Delhi District Court
Manish Bhargava vs Smt. Harish Dua on 31 October, 2012
IN THE COURT OF MS. SNIGDHA SARVARIA, CIVIL JUDGE,
CENTRAL05 TIS HAZARI COURTS , DELHI
Suit No. 435/2012
IN THE MATTER OF:
Manish Bhargava
S/o Sh. Sushil Bargava,
R/o E354, Greater KailashI,
New Delhi
Through General Attorney and father
Sh. Sushil Bhargava .......Plaintiff
Versus
1. Smt. Harish Dua
W/o Sh. J.C.Dua
2. Sh. J.C.Dua
S/o Late Sh. Ram Lal Dua
Both residents of First Floor,
E354, Greater KailashI,
New Delhi
3. M/s Ambeeco Associates through
its proprietor Sh. M.K.Jaswani
R/o M58, Lajpat Nagar II, New Delhi
Also residing at
F13, East of Kailash, New Delhi
.......Defendants
Date of Institution: 01062001
Date of Reserving for Judgment: 12102012
Date of Judgment : 31102012
SUIT FOR PERMANENT INJUNCTION
Suit No. 435/2012 Page No. 1 of 15
JUDGMENT:
1. By way of this judgment, I shall decide suit for permanent injunction filed by the plaintiff.
2. The brief facts of the case as per the plaintiff are that the plaintiff is the owner and in occupation of ground floor portion of house bearing no.E354, Greater KailashI, New Delhi. The aforesaid entire property was initially owned by Sh. P.L. Bhargav, who was the grand father of the plaintiff and during his life time he executed a Will in favour of the plaintiff, Sh. Askhay Bhargav and Sh. Ankush Bhargav. After his death the aforesaid three persons became coowners in the said suit property. The aforesaid said three coowners after the death of their grand father entered into a collaboration agreement dated 21.06.1999 with defendant no.3 in the year 1999 by virtue of which it was agreed to demolish the property and reconstruct the same. The aforesaid three persons sold their ownership right in the property to the defendant no.3. As per the said collaboration agreement the defendant no.3 was to reconstruct the entire property with his own investment and the plaintiff became the absolute owner in exclusive possession of the ground floor after the reconstruction of the property, while the basement, first and second floor came to be owned by the defendant no.3. The defendant no.3 sold the first floor portion of Suit No. 435/2012 Page No. 2 of 15 the property to defendant no.1 and 2 on February, 2000 and thus defendant no.1 and 2 are the owners of the first floor portion of the property bearing no.E354, Greater KailashI, New Delhi. A portion in front of the property shown in red colour in the site plan on the ground floor is a passage for entry into the respective portions of the occupants of the building. The covered portion on the ground floor is shown in cross dotted lines in the site plan, the remaining portion is uncovered and is open to the sky. The defendant nos.1 and 2 have no right, title or interest in the rent portion shown in the site plan except for egress and ingress to their first floor portion. The plaintiff being the owner of the entire ground floor, has every right, title and interest in the portion shown in the red colour in the site plan filed alongwith the plaint. The defendants have started parking their cars in the said red portion. On objection having been raised by the plaintiff, the defendants have been adamant and still park their cars in the said portion shown in red colour. The plaintiff alone has the right to park the car in the said portion shown in red colour. Therefore, the present suit has been filed.
3. On the other hand, the defendant nos. 1 and 2 have stated in their Written Statement that there is no cause of action in favour of the plaintiff and therefore, the present suit is liable to be dismissed. Suit No. 435/2012 Page No. 3 of 15 The defendant nos. 1 and 2 purchased the first floor of property bearing no. E354, Greater KailashI, New Delhi vide registered sale deed dated 22.02.2000 from defendant no.3 and according to the same, the extent of the property sold to defendant nos.1 and 2 is the entire first floor consisting of three bedrooms with attached toilets, one drawingdining, one kitchen and one parking space in the drive way, inside the compound wall. The defendants are using the portion sold to them. Thus, there is no cause of action in favour of the plaintiff. The defendants have further denied the averments made in the plaint by the plaintiff and seek dismissal of the present suit.
4. As per the Written Statement filed on behalf of defendant no.3, the present suit is not maintainable because as per the collaboration agreement dated 21.06.1999, the defendant no.3 acquired ownership rights in respect of basement, first floor, second floor with terrace rights and also proportionate share of land in the said plot measuring 248 Sq.yrds. with right to use common passage and staircase. The defendant nos. 1 and 2 are legally entitled to use the portion shown in red colour in the site plan. The defendant further denied the averments made in the plaint by the plaintiff and prays for dismissal of the present suit.
5. The plaintiff has filed replication to the written statement filed by Suit No. 435/2012 Page No. 4 of 15 the defendants. In his replication the plaintiff has reaffirmed the contents made in the plaint and denied all the allegation made by the defendants in their written statement and further submitted that the suit of the plaintiff be decreed.
6. On the basis of the pleading of the parties following issues were framed vide order dt. 07102004:
i) Whether there is no cause of action arising in favour of the plaintiff? OPD
ii) Whether suit is not maintainable in view of section 41 (h) of the Specific Relief Act? OPD
iii) Whether suit is not properly verified or supported with affidavit, is so its effect? OPD
iv) Whether the suit has been properly valued for the purpose of court fee and jurisdiction? OPP
v) Whether plaintiff is entitled for the relief of injunction as prayed? OPP
vi) Relief.
7. To prove his case the plaintiff has examined Sh. Sushil Bhargava as PW1. PW1 has filed his evidence by way of affidavit Ex. P1. In his evidence the PW1 has reiterated the facts mentioned in the plaintiff and relied upon the following documents:
i) The GPA in favour of Sh. Sushil Bhargava is Ex. PW1/1. Suit No. 435/2012 Page No. 5 of 15
ii) The site plan of the suit property is Ex. PW1/2.
iii) The copy of the sale deed dt. 22022000 is Ex. Pw1/3.
iv) The certified copy of sale deed dt. 30012004 is Ex. PW1/4. The PW1 was also crossexamined by the Ld. counsel for the defendant at length.
8. Further the plaintiff has examined himself as PW2, PW2 has filed his evidence by way of affidavit Ex. P2. In his evidence the PW2 has relied upon the document i.e. Agreement of Collaboration dt. 21061999 Ex. PW1/5.
9. On the other hand the defendant has has not led any evidence hence their evidence was closed vide order dt. 08102009.
10.I have heard Ld. counsel for the plaintiff, perused the record & gone through the relevant provision of law. None has turned up on behalf of the defendant to argue the matter.
11. My issues wise findings is as follow:
12. Issue No. 1 Whether there is no cause of action arising in favour of the plaintiff? OPD The burden to prove this issue was on the defendants but the defendants have neither led any evidence in the present case nor otherwise proved this issue. Accordingly, this issue is decided in favour of the plaintiff and against the defendants.
13. Issue No. 2 Whether suit is not maintainable in view of Suit No. 435/2012 Page No. 6 of 15 section 41 (h) of the Specific Relief Act? OPD The burden to prove this issue was on the defendants but the defendants have neither led any evidence in the present case nor otherwise proved this issue. Accordingly, this issue is decided in favour of the plaintiff and against the defendants.
14.Issue No. 3 Whether suit is not properly verified or supported with affidavit, is so its effect? OPD The burden to prove this issue was on the defendants but the defendants have neither led any evidence in the present case nor otherwise proved this issue. Accordingly, this issue is decided in favour of the plaintiff and against the defendants.
15.Issue No.4 Whether the suit has been properly valued for the purpose of court fee and jurisdiction? OPP The plaintiff has filed the present suit for permanent injunction and for the said purpose the plaintiff has valued the suit at Rs. 130/ and has affixed a court fee of Rs. 13/. As per the provisions of the Suit Valuation Act as well as the Court Fees Act the plaintiff has rightly assessed the suit valuation and has affixed the court as per the law, therefore, this issue is decided in favour of the plaintiff and against the defendants.
16. Issue No.5 Whether plaintiff is entitled for the relief of Suit No. 435/2012 Page No. 7 of 15 injunction as prayed? OPP It is well settled that in order to obtain an order of injunction, the party who seeks for grant of such injunction has to prove that he has made out a prima facie case to go for trial, the balance of convenience is also in his favour and he will suffer irreparable loss and injury if injunction is not granted. It is also well settled that if the relief claimed by the applicant is hit by the provisions of Section 41 of the Specific Relief Act, then such reliefs cannot be granted to the party.
17.In the present case, the plaintiff has contended that the plaintiff and his two cousins entered into a collaboration agreement dated 21/6/1999, Ex. PW1/5, with the defendant no. 3 and as per the same the defendant no. 3 had no right to sell off the first floor of the suit property vide sale deed dated 22/2/2000, Ex. PW1/3, to the defendant nos. 1 & 2 giving them ownership of the portion on the ground floor for parking one car in the driveway inside the compound wall when as per the collaboration agreement dated 21/6/1999, Ex. PW1/5, the defendant no. 3 himself had no right over the entire ground floor except right of common usage for ingress and egress and as per the clauses in the collaboration agreement dated 21/6/1999, Ex. PW1/5, the defendant no. 3 could not enjoy any right over the suit land except as provided for in the Suit No. 435/2012 Page No. 8 of 15 agreement.
18.It would be worthwhile to reproduce the relevant clauses of the collaboration agreement dated 21/6/1999, Ex. PW1/5, as well as the sale deed dated 22/2/2000, Ex. PW1/3, at this juncture, which are as under: Collaboration agreement dated 21/6/1999, Ex. PW1/5
3) That the owners shall get the ground as living unit as per plans mutually agreed between the parties to this agreement, consisting of drawing/dining, three bedrooms each with attached bathrooms, kitchen, lobby and with proportionate share of land in the plot measuring 248 sq. yards. In addition three servant quarters will be constructed for use of one servant of each floor (except the basement floor)
5) The owners will put the builders in vacant physical possession of the said property after the complete amount as per schedule of payment has been paid to the owners, to enable the builders to implement this agreement. However, the builders shall not in any way enjoy any rights over the land except as provided for in this Agreement. Each of the co owners of the first party will also thereafter handover General Power of Attorney, special power of Attorney and will to the builders, empowering them to do acts given under this agreement.
13) That all dues and takes towards the existing plot till the date of this agreement shall be the liability of the owners. All the dues, taxes, expenses, towards this project during the course of construction shall be borne by the builders. After the construction is over, the builders shall Suit No. 435/2012 Page No. 9 of 15 finish the different floors and shall share the building in the following manner: a. That the owners shall get the ground floor ass living unit as per plans mutually agreed between the parties to this agreement, each consisting of drawing/dining, three bedrooms with attached bathrooms, kitchen, lobby and with proportionate share of land in the plot admeasuring 248 sq. yards.
b. That the builders shall get the basement, first floor and second floor (with terrace rights) of the said building, with proportionate share of land in the said plot admeasuring 248 sq. yards with rights to use common passage & staircase.
c. That the owners and builders shall have absolute right of the ownership in their respective areas allocated under this Agreement and they are entitled as owners to dispose off their share of the building by way of sale, mortgage, gift or any other way as they may deem fit.
23) That the owners shall not be responsible for any dispute between the builders and the intending buyer(s).
29) That the builders shall always be fully competent to settle terms in conformity with the agreement for the transfer of its portions at any time either during or after the building is fully completed and the builders can enter into any agreement to sell and accept cash, cheques, pay orders, etc. from all such or would be transferrees in their (builder's) own name and issue receipts for all such payments made to them. The builders shall not bind the owners beyond any terms of this agreement. Sale deed dated 22/2/2000, Ex. PW1/3 Suit No. 435/2012 Page No. 10 of 15 And whereas the vendors and the confirming party for their bonafide needs and requirements have agreed to sell, convey, transfer and assign to the vendees and the vendees have agreed to purchase the entire first floor of the said property, consisting of three bed rooms with attached toilets, one drawing dining, one kitchen, one parking space in the driveway in inside the compound wall, along with proportionate, undivided, indivisible and impartible ownership rights in the said freehold land underneath the said building measuring 248 square yards, bearing no. E354, Greater Kailash PartI, New Delhi with all rights, in common Driveway, entrances passages, staircase and other common facilities and amenities provided therein, hereinafter referred to as "THE SAID PORTION OF THE SAID PROPERTY" for a total consideration of Rs.14,00000/ (Rupees Fourteen Lacs only).
19.From the aforesaid it is manifest that as per the collaboration agreement dated 21/6/1999, Ex. PW1/5, the plaintiff had become the owner of the ground floor, consisting of drawing/dining, three bedrooms each with attached bathrooms, kitchen, lobby and with proportionate share of land in the plot measuring 248 sq. Yds and also a servant quarter, of the suit premises. On perusal of the site plan, Ex. PW1/2, appended to the plaint, on the ground floor there is a passage for the entry into respective portions for the building occupants which is 30 ft x 14.7 ft in measurement, out of which 30ft Suit No. 435/2012 Page No. 11 of 15 x 20 ft is covered as one room and a toilet is constructed and the remaining 10 ft portion is open to the sky.
20. Firstly, it is not clear as to whether the said area shown in dotted lines within the area coloured in red is part of the constructed area provided by the defendant no. 3 to the plaintiff or same has been constructed by the plaintiff later on after the defendant no. 3 had handed over the possession of the ground floor to the plaintiff as per the collaboration agreement dated 21/6/1999, Ex. PW1/5.
21.Secondly, as per the collaboration agreement dated 21/6/1999, Ex. PW1/5, the plaintiff had become the owner of the ground floor, consisting of drawing/dining, three bedrooms each with attached bathrooms, kitchen, lobby and with proportionate share of land in the plot measuring 248 sq. Yds and also a servant quarter, of the suit premises. There is no mention anywhere in the said collaboration agreement Ex. PW1/5 that the plaintiff is the absolute owner of the entire ground floor. As per the said agreement Ex. PW1/5, the plaintiff is the owner of the superstructure on the ground floor viz. drawing/dining, three bedrooms each with attached bathrooms, kitchen, lobby and also a servant quarter, on the ground floor of the suit premises as well as has proportionate share of land in the plot measuring 248 sq. Yds.
Suit No. 435/2012 Page No. 12 of 15
22.Thirdly, as per the collaboration clause no. 13 (a) and (b), as discussed above, itself the plaintiff and the defendant no.3, and now through defendant no. 3 the defendant nos. 1 and 2, have proportionate rights over the land underneath the building in the suit premises measuring 248 sq. Yds. meaning thereby that the plaintiff and the defendant nos. 1 and 2 as well as the persons residing on the second floor have undivided ownership rights in the suit premises measuring 248 sq. Yds. and thus all of them are co owners vizaviz the suit premises measuring 248 sq. Yds. The law as regards the coowners is well settled. In Jai Singh v. Gurmej SinghAIR 2009 SC (Supp) 1570, the Hon'ble Apex Court culled out the interse rights and liabilities of the coowners, which are as under:
"(1) A coowner has an interest in the whole property and also in every parcel of it.
(2) Possession of the joint property by one coowner is, in the eye of law, possession of all even if all but one are actually out of possession.
(3) A mere occupation of a larger portion or even of an entire joint property does not necessarily amount to ouster as the possession of one is deemed to be on behalf of all. (4) The above rule admits of an exception when there is ouster of a coowner by another. But in order to negative the presumption of joint possession on behalf of all, on the ground of ouster, the possession of a coowner must not only be exclusive but also hostile to the knowledge of the other, as, when a coowner openly asserts his own title and denies that of the other. (5) Passage of time does not extinguish the right of the coowner who has been out of possession of the joint property except in the Suit No. 435/2012 Page No. 13 of 15 event of ouster or abandonment.
(6) Every coowner has a right to use the joint property in a husbandlike manner not inconsistent with similar rights of other coowners.
(7) Where a coowner is in possession of separate parcels under an arrangement consented to by the other Coowners, it is not open to any one to disturb the arrangement without the consent of others except by filing a suit for partition. (8)The remedy of a coowner not in possession, or not in possession of a share of the joint property, is by way of a suit for partition or for actual joint possession, but not for ejectment.
Same is the case where a coowner sets up an exclusive title in himself.
(9)Where a portion of the joint property is, by common consent of the coowners, reserved for a particular common purpose, it cannot be diverted to an inconsistent user by a coowner; if he does so, he is liable to be ejected and the particular parcel will be liable to be restored to its original condition. It is not necessary in such a case to show that special damage has been suffered. "
23. From the aforesaid it is clear that the plaintiff and the defendant no.s 1 and 2 along with other incumbents of the second floor are co owners of the suit premises, thus, the each of them have a right over the said area shown in red colour in the site plan Ex. PW1/2 and the plaintiff cannot claim any exclusive right over the same. Also, as discussed above, the plaintiff has failed to show that he has exclusive right over the said area shown in red colour in the site plan Ex. PW1/2.
24. Be that as it may, from the aforesaid discussion, it is manifest that the plaintiff and all the persons residing on the first and second floor of the suit premises have a right to park their cars in the said Suit No. 435/2012 Page No. 14 of 15 area shown in red colour in the site plan Ex. Pw1/2, if the plaintiff claims that he has a right to park his cars in the said area shown in red colour in the site plan Ex. Pw1/2 being the coowners qua the said open space.
25. In view, of the aforesaid discussion, the plaintiff has failed to prove his case. Accordingly, this issue is decided against the plaintiff and in favour of the defendants.
26. Relief In view of the above discussion, the suit of the plaintiff is dismissed. There are no orders as to costs. Decree sheet be prepared accordingly. File be consigned to Record Room after due compliance.
Announced & signed in the ( Snigdha Sarvaria) open court on 31102012. Civil Judge/Central05 Delhi Suit No. 435/2012 Page No. 15 of 15