Janak Puri, New Delhi.
...........Plaintiffs Vs.
1. Mrs. Anju Sarin W/o Late Dr. Anil Chander Sarin
2. Mr. Anuj Sarin S/o Late Dr. Anil Chander Sarin SCJ No. 611154/16 Anil Kumar Gupta & Ors. vs Anju & Ors. 1/13 Both R/o A2/97, Upper Ground Floor Janak Puri, New Delhi58.
3. Mrs. Akshata Sehgal W/o Sh. Neeraj Sehgal R/o A1/3, Rajouri Garden New Delhi27.
..............Defendants SUIT FOR PERMANENT AND MANDATORY INJUNCTION Briefly stated the facts of the present case as per plaint are PLAINTIFF'S VERSION
1. That the plaintiffs are owners of second floor in the property bearing no. A2/97, Janak Puri, New Delhi58 (hereinafter referred to as the "suit property") which was purchased by the plaintiffs and their family members, in the year 2015 from one Sh. Apoorva Malla vide a registered Sale deed. Vide the above Sale deed, the plaintiffs are the lawful owners of entire second floor (without roof rights) alongwith undivided, indivisible proportionate share of land rights, out of the total land beneath the said property, together with all common rights to use common portions such as main entrance gate, stair case, passage, SCJ No. 611154/16 Anil Kumar Gupta & Ors. vs Anju & Ors. 2/13 common lift, common submersible pump alongwith rights to use 1/4 th parking space on stilt floor for two car park only and other common services and amenities, which are provided in and around the building, duly fitted with separate electrical connection, water connection, water tank on the top floor, sanitary connections with all fittings and fixtures attached thereto. The aforesaid suit property consists of stilt area for common car parking and four residential units, one unit on each floor, above it.
(b) That defendants no.1 to 3 are the legal heirs of Late Dr. Anil Chander Sarin who was the lawful owner of UGF, First floor and third floor of suit property.
(c ) That on 05.11.2015, plaintiff no.1 saw few workers with welding machine and a precast steel gate, which defendant no.1 to 3 were installing on the area under stair case and when plaintiff no.1 objected to such blatant attempt of defendants to encroach upon the common area, the workers left the spot and in the evening, the plaintiffs visited defendant no.1 to amicably resolve the matter and to impress upon them to let the common area in the building remain as common, upon this, defendant no.1 made her intentions clear that she would like to install a steel gate at the quarters/stores/library in the stilt area and told the plaintiff that she intends to install a railing between the two gates of the stilt and thereby demarcating a much smaller and confined area for parking of vehicles of plaintiffs. Defendant no.1 further told that the plaintiffs can use the other gate for parking of their vehicles. The confined area which she wanted to allocate, neither amounts to 1/4th of the stilt area nor sufficient for parking of two cars and maneuverability for taking the cars out.
SCJ No. 611154/16 Anil Kumar Gupta & Ors. vs Anju & Ors. 3/13
(d) That construction of any servant quarters/library/stores, etc. in the stilt area and making any construction on the roof top of the building, is illegal and cognizable offence as per MCD ( Amendment ) Act, 1984 and as per the building bye laws of defendant no.4.
(e ) That defendant no.1 and 2 have put locks on the main entry gate and the rear gate which leads to service lanes as well as the roof top gate, thus disallowing the plaintiff the free access and usage of the common areas. Plaintiff are thereby forced to use the side gates. The access from the side gate is very limited and the plaintiffs are facing huge difficulty in parking and taking out their cars from the side gate. The free access of the stilt common area and the comfort of parking in the common area meant for the purpose has been lost because of the actions of defendant. Hence this suit has been filed by the plaintiffs.
2. By way of present suit the plaintiff has prayed for the following reliefs:
1. Decree of permanent injunction thereby restraining the defendant no.1 to 3, their agents etc. from doing the unauthorized construction or encroachment or create obstruction/hindrance etc. in any from whatsoever, anywhere in the common area of the building or on the roof top of the suit property.
2. Pass an Order for removal of locks on the front gate, rear gate and roof top gate which disallows the plaintiffs the free usage and access of common area.
SCJ No. 611154/16 Anil Kumar Gupta & Ors. vs Anju & Ors. 4/13
3. Decree of mandatory injunction thereby directing the defendant no.4 to demolish the unauthorized construction or encroachment or obstruction/hindrance etc. as and when raised by defendant no.1 to 3 in entire common area of the suit property.
4. Costs of the suit.
3. DEFENDANT'S VERSION Litigation by its very nature has two side to a story. To give their version, written statement has been filed on behalf of defendant no.1 to 3 wherein it is stated
(a) That the defendants are hereby filing a copy of the certified copy of the Sale Deed vide which the subject property i.e. 2nd Floor of property bearing no. A2/97, Janakpuri, was sold to Sh. Apoorv Malla by late Sh. Anil Chander Sarin on 15.07.2015 and it is the case of the plaintiffs that Sh. Apoorv Malla sold the subject property to them on 27.07.2015. The sale deed of the plaintiffs also reflects that the first payment made by the plaintiffs to Sh. Apoorva Malla is a sum of Rs. 10 lacs vide cheque no. 777114 dated 16.12.2014, thus making it clear that the plaintiffs had paid money for the subject property to Sh. Apoorva Malla even prior to the time, Sh. Apoorva Malla acquired the title of the subject property (i.e. 2nd Floor of property bearing no. A2/97, Janakpuri, Delhi) from late Dr. Anil Chander Sarin.
(b) That a bare perusal of both the sale deeds reflect that the plaintiffs document as sale deed dated 27.07.2015 which contain certain terms right and SCJ No. 611154/16 Anil Kumar Gupta & Ors. vs Anju & Ors. 5/13 privilege which even Sh. Apoorva Malla was not owing as on 15.07.2015.
(c) That as per Clause 11 of the plaintiff's sale deed the vendee can go to roof / terrace of the building only for maintenance and repair of TV Antenna & Water Tank. As per clause 11 of defendant's sale deed the vendee can go to roof/terrace of the building only for maintenance and repair of TV Antenna, Split AC Units & Water Tank or installation of such like services equipment or accessories thereof, on the roof/terrace.
( d) That as per Clause 15 of the plaintiff's sale deed the vendee shall have right to use 1/4th Parking Space on stilt floor for park two car on still floor of the building. As per clause 15 of defendant's sale deed the vendee shall have right to use impartible and indivisible 1/4th parking space on stilt floor for park two cars on this common stilt floor of the building. The same shall not have any independent legal entity detached from the said property and it had been undertaken not to sell, transfer or assign this indivisible parking space, separately, independent of the property /unit. This will remain only for the purposes of common use for parking cars in stilt floor without creating any hindrance in any manner whatsoever. The stilt other purpose, other than car parking.
(e) In preliminary objections the defendants have stated That there is no cause of action ever accrued in favour of the plaintiff and against the defendant to file the present suit, thus the present suit is liable to be dismissed U/o VII Rule 11 CPC.
(f) That the plaintiff had purchased the second floor of the property no. A 2/97, Janak Puri, New Delhi without roof rights but with the permission only to use the common portions such as entrance, staircase, passage, lift and right to SCJ No. 611154/16 Anil Kumar Gupta & Ors. vs Anju & Ors. 6/13 inspect the water tanks on the top floor, however, in the grab of the present suit of injunction, the plaintiff is claiming the ownership rights on the common areas, staircase, passage and the roof top which cannot be allowed to him at any cost.
(g) That the plaintiff is only entitled to the use of 1/4th parking space at the ground floor of the building. Specific portion can be earmarked for his usage for the parking of the car, however, he cannot be allowed to interfere in the usage of the remaining portion of the parking area by the defendants, as the defendants are the rightful legal owners of the property and leaving aside 1/4th portion of the property, they have right to install any accessory in the parking area and can use the same to the best of their requirements, and without any hindrance, objection, interference of any nature from the plaintiff.
Prayer is made for dismissal of suit for the plaintiff.
4. Replication has been filed by the plaintiff wherein the averments made in the plaint are reiterated and contentions raised in the W.S are denied.
5. ISSUES On the basis of pleadings of the parties, following issues were framed
1.Whether the plaintiff is entitled to the decree of permanent injunction as prayed for ? OPP
2.Whether the plaintiff is entitled to the decree of mandatory injunction as prayed for ? OPP
3. Relief.
6. PLAINTIFF'S EVIDENCE In order to prove its case, plaintiff examined himself as PW1 and tendered in evidence his duly sworn in affidavit exhibited as Ex.PW1/A, SCJ No. 611154/16 Anil Kumar Gupta & Ors. vs Anju & Ors. 7/13 reiterating the contents of the plaint. In his testimony, following documents were exhibited :
1. Copy of site plan Mark A
2. Copy of sale deed dated 27.7.2015 Ex. PW 1/ 2 ( OSR)
3. Sale deed Ex. PW 1/D1 Plaintiff was crossexamined by Ld. counsel for defendant and thereafter vide Order dated 06.11.2017 of Ld. Predecessor of this court, the matter was listed for DE.
DEFENDANT'S EVIDENCE
7. In defendant evidence defendant has examined himself as DW1 and has tendered in evidence his duly sworn in affidavit as Ex. DW 1/A. In his testimony the document I.e original site plan of the suit property has been exhibited as Ex. DW 1/1.
8. Besides DW1 defendants have also examined one another witness Sh. Ajay Kumar, LDC/Record Keeper, Subregistrar office, Janak Puri, New Delhi as DW2. In his testimony the copy of original sale deed has been exhibited as Ex. DW 2/1.
9. Defendant witnesses have been crossexamined by Ld. counsel for plaintiffs and thereafter vide separate statement recorded, DE was closed on behalf of defendants on 02.4.2018 and the matter was listed for final arguments.
10. I have heard arguments advanced by Ld. counsels for parties and perused the record.
11. FINDINGS SCJ No. 611154/16 Anil Kumar Gupta & Ors. vs Anju & Ors. 8/13 My Issuewise findings are as under :
ISSUE NO.1 & 21.Whether the plaintiff is entitled to the decree of permanent injunction as prayed for ?
2.Whether the plaintiff is entitled to the decree of mandatory injunction as prayed for ?
The onus to prove both the issues was upon the plaintiff.
12. The plaintiff is seeking permanent injunction to the effect that defendants be restrained from doing unauthorized construction, from causing obstruction in the common area of the building or the roof top. To substantiate his case, plaintiff has examined himself as PW1 and has placed reliance on the sale deed Ex. PW 1/ 2 (OSR) executed in his favour by one Sh. Apoorva Malla with respect to second floor of the property.
13. To rebut the case of plaintiff, the counsel for defendant no.1 to 3 crossexamined him wherein a sale deed executed by husband of defendant no.1 in favour of Sh. Apoorva Malla with respect to second floor of the property surfaced. It is argued that Sh. Apoorva Malla has sold even those rights to the plaintiff which he himself had never purchased and thus, sale deed is not proper.
In order to adjudicate the dispute effectively, it is necessary to detail the relevant clauses of the saledeeds Ex. PW 1/ 2 and Ex. DW 2/1 :
SCJ No. 611154/16 Anil Kumar Gupta & Ors. vs Anju & Ors. 9/13 Sale Deed dated 15.7.2015 (regd. Sale Deed dated 27.07.2015 (regd. On 16.7.2015 between Late Dr. Anil On 27.07.2015 between Sh. Chander Sarin and Sh. Apoorva Apoorva Malla & the plaintiffs) Malla ) Clause 11 Clause 11 That the Vendee can go to That the Vendee can go to roof/terrace of the building only for roof/terrace of the building only for maintenances and repaid of TV maintenances and repair of TV Antenna & Water Tank Antenna, Split AC Units & Water Tank or installation of such like services equipment or accessories thereof, on the roof/terrace Clause 15 Clause 15 That the vendee shall have right to That the vendee shall have right to use 1/4th Parking Space on stilt use impartible and indivisible 1/4th Parking Space on stilt floor for park two cars on this common stilt floor floor for park two car on stilt floor of the building. The same shall not of the building. have any independent legal entity detached from the said property.
The vendee undertakes not to sell, transfer or assign indivisible parking space separately, independent of the property/unit.
This will remain only for the purposes of common use for parking cars in stilt floor without creating any hindrance in any manner whatsoever. The stilt floor will not be used for any other purpose, other than car parking.
SCJ No. 611154/16 Anil Kumar Gupta & Ors. vs Anju & Ors. 10/13
14. Perusal of the said clauses make it abundantly clear that no right for placing the split AC units or installation of such like services on the roof. The right that was conferred was limited to go to the roof for "repair and maintenance of TV Antenna and water tank". The PW1 has also admitted in his deposition that only a limited right was there with the plaintiff with respect to the roof. The sale deed existing in plaintiff, is with respect to second floor without roof rights.
There is no denial to the fact that roof belongs to the defendants. Also, it is settled law that one cannot sell which he himself never had. Thus, Sh. Apoorva Malla could not have sold the right to install AC units or such like services on the roof of the defendants.
15. However, it is to be noted that sale deeds Ex. DW 2/1 and Ex. PW ½ shows that entry and stair case passage which goes from ground floor to top floor is common for all the occupants of the building. Thus, what necessarily follows is that no hindrance can be caused by any one of the occupant to the other from access of these common areas. The defendants, thus, cannot obstruct the plaintiff from access to gates and roof. However, the access to roof is limited for the purpose of maintaining and repairing TV antenna and water tanks. As regards, the construction on the roof is concerned, the defendants cannot be restrained from raising any structure as the roof belongs to them, however considering the fact that TV antenna and water tank of plaintiff is installed on the roof, the defendants are obligated to ensure the safety of them in the even of any construction been made.
SCJ No. 611154/16 Anil Kumar Gupta & Ors. vs Anju & Ors. 11/13
16. The dispute qua the stilt parking is that plaintiff has 1/4th parking area in the said parking. The recital of sale deeds provide that the plaintiff has 1/4th parking share on the stilt floor. It is common sense that maneuvering a car requires space more than the actual space required for parking a car.
17. Thus, the defendants cannot be permitted to raise structure so as to cause obstruction in enjoyment of 1/4th parking area in the stilt floor, which means sufficient space has to be provided to the plaintiff to park his two cars in the 1/4th portion and further sufficient space has to be provided to ensure smooth ingress and egress of the cars from the property.
Both the issues are decided partly in favour of plaintiff.
18. RELIEF In view of findings on the aforesaid issues, the suit of the plaintiff is decreed with following reliefs :
(a) The defendants are restrained from causing hindrance to the plaintiff from accessing the common passage I.e the gates and also the stair case leading to the roof. The defendants are further restrained from causing hindrance to plaintiff from going to roof for the purpose of maintaining and repairing water tank and TV Antenna.
SCJ No. 611154/16 Anil Kumar Gupta & Ors. vs Anju & Ors. 12/13
(b) The defendants are directed to remove the locks from the gate and in the alternative to provide a set of keys of the locks to the plaintiff so as not to cause any obstruction from access.
(c) The defendants are directed to provide/leave sufficient space for parking of two vehicles of plaintiff in 1/4th portion of stilt floor and also to provide sufficient space for maneuvering the cars in and out of the property.
No order as to costs.
Decree sheet be prepared accordingly.
File be consigned to Record Room after due compliance.
Digitally signed by NITISH NITISH KUMAR KUMAR SHARMA Date: 2020.02.01 SHARMA 16:59:14 +0530 Pronounced in the open court (Nitish Kumar Sharma) today i.e on 01.2.2020 Civil Judge01(West)/Delhi SCJ No. 611154/16 Anil Kumar Gupta & Ors. vs Anju & Ors. 13/13