Delhi District Court
Dr. Seema Chowdhary vs Ms. Jotinder Sharma on 25 November, 2013
Dr. Seema Chowdhary v. Jotinder Sharma S-348/11
IN THE COURT OF SH. MANISH YADUVANSHI
SCJCUMRC (SOUTH) SAKET COURTS COMPLEX
NEW DELHI
CS No. 348/11
UNIQUE CASE ID NO. 02406C0335642011
IN THE MATTER OF:
DR. SEEMA CHOWDHARY
W/O SH. RABINDRA KUMAR
E361, SECOND FLOOR,
GREATER KAILASHII,
NEW DELHI110048.
2 ND ADDRESS
:
DR. SEEMA CHOWDHARY
W/O SH. RABINDRA KUMAR
1248, TYPEIV, SPECIAL
SECTOR12, R.K. PURAM
NEW DELHI110022. ....PLAINTIFF
VERSUS
1. MS. JOTINDER SHARMA
W/O SH. SUMAN SHARMA
E361, FIRST FLOOR,
GREATER KAILASHII,
NEW DELHI110048.
Result: Decreed Page 1 of 36
Dr. Seema Chowdhary v. Jotinder Sharma S-348/11
2 ND ADDRESS
:
MS. JOTINDER SHARMA
W/O SH. SUMAN KUMAR SHARMA
2130, HEIDI AVE, BURLINGTON,
ONTARIO, L7 M3 P5,
CANADA.
3 RD ADDRESS
:
MS. JOTINDER SHARMA
W/O SH. SUMAN KUMAR SHARMA
M106, LOWER GROUND FLOOR,
SAKET, NEW DELHI.
2. MUNICIPAL CORPORATION OF DELHI
TOWN HALL, DELHI110006
THROUGH ITS COMMISSIONER.
....DEFENDANTS
DATE OF INSTITUTION : 09.10.2009
DATE OF RESERVING THE JUDGMENT : 20.11.2013
DATE OF DECISION : 25.11.2013
JUDGMENT
1. The plaintiff Dr. Seema Chowdhary has filed this suit for Permanent and Mandatory Injunction against Ms. Jotinder Sharma, Result: Decreed Page 2 of 36 Dr. Seema Chowdhary v. Jotinder Sharma S-348/11 the first defendant and MCD (now 'SDMC') as the second defendant wherein she prays that the first defendant, her agents, etc. may be restrained from carrying out any illegal construction over the terrace of second floor flat of the property bearing No. E361, Greater KailashII, New Delhi and further to remove the illegal structure raised by her over the terrace. She also seeks directions to the second defendant to take appropriate action against first defendant for raising illegal construction as aforestated. The property described above shall be henceforth referred as 'suit property'. The plaintiff derives title to the above stated second floor flat and its roof/roof rights by virtue of a registered gift deed executed in her favour by its owner Sh. Shyam Narayan/ her father.
2. Briefly stated, one Sh. Gurnam Singh Dhariwal and Sh. Ram Singh were coowners of a free hold plot measuring 250 sq. yards bearing No. E361 in Greater KailashII, New Delhi after having purchased it from one Sh. Sardar Harjung Singh. The said two persons sold their undivided share in the said plot of land to M/s Uppal Agencies Pvt. Ltd. (hereinafter, called the 'builders'). The builders built up ground floor, first floor and second floor and sold them to Result: Decreed Page 3 of 36 Dr. Seema Chowdhary v. Jotinder Sharma S-348/11 different buyers.
2.1 The first floor flat was sold to Sh. Vijay Kumar Gupta by way of registered sale deed dated 22.05.1991 purportedly with user rights of a small portion of rear terrace.
2.2 The second floor was sold to Sh. O.P. Bansal and Smt. Krishna Bansal purportedly with a condition that they will use the front portion of the terrace. Clause 4 of the sale deed dated 29.06.1998 authorized them to make construction of the third floor whenever it became permissible but only after getting the plan approved by the concerned authorities. It gave rights to them to make construction on the entire second floor terrace including the portion demarcated for use by the owner of the first floor and also including the portion where servants quarters etc. are built. It was further subject to condition that upon such construction, the owner of second floor shall reprovide the identical servant quarters, overhead water storage tank and other facilities and amenities on the terrace of top floor at their own costs and expenses. After such completion, the criteria for use of the terrace of the top floor was to remain the same as it existed earlier. Result: Decreed Page 4 of 36 Dr. Seema Chowdhary v. Jotinder Sharma S-348/11 2.3 Sh. Vijay Kumar Gupta sold the first floor portion to one Sh. Naveen Malhotra by registered sale deed dated 19.02.2008. Subsequently, it was sold to the first defendant vide registered sale deed dated 29.05.2009.
2.4 Sh. O.P. Bansal and Smt. Krishna Bansal also sold the second floor of the property to one Sh. Shyam Narayan (father of plaintiff) vide registered sale deed dated 08.11.2009. Sh. Shyam Narayan gifted the second floor flat to the plaintiff vide registered gift deed dated 09.01.2006.
2.5 It is submitted that the plaintiff being owner of the second floor flat is entitled to use front portion of the terrace and as per clause 18 of the sale deed she is also entitled to raise construction over the entire second floor in view of the MPD 2021. According to the plaintiff, the first defendant has illegally encroached upon the terrace portion of the plaintiff and started raising illegal construction on it and did not stop in her such designs despite strong objection of the plaintiff. She sent complaints to second defendant as well as local police on 15.09.2009 and 18.09.2009 but to no avail. It is submitted that the unauthorized construction carried out by first defendant will affect basic structure of Result: Decreed Page 5 of 36 Dr. Seema Chowdhary v. Jotinder Sharma S-348/11 the building further endangering the life of residents of the area. It is submitted that cause of action accrued to her on 05.09.2009 when illegal construction started. It is said to be continuing till the time the suit is filed.
3. Both the defendants have contested the suit. The first defendant took preliminary objection that there is nothing in suit but it is an abuse of process of law as the plaintiff intends to pressurize her into selling her portion of third floor i.e. second floor terrace. Objections were raised in regard to the nonjoinder of owner of the ground floor of the premises who also owns one servant quarter on the second floor of terrace. It is further submitted that constructed portion of second floor terrace belonging to her already existed at the time of its purchase from previous owner and otherwise also the same is permissible as per MPD 2021. It is informed that she has already filed application for regularization and composition of constructed portion of the second floor terrace. It is further submitted that the plaintiff's claim based on the sale deed of her predecessorininterest has no concern with the first defendant as it does not effect her rights. It is contended that the rights of first defendant are governed by the sale Result: Decreed Page 6 of 36 Dr. Seema Chowdhary v. Jotinder Sharma S-348/11 deed of her first floor and the second floor portion and not by the gift deed or the sale deed of plaintiff's predecessorininterest. It is claimed that first defendant is the absolute owner of the first floor and portion of the second floor terrace shown by the plaintiff in the layout plan filed by her along with proportionate rights in the land underneath. Besides above, the first defendant claims to be the owner of one servant quarter with common bathroom, common area as stated in her sale deed. It is submitted that this portion was already sold to the first defendant and the plaintiff's predecessorininterest could have bought only that part of terrace which was nor sold to the first defendant. It is submitted that the sale deed in favour of the predecessorininterest of first defendant is prior in point of time to the sale deed in favour of the predecessorininterest of the plaintiff. It is denied that first defendant has encroached upon any portion of the terrace purportedly owned by the plaintiff or that she is raising illegal construction on it.
4.1 On merits, the above contentions had been elaborated. It is admitted that the plaintiff is the owner of the second floor flat with one servant room under overhead water storage tank with common Result: Decreed Page 7 of 36 Dr. Seema Chowdhary v. Jotinder Sharma S-348/11 W.C. on the second floor terrace along with proportionate indivisible and impartable ownership rights in the free hold land underneath measuring 250 sq. yards with all rights, title and interest, easements, privileges and appurtenances thereto with all fittings, fixtures, electricity and water connections, structure standing thereon, with all rights in the common driveway, entrances, passages, staircase and other common facilities and amenities provided therein. It is further denied that plaintiff is the owner with terrace rights as per the relevant clause. The defendant No.1 claims absolute ownership of complete terrace of the rear portion of the terrace which is built up. It is also admitted that the developers had built up three floors on the above property and had sold it to different buyers. It is admitted that the first floor was sold to Sh. Vijay Kumar Gupta but it is denied that the terrace portion was sold to him without any right of construction of any type of structure. It is also denied that the second floor was sold with condition of reconstruction whenever permitted and in the manner stated. It is further contended that the owner who sold the first floor with second floor terrace portion to the first defendant along with servant quarter sold the same without any restriction or Result: Decreed Page 8 of 36 Dr. Seema Chowdhary v. Jotinder Sharma S-348/11 reservation. It is an admitted fact that the concerned authorities have permitted construction of third floor. It is submitted that no construction was being carried out by the first defendant and therefore the question of second defendant coming forward to stop it does not arise. It is also submitted that the room along with the bathroom and kitchen was already constcuted when the first defendant had purchased the property from Sh. Naveen Malhotra. Rest of the contents of the plaint are denied.
5. The replication is a reiteration of the suit plaint as correct and denial of the avernments raised by the first defendant in her written statement. It is submitted that ground floor owner also owns the servant room on second floor terrace but he is not being sued as he has never encroached on the plaintiff's portion of the terrace nor has constructed any illegal portion on it. It is reiterated that the portion shown by the plaintiff in the layout plan is only for use and not for construction of any structure. It is submitted that the defendant filed compounding application with MCD after filing of the present suit. The replication also denies that a room along with bathroom and kitchen was already constructed when the first defendant purchased Result: Decreed Page 9 of 36 Dr. Seema Chowdhary v. Jotinder Sharma S-348/11 the property from sh. Naveen Malhotra which fact is stated to be evident from terrace plan enclosed with the sale deed of Sh. Naveen Malhotra.
6. The second defendant also filed its written statement pleading therein that the suit is barred under Section 477/478 of DMC Act. It is submitted that there is no cause of action against the second defendant as the property in question was inspected by its officials on 25.01.2010 during which it was noticed that the property consists of basement, ground floor, first floor, second floor and three servant rooms apart from one room on the terrace of second floor which are old and occupied and that at the time of inspection no construction was seen. It is informed that the property in question was duly sanctioned on 14.11.1995 from basement up to second/barsati floor. It is submitted that the three servant rooms and one room on the terrace of the second floor are without any sanction. Additionally, it is in the status report filed by the second defendant that the occupier concerned had applied for regularization of the unauthorized construction but despite letters dated 25.02.2011 and 15.03.2011 the applicant failed to submit requisite documents required for regularization and thus the Result: Decreed Page 10 of 36 Dr. Seema Chowdhary v. Jotinder Sharma S-348/11 application for regularization was dismissed. It is also informed that the construction is beyond the sanctioned building plan but within compoundable limits as per MPD 2021. In replication, plaintiff submits that there is no basement in the property in question. Other contents are denied.
7. It is apparent from the order sheet dated 17.08.2012 that the construction in the suit property had been already completed by them and the first defendant had also sold the first floor of the property to some other person apart from the terrace. The application under Order 39 Rule 1 and 2 read with Section 151 CPC was found to have been rendered infructuous. It was dismissed. Vide the same order, the following issues were settled:
"1. Whether suit filed by the plaintiff is bad for non joinder of necessary parties, if so, what parties and its effect? OPD
2. Whether suit of the plaintiff is barred by the provisions of Section 477, 478 of DMC Act, as alleged by the defendant? OPD2
3. Whether plaintiff is entitled for a decree of permanent injunction, as prayed for in the suit? OPP.
4. Whether plaintiff is entitled for a decree of mandatory Result: Decreed Page 11 of 36 Dr. Seema Chowdhary v. Jotinder Sharma S-348/11 injunction, as prayed for in the suit? OPP.
5. Relief."
8. In support of her case, the plaintiff has examined herself as PW1 and filed her affidavit Ex.PW1/1. The gift deed in her favour is Ex.PW1/A. The copy of sale deed in favour of Sh. Vijay Kumar Gupta is Ex.PW1/B. The copy of sale deed in favour of Sh. O.P. Bansal and Smt. Krishna Bansal is Ex.PW1/C. The copy of rectification deed dated 07.11.2002 is Ex.PW1/D. The copy of the site plan in regard to user rights of terrace portions is Ex.PW1/E. The copy of the sale deed in favour of Sh. Naveen Malhotra is Ex.PW1/F. The copy of sale deed in favour of first defendant is Ex.PW1/G. The copy of sale deed in favour of Sh. Shyam Narayan is Ex.PW1/H. The copy of written complaints sent to second defendant and local police are Ex.PW1/I (colly.). The copy of sale deed by the first defendant in regard to the first floor flat is Ex.PW1/J. She was duly cross examined. The copy of terrace plan appended to the Rectification Deed was put to her during her crossexamination which is Ex.PW1/D1.
Result: Decreed Page 12 of 36 Dr. Seema Chowdhary v. Jotinder Sharma S-348/11 8.1 The plaintiff has also examined her husband Sh. Rabindra Kumar as PW2. His affidavit in evidence is Ex.PW2/X. He has deposed on the lines of the deposition of the plaintiff. He has relied on the same documents as relied upon by PW1. No other witness was examined by the plaintiff.
9. Only the first defendant has led evidence in this case. She has examined herself as DW1. Her affidavit in evidence is Ex.DW1/1. She relied on copy of the application filed with MCD for regularization which is MarkA. She relies on the details in regard to compoundable construction vide document MarkB. She was duly crossexamined. No other witness was examined by her.
10. I have heard Sh. D.K. Ahuja, Ld. Counsel for plaintiff; Sh. Sanjeev Mahajan, Ld. Counsel for defendant No.1 and Sh. Rajiv Bhardwaj, Ld. Counsel for defendant No.2 and perused the record carefully.
11. My issuewise findings are as under:
Issue No.1: Whether suit filed by the plaintiff is bad for non Result: Decreed Page 13 of 36 Dr. Seema Chowdhary v. Jotinder Sharma S-348/11 joinder of necessary parties, if so, what parties and its effect? OPD The onus of this issue was on the first defendant. According to the first defendant, the plaintiff has not joined the owner of the ground floor flat situated in building No. E361, Greater KailashII, New Delhi who is the necessary party as he also owns a servant quarter on the second floor terrace of the said premises. However, in her affidavit in examinationinchief Ex.PW1/1 she has not uttered even a single word in regard to the preliminary objection she took in her written statement. All that has been stated is that each of the three floors owners also own one servant quarter on the terrace above the second floor. Some crossexamination had been offered to PW1 and PW2 in this regard. In the crossexamination dated 08.03.2013, PW1 admitted that she has not made the owner of the ground floor as a party to the present suit. In the crossexamination dated 10.05.2013, PW1 admitted the suggestion that a servant quarter on the third floor (terrace of second floor) is owned by the owner of the ground floor. It was further stated by her during the crossexamination of the said date that she has not informed the owner of the ground floor that she has a right to get the servant quarter owned by her on the terrace demolished Result: Decreed Page 14 of 36 Dr. Seema Chowdhary v. Jotinder Sharma S-348/11 and carry out the construction on the entire terrace and provide a servant quarter above the third floor. She admitted that she has not given the copy of sale deed executed by the builder in favour of her father to the owner of the ground floor flat. On both the occasions she volunteered that it was not required.
In the crossexamination of PW2, he informs the Court that ground floor of the suit premises is owned by one Sh. Aggarwal. He also submitted that said Sh. Aggarwal has knowledge of the present case. It is also in the crossexamination that he had informed Sh. Aggarwal about 20 days prior to the date of his crossexamination i.e. 10.05.2013. He further submits that at the said time Sh. Aggarwal was aware of the present case. It is further submitted in the cross examination that his fatherinlaw had not intimated in writing to the owner of the ground floor that only he has the right to carry out the construction on the terrace above the second floor. It is further in the crossexamination that after execution of the gift deed Ex.PW1/A even he and his wife did not inform the ground floor owner in writing that only she has the right to construct on the terrace above the second floor. It is further in the crossexamination that neither his wife nor his Result: Decreed Page 15 of 36 Dr. Seema Chowdhary v. Jotinder Sharma S-348/11 fatherinlaw ever provided copy of sale deeds in respect of second floor flat to the owner of the ground floor.
There is nothing further on the issue on record. From the above, it is clear that though the witness of the plaintiff stated that they had not informed the owner of the ground floor about their exclusive rights qua the second floor of the premises in question, yet no explanation is forthcoming from the counsel for the defendant as to why such an act was required to be done by the plaintiff. Merely because the owner of the ground floor also owns one servant quarter on the second floor terrace, he is not required to join these proceedings as the plaintiff is aggrieved of the alleged covert acts of the first defendant and not that of the owner of the ground floor. In any case, the occasion to sue the owner of the ground floor flat would arise only when the plaintiff starts acting on clause 18 of her sale deed Ex.PW1/H or for that matter clause 4 of the sale deed Ex.PW1/C by way of making construction of another floor on the second floor terrace and that too, if the owner of the ground floor objected to the same. It is not the case here. Further, it is in the crossexamination of PW2 that he had informed the owner of the ground floor Sh. Aggarwal about the Result: Decreed Page 16 of 36 Dr. Seema Chowdhary v. Jotinder Sharma S-348/11 pendency of the suit and about which he knew at the time he was informing about the same to him. The defence counsel did not offer any suggestion to the witness that he had never informed the owner of the ground floor about the pendency of this suit. Nevertheless, I have already pointed out that if clause 4 of Ex.PW1/C or for that matter clause 18 of Ex.PW1/4 are found to be in the manner as stated by the plaintiff, the occasion to sue the owner of the ground floor flat shall not at all arise. In view of the above discussion, it is held that the defendant has been unable to discharge the burden of proof of the issue aforestated. It is thus decided in favour of the plaintiff and against the first defendant.
Issue No.2: Whether suit of the plaintiff is barred by the provisions of Section 477, 478 of DMC Act, as alleged by the defendant? OPD2 The onus of this issue was on the second defendant. PW1has not been crossexamined at all by the Ld. Counsel for defendant No.2. So far as the PW2 is concerned, only one question had been asked in regard to the issue under consideration. In this regard the witness Result: Decreed Page 17 of 36 Dr. Seema Chowdhary v. Jotinder Sharma S-348/11 submits that he could not say whether the legal notice under Section 477/478 of DMC Act was served on the MCD prior to filing of the suit. Even otherwise coming to the cause of action clause i.e. para 17 of the petition, the cause of action is stated to have accrued in favour of the plaintiff on 05.09.2009 when first defendant allegedly started illegal constructions. The suit itself had been filed on 09.10.2009. In between, the plaintiff made written complaint to second defendant on 15.09.2009 which is marked as Mark PW1/I (colly.). It cannot be therefore said that the plaintiff's suit will not be covered under the provisions of Section 478 (3) DMC Act, it being the suit simplicitor for injunction. The issue is therefore decided in favour of the plaintiff and against the second defendant.
Issue No.3: Whether plaintiff is entitled for a decree of permanent injunction, as prayed for in the suit? OPP The present case is primarily based on the aspect of construction of relevant clauses of the title documents. The transactions of sale and purchase are admitted facts. The first sale of the first floor flat of the premises took place vide registered sale deed dated 22.05.1998 (Ex.PW1/B). It is between the builders and Sh. Result: Decreed Page 18 of 36 Dr. Seema Chowdhary v. Jotinder Sharma S-348/11 Vijay Kumar Gupta. The description of the premises sold is provided in clause 2 of the sale deed. Same is as under:
"2. That in view of the amount of full sale consideration received by the FIRST PARTY /SELLERS as per clause 1 above, the FIRST PARTY/SELLERS do hereby transfer and sell all their respective rights, title and interest in the said FIRST FLOOR FLAT (as more fully described hereunder) of property No. E361, Greater KailashII, New Delhi, alongwith proportionate indivisible and impartible rights in the land underneath the said building unto the Buyer, who shall also have rights for use of all common areas, services, facilities etc., alongwith owners of other portions of the said building provided however that nothing herein stated it shall confer or deemed to have conferred upon the Buyer any exclusive rights of ownership to the common portions like staircase, water tanks and other common facilities, fittings etc., to the exclusion of the concerned parties of the other portions of the said building.
DESCRIPTION OF ACCOMMODATION OF RESIDENTIAL FIRST FLOOR FLAT ONE DRAWINGDINNING THREE BEDROOMS THREE BATHROOMS ONE LOUNGE ONE KITCHEN ONE SERVANT ROOM UNDER OVERHEAD WATER Result: Decreed Page 19 of 36 Dr. Seema Chowdhary v. Jotinder Sharma S-348/11 STORAGE TANK WITH COMMON W.C. ON THE SECOND FLOOR TERRACE.
FOR USE ONLY OF SMALL PORTION OF REAR TERRACE (AS EARMARKED THEREIN)."
Perusal of the same would clarify that under the head, "Description of Accommodation of Residential First Floor Flat" the built up portion is categorically provided as one drawingdinning; three bed rooms; three bathrooms; one lounge; one kitchen; one servant room under overhead water storage tank with common W.C. on the second floor terrace. Besides, the above small portion of rear terrace (as earmarked therein) it is clarified with the phrase, "For Use Only". By user of the above clarifying phrase, the seller is restricting the right of the purchaser of making any construction. Otherwise, the qualifying phrase would not have been used and specific rights of the purchaser entitling him to make construction on the small portion of rear terrace (as earmarked therein), would have been definitely provided. What is not incorporated in a document cannot be inferred and from the intent of the parties it is clear that the small portion of rear terrace was 'for use only'.
Immediately thereafter on 29.06.1998, the builders made sale of Result: Decreed Page 20 of 36 Dr. Seema Chowdhary v. Jotinder Sharma S-348/11 the second floor flat to Sh. Om Prakash Bansal and Smt. Krishna Bansal (hereinafter the 'Bansals') by registered sale deed, copy of which is Ex.PW1/C. According to the Ld. Counsel for defendant No. 1, the date of sale is important as the sale effected by the builder in favour of his predecessorininterest namely Sh. Vijay Kumar Gupta is prior in point of time by virtue of which the builder had already sold the small back portion of the second floor terrace. A careful perusal of the sale deed reveal that the accommodation sold to Bansal's has been provided in clause 2 which is as under:
"2. That in view of the amount of full sale consideration received by the FIRST PARTY /SELLERS as per clause 1 above, the FIRST PARTY/SELLERS do hereby transfer and sell all their respective rights, title and interest in the said Second Floor Flat (as more fully described hereunder) of property No. E361, Greater KailashII, New Delhi, alongwith proportionate indivisible and impartible rights in the land underneath the said building unto the Buyer, who shall also have rights for use of all common areas, services, facilities etc., alongwith owners of other portions of the said building provided however that nothing herein stated it shall confer or deemed to have conferred upon the Buyers any exclusive rights of ownership to the common portions like staircase, water tanks and other common facilities, fittings etc., to the Result: Decreed Page 21 of 36 Dr. Seema Chowdhary v. Jotinder Sharma S-348/11 exclusion of the concerned parties of the other portions of the said building.
DESCRIPTION OF ACCOMMODATION OF RESIDENTIAL SECOND FLOOR FLAT ONE DRAWINGDINNING THREE BEDROOMS THREE BATHROOMS ONE LOUNGE ONE KITCHEN ONE SERVANT ROOM UNDER OVERHEAD WATER STORAGE TANK WITH COMMON W.C. ON THE SECOND FLOOR TERRACE.
TERRACE RIGHTS AS PER CLAUSE NO.4 HEREOF."
Clause 4 is also very relevant and is as under:
"4. That till such time the construction of third floor in the said building becomes permissible, the entire second floor terrace (excluding servant rooms, common W.C., common facilities/amenities and right of access through staircase and passage thereto for the repair/cleaning etc., by the owners/occupants of all the portions of the building) shall be for use by the owners of First and Second Floors, who shall use their respective portion as demarcated in the attached Plan. However, as and when construction of third Floor becomes permissible, the SECOND PARTY, only after first getting the plans approved by the concerned authorities, shall have full rights to cause such Result: Decreed Page 22 of 36 Dr. Seema Chowdhary v. Jotinder Sharma S-348/11 construction upon the entire second floor terrace (including the portion, which is for use by the owner of first floor and where the servant quarters etc., are built). It is also a condition that as and when construction of such third floor is under taken by the Buyers herein, which will be subject to first approval of plans by the concerned authorities, the Second Party shall have to reprovide the identical servant quarters, overhead water storage tanks and other common facilities/amenities on the terrace of top floor at their own cost and expenses. The criteria for the use of terrace of top floor shall again be the same as for the second floor terrace i.e., the owner of first floor shall also be entitled to use the similar portion of terrace on top floor and the owners of all other portions of the said building shall have the right of access thereto for the purposes as aforesaid. The Second Party shall also ensure that during the course of any such construction activity the normal supply of water to the owners of ground and first floors remains uninterrupted."
A conjoint reading of the same would clarify that apart from the built up portion inside the second floor flat, the Bansals' also purchased, like Sh. Vijay Kumar Gupta, one servant room under overhead water storage tank with common W.C. on the second floor terrace. Clause 4 of the sale deed dealt with the terrace rights. The following are clear from the clause 4, viz:
Result: Decreed Page 23 of 36
Dr. Seema Chowdhary v. Jotinder Sharma S-348/11 I. Till the time construction of third floor became permissible, the entire second floor terrace (excluding servant rooms, common W.C., common facilities/amenities and right to cover staircase, passage thereto for the repair/cleaning, etc, by the owners/occupants of all the portions of the building) shall be for use by the owners of first and second floors. (It is clear that the owner of the ground floor was not given any rights to use of second floor terrace or else there would have been mention of it in the sale deed or any other subsequent sale deeds.) II. These owners of first and second floors shall use their respective portion as demarcated in the attached plan. (Since the plan was not attached, a rectification deed Ex.PW1/D was executed between the builders and the Bansals' on 07.11.2002 by virtue of which the user plan of terrace floor was made part of the sale deed Ex.PW1/C. The said plan is Ex.PW1/D1. III.A rider was attached that as and when the construction of third floor became permissible, the second party only after first getting the plans approved shall have full right to make such Result: Decreed Page 24 of 36 Dr. Seema Chowdhary v. Jotinder Sharma S-348/11 construction upon the entire second floor terrace (including the portion which is for use by the owner of first floor and where the servant quarters etc are built).
IV.As and when such construction of third floor is undertaken, the owner of the second floor shall have to reprovide the identical servant quarters, overhead water storage tanks and other common facilities/amenities on the terrace of top floor at their own costs.
V. The clause then defines criteria for the use of terrace of the newly constructed floor i.e. third floor. The first floor owner shall be entitled to use similar portion of terrace on top floor and the owners of all other portions of the building shall have right of access thereto.
The plan appended to Ex.PW1/D i.e. rectification deed shows demarcation of the user plan of the second floor terrace which has to remain 'the same' if the owner of the second floor constructs an additional floor over the terrace of the second floor. The portion belonging to the first floor as well as the portion belonging to the Result: Decreed Page 25 of 36 Dr. Seema Chowdhary v. Jotinder Sharma S-348/11 second floor are clearly shown. It is therefore clear that the back portion of the second floor terrace is 'for use only' for the occupant of the first floor while that of the front portion is for use by the occupant of second floor. Clause 4 leaves no room for doubt that the said user rights of respective portions of the second floor would convert as user rights in regard to the terrace of the newly constructed floor and the said right for such construction is not only over the are a comprising of the user right of the first floor occupant but also in regard to the construction on the entire terrace including that of the servant rooms which shall be vesting in the owner of the second floor flat.
The second sale of the second floor flat took place on 08.11.2008 by way of the registered sale deed between the Bansals' in favour of Sh. Shyam Narayan (plainitff's father). The sale deed is Ex.PW1/H. The entire second floor flat was sold along with one servant room under overhead water storage tank with common W.C. on second floor terrace rights as per clause 18 of the sale deed. Clause 18 of this sale deed is a replica of clause 4 of the sale deed Ex.PW1/C. The second floor terrace plan is also attached with the sale deed. It is same as is the terrace floor plan Ex.PW1/D1. Result: Decreed Page 26 of 36
Dr. Seema Chowdhary v. Jotinder Sharma S-348/11 These rights in regard to the second floor flat and the terrace rights constituted in clause 18 of the sale deed were gifted to the present plaintiff by her father by way of the registered gift deed Ex.PW1/A. The date of the gift deed is 09.01.2006.
It is only after these transactions that the second sale of the first floor flat owned by Sh. Vijay Kumar Gupta took place by way of registered sale deed dated 19.02.2008 (Ex.PW1/F). By virtue of this sale deed, Sh. Vijay Kumar Gupta sold the first floor flat to Sh. Naveen Malhotra. The following is the extent of accommodation sold, "entire first floor flat, consisting of one DrawingDinning, three Bedrooms, three bathrooms, one Lounge and one Kitchen, with one Servant Room under the overhead water storage tank with common W.C. on the second floor terrace, with a small portion of Rear Terrace (as earmarked at site), with structure standing therein, fittings and fixtures installed therein, of the property bearing No. E361, Greater Kailash PartII, New Delhi measuring 250 sq. yards, alongwith proportionate, undivided, indivisible and impartable share of ownership rights in the land underneath...". The above highlighted phrase i.e. "with structure standing therein" has come up for the Result: Decreed Page 27 of 36 Dr. Seema Chowdhary v. Jotinder Sharma S-348/11 first time in the sale deed. Apparently on the date of sale, a structure was standing on the small portion of rear terrace. Accordingly, Sh. Naveen Malhotra purchased the aforesaid along with a structure. The details of the said structure are not provided in the sale deed. No site map is attached with the said sale deed. It is however apparent that during the ownership of Sh. Vijay Kumar Gupta, a structure was built on the second floor rear terrace portion. The said structure, as evident from the testimony of PW1 and PW2 is denoted in site map Ex.PW1/D1 between points A to F. The third sale of the first floor flat took place by way of registered sale deed dated 27.05.2009, copy of which is Ex.PW1/G. By virtue of said sale deed Sh. Naveen Malhotra sold the same to the first defendant herein. The following was sold, "entire First Floor Flat, consisting of one DrawingDinning, three Bedroom, three Bathrooms, one Lounge and one Kitchen, with one Servant Room under the overhead water storage tank with common W.C. on the Second Floor Terrace, with a small exclusive portion of rear Terrace (as earmarked at site), with structure standing therein...". It is also apparent from the reading of the above that the said structure was still standing on the Result: Decreed Page 28 of 36 Dr. Seema Chowdhary v. Jotinder Sharma S-348/11 rear terrace portion at the time of its purchase by the first defendant. A site map is attached with the said sale deed. The rear portion terrace is shown in the said sale deed however the description of structure standing thereupon has not been provided even in the said site plan.
The user rights which the first defendant derived under the original sale deed in favour of her predecessorininterest cannot be equated with construction rights as the same is not the intent behind the sale deed Ex.PW1/B. It is apparent that structure came up to be built on the rear terrace. It is own case of the plaintiff that she is presently residing in official accommodation while the second floor flat is on rent. However, it is not her case that some structure was built up on the rear floor terrace during the time it was permitted to be used by its then owner Sh. Vijay Kumar Gupta. This facet gets clear upon reading the crossexamination of PW1 and PW2. However prior to it, it is the defence of the first defendant that she is not raising any illegal construction on the second floor terrace. She has specifically denied in para 6 of the written statement (preliminary objections) that any construction is being carried out by her. It is further evident from the para 15 of the written statement that a room along with the Result: Decreed Page 29 of 36 Dr. Seema Chowdhary v. Jotinder Sharma S-348/11 bathroom and kitchen was already constructed when she purchased it from Sh. Naveen Malhotra. It is in the same para that other than the said construction, no other construction existed in the rear floor terrace. Thus, for the first time, the description of the constructed portion on the rear second floor terrace came on record in the form of said statement. The plaintiff has denied the corresponding para 15 of the written statement submitting that Sh. Naveen Malhotra could not have purchased the property with any such structure as no such structure is shown on the terrace in the terrace plan of sale deed of Sh. Naveern Malhotra. This cannot be factually correct as I have already pointed out that some structure was existing on the second floor terrace at the time of its sale by Sh. Vijay Kumar Gupta to Sh. Naveen Malhotra. In the crossexamination, the PW1 has said that in addition to the servant quarter and toilet, one room set is existing in the rear portion of the third floor which was constructed in September, 2009. She did not know that when the construction began but she clarifies that the said construction of one room set was completed in September or October, 2009. She also submits to have told the first defendant orally about the sale deed in her favour while she was constructing one Result: Decreed Page 30 of 36 Dr. Seema Chowdhary v. Jotinder Sharma S-348/11 room set on the third floor. She clarifies that first defendant has constructed entire one room set in portion Mark A, B, C, D, E and F in the site plan. On 10.05.2013, she was questioned as following, "Ques:
Is it correct that the construction done by the defendant No.1 in the rear portion of the terrace is within the authorized limit and can be sanctioned by the MCD on payment of prescribed charges? Ans: I do not know. It is for the MCD to decide the same. Ques:
Then how can you say that whether the construction done by the defendant No.1 is authorized or unauthorized? Ans: My present suit is on the basis of ownership of the rear portion of terrace for construction purpose.".
The above questions clarifies that the first defendant admits to have made construction on the second floor rear terrace. PW2 has submitted that as per his knowledge the construction in the rear portion of Ex.PW1/D1 is existing since September, 2009. He submits that at that time also the construction was around 50% and not completed. He could not say as to whether the construction was completed. This witness was also suggested that the construction carried out by the first defendant in the rear portion of the terrace is Result: Decreed Page 31 of 36 Dr. Seema Chowdhary v. Jotinder Sharma S-348/11 within permissible limits and could be regularized. This witness was also offered a suggestion that the construction done by the defendant No.1 on the terrace of the above floor was already completed when the present suit was instituted. However, the witness made a positive assertion in the crossexamination dated 01.06.2013 that the construction was completed by the defendant No.1 by the end of November, 2009. He was not given a contrary suggestion.
What follows is that the first defendant came into possession of the second floor terrace with some construction standing on it and that as per the statement made by her at the time of filing of the suit in plaint, is completed by September, 2009. In her own affidavit in evidence Ex.PW1/1 she states in para 5 that the constructed portion of the terrace above the second floor was already existing at the time of purchase by the first defendant from the previous owner and that she only renovated the same much before filing of the present suit. The aspect of renovation is not in sink with the crossexamination offered to PW1 and PW2 which indicates that the first defendant has indulged into some construction carried out in premises in question. In this context, the status report filed by the second defendant which Result: Decreed Page 32 of 36 Dr. Seema Chowdhary v. Jotinder Sharma S-348/11 states that construction found on the terrace floor was old is of no consequence as it was inspected on 01.12.2009. Admittedly, by that time no construction activity was being carried out on the terrace floor portion. It is therefore clear that the first defendant completed the construction as denoted between points A to F in Ex.PW1/D1 over the terrace of which she had only user rights and not that of construction. The fact that she had not intimated the other occupants of the building that she had exclusive construction rights of the entire second floor is of no consequence as the other occupants were obviously not privy to the contract between the builders and the predecessorininterest of the plaintiff. The defendant No.1 is therefore under an obligation in favour of the plaintiff which cannot be breached. The fact that some construction already existed on the rear floor terrace shall stand merged with the finding of this Court that the first defendant carried out the construction between the points A to F. In any case, it is not the case of defendant No.1 in the written statement that she had carried out the renovation on the structure already standing. In this view of the matter, the present issue is decided in favour of the plaintiff and against the first defendant. Result: Decreed Page 33 of 36 Dr. Seema Chowdhary v. Jotinder Sharma S-348/11 Issue No.4: Whether plaintiff is entitled for a decree of mandatory injunction, as prayed for in the suit? OPP.
The only prayer in regard to the decree of Mandatory Injunction is constituted in prayer clause 1 where the plaintiff has prayed for directions to first defendant to remove the illegal construction. However, qua defendant No.2 no such specific prayer of Mandatory Injunction is made. The only direction sought against the second defendant is to direct them to take appropriate action against the first defendant which, in my considered view, the second defendant shall be otherwise bound to take by virtue of the DMC Act. The last issue has been decided in favour of the plaintiff for the same reasons. It has to be held that the construction existing and completed by the first defendant within points A to F in the site plan Ex.PW1/D1 is against the documents relied upon. The user rights have been converted into construction rights and therefore breach of an obligation that exists in the plaintiff's favour. The fact that the plaintiff has not brought a suit for seeking declaration of her rights over the terrace shall not come into the way of the plaintiff as it is nobody's case that the first defendant ever challenged the plaintiff's entitlement over the disputed Result: Decreed Page 34 of 36 Dr. Seema Chowdhary v. Jotinder Sharma S-348/11 portion of the terrace. Further, the fact that subsequent purchaser of the first floor of residential premises has not been joined as a party is of no consequence as admittedly the first defendant still retains the disputed portion shown between points A to F in site plan. It is further held that plaintiff is entitled to the Mandatory Injunction which he has prayed against the defendant No.1. The issue is therefore decided in favour of the plaintiff and against the defendant No.1. Issue No.5: Relief.
In view of the findings on the issues No.3 and 4, a decree of Permanent Injunction is hereby passed against the first defendant, her agents, servants and associates thereby restraining them from carrying out any construction over the terrace of second floor more particularly shown at points A to F in the site plan. A decree of Mandatory Injunction is also passed against the first defendant directing him to remove the structure standing between points A to F in the site plan Ex.PW1/D1.
The first defendant shall comply with the said orders within a period of six months from today. No specific relief has been sought Result: Decreed Page 35 of 36 Dr. Seema Chowdhary v. Jotinder Sharma S-348/11 against the second defendant and therefore no relief is being granted to the plaintiff qua the second defendant.
12. Parties are directed to bear their own costs.
13. Decree sheet be prepared accordingly.
14. File be consigned to record room.
Announced in the open Court (Manish Yaduvanshi) on 25.11.2013. SCJCumRC (South)/Saket Courts New Delhi Result: Decreed Page 36 of 36