Delhi District Court
Wg. Cdr. (Retd.) Vijay K. Magoo vs Mrs. Sonia Chadha on 14 November, 2018
IN THE COURT OF SH. M.P. SINGH, ADJ - 03 (CENTRAL
DISTRICT), TIS HAZARI COURTS, DELHI
CS No. 80/16
New CS No. 610176/16
Wg. Cdr. (Retd.) Vijay K. Magoo
S/o late Krishan Gopal,
R/o R291, 1st floor, Greater KailashI,
New Delhi 48 ...... Plaintiff
Versus
1. Mrs. Sonia Chadha
W/o Rakesh Chadha,
R/o D120, Saket, Delhi - 17
2. Ram Krishan Chadha (since deceased, through LRs no. 2A and
2B)
2A. Sh. Rakesh Chadha (son)
S/o late Ram Krishan Chadha
R/o D120, Saket, Delhi - 17
2B. Smt. Krishna Chadha (wife)
W/o late Ram Krishan Chadha
R/o D120, Saket, Delhi - 17
3. Mr. Surinder Dhawan
Husband and Legal Representative of late Ms. Madhu Dhawan
R/o R291, GF, Greater Kailash I, Delhi - 48
4. Ms. Chhaya Dhawan
R/o R291, GF, Greater KailashI, Delhi - 48
.....Defendants
Suit instituted on 06.05.2005
Date of decision 14.11.2018
JUDGMENT
1. Late Ms. Sudha Rani Gupta was the owner of property bearing no. R291, Greater KailashI, Delhi - 48. She passed away on CS No. 80/16 New CS No. 610176/16 Wg. Cdr. Vijay K. Magoo Vs. Sonia Chadha & Ors. Page 1 of 26 pages 03.02.1988.
2. Vide a sale deed dt. 19.03.1993 (Ex. PW1/1) legal heirs of late Ms. Sudha Rani Gupta sold out 1st floor together with a servant room and toilet on the terrace of barsati floor of this property jointly to plaintiff and his spouse late Ms. Suman Magoo. Certain recitals of this sale deed dt. 19.03.1993 (Ex. PW1/1), as to what was transferred in plaintiff's favour, are as follows: "The entire first floor consisting of 3 (three) bedrooms, 3 bath cumtoilets, one kitchen, one drawingcumdining room, one pooja room and all extensions and open spaces at the first floor, and servant room and toilet above the barsati floor (admeasuring 24 X 7 ½ = 180 sq. ft.) together with portions and/or corresponding spaces, complete in all respects including woodwork, marble flooring, toilets, electricity, water, sewerage, booster pump/jet pump, underground & overhead water tanks and all other installations and fittings for geysers, fans, exhaust fans, independent electricity and water connections and water tanks etc. Together with all rights of free access and common use to all entrances at Ground, Stairs, First and Upper Floors, terrace, together with proportionate rights in land viz. 38% (thirty eight percent) as hereinabove described contained and situated at plot no. ......
The 'vendees' or anyone claiming under them shall have free access to all electricity, water, sewerage, underground reservoir, booster/jet pump in the rear courtyard, independent overhead water tanks and all entrances, common spaces, gate, and electric & water installations at the ground floor, stairs and upper floors, use of common areas and facilities.
The 'vendees' shall be free to make internal changes and interiors and would remain entitled to augment and install facilities of sanitation, sewerage, water supply, electricity installations, including liberty to install independent tubewell at Ground Floor, and servant quarter and toilet above the Barsati floor, including independent water tanks."
3. On 07.03.2005 the legal heirs of late Ms. Sudha Rani Gupta sold CS No. 80/16 New CS No. 610176/16 Wg. Cdr. Vijay K. Magoo Vs. Sonia Chadha & Ors. Page 2 of 26 pages out the ground floor portion of this property to defendants no.1 and 2 in terms of two separate sale deeds (Ex. DW1/1 and Ex. DW1/2). Sale deed (Ex. DW1/1) in favour of defendant no.1 Ms. Sonia Chadha pertains to 3/5th area of the total ground floor. And the sale deed (Ex. DW1/2) in favour of defendant no.2 late Ram Krishan Chadha was qua 2/5th area of the total ground floor.
4. The relevant recital from the sale deed dt. 07.03.2005 (Ex. DW1/1) in favour of defendant no.1 Ms. Sonia Chadha, as to what was transferred, is as follows: "And WHEREAS THE VENDOR is lawful owner and in possession of the ENIRE GROUND FLOOR of the Freehold Property No. R291, measuring 208 sq. yards, situated at GREATER KAILASH, PARTI, NEW DELHI110048, with fittings and fixtures installed therein, together with proportionate undivided, indivisible and impartible freehold ownership rights in land with all rights in common passage, staircase, water and electricity connections, and all other common facilities and amenities as are provided in the said building, with all rights, title and interest, easement, privileges and appurtenances thereto, connections, structure standing thereon, hereinafter collectively referred as the 'SAID PORTION OF THE SAID PROPERTY.
And whereas now the vendor being lawful owner and in possession of the ENTIRE GROUND FLOOR of 'said property' have agreed to sell, convey, transfer and assign to the vendee and the vendee has agreed to purchase the ENTIRE FRONT HALF PORTION OF THE GROUND FLOOR amounting to 3/5 area of the total ground floor area th including rights of parking in the front drive in and the entire front setback (the area is marked in blue on the plan annexed as Annexure 1 of this Sale Deed) of the freehold property no. R291, measuring 208 sq. yards, situated at Greater Kailash, PartI, New Delhi 110048, comprising of Drawing, Dining, One Bedroom with attached bathroom, Kitchen, Front Open Space and one store under staircase, with fittings and fixtures installed therein, together with proportionate undivided, indivisible and impartible freehold ownership rights in the land underneath with all rights in common passage, staircase, water and electricity connections, and all other CS No. 80/16 New CS No. 610176/16 Wg. Cdr. Vijay K. Magoo Vs. Sonia Chadha & Ors. Page 3 of 26 pages common facilities and amenities as are provided in the said building, with all rights, title and interest, easements, privilege and appurtenances thereto, connections, structure standing thereon...."
5. The relevant recital from the sale deed dt. 07.03.2005 (Ex. DW1/2) in favour of defendant no.2 late Ram Kishan Chadha, as to what was transferred, is as follows: "AND WHEREAS THE VENDOR is lawful owner and in possession of the ENIRE GROUND FLOOR of the Freehold Property No. R291, measuring 208 sq. yards, situated at GREATER KAILASH, PARTI, NEW DELHI110048, with fittings and fixtures installed therein, together with proportionate undivided, indivisible and impartible freehold ownership rights in land with all rights in common passage, staircase, water and electricity connections, and all other common facilities and amenities as are provided in the said building, with all rights, title and interest, easement, privileges and appurtenances thereto, connections, structure standing thereon, hereinafter collectively referred as the 'SAID PORTION OF THE SAID PROPERTY.
AND WHEREAS now the VENDOR being lawful owner and in possession of the ENTIRE GROUND FLOOR of 'SAID PROPERTY' have agreed to sell, convey, transfer and assign to the VENDEE and the VENDEE has agreed to purchase the ENTIRE REAR PORTION OF THE GROUND FLOOR amounting to 2/5th area of the total Ground Floor area including the entire rear setback (the area is marked in blue on the plan annexed as Annexure 1 of this Sale Deed) of the Freehold Property No. R291, measuring 208 sq. yards, situated at GREATER KAILASH, PARTI, NEW DELHI 110048, comprising of Two Bedrooms with Attached Bathrooms, and Rear Courtyard, with fittings and fixtures installed therein, together with proportionate undivided, indivisible and impartible freehold ownership rights in the land underneath with all rights in common passage, staircase, water and electricity connections, and all other common facilities and amenities as are provided in the said building, with all rights, title and interest, easements, privilege and appurtenances thereto, connections, structure standing thereon....."
6. Relevant would it be to note that vide a sale deed dt. 04.04.2014 CS No. 80/16 New CS No. 610176/16 Wg. Cdr. Vijay K. Magoo Vs. Sonia Chadha & Ors. Page 4 of 26 pages defendants no.1 and 2 transferred the right, title and interest in the ground floor portion jointly to Ms. Madhu Dhawan (spouse of defendant no.3 Surinder Dhawan) and Ms. Chhaya Dhawan (defendant no.4).
7. Plaintiff alleges that defendants no.1 and 2 after coming into the property started to raise unauthorised construction in the rear courtyard. They allegedly extended both the rear bedrooms into the rear courtyard, leaving little or no space for facilities/ augmentation, sanitation, water supply, electric motors, water storage tanks etc. for upper floors. Further, defendants no.1 and 2 allegedly put concrete unauthorised structure with a water tank of 1500 liters capacity in the common back courtyard thereby leaving little space for others. Plaintiff objected to it for the reason that they had no exclusive right over the rear courtyard and that he (plaintiff) had/has a right in the said rear courtyard in terms of the sale deed in his favour. Plaintiff asserts that as defendants no.1 and 2 had no exclusive right, title or interest in the rear courtyard, they could not make any construction exclusively for themselves therein. He avers that constructions done, sans requisite permission from the concerned authorities, by defendants no.1 and 2 affects his easementary rights. Not only this, his access to ground floor rear courtyard has allegedly come to a halt on account of the illegal constructions. He alleges that defendants grabbed the entire land of the common area thereby depriving him of its use. He goes on to aver that defendants no.1 and 2 made it clear that they will not stop raising unauthorised construction and coverage of open common spaces on the ground floor i.e. front and rear setback and the open areas of the shafts. Defendants no.1 and 2 allegedly threatened him that they would not permit him to come to the rear courtyard and further that they would raise constructions over the front entrance and courtyard for car parking. They also threatened him that after completing the CS No. 80/16 New CS No. 610176/16 Wg. Cdr. Vijay K. Magoo Vs. Sonia Chadha & Ors. Page 5 of 26 pages unauthorised construction they would sell off the property at a higher premium to third party thereby creating more complications for him. Plaintiff urges that defendants are under a legal obligation to demolish the unauthorised construction raised by them in the common areas i.e. rear courtyard etc. and to restore the ground floor portion to its original condition. Plaintiff's requests fell on deaf ears of defendants no.1 and 2. Plaintiff's police complaints dt. 27.03.2005, 05.04.2005, 07.04.2005 and 09.04.2005 were of no avail. On these averments, plaintiff seeks following reliefs:
(a) Permanent injunction decree in plaintiff's favour and against the defendants, thereby restraining the latter, their agents, employees, associates, workers, family members and the persons working on their behalf from
(i) Making any unauthorized and illegal construction in the common areas including the rear courtyard, front court and open spaces on the shafts on the ground floor of the property bearing no. R291, Greater KailashI, Delhi - 48.
(ii) Obstructing or stopping plaintiff's ingress and egress in the common areas viz. the rear courtyard, front courtyard and open spaces on the shafts on the ground floor of property bearing no. R291, Greater KailashI, Delhi - 48 and from stopping their right to augment and install facilities of sanitation, sewerage, water supply, electricity installations, including liberty to install independent tubewell at ground floor for supply to the premises at first floor and servant quarter and toilet above the barsati Floor, including independent water tanks.
(iia) Pass an order directing defendants no.3 and 4 to deposit duplicate key of the sanctioned rear entrance gate leading to the rear courtyard at the ground floor of suit property bearing no. R291, Greater KailashI, Delhi - 48.
(iib) Pass an order with direction to defendants no.3 and 4 to deposit duplicate key of the unauthorised and illegally erected iron partition gate across the front courtyard at ground floor of suit property bearing no.
CS No. 80/16New CS No. 610176/16 Wg. Cdr. Vijay K. Magoo Vs. Sonia Chadha & Ors. Page 6 of 26 pages R291, admeasuring 291 sq. yards, Greater KailashI, Delhi - 48.
(iii) Creating any third party right, title or interest in respect of the said ground floor portion of the property bearing no. R291, Greater Kailash, PartI, Delhi - 48, by sale or otherwise, in any manner whatsoever after raising unauthorized and illegal construction in respect of the said portion of the property in question, in the interest of justice.
(b) Pass a decree of mandatory injunction in plaintiff's favour and against the defendants, thereby directing the latter to demolish the unauthorised and illegal construction already carried out by them in the common areas i.e. back courtyard, front courtyard and open spaces on the shafts on the ground floor of property bearing no. R291, Greater KailashI, Delhi
- 48 and to restore back the said ground floor portion in its original position and condition to remove the unauthorized concrete coverage and water tanks from the common back courtyard, in the interest of justice.
(c) Pass a decree of recovery of Rs. 3,00,000/ (Rupees three lacs only) towards damages in plaintiff's favour and against the defendants.
(d) Pass a decree for future mesne profits / damages @ Rs.
10,000/ per month from the date of filing of the suit till the property is restored back to its original condition and possession in plaintiff's favour and against the defendants.
(e) Pass an order that sale deed dt. 04.04.2014 is null and void with regard to sale of areas of front courtyard and rear courtyard including sale of parking of one car in front of drive at ground floor of suit property bearing no. R291, admeasuring 208 sq. yards, Greater KailashI, Delhi - 48.
(f) Costs of the suit in plaintiff's favour and against the defendants.
(g) Such other order as this Court may deem fit and reasonable in plaintiff's favour and against the defendants.
8. Defendants no.1 and 2 filed their written statement on 20.05.2005. They aver that they are owners of the entire ground floor including the front and rear courtyards and that plaintiff has no legal right, title or interest to enter the portion that they own CS No. 80/16 New CS No. 610176/16 Wg. Cdr. Vijay K. Magoo Vs. Sonia Chadha & Ors. Page 7 of 26 pages uninterruptedly and unhindered; that access given to plaintiff is for a limited purpose of going upstairs / downstairs and for maintaining electricity, water, sewage, underground reservoir, booster / jet pump, water tanks etc. and that too from the service lane; that this confers no right on the plaintiff to use the front and the rear courtyards/setbacks; that plaintiff can come for maintenance and that too after giving due notice to them during the day hours and not during odd hours; that plaintiff has no right, title or interest to erect any booster pump etc. in the front or in the rear courtyards as the same is in their exclusive / absolute ownership; that as per the terms of the sale deed dt. 07.05.2005 in their favour plaintiff has free access to electricity, water, sewage, underground reservoir, booster pump, water tanks etc. installed at the ground floor, stairs and upper floors; and that plaintiff has no right, title or interest in the ground floor to install anything except free access, ingress and egress leading from the staircase for upper floors and free access for maintenance of common facilities.
9. Defendants no.1 and 2 go on to state that entire ground floor has been in existence for the last several years and the completion certificate thereof was granted on 21.11.1966. They aver that the vendors had got the building plans for additions and alterations for the purposes of construction over the existing ground floor and for construction of first floor and barsati floor sanctioned from MCD on 31.05.1988 and 15.05.2000. They aver: "The building plans, which were got sanctioned and in that sanctioned plan, the staircase leading to upper floor is in front of the gate at the ground floor. The common areas for access to the upper floor is only with regard to the area in between the gate and staircase. The entrance to the ground floor is in the front after coming from the gate. The plaintiff has no right, title or interest of any nature in any other portion of the ground floor in front of the property as the answering defendants are the exclusive and absolute owner of the entire ground floor. The rear setback entrance is from the service CS No. 80/16 New CS No. 610176/16 Wg. Cdr. Vijay K. Magoo Vs. Sonia Chadha & Ors. Page 8 of 26 pages lane at the back of the property. The said rear portion is enclosed with the boundary wall of the property. Thus, the plaintiff has no right, title or interest of any nature whatsoever even in the rear setbacks of the property as the same belongs to the answering defendants.
It is further submitted that the construction on the first floor, second floor and above had been carried out on the existing ground floor. Whatever construction is in existence on the ground floor was existing at the time when the construction was carried out on the first floor and above. The construction on the first floor, second floor and above had to be carried out on the walls so erected on the ground floor, but there is change in the position of load bearing walls on the first floor and above thereby adversely affecting the structural stability of the building. The builder of the property had neither raised construction on the first floor and above as per sanctioned plans nor obtained any sanction for the construction of servant quarter on the terrace above the barsati of the property nor obtained any occupancy completion certificate from the concerned authority.
The plaintiff has alleged in the plaint and the documents annexed with the plaint that he has purchased the property in question on the first floor vide registered sale deed dated 19.03.1993. Whatever construction is in existence on the first floor, that is also in existence on the ground floor, so there is no question of any unauthorised construction on the ground floor. The positioning of the outer walls on the ground floor and first floor is the same. If there is any violation of law, as alleged by the plaintiff in the suit pertaining to the ground floor, then the same is equally applicable to the portion of the property owned by the plaintiff on the first floor. It is pertinent to mention here that the servant quarters and toilet on the terrace above barsati, cannot be permitted in any circumstances and the same is apparently unauthorised.
The plaintiff has alleged that there is servant room and toilet measuring 180 Sq. Ft. and when no construction above the barsati is permissible under any law and under any circumstances as the plot size in 208 Sq. Yards, then apparently the said servant room and toilet above barsati floor owned by the plaintiff is unauthorised, illegal and liable to be demolished. The construction on the first floor, second floor on the premises of the plaintiff that there is unauthorized construction on the ground floor is also liable to CS No. 80/16 New CS No. 610176/16 Wg. Cdr. Vijay K. Magoo Vs. Sonia Chadha & Ors. Page 9 of 26 pages be demolished."
10. Defendants no.1 and 2 question as to whether the plaintiff would allow them to install anything in the area in the front and rear balconies at the first floor and servant quarter or terrace above the barsati owned by him. They state that after purchasing the property they carried out only permissible repairs under the law in order to make the premises fit for human habitation. They aver that plaintiff, who seeks equitable remedy, must first do equity and for this end he must demolish the unauthorised construction in his portion and that if some construction is unauthorised on the ground floors, the same would be unauthorised even on the upper floors. Denying other averments, defendants no.1 and 2 seeks dismissal of the suit.
11. Defendants no.3 and 4 (subsequent purchasers of the ground floor) came to impleaded vide order dt. 15.12.2016. They filed no written statement.
12. Plaintiff filed his replication on 15.07.2005 wherein he reiterated and reaffirmed his averments as set out in his plaint and refuted those of defendants no. 1 and 2 as set out in their written statement.
13. Issues (orders dt. 05.08.2005 and 25.07.2012) are as follows.
1. Whether the suit is barred by limitation? OPD
2. Whether the counterclaim is barred by limitation?
OPD
3. To what amount of damages, if any, is plaintiff entitled from the defendant? OPP
4. Whether the plaintiff is entitled for a decree of permanent injunction, as prayed? OPD
5. Whether the plaintiff is entitled for a decree of mandatory injunction as claimed in the plaint?
CS No. 80/16New CS No. 610176/16 Wg. Cdr. Vijay K. Magoo Vs. Sonia Chadha & Ors. Page 10 of 26 pages OPP1
6. Whether the defendant is entitled for a decree of permanent injunction, as prayed? OPD
7. Relief.
14. In plaintiff's evidence, plaintiff examined himself as PW1 and HC Jaiprakash (PS Greater KailaishI) as PW2. In defendants' evidence, defendant no.1 Sonia Chadha (DW1) was the sole witness.
15. Arguments heard. Record perused.
16. Issuewise findings are as follows.
17. Issue no.2 - The issue is whether the counterclaim is time barred. Order dt. 28.08.2006 reflects that counterclaim had been separated from this main suit and it was registered with the registration number 214/2005. Thus the counterclaim no longer forms part of this main suit. It is not clear from this file as to what became of the counterclaim. Suffice to say, that the counterclaim is not sub judice in this court. Even the defendants, during the course of final arguments, did not press this issue. In view thereof, no finding on this issue is warranted. Invoking Order XIV Rule 5 (2), CPC this court strikes down this issue.
18. Issue no.6 - The issue is whether the defendants are entitled for a decree of permanent injunction as prayed. It is apparent that this issue sprang up from the relief(s) claimed in the counterclaim. For similar reason as aforesaid (in issue no.2) this 1 This issue, as originally framed on 05.08.2005, was "Whether the plaintiff is entitled for a decree of mandatory injunction as claimed in the counter claim? OPP" This issue came to recast as above vide order dt. 25.07.2012.
CS No. 80/16New CS No. 610176/16 Wg. Cdr. Vijay K. Magoo Vs. Sonia Chadha & Ors. Page 11 of 26 pages issue too stands struck off invoking Order XIV Rule 5 (2), CPC.
19. Issue no.1 - The issue is whether the suit is barred by limitation. Plaintiff, in his plaint (paragraph no.16), asserts that cause of action to file the suit arose when defendants no.1 and 2 few days ago, after purchasing the property, started to make unauthorised construction over the common areas and also on various dates when he made the police complaints and that cause of action is still in continuation. Whether or not there is any merit in the claims put forth by the plaintiff is a separate matter, but so far as the issue of limitation is concerned the time for filing the suit would begin to run when the alleged unauthorised was raised over what the plaintiff states to be 'common areas' and which had the effect of allegedly impeding his rights. Defendants no.1 and 2 purchased the ground floor portion on 07.03.2005. The alleged illegal construction, if any, raised by them must have been after 07.03.2005 and consequently the rights and the claims which plaintiff asserts must have been impeded only after 07.03.2005. Given this, the instant lis, filed on 06.05.2005, can certainly not be said to be time barred. This issue is accordingly answered in plaintiff's favor and against the defendants.
20. Issue no.4 - The issue is whether plaintiff is entitled for a decree of permanent injunction as prayed. The dispute concerns rights and usages of certain portions of the ground floor portion. The property in question has ground / first / second / barsati floors. It appears that Delhi Apartments Act, 1986 that contains provisions for 'common areas' is not applicable to the case at hand. Proviso to section 2 of Delhi Apartments Act, 1986 mandates that CS No. 80/16 New CS No. 610176/16 Wg. Cdr. Vijay K. Magoo Vs. Sonia Chadha & Ors. Page 12 of 26 pages where the building contains only two or three apartments, the owner of such building may, by a declaration duly executed and registered under the provisions of Registration Act, 1908, indicate his intention to make the provisions of said Apartments Act applicable to such building and it is only on such declaration being made that the Apartments Act becomes applicable to said apartments. There is no evidence on record that such a declaration duly executed and registered under Registration Act, 1908 has been made qua the property in question. The pleadings as also the entire judicial record is silent about this. Ld. Counsels for the parties did not advert to this aspect. But suffice to say that as there is no evidence of such a declaration duly executed and registered under Registration Act, 1908 there arises no question of applicability of Delhi Apartments Act, 1986 to the case at hand.
21. Thus the aspect of rights and usages of the portions of the ground floor in the property in question would be governed by title documents of the respective parties.
22. Title documents of plaintiff and defendants no.1 and 2 would show that the vendor(s) to both of them was common. Plaintiff's title documents would show 1st floor that conveyed to him included
(i) free 'access' and 'common use' to all 'entrances', (ii) free 'access' to all electricity, water, sewerage, underground reservoir, booster/jet pump in the rear courtyard, independent overhead water tanks and all entrances, common spaces, gate, and electric & water installations at the ground floor, stairs and upper floors, use of common areas and facilities, (iii) that plaintiff was 'free to make' internal changes and interiors and would remain entitled to augment and install facilities of sanitation, sewerage, water supply, electricity installations, including CS No. 80/16 New CS No. 610176/16 Wg. Cdr. Vijay K. Magoo Vs. Sonia Chadha & Ors. Page 13 of 26 pages liberty to install independent tubewell at ground floor, servant quarter and the toilet above the barsati floor, including independent water tanks, and (iv) proportionate rights in the land underneath to the extent of 38%.
23. On the other hand, conveyance in favour of defendants no.1 and 2 by the very same vendors included the front open space, rear courtyard as also parking rights in the front drive in and the entire front setback together with proportionate rights in the land underneath. The vendors had sold the ground floor to defendants no.1 and 2 on the premise that they were the owners of the entire ground floor.
24. In view thereof, I see no room of conflict in the rights and title of the two parties. Plaintiff was given free access and common use to the entrances and free access to the amenities viz., electricity, water etc. and the freedom to augment and install facilities as aforesaid. Such access/common use of entrances, free access to amenities and the right to augment and install facilities cannot be equated with conveyance of front open space, rear courtyard and the parking rights. The conveyance deeds are clear that front open space, rear courtyard and the parking rights was conveyed to the other side and not to the plaintiff. Conveyance of front open space, rear courtyard and the parking rights is not the same as free access and common use to entrances and amenities and the freedom to augment and install facilities. In this view of the matter I do not think that pl aintiff can claim that the defendants have grabbed the front and the back courtyard. On this aspect, decision reported as Tahil Naraindass Vazirani & Ors. vs. Ravinder CS No. 80/16 New CS No. 610176/16 Wg. Cdr. Vijay K. Magoo Vs. Sonia Chadha & Ors. Page 14 of 26 pages Kaur Sandhu & Anr. 2013 SCC OnLine Del 3073 can be referred to. On somewhat similar facts as in the present case, it was observed that therein: "12. As per the argument of the counsel for the appellants/plaintiffs, the property subject matter of this appeal has only three apartments i.e. the residential units on the ground, first and the second floors and in the absence of a declaration within the meaning of the proviso to Section 2 being made, the Apartment Act would not be applicable thereto. It is not the case of the appellants/plaintiffs that any declaration within the meaning of the proviso to Section 2 of the Apartment Act was made with respect to the property. The conclusion is therefore inescapable that the Apartment Act has no applicability to the subject property.
13. The rights in the property would thus be governed by the documents of title in favour of each of the parties.
14. The Agreement to Sell in favour of the respondent/defendant no.1 conveys to her "rights, interests, liens and titles in respect of entire ground floor including covered garage and servant quarter above garage (but with right of upper floor owners to the driveway) with all fittings, fixtures and installations and the proportionate leasehold rights in the land underneath".
15. The two Agreements to Sell in favour of the appellants/plaintiffs convey to them the first and the second floors respectively "including servant quarter above garage and with right of use of driveway for parking of one car with all fittings, fixtures, amenities, installation and the proportionate impartible leasehold rights in the land underneath .........".
16. It would thus be seen that while under the document of title in favour of the respondent no.1, the property conveyed would include the front lawn, the same would not be included in the property conveyed under the documents of title in favour of appellants/plaintiffs."
CS No. 80/16New CS No. 610176/16 Wg. Cdr. Vijay K. Magoo Vs. Sonia Chadha & Ors. Page 15 of 26 pages
25. That apart, granting such a right as claimed by plaintiff would lead to absolute loss of privacy to the ground floor. Judicial notice can also be taken of the fact that in floor wise ownerships, common in Delhi, the general rule is that the front open space, if at the same level as the construction on the ground floor belongs to and goes with the ground floor. In the context the observations in Tahil Naraindass (supra) are as follows: "20. A site plan of the ground floor of the property is filed at page 211A of the appeal paper book and which shows the front open lawn to be appurtenant to the built up portion of the ground floor. The same is the portion of the open space on the right side of the property leading up to the rear open courtyard. It can safely be assumed that the doors and windows of the ground floor open in the said front open lawn and the side open space and allowing use of the said front open lawn and right side open space to the occupier/owners of the upper floors of the property would lead to absolute loss of privacy to the ground floor. Moreover such floorwise ownerships are very common today in the city of Delhi and the general rule of which judicial notice can be taken is of the front open lawn if at the same level as the construction on the ground floor belonging to and going with the ground floor only. It is only where there is a basement and the front open lawn or space is used for parking that the same is not generally conveyed along with the ground floor."
26. In the present case the plaintiff acquired rights in the first floor and in the servant room/ barsati knowing fully well that front and the rear backyard was not being conveyed to him, except for access and use of entrances and facilities. In this context, Tahil Naraindass (supra) it was observed: "20. .......In the present case, the appellants/plaintiffs acquired rights in the first and second floors with full CS No. 80/16 New CS No. 610176/16 Wg. Cdr. Vijay K. Magoo Vs. Sonia Chadha & Ors. Page 16 of 26 pages knowledge that no rights in the front open lawn were being conveyed to them and had the agreement of the appellants/plaintiffs with their seller been otherwise, it is incomprehensible as to why the same would have not found mention in the documents in favour of the appellants/documents.
21. The matter can be looked at from another aspect also. As aforesaid, since the Apartment Act does not apply, the rights are to be governed by the document of title in favour of each of the parties; once the appellants/plaintiffs in their documents are not found to have any right to the front open lawn or in the right side open space, the question of granting any relief with respect thereto to the appellants/plaintiffs does not arise irrespective of whether the same was conveyed to the respondents/defendants or not. The appellants/plaintiffs also have approached the Courts with the claim of a right therein under the documents and under which documents no right with respect thereto were conveyed to them."
27. Arguments on the anvil that plaintiff has proportionate 38% rights in the land underneath can be no avail. Such a proportionate rights in the land underneath is only to ensure that in the event of the property being destroyed, the owners of the upper floors would have a right to reconstruct their respective floors on the land and it does not convey the open spaces that are not specifically conveyed by title documents. The observations in Tahil Naraindass (supra) in this context are as follows: "22. As far as the contention of the counsel for the appellants/ plaintiffs of the appellants /plaintiffs having right in the front open space owing to the appellants/plaintiffs having been given proportionate rights in leasehold rights in the land underneath the property is concerned, the said clause is only to assure that in the event of the property being destroyed, the owners of the upper floors would have a right to re construct their respective floors on the land and the said clause can by no stretch of imagination be deciphered as conveying rights in the open spaces which have not been CS No. 80/16 New CS No. 610176/16 Wg. Cdr. Vijay K. Magoo Vs. Sonia Chadha & Ors. Page 17 of 26 pages conveyed in the documents in favour of the owners of the upper floors. If the said logic were to be applied then it has been asked from the counsel for the appellants/plaintiffs as to why the appellants/plaintiffs are not claiming the rights in the entire ground floor including the covered area. No plausible answer has been forthcoming from the counsel for the appellants/plaintiffs."
28. Plaintiff's counsel argued that plaintiff has the protection of section 48, Transfer of Property Act. I see no reason for application of this provision to the case at hand. This provision would apply only when there are conflicting rights qua an immovable property. In the case at hand, I do not see as to how the rights of the plaintiff and the defendants, as evidenced by their title documents, are in conflict with each other.
29. Plaintiff's contention is that building sanction plans of 1966, 1988 and 2000 do not have any parking on the ground floor and as such the defendants can have no parking rights as conveyed to them by their conveyance deed. This contention is misplaced. To my mind, to park one's own car inside one's own property requires no specific permission or authorisation from any quarter. In case car parking is being done on someone else's property or on the public street or footpath, then a problem may arise. It appears to me that no building sanction plan is required to park one's own bicycle, or a scooter / motorcycle or a car so long as the same is being done inside one's own property. No such provision in any law or building byelaws was pointed out to this court saying that to park a vehicle inside one's own property, building sanction plan containing is required. This issue can be looked at from a different angle. Supposing a space earmarked as 'bedroom' in the building CS No. 80/16 New CS No. 610176/16 Wg. Cdr. Vijay K. Magoo Vs. Sonia Chadha & Ors. Page 18 of 26 pages sanction plan is being instead used as a pooja room and not as 'bedroom', can that be said to illegal use? I do not think so. So long as the use of the 'bedroom' is not obnoxious or unnatural use, no specific authorisation is required. That apart, it is a matter of common knowledge that in all the urban areas, the world over, that front and drive in portion is generally used for parking private vehicles.
30. Plaintiff invoked the building sanctioned plan of year 2000 to aver that he has unhindered and unfettered rights in the courtyards/ shafts at the ground floor which are common areas and that the defendants have no exclusive rights therein. It is to be noted that for the common areas on the ground floor, in terms of plaintiff's title documents, his rights cannot be said to be unhindered and unfattered. As already aforesaid, the plaintiff no doubt has right to access and common use of all the entrances, free access to the utilities like electricity/ underground reservoir etc. on the ground floor and the right to augment and install facilities. Plaintiff can certainly not be granted more than what stands conveyed to him by his title documents. Even the building sanction plan of year 2000 may not confer more to the plaintiff than what already stands conveyed in his favour in terms of his sale deed dated 19.03.1993 (Ex.PW1/1). As already stated, even in respect of the common areas the plaintiff can have no unhindered and unfettered rights and his rights on the ground floor are limited to access coupled with his right to make augmentations as aforesaid. To take an example, on the premise that he has right to access the ground floor for his ingress and egress and for the utilities, to my mind, the plaintiff cannot assert a right to a car parking in the CS No. 80/16 New CS No. 610176/16 Wg. Cdr. Vijay K. Magoo Vs. Sonia Chadha & Ors. Page 19 of 26 pages ground floor.
31. However, in terms of section 22, Indian Easements Act, 1882 and in terms of the conveyance deeds plaintiff has certain rights. His has right to (i) free 'access' and 'common use' to all 'entrances',
(ii) free 'access' to all electricity, water, sewerage, underground reservoir, booster/jet pump in the rear courtyard, independent overhead water tanks and all entrances, common spaces, gate, and electric & water installations at the ground floor, stairs and upper floors, use of common areas and facilities, (iii) 'free to make' internal changes and interiors and would remain entitled to augment and install facilities of sanitation, sewerage, water supply, electricity installations, including liberty to install independent tubewell at ground floor, servant quarter and the toilet above the barsati floor, including independent water tanks. To achieve this, it is essential that some arrangement be put in place. This court is of the view that the arrangement that was worked out by Ld. Predecessor of this court vide his order dated 02.04.2008 whereby a grill enclosure for the pumps in the rear portion was put in place with separate keys thereof to the plaintiff is required to be maintained. The contention that the entrance to this is not fit for human entrance merits rejection. A human being is not required to go in there in order to set up a habitat. The limited purpose of which one would go there is for maintenance etc.
32. Plaintiff's stand, however, is that such a grill is not authorised by the concerned authorities. As to what is illegal construction, one has to go by the building byelaws. Before this CS No. 80/16 New CS No. 610176/16 Wg. Cdr. Vijay K. Magoo Vs. Sonia Chadha & Ors. Page 20 of 26 pages Court, no such provision of any building byelaws was pointed out which could say that such an iron grill amounted to unauthorised construction. Further, I do not think that building byelaws would prohibit something which is necessary to make the premises fit for human habitation.
33. Plaintiff's relief for permanent injunction to restrain defendants from making unauthorised and illegal construction in the open spaces has to be turned down. As to what is illegal construction essentially depends upon the building byelaws. This Court will not without going into the aspects of the so called illegal constructions that may be raised in future pass an order to restrain the defendants from doing so. This is for the reason that such an order in perpetuity may involve several complications, one of them being as to whether such a proposed construction is actually illegal or not under the building byelaws. That apart, needless to say, there is no requirement of any injunction from a Court to restrain a person from doing what is prohibited by the laws. Thirdly, as and when such a construction, which the plaintiff thinks to be illegal, is being raised, he can invite the attention of the concerned authorities and may approach the judicial fora, if advised.
34. The next relief of permanent injunction to direct defendants no. 3 and 4 to deposit the duplicate keys of the sanctioned rear entrance gate has to be turned down for the reasons stated hereinabove and in view of the ratio of Tahil Naraindass (supra).
The next relief of permanent injunction seeking to direct defendants no. 3 and 4 to deposit duplicate keys of the alleged CS No. 80/16 New CS No. 610176/16 Wg. Cdr. Vijay K. Magoo Vs. Sonia Chadha & Ors. Page 21 of 26 pages unauthorised and illegally erected iron partition gate across the front courtyard is also to be turned down for the very same reasons. The next relief of permanent injunction to restrain defendants from creating any third party right, title or interest in respect of the said ground floor portion of the property bearing no. R291, Greater Kailash, PartI, Delhi - 48, by sale or otherwise has also to be turned down. There arises absolutely no question of this court restraining the owner(s) of the ground floor portion from selling out or disposing of their portion. If some construction is illegal, the same would continue to remain illegal even at the hands of the subsequent purchaser(s). The concerned authorities or judicial fora would not say that since the property has changed hands and therefore, they would not take any action against the socalled illegal construction. The illegal construction, if any, would remain attach to the property and it would not stand wiped out from the property simply because the property has changed hands.
35. This issue is accordingly answered in plaintiff's favour and against the defendants by holding that the plaintiff has right to free 'access' and 'common use' to all 'entrances', free 'access' to all electricity, water, sewerage, underground reservoir, booster/jet pump in the rear courtyard, independent overhead water tanks and all entrances, common spaces, gate, and electric & water installations at the ground floor, stairs and upper floors, use of common areas and facilities, and he is 'free to make' internal changes and interiors and would remain entitled to augment and install facilities of sanitation, sewerage, water supply, electricity installations, including liberty to install independent tubewell at CS No. 80/16 New CS No. 610176/16 Wg. Cdr. Vijay K. Magoo Vs. Sonia Chadha & Ors. Page 22 of 26 pages ground floor, servant quarter and the toilet above the barsati floor, including independent water tanks. Further, arrangement that was worked out by this Court vide order dated 02.04.2008 whereby a grill enclosure for the pumps in the rear portion was put in place with separate keys thereof to the plaintiff is required to be maintained. Beyond this, no other relief as claimed for in the plaint can be granted to the plaintiff.
36. Issue no.5 The issue is whether plaintiff is entitled for a decree of mandatory injunction as claimed in the plaint. Plaintiff claims that the defendants be directed to demolish unauthorised constructions in the courtyard and open spaces. As to what is unauthorised construction would essentially depend upon the building byelaws. To merely aver that changes have been made would not by itself tantamount to illegal construction. The plaintiff avers that the defendants extended the rear bedroom into the rear courtyard. However, there is no evidence on record to establish this. The mere self serving ipse dixit of the plaintiff in this regard cannot be accepted. Further, the defendants no. 1 and 2 had purchased the ground floor portion in March 2005 and the present suit was filed in May 2005. Given the very short span of time, it is difficult to accept that they had extended the rear bedroom into the rear courtyard. That apart, the plaintiff offers no date or the month when such extension of the rear bedroom was done. The evidence on record completely falls short of establishing this averment. That apart, the allegation that a water tank of 1500 liters in the rear courtyard is also in illegal construction cannot be accepted. As already said, what is illegal construction would depend upon the relevant provisions of the building bye CS No. 80/16 New CS No. 610176/16 Wg. Cdr. Vijay K. Magoo Vs. Sonia Chadha & Ors. Page 23 of 26 pages laws. The plaintiff relies upon a MCD letter bearing No. 671/EE(B)/Cent. Zone/ 2008 dated 10.12.2018 (Ex.PW1/17) in support of his case. This letter states that as per the office record, the ground floor owner has not been permitted to construct over any portion of the front and rear set backs. I doubt if such a letter of the MCD can suffice to establish that the water tank of 1500 liters is illegal construction. To give permission or not to give permission to set up such a water tank is one thing and whether such a water tank amounts to illegal construction under the building byelaws is an altogether different thing. Further, I doubt if such a water tank installed to make the premises more fit for human habitation in the rear courtyard would be an illegal construction. This relief of mandatory injunction as prayed for by the plaintiff is turned down. This issue is accordingly decided against the plaintiff.
37. Issue no.3 - The issue is to what amount of damages, if any, is the plaintiff entitled to from defendants. Plaintiff is not entitled to any damages from the defendants. Plaintiff claims damages of Rs. 3 lacs. Besides this, he also seeks a decree for mesne profits at the rate of Rs. 10,000/ from the date of institution of the suit till the property is restored back to its original condition. On this count, plaintiff's assertions, as set out in the plaint, are as follows: "Defendants are under legal obligation to demolish the unauthorized construction already raised by them in the common area i.e. the rear courtyard etc. and to restore the ground floor portion of the aforesaid property in its original condition. The defendants have grabbed the entire land of the common area thereby depriving the plaintiff of its use. The CS No. 80/16 New CS No. 610176/16 Wg. Cdr. Vijay K. Magoo Vs. Sonia Chadha & Ors. Page 24 of 26 pages plaintiff has suffered loss, mental harassment and has been deprived of the beneficial user of the property and as such is entitled to recover compensation from the defendants for the illegal acts done by them." Section 2 (12), CPC defines mesne profits as 'those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom.....' The defendants are not in wrongful occupation of the ground floor portion. The defendants are not wrongfully possessing any part of plaintiff's property. There arises absolutely no question of plaintiff being entitled to any mesne profits / damages from the defendants. This issue is thus decided against the plaintiff and in defendants' favour.
38. The plaintiff had also claimed a relief of declaring the sale deed dated 04.04.2014 in favour of defendants no. 3 and 4 as null and void for the reason that it encompassed the front and the rear courtyards as also the parking rights. The defendants no. 3 and 4 purchased whatever inhered in defendants no. 1 and 2 from the previous owner (legal heirs of Late Ms. Sudha Rani Gupta). The sale deed is not illegal in any manner. Although no issue in this regard was framed, yet this Court holds that there arises absolutely no question of declaring the sale deed dated 04.04.2014 as null and void.
39. Relief - This suit stands decreed to the very limited extent as follows: Plaintiff has right to free 'access' and 'common use' to all 'entrances', free 'access' to all electricity, water, sewerage, underground reservoir, booster/jet pump in the rear courtyard, independent overhead water tanks and all entrances, common CS No. 80/16 New CS No. 610176/16 Wg. Cdr. Vijay K. Magoo Vs. Sonia Chadha & Ors. Page 25 of 26 pages spaces, gate, and electric & water installations at the ground floor, stairs and upper floors, use of common areas and facilities, and he is 'free to make' internal changes and interiors and would remain entitled to augment and install facilities of sanitation, sewerage, water supply, electricity installations, including liberty to install independent tubewell at ground floor, servant quarter and the toilet above the barsati floor, including independent water tanks. Further, arrangement that was worked out by this Court vide order dated 02.04.2008 whereby a grill enclosure for the pumps in the rear portion was put in place with separate keys thereof to the plaintiff is required to be maintained. Beyond this, no other relief as claimed for in the plaint can be granted to the plaintiff.
40. Parties are left to bear their own costs. Decree sheet be drawn up. File be consigned to record room.
Announced in the open MURARI Digitally signed by MURARI PRASAD Court on 14.11.2018 SINGH PRASAD Date: SINGH 2018.11.14 16:28:36 +0530 (M. P. Singh) ADJ03 (Central District) Tis Hazari Courts Delhi/14.11.2018 CS No. 80/16 New CS No. 610176/16 Wg. Cdr. Vijay K. Magoo Vs. Sonia Chadha & Ors. Page 26 of 26 pages