Delhi District Court
Mrs. Renu Singh vs Shri Rajiv Rastogi on 8 August, 2022
In the Court of Ms. Gurmohina Kaur: Additional District Judge-
03 (South District) Saket Court Complex, New Delhi.
Suit No.: 7973/2016
CNR No : DLST010000562008
In the matter of :-
Mrs. Renu Singh
Wife of Sh. Narender Singh
R/o. 279, Pooth Kalan, Delhi. ......Plaintiff
VERSUS
1. Shri Rajiv Rastogi,
Son of Late Shri Ramesh Chander Rastogi
55, Anandlok, Sirifort Road,
New Delhi-110049.
2. Smt. Vandan Rastogi,
Wife of Shri Rajiv Rastogi,
55, Anandlok, Sirifort Road,
New Delhi-110049. .....Defendants
Date of institution : 07.10.2008
Date of decision : 08.08.2022
JUDGMENT
1. The Plaintiff herein had filed a suit on 17.10.2008 before the Hon'ble High Court of Delhi seeking relief of permanent and mandatory injunction against the Defendants herein. By way of CS No. 7973/16 Page no. 1 of 78 original plaint, the Plaintiff had sought a decree of permanent injunction against the Defendants from raising any construction on the portion owned by the Plaintiff admeasuring 450 square feet on the first floor above the Plaintiff's property at E-28, South Extension-II, New Delhi as per the sale deed dated 23.12.1981 between Guru Saran and Indira Rani and further a declaration and direction that such construction be demolished. Written Statement to the original Plaint was filed by the Defendants on entering appearance.
2. Vide order dated 24.03.2009, the Plaintiffs were permitted to amend the Plaint and subsequent thereto the present amended plaint seeking reliefs for possession and permanent and mandatory injunction were incorporated on record by the Plaintiff.
3. According to the amended plaint, the unlawful and illegal construction that was being made by the Defendants above the Plaintiff's premises and further that the sale deed under which the Plaintiff had derived title in respect of the said property at E-28, South Extension Part-II, New Delhi, clearly prohibits any construction to be made over and above the premises in possession, control and ownership of the Plaintiff. It is further averred that any construction which has already been made by the Defendants surreptitiously on the portion of the Plaintiff was required to be declared illegal and consequentially demolished. It CS No. 7973/16 Page no. 2 of 78 is alleged that the Defendants had ignored the load bearing capacity of the property of the Plaintiff and were constructing over and above the Plaintiff's property only in violation of their own rights, out of greed to increase their space in the property without any regards to Municipal Laws or that of their own rights, title or interest on the property as well as rights of the Plaintiff. According to the facts averred in the amended suit are that "the entire suit property E-28, South Extension Part-II, New Delhi was owned by one Sh. Bhagat Saran Bhatnagar, who constructed a two and a half storey building on the property and after the demise of Sh. Bhagat Saran Bhatnagar, Sh. Guru Saran Bhatnagar became the owner of the suit property. It is further stated that on 23.12.1981, Sh. Guru Saran Bhatnagar sold the back portion of the ground floor to one Mrs. Indra Rani and as per the sale deed of Indra Rani, the area of first floor shown with slanting lines ad-measuring 450 square feet was required to be kept open without any construction coming up on behalf of the purchaser of the property or even the seller of the property with only limited rights of the vendees of keeping the water tanks and air conditioning units. It is averred that the present suit is as regards this portion alone in the suit property. It is submitted that the Defendants being the ultimate transferee of the other portions of the property cannot claim a better title in the property than what has been transferred to them, in view of the covenants under which the Plaintiff was deriving the title.
CS No. 7973/16 Page no. 3 of 78
4. It is further averred that on 28.10.1993, Indra Rani transferred half portion each of the said portion to Master Rohan Sharma and Ms. Prakshi Sharma each and the said purchaser constructed a basement on the said property. The said Rohan Sharma and Prakshi Sharma transferred the property in favour of one M/s. JR Modi Finance Private Limited and their sale deed also repeated the original covenants of allowing the vendees to keep the water tanks and to install television antenna, cooling tower, air conditioning unit, etc. It is further averred that M/s. JR Modi Finance Private Limited further transferred the said portion in favour of the Plaintiff on 27.09.2004 and the Plaintiff's sale deed also repeats the said right of the Plaintiff in Clause 9 in the Sale Deed. It is averrred that the Defendants has no right, title or interest in any portion of the premises, owned by the Plaintiff forming the area mentioned as slanting lines and measuring 450 square feet of the Plaintiff's portion on the first floor and the floor above that. It is stated that apart from there being restraint on the Defendant from making any construction on the said premises, there was a clear and unequivocal right in favour of the Plaintiff to keep the water tanks and air conditioning units on the portion owned by it on its terrace and to keep it open and the Defendants in total violation of the right, title or interest transferred to them and that of the sale deed of the Plaintiff in the said property, were doing construction on the portion which was not owned by the Defendants.
CS No. 7973/16 Page no. 4 of 78
5. It is further averred that there was a clear restraint on the Defendants from making any construction thereon or to put any door, or to have any access or encroachment of the first floor of the courtyard measuring 15 x 30 feet (450 square feet) which is the absolute property of the plaintiff. It is averred that the Defendants were also disturbing the load bearing structure owned and controlled by the Plaintiff in total violation of law. It is averred that it was also agreed and understood that the portion above the Plaintiffs premises admeasuring 450 square feet would remain open to the sky without any construction thereon. It is submitted that the Plaintiff is the lawful owner of the said portion of 450 square feet and had been using the said area for its needs. It is stated that the staircase on ground floor and leading to first floor and second floor is the only staircase in the entire premise which connects the entire building and is a common staircase, which the Plaintiff has a right to use without any hindrance in her sale deed. It is further averred that Plaintiff had been using the space underneath the staircase for keeping its goods and equipment and if the Defendants were permitted to demolish the said staircase, then the Plaintiff will not have any right to access its own portion on the first floor. On these grounds, it is prayed that the decree of permanent injunction be passed against the Defendant wherein they be restrained from making any construction above the portion owned by the Plaintiff admeasuring 450 square feet above the Plaintiff's property as per the sale deed dated 23.12.1981 between Guru Saran S/o. Bhagat CS No. 7973/16 Page no. 5 of 78 Saran and Smt. Indra Rani. Secondly, a declaration is sought by the Plaintiff that any construction made by the Defendants or their predecessors or successors or other person claiming through them or under them at the above the Plaintiff's property as per sale deed dated 23.12.1981 between Guru Saran, S/o. Bhagat Ram and Smt. Indra Rani ad-measuring 450 square feet at the first floor of the property at E-28, South Extension, Part -II, New Delhi and direct the demolition of any construction above the Plaintiff's property. It is further prayed that the decree be granted in the favour of Plaintiff granting free ingress, egress and access to the terrace of the portion owned by the Plaintiff ad-measuring 450 square feet on the first floor of the property at E-28, South Extension, Part-II, New Delhi. It is further prayed that the Plaintiff be declared to be in possession of 450 square feet at the rear end of the first floor of the suit property and the Defendants be directed to hand over the vacant and peaceful possession of the portion of 450 square feet at the rear end of the first floor of the suit property in favour of the Plaintiff and till the peaceful possession is handed over to the Plaintiff, a decree of mense profit be passed against the Defendants and their successors in interest at the prevailing market rate along with interest. It is prayed that the Defendants be permanently restrained, from damaging, demolishing, altering, modifying the staircase situated in the side lane and connecting the ground floor to the first floor of the suit property. A decree is further sought by the Plaintiff in right of ingress or egress qua the portion of 450 square feet at the CS No. 7973/16 Page no. 6 of 78 rear end of the portion of the suit property through the stair case situated in the side line to the first floor of the suit property.
6. Joint Written Statement was filed to this amended plaint, wherein it was submitted that the Plaintiff was trying to give an impression that some fresh construction was sought to be raised by the Defendants over the disputed portion of 450 square feet area, however, no such construction being carried out then, but the same was carried out during the year 1993-1994, pursuant to a Memorandum of Understanding dated 10.12.1993 executed between the erstwhile owner of the ground floor and erstwhile owners of first and second floor, whereby it was agreed that the predecessor in interest of the Defendants would allow the construction on the 750 square feet at the ground floor and 750 square feet at the basement inter-alia underneath the 450 square feet, in lieu of the construction to be carried out on the first and second floor above the 450 square feet. It is stated that it was clear that the construction already existed over the 450 square feet area and the same was also evident to the fact that in pursuance of the construction of the first and second floor having being done after the execution of MOU in 1993, a valuation report was also prepared which clearly shows that the extra construction to the extent of 1050 square feet and 2100 square feet on the first and second floor of this property respectively was carried out during the year 1993-1994. It is further submitted that an application for regularization of the said construction on the CS No. 7973/16 Page no. 7 of 78 first and second floor was also made by the erstwhile owners of first and second floor to the concerned department and payment to the tune of Rs. 50000/- was deposited in the year 2000 vide receipt No. 949034. It is averred that even the sale deed in favour of the Defendants dated 03.04.2006 reflected that the Defendants were sold the entire first floor, second floor, terrace over and above the entire second floor (with right to construct and own areas on the said terrace thereupon and there above upto the limit to the sky) on 250 square yards of the Plot. It is averred that the assessment of house tax in respect of portion existing on first and second floor was done way back in the year 1995-1996 by Municipal Corporation of Delhi vide challan no. 126068 dated 06.08.1998. It is further stated that the present suit was filed beyond the prescribed period of limitation as the Plaintiff had conveniently failed to mention the date and year, when he came to know about the alleged construction being carried out on the first and second floor and had also miserably failed to point out the date when the objections with regard to carrying out construction were raised by the Plaintiff. It is stated that the construction on the portion on which the restraint was sought existed on the day when the Plaintiff purchased the property i.e. 27.09.2004 and the grievance, if any, ought to have been raised by the Plaintiff within three years from the said date. It is further stated that the present suit was also liable to be dismissed for non-joinder and mis-joinder of necessary parties as the Plaintiff cannot claimed a better right in the property then what has been CS No. 7973/16 Page no. 8 of 78 transferred to her. It is averred that the Plaintiff has neither impleaded the said vendor as party to the present suit nor has raised any demands against it. It is further stated that the suit has not been properly valued. The written statement further states that the portion on ground floor admeasuring 450 square feet over which Plaintiff was claiming that no construction could be raised was a misleading avernments in view of the fact that on 10.12.1993, a Memorandum of Understanding was executed between the erstwhile owners of the ground floor (predecessor in interest of the Plaintiff) and the owners of the first and the second floor (predecessor in interest of the Defendants) whereby the respective areas were enmarked by the parties to the agreement. It is further stated that it was agreed that the predecessor in interest of the Defendants would allow the construction of 750 square feet on the ground floor and the 750 square feet at the basement inter-alia, underneath the said 450 square feet area, in view of the construction carried out on the first and second floor above the said 450 square feet. It is further stated that the sale deed dated 03.04.2006 clearly stated that M/s. Ram Chander Krishan Chander Saree Store sold to the Defendants the entire first floor, second floor, terrace and above the entire second floor (with the right to construct and own areas/floors on the said terrace thereupon and thereabove to the limits of the sky) on the 250 square yards area of the Plot. It is stated that in the sale deed of the year 1981, no doubt a condition was incorporated to the effect that the area on the first floor admeasuring 450 square feet CS No. 7973/16 Page no. 9 of 78 would be kept open without any construction, however, the same would not be applied to the subsequent Sale Deed, dated 28.10.1993 between Indira Rani and Rohan Sharma and Prakshi Sharma, due to the fact that the construction over the said portion was raised during the period 1993-1994 pursuant to the MOU and it was for this reason alone the said condition does not find any mention in the subsequent Sale Deeds. It is submitted that constructions over the disputed portion existed at the time when the Plaintiff purchased the property on 27.09.2004 and the Plaintiff cannot claim a better title then what has been transferred to her. It is further stated that the Sale Deed dated 30.01.2004 in favour of M/s. JR Modi Finance Private Limited does not contain the original covenant that was incorporated in the sale deed of the year 1981 and the only condition that existed finds mentions in Clause 9 of the same, wherein the purchaser only has been granted rights to access through the top terrace at all reasonable times to get the overhead tank repaired/cleaned etc., and to get installed TV antennas. It is stated that the Plaintiff was not the owner of the property at terrace. It was further vehemently denied that the sale deed of 27.09.2004 confers right on the Plaintiff in the same manner as it was conferred on the previous erstwhile owner vide Sale Deed of 1981. It has been further denied that the portion of courtyard on the first floor measuring 450 square feet was the absolute property of the Plaintiff and it was submitted that the setback portion was constructed during the period 1993-1994 and the Defendants purchased the first and CS No. 7973/16 Page no. 10 of 78 second floor along with the terrace till the sky in the year 2006. It is stated that the sale deed in respect of the first and the second floor executed in favour of Defendants in the year 2006 shows that the first and the second floor was fully constructed at that point of time and the Defendants were only strengthening the structure of the building and interior and marble work was going on. It is stated that the averments of the Plaintiff as regards of his possession over the first floor prior to filing of the present suit was an after thought and the sale deed takes effect from the date of sale and not from the date of registration. It is stated that the sale deed in favour of Ramchander Krishan Chander Saree Store was dated 22.12.1981 and what was sold by Guru Saran on the next day on 23.12.1981 to the predecessor in interest of the Plaintiff could not be sold again then what he had sold on the previous date. The Defendant further denied that the staircase was a common one leading to the first floor and added that that Plaintiff does not own the space of the stair case and added that she had only had a right to access the staircase for the purpose of accessing the water tank on the terrace. It is further stated that the staircase was owned by the Defendant, who had also made a staircase from the front of the building and the Plaintiff will have access to her water tanks from the front stairs as those stairs lead from the ground floor lead to the first, second and the third floor as the Plaintiff only has the right to access through the stairs to her water tanks at the terrace.
CS No. 7973/16 Page no. 11 of 78
7. In the replication filed to the amended written statement, it is stated that the alleged Memorandum of Understanding (MOU) was a forged and fabricated document having no legal validity. It is further stated that the alleged MOU dated 10.12.1993 was an unregistered document and in comparison to the registered sale deeds of the Plaintiff's Predecessor and the Defendant's Predecessor, the alleged MOU had no validity in law and were infact was void ab initio under Section 49 and 50 of the Indian Registration Act. It is averred that the Plaintiff's Predecessor's sale deeds clearly grants exclusive rights to the Plaintiff and its predecessor on 450 square feet, which the original vendor had not transferred in favour of any party. It is stated that since the MOU was an unregistered document, the purported transfer of exclusive rights over 450 square feet as per MOU will not have any validity as per law. It is further stated that the alleged construction over the disputed 450 square feet was not in accordance with the sanction plan or MCD rules and building bylaws. It is stated that the alleged MOU had been executed for and on behalf of minor children and without specific permission under the Guardian and Wards Act and therefore, no document on behalf of minor specially related to immovable property could not be executed. It is further stated that none of the registered sale deeds find any mention in the alleged MOU and the MOU was in fact without any consideration whatsoever. It is stated that was never any construction on the second floor and the report of the Local Commissioner clearly confirms that the second floor CS No. 7973/16 Page no. 12 of 78 has been made afresh. It is further stated that the first floor was partially constructed without any wall and the Plaintiff had free access to the 450 square area since there was no door leading upto the first floor and there were never any walls to restrict the Plaintiff's rights to access the air conditioner. It is stated that the Plaintiff had exclusive rights over the 83.61 square feet of area in the basement of the property. It is further stated that the documents relied upon by the Defendant before the MCD also seem to be either wrong declaration to the Department or were illegal as being forged and fabricated. It is stated that the right of the Plaintiff's predecessor to construct basement existed without any concession by them in favour of Defendant predecessor for the transfer of rights over 450 square feet. It is stated that neither the Plaintiff's sale deed nor the Defendant's sale deed mentions any construction and the ownership over the ground floor and the basement was undisputed and the Defendant could not be allowed further construction on the property without taking consent of the Plaintiff and getting any prior permission of MCD, Delhi for making structural changes. It is submitted that the photograph taken by the Plaintiff in September 2008 clearly shows that the Defendants were making fresh construction with scaffoldings. All the objections and the grounds taken by the Defendant in the written statement have been denied in the replication by the Plaintiff.
8. The admission denial of documents were carried out on CS No. 7973/16 Page no. 13 of 78 28.01.2009 and 04.02.2009 and the pleadings were completed.
9. After completion of pleadings, the Hon'ble High Court of Delhi vide order dated 13.10.2009 framed the following issues:-
(I) Whether the Plaintiff has any right to restrain construction on an area admeasuring 450 square feet on the rear side of property No. E-28, South Extension above the level of the ground floor?OPP.
(ii) If the above issue is decided in favour of the Plaintiff whether the Plaintiff is entitled to an order of demolition of the construction on the aforesaid portion?OPP
(iii) Whether the claim of the Plaintiff for demolition of the construction above the ground floor is barred by time?OPD
(iv) Whether the Plaintiff is entitled to the relief of possession of any portion of the property and if so, which portion?OPP
(v) If the above issue is decided in favour of the Plaintiff, whether the Plaintiff is entitled to any mesne profit and if so at what rate and for what period ?OPP
(vi) Whether the Plaintiff has any right to install water tank or a cooling tower or an air conditioner at any portion on the first floor above the rear portion of any property or whether the said right, if any, of the Plaintiff is satisfied with installation thereof on the top terrace above the property?OPP
(vii) Whether the MOU dated 10th December, 1993 was executed and if so, validly for and/or on behalf of the then owners of the property and if so, to what effect thereof?OPD CS No. 7973/16 Page no. 14 of 78
(viii) Whether the suit is not correctly valued for the purpose of the court fees and jurisdiction and if so to what effect?OPD
(ix) Relief.
10. Further vide order dated 05.11.2009, the Hon'ble High Court of Delhi framed two additional issues to be adjudicated upon trial namely (i) whether the Defendant has right to demolish the staircase on the rear portion of the property and
(ii) if the Defendants has such right, after the demolition of the staircase, whether they have any right to use the area in question on ground floor.
11. In order to substantiate its case, at the stage of Plaintiff evidence, the Plaintiff examined witnesses as follows:-
12. PW-1 Renu Singh, Plaintiff herself, tendered her evidence by way of an affidavit Ex.PW-1/A and relied upon the following documents:-
1. Certified copy of sale deed dated 22.12.1981 entered into between Sh. Guru Saran and M/s. Ram Chandra Krishan Chandra Saree Store (with certified coloured map)- Ex.P1.
2. Certified copy of sale deed dated 23.12.1981 entered into between Sh. Guru Saran and Smt. Indra Rani (with certified coloured map)- Ex.P2.
3. Certified copy of sale deed dated 28.10.1993 entered into between Smt. Indra Rani and Master Rohan Sharma - Ex.P3.
4. Certified copy of sale deed dated 28.10.1993 entered into CS No. 7973/16 Page no. 15 of 78 between Smt. Indra Rani and Ms. Prakashi Sharma - Ex.P4.
5. Certified copy of sale deed dated 24.12.2003 entered into between Ms. Prakashi Sharma and M/s. J.R Modi Finance Pvt Ltd.- Ex.P5.
6. Certified copy of sale deed dated 30.01.2004 entered into between Rohan Sharma and M/s. JR Modi Finance Pvt. Ltd.- Ex.P6
7. Certified copy of sale deed dated 27.09.2004 entered into between M/s. J.R Modi Finance Pvt Ltd and Mrs. Renu Singh- Ex.P7.
8. Certified copy lease deed dated 01.08.2008 between Mr. Jasvinder Singh Vedi, Mrs. Jasvinder Kaur Vedi and Mr. Rajiv Chandra Rastogi, Mrs. Vandana Rastogi -Ex.P8.
(The same were marked as such during the process of admission/denial of the documents conducted on 28.01.2022) and now Ex.PW-1/1 (colly), Ex.PW-1/2 and Ex.PW-1/3(colly) .i.e. 12 photographs Ex.PW-1/1(colly), Certified copy of the sale deed dated 25.04.2003 as Ex.PW-1/2 and Seven photographs in IA No. 1998 of 2009 Ex.PW-1/3 (colly).
12.1 During her cross-examination, PW-1/the Plaintiff herein stated that she had purchased the property in 2004 from M/s. JR Modi and M/s. J.R Modi had purchased the suit property from Prakshi and Rohan Sharma in the year 2004. She stated that she could not say whether the construction existed at the time when Prakshi and Rohan Sharma purchased the suit property. She further stated that she had inspected the suit property prior to CS No. 7973/16 Page no. 16 of 78 purchasing of the same and the total area on the ground floor and basement was 1500 square feet and the 450 square feet above the ground floor to keep the water tanks, coolers, air conditioners etc., and added that this space was to be kept open. She stated that the area at the time of purchasing of ground floor and basement was 750 square feet, however, she did not exactly remember whether the ground floor had the same area as that of the basement. She stated that she was not sure but the basement was constructed in 1993 and added that she had got the property as it is. She stated that when the basement was constructed in the year 1993, Prakshi Sharma and Rohan Sharma were the owners and she could not state whether there was any basement from 1981 till 1993. She further stated that there could not have been any consideration for construction of basement between Prakashi and Rohan Sharma and Ram Chander Krishan Chander because Prakashi and Rohan Sharma had a right to construct basement. She admitted that the water tanks were installed on the first floor back portion above her property when she had purchased the same. She denied that prior to her purchase of suit property the construction already existed upto the third floor. She stated that on the 450 square feet there was no wall on both sides and there was nothing above the 450 square feet on the second floor and added that regarding the rest of the property, the first floor was constructed and the second floor was partly constructed and there was no occupancy in the building either at the first floor or at the second floor and there were no outer-walls. She stated that there CS No. 7973/16 Page no. 17 of 78 was no construction on the 450 square feet on the first and second floor when she had purchased the property and she was not aware of any MOU dated 10.12.1993 giving right to Sharmas for construction of basement beneath 450 square feet. She stated that there was no reference of any MOU in her sale deed or in her Predecessor's Sale Deed. She further denied that since there was construction on the first and second floor at the time of her purchasing the suit property she was given the right to install overhead tanks etc., on the top terrace.
12.2. During her cross-examination conducted on 21.07.2011, PW-1 stated that there was just a roof above the 450 square feet area and there was no wall on the two sides and nothing was constructed above the 450 square feet area on the first floor and it was open to the sky. She stated that when she had purchased the property in 2004, the basement and ground floor already constructed and there were four tanks on the first floor and there was no understanding between Ram Chander Krishan Chander and her predecessors. She stated that as per her the basement was not mentioned in the title deeds pertaining to the property in favour of Rohan Sharma and Prakshi Sharma Ex.P3 and Ex.P4. She stated that she understood from previous sale deeds that basement was constructed by Rohan and Prakshi Sharma after the purchase of property from Smt. Indira Rani. She stated that the basement was constructed by Rohan and Prakashi Sharma as they have right to construct the same as per their sale deed. She CS No. 7973/16 Page no. 18 of 78 denied that the additional area of 750 square feet in the basement was allowed by the Defendant's predecessor Ram Chander Krishan Chander Saree Store, so that the Defendants could construct first and second floor above 450 square feet in the year 1993. She stated that first floor had two parts, the disputed 450 square feet and rest of the first floor and in the second floor there was nothing above the 450 square feet.
12.3. During her cross-examination conducted on 30.11.2011, PW-1 stated that she noticed the fresh construction in the suit property in September 2008 and denied the suggestion that the Defendant were only carrying out renovation work. She further stated that on the 450 square feet above the ground floor, where her water tanks were kept, the Defendants were completing the walls which were open and on the second floor, he had started making walls above the 450 square feet. She denied the suggestion that when she had purchased the property in 2004, the construction already existed. She stated that she could not say whether the value of the property in question in the year 2004 was in crores of rupees. She further stated that the right to install water tanks and air conditioners was specified in Clause 9 of her sale deed so there was no question of anyone giving her the right to install the same. She stated that she had not consulted any Architect to aver in the Plaint that the construction was disturbing the load bearing capacity and was contrary to law. She stated that no notice in writing has been given to the Defendant CS No. 7973/16 Page no. 19 of 78 demanding the sanction plan. She further stated that the side staircase which was earlier there in the property was only connecting upto the second floor. She stated that the water tanks were to be kept on the first floor, so the staircase upto to the second floor were not in the any use to her as she required them only upto the first floor where the water tanks were kept. She stated that the iron gate shown to be installed at the beginning of the side stair case in photographs attached to the Local Commissioner report were installed when the Defendant started construction on his 450 square feet area. During her cross- examination conducted on 01.02.2010, PW-1 stated that she did not know if the Defendant owned the side stair case of the building in question and added that it must have been mentioned in the Sale Deed. She admitted that she was permitted to use the side staircase till erection of the water tanks on the first floor but denied the suggestion that as per the sale deed executed by the erstwhile owner in her favour, the area under the aforesaid staircase could only have been used for the purpose of WC and could not have been retained by her exclusively. She stated that she did not remember the exact dimension of the area falling under the staircase, but it could be 78.3 square feet approximately. She further stated that when she had bought the property in question, no such load bearing wall existed between her room situated on the ground floor and the said staircase. She stated that the question of using the said open area under the staircase by other occupant of the building did not arise since the CS No. 7973/16 Page no. 20 of 78 same was part of the room which was in the possession of her tenant. She added that she had bought 750 square feet from the erstwhile owner, which included the said space under the staircase. She stated that there was only one WC in her portion. She further stated that she had purchased 750 square feet on the ground floor and 750 square feet of basement in 2004 and therefore, she did not know what was the position in 1993. She denied that she was deposing falsely.
13. PW-2 Sh. Anuj Kaushik, who was working with India Bulls Security as Relationship Manager, tendered his evidence by way of affidavit as Ex.PW-2/A. He relied upon the thirteen original bills as Ex.PW-2/1(colly) except bills pertaining to payment made on 01.11.2010 in respect of bill no. 127066 and other made on 22.01.2011 in respect of bill No. 217598. During his cross-examination conducted on 08.04.2003, he stated that M/s. India Bulls Security Limited was a lessee in respect of the premises under the Plaintiff and the Plaintiff had enquired about the fact regarding the consumption of water which India Bulls used to make in the said premises. He stated that when a discussion had taken place with the Plaintiff at that time, he was the Chief Branch Manager, of the branch which was situated in the leased premises. He stated that the premises in question were taken on lease in April-May 2005 and he was not an attesting witness to the said lease deed. He stated that the total covered lease area was approximately 2000 square feet area and it CS No. 7973/16 Page no. 21 of 78 comprised of a big hall at the entrance and one small room besides it on the ground floor and in the basement, one hall and two toilets and one kitchen. He denied the suggestion that when the aforesaid premises was taken on rent by M/s. India Bulls Security Limited, there were a load bearing walls in the space below the stairs which had been removed by M/s. India Bulls Securities Limited.
13.1 During his cross examination conducted on 09.05.2013, he denied the suggestion that the space under the staircase where the telecommunication system of Indiabulls Securities Limited was installed does not belong to the Plaintiff. He stated that he had not seen any Sale Deed which would show that the space under the staircase had been encroached by the Plaintiff. He denied the suggestion that when the premises was taken on rent by M/s Indiabulls Securities Limited, the second floor portion of the building was already constructed and over it there existed a terrace also. He admitted that the water tanks had been kept over the roof of the said constructed portion on the second floor over the said rear setback portion and added that the said water tanks were kept after the said construction over the second floor over the said rear setback portion had been carried out. He denied the suggestion that water tanks on the roof of the constructed portion of the second floor over the said rear setback portion were kept since 1993. He stated that he had not lodged any report in writing regarding threat of disruption of water supply by the Defendants.
CS No. 7973/16 Page no. 22 of 78 He stated that he did not know who Dr. Ramdev was and admitted that the bills being paid by M/s Indiabulls Securities Limited were in the name of Dr. Ramdev and that on inquiry from the Plaintiff, he was told that he was the previous owner before the purchase of property by her. He stated that the water tanks were installed on the first floor through which water supply was being received on the ground floor and the basement i.e. tenanted portion of M/s Indiabulls Securities Limited and in respect of this relevant bills were being paid. He stated that the said water bills were in respect of water connection and not in respect of water tanks.
14. PW-3 Sh. Anil Malhan, was the working with India Bulls Security Limited as Director (Administrator). He tendered his evidence by way of affidavit as Ex.PW-3/A bearing his signature at point A and B and also relied upon Ex.PW-3/1 which was a copy of Lease Deed dated 12.05.2005. During his cross- examination he stated that the lease deed Ex.PW-3/1 was executed in May 2005 and stated that the lease deed was not executed in his presence. On being confronted with Ex.PW-3/1, he admitted that the lease deed was executed on 12.05.2005 and added that it was for the period commencing from 01.06.2005. He admitted further that he had no personal knowledge of execution of the lease deed on 12.05.2005. During his cross- examination on 13.04.2015, he stated that he had never been posted in the India Bulls Branch situated in the suit property. He CS No. 7973/16 Page no. 23 of 78 stated that he was involved in finalizing interiors of the tenanted portion taken over by the India Bulls branch in the suit property and further admitted that there was a stair case leading upto the floors when the tenanted portion of the premises was taken on rent by India Bulls but he could not tell exactly upto which floor was the staircase leading to. He stated that the portion just below the staircase and the ground floor, leading upto the upper floors, was vacant at the time of taking the tenanted portion on rent by India Bulls. He denied the suggestion that the second floor above the leased out portion to the India Bulls, was in existence at the time, when India bulls had taken a part of the suit property on rent or the watertanks which were supplying the water system in the building, were installed only at the roof of the second floor at that time. He stated that he had gone on the upper floors for checking the water distribution system from the water tanks installed above the portion taken on rent by Indiabulls in the suit property.
15. PW-4 Sh. Vijender Pal Singh, who was a summoned witness and brought record pertaining to KNO 9807141000 installed at E-28, 2nd Floor, NDSE, New Delhi and new KNO 0907141000 and new KNO 6607141000, both connections installed at E-28, first floor, NDSE, New Delhi. All the KNOs were exhibited as Ex.PW-4/1, Ex.PW-4/2 and Ex.PW-4/3(colly).
16. PW-5 is Jai Prakash, Reader to Sub Registrar-V, CS No. 7973/16 Page no. 24 of 78 Mehrauli, New Delhi. He brought the summoned record .i.e. sale deed executed by Sh. Gurusharan through his attorney Sh. Satender Singh, in favour of M/s. Osaa Estates Private Limited through its Director Anil Kumar Khetrapal vide registration no. 3055 in Book No. 1, Volume No. 321 on pages no. 143 to 168 dated 25.04.2003 already exhibited as Ex.PW-1/2. He stated that he had compared the certified copy of Ex.PW-1/2 on record and the same was a certified copy of their record except page no. 17 of the Sale Deed. He stated that he had placed copy of page no. 17 on record. He further brought the record pertaining to sale deed executed by M/s. Osaa Estates Private Limited in favour of Smt. Deepa Gupta and Mr. Tushar Gupta, vide registration No. 15761 in book no. 1 Volume no. 4515 on pages no. 60 to 73 dated 08.12.2004, the certified copy of which was Ex.PW-5/1 (OSR). During his cross-examination he stated that he did not know any of the party who executed these documents.
17. On completion of Plaintiff's evidence the Defendant examined the following witnesses during the stage of Defence Evidence.
18. The Defendant examined himself as DW-1. He tendered his evidence by way of affidavit as Ex.DW-1/A bearing his signature at point A and B and relied upon the following documents:-
(a) Affidavits executed by the parties of MOU and its CS No. 7973/16 Page no. 25 of 78 witnesses are Ex.DW-1/1 to DW-1/6 (objected as to admissibility and mode of proof).
(b) Valuation report dt. 15.02.1996 Mark A (Ex.DW-1/7 stands de-exhibited).
(c) Receipt dated 31.03.2000 Mark B ( Ex.DW-1/7 stands de- exhibited).
(d) Sale deeds dated 03.04.2006 qua first and second floor and terrace of property Mark C and D (Ex.DW-1/9 and Ex.DW- 1/10 stands de-exhibited).
(e) Certificate dated 24.10.2008 issued by the structural engineer Mark E (Ex.DW-1/11 stands de-exhibited).
18.1 During his cross-examination, DW-1 stated that the photographs clicked by the Ld. Local Commissioner Ms. Meenakshi Arora, were taken in his presence and were exhibited as Ex.DW-1/P2 (colly). He stated that Mr. Ashok Kumar had physically inspected the portion of the property owned by the Plaintiff before issuing Mark E. He stated that he could not remember as to how many days prior of issuance of Mark E, did Mr. Ashok Kumar Arora inspect the portion owned by the Plaintiff. He stated that his representative had got the consent of the person present in the property at the time of inspection. He stated that he had paid Mr. Sudhir Sood a lump sum amount for designing the entire interior work as well as was strengthening the building and he had obtained the period Mark- E for the purpose of strengthening the building and added CS No. 7973/16 Page no. 26 of 78 that when he had purchased the building in 2006, the garters on the second floor were out of shape and to strengthen them he engaged Mr. Dinesh Bhardwaj and Mr. Sudhir Sood to carry out the necessary work in this regard. He stated that he did not engage Mr. Ashok Kumar Arora in any other construction work. He stated that he was not a party to the construction of the first and second floor over and above the space measuring 450 square feet in the year 1993-1994 and it was not carried out in his presence. He stated that he knew about the same as it was mentioned in the documents handed over to him by the seller. He stated that the documents which were handed over to him were :-
(a) The report by M/s. Ahuja and Associates Archietect, with the calculation in the year 1996.
(b) The MCD letter stating the amount of Rs. 90260/- that the additional first floor and second floor was made.
(c) The letter written by a partner of Ramchand Kishan Chand Saree store to MCD for regularising the extra construction done by them in the year 2000.
(d) The structural certificate given to RCKCSS given by Mr. N.K Jain.
(e) Rs. 50,000/- paid by RCKCSS to MCD as part payment given for regularization in March 2000.
18.2 He further stated that he was given a file by the seller which contained all these documents before the registration of sale deed. He stated that he carried out construction in the year CS No. 7973/16 Page no. 27 of 78 2007-2008 after coming in possession of suit property and had removed the girders from the second floor as they were all bent and were not safe and got them changed and strengthened in 2007. He deposed that in 2008, he got more girders put on the first floor as well as got new staircase constructed from the front of the building in shop no. E-28/2 & 3. He stated that he did not take any permission from either the Plaintiff or from any of authority as he was only strengthening his building and not making any new construction. During his further cross- examination conducted on 18.07.2018, he stated that at point A and B of Mark F, the extent of construction carried out in the year 1993-1994 was mentioned. He further stated that there was no mention of extent of construction carried out in the year 1993- 1994 of the document Mark F. He deposed that the size of the first floor existing as of date was 2250 square feet including the staircase and the size of the second floor existing as of today was 2250 square feet including the staircase. He stated that the extent of first floor sanctioned in the original sanction plan was roughly about 1300 square feet covered area including the staircase and the extent of the second floor sanctioned in the original sanctioned plan was 600 square feet covered (barsati). He stated that as per the documents given to him by his predecessor, about 1000 square feet extra was covered in the year 1993-1994 on the first floor and about 2100 square feet total on the second floor. He stated that in the year 1993-1994, 600 square feet was demolished and fresh construction of 2100 square feet was done, CS No. 7973/16 Page no. 28 of 78 as told to him by Mr. Viresh Chand. He stated that in the year 1993-1994 on the first floor only the walls of the room and kitchen were broken and extra open space was covered as told to him by Mr. R.K Sharma, since he was not the owner of the property at that time. He stated further that he did not know if any permission was taken in the year 1993-1994 for any construction and added that in the document received by him, it is stated that the sanction plant was given to MCD for regularization. He stated that no communication has been received from the MCD in favour of his predecessor confirming that the regularization has been accepted and approved by MCD and since the property tax had been mutated in their favour and they were paying property tax yearly, he did not feel any necessity to check the status of regularization. During his cross- examination on 20.07.2018, he stated that he had never seen the photocopy of the MOU dated 10.12.1993 and stated that no extra construction had been done by him either on the first floor or on the second floor. He stated that his sale deed dated 30.01.2004 did not find any mention of the MOU dated 10.12.1993 as before buying the said property he had seen that the first and second floor were fully covered. He denied the suggestion that even the sale deed dated 30.01.2004 executed by Rohan Sharma did not mention the alleged MOU dated 10.12.1993 and added that the sale deed by Rohan Sharma to M/s. JR Modi Finance Private Limited did not mention that extra ground as well as basement was constructed by them and it was the Sharma's who had CS No. 7973/16 Page no. 29 of 78 constructed the first floor and second floor for RCKCSS with no profit and the cost of construction was given to Sharma's for RCKCSS. He further stated that for similar reason the sale deed dated 24.12.2003 by Prakshi Sharma in favour of M/s. JR Modi Finance Private Limited and sale deed dated 27.09.2004 executed by M/s. JR Modi Finance Private Limited does not find mention of the alleged MOU dated 10.12.1993. He stated that the MOU must have been made as the MCD letter of assessment said that the additional construction was done on first and second floor and the letter is itself proof regarding its existence, which was addressed to RCKCSS in the year 1996-1999 also and the same was marked Mark F and G. He stated that Mark-G did not find any mention about the alleged MOU dated 10.12.1993 but it showed the additional 1100 square feet was constructed on the first floor and 2100 square feet was constructed on the second floor. He denied the suggestion that the construction was caused by him in the year 2008 after filing of the suit at the first and second floor on the area in question.
19. DW-2 Captain K.P Malhotra, tendered his evidence by way of affidavit as Ex.DW-2/A bearing his signatures at Point A and B. During his cross-examination by Ld. Counsel for Plaintiff, he stated that he knew Mr. Rakesh Sharma, from the last more than 35 years and had assisted Mr. Rakesh Sharma in purchasing the suit property. He stated that he knew the Defendant since the year 1990 and had cordially relationship with him. He stated that CS No. 7973/16 Page no. 30 of 78 he does not know who drafted the MOU Mark-DW-3/X in the year 1993-1994 and it was signed in the kothi of Sh. Rakesh Sharma at B-59, South Extension and he was present at that time He further stated that apart from him Mr. Rakesh Sharma and Rajiv Rastogi were also present. He denied the suggestion that Mark DW-3/X was prepared anti-dated at the time of filing of the suit.
20. DW-3 Sh. Rakesh Sharma, tendered his evidence by way of affidavit Ex.DW-3/A bearing his signatures at point A and B and relied upon the photocopy of MOU dated 10.12.1992 which is marked as Mark- Ex.DW-3/X and affidavit of his previous affidavit which is already Ex.DW-3/A. During his cross- examination by Ld. Counsel for Plaintiff, he stated that his son Rohan Sharma and daughter Prakshi Sharma were owners in equal share of the portion of the building E-28, NDSE-II, in the year 1993-1994 and some papers had been prepared regarding this property in the year 1993-1994. He stated that those papers were signed by his wife Ms. Sunita Sharma at his instance and it was a MOU. He stated that at time, he, Mr. Ravish Rastogi and Mr. Rakesh Rastogi were present and it never remained in his possession and in the possession of his wife and he had seen the documents in original in the year 1993-1994 and he did not remember if he had ever seen the document during the period from 1993-1994 to 2009. He stated that the said document was not registered and it was mentioned on the document that the CS No. 7973/16 Page no. 31 of 78 concerned party will make payment of their respective construction individually. He stated that the MOU had been prepared before the construction was done and no permission was obtained from MCD before effecting the construction. He denied the suggestion that no construction was done on first and second floor in the year 1993-1994. During his cross- examination, the counsel for Defendant brought the original document of Mark DW-3/X. The witness was cross-examined again by virtue of order dated 15.10.2018 and the MOU dated 10.12.1993 was exhibited as Ex.DW-3/1. During his cross- examination by Ld. Counsel for the Plaintiff, he stated that he had seen the document out of the court room when he had appeared earlier as a witness and this document was never in his possession from the date of his earlier evidence till that date.
21. DW-4 Sh. Rakesh Rastogi, who tendered his evidence by way of affidavit as Ex.DW-4/A bearing his signature at point A and B. He also relied upon the document which had been marked as Ex.DW-4/1. During his cross-examination by Ld. Counsel for Plaintiff he stated that no specific authorization had been given to Mr. Viresh Chand Rastogi for execution of MOU and added that since he was the main partner, he had the power and authority to do the same. He stated that MOU was prepared in his presence in the office of the Lawyer, whose name he did not remember. He further stated that at the time of execution of MOU, Mr. R.K Sharma, Mrs. R.K Sharma, Mr. Viresh Rastogi, Mr. Satish CS No. 7973/16 Page no. 32 of 78 Rastogi and Capt. K.P Malhotra were present besides him. He further stated that the MOU was signed by Mr. R.K Sharma, Mrs. R.K Sharma, Mr. Viresh Rastogi, Mr. Satish Rastogi and Capt. K.P Malhotra. He stated that he did not remember who kept the original of that document and that the MOU had been prepared before the construction was done. He stated that he did not know whether any permission was obtained from MCD for carrying out the construction. He denied the suggestion that no such MOU was prepared in the year 1993-1994 and further denied the suggestion that Mark DW-3/X was a fabricated document.
22. DW-5 Mr. Rohan Sharma, tendered his evidence by way of an affidavit as Ex.DW-5/A bearing his signature at point A and B. He stated that his father Mr. Rakesh Sharma, used to deal with suit property on his behalf and he has no personal knowledge of any construction in the suit property done in the year 1993-1994, if any. He stated that he has no personal knowledge of any MOU.
23. DW-6 Rakesh Kumar, Zonal Inspector of office of MCD, Assessment and Collection Department, Sanwal Nagar, he stated that he had brought the summoned record .i.e. asssessment order dated 08.02.1999 for the year 1995-1996 and the photocopy of the same was Ex.DW-6/1. He also brought the notice under Section 126 of DMC Act, 1957, copy of which was exhibited as Ex.DW-6/2. He also brought the record of House Tax pertaining CS No. 7973/16 Page no. 33 of 78 to house tax return for property no. E-28, South Extension-II, New Delhi for the year 2007-2008 and 2014-2015, copy of which Ex.DW-6/3(colly). He stated that he had not brought the record of house tax of property no. E-28. NDSE-II, for the year 2008- 2009 to 2013-2014 as the same was not available in his office but had brought the record for the year 2014-2015 to 2018-2019. During his cross-examination, he stated that the assessment order Ex.DW-6/1, was not passed in his presence and notice Ex.DW- 6/2 was not served by him. He stated that the original file brought by him contains the noting sheet from 03.05.2005 only and the file produced by him of House Tax contains no pagination. He stated that he has no personal knowledge of the present case.
24. DW-7 Sh. Jawahar Khan, LDC, from the Office of Building Department, Central Zone, Lajpat Nagar, who brought the summoned record .i.e. pertaining to application dated 30.03.2000 for regularization of construction along with annexures for property no. E-28, First Floor, South Extension-II, New Delhi, copy of which Ex.DW-7/1(colly). During his cross- examination by Ld. Counsel for Plaintiff he stated that there was no pagination in the file and the file contained no noting sheet. He stated that internal page no. 6, 7 to 31 and 32 of Ex.DW-7/1 were a photocopy in their record. He stated that as per internal page no. 2 of Ex. DW-7/1, this application was rejected for the reason mentioned therein. He stated that he could not reply to the question as to whether the site plan along with the application for regularization had been inserted in the file later on or in CS No. 7973/16 Page no. 34 of 78 replacement of original site plan as he was not the record keeper.
25. DW-8 Sh. Dheeraj Kumar, Fishery Staff, Development Department, Jamia Nagar, stated that he was posted as Junior Assistant/Record Keeper in the office of Sub Registrar-V, Mehrauli and he had brought the original summoned record i.e. sale deed dated 03.04.2006 vide registration no. 5147 in Book No. 1 Volume No. 6061 pages no. 164 to 200 Ex.DW-8/1(OSR). He stated during his cross-examination that he has no personal knowledge about the present case and the sale deed was not registered in his presence. Thereafter, defence evidence was closed.
26. On completion of evidence, extensive final arguments were heard on behalf of both the parties. It has been argued on behalf of Ld. Counsel for the Plaintiff that the suit property was owned by the Plaintiff and the Defendant does not have any right, title or interest in the suit property. It is averred that the Plaintiff derived his title from the Sale deed dated 23.12.1981 executed by Sh. Guru Sharan and Ors., in favour of Smt. Indira Rani and the Defendant on the other hand claimed title on the basis of Sale Deed dated 22.12.1981 executed by Sh. Guru Saran and Ors., in favour of Mrs. Ram Chander Kishan Chander Saree Store. It is alleged that from the bare perusal of the Plan annexed along with the sale deed, it is evident that the portion shown in red color does not include the suit property and therefore, it was absolutely CS No. 7973/16 Page no. 35 of 78 clear that the said property had not been sold to the predecessor in interest of Defendants herein and therefore could not have been sold to the Defendants. It is stated that the sale deed of the predecessor in interest of the Plaintiff clearly shows that the portion which had been sold to Smt. Indira Rani, the predecessor in interest of Plaintiff herein was shown in RED in site plan Annexure A to the said sale deed and hence, the said portion of the first floor was sold to Smt. Indira Rani. It is argued that as per clause I of the sale deed dated 23.02.1981 read in conjunction with other clauses clearly showed that the said property had been sold to the predecessor in interest of the Plaintiff herein. It is further stated that the stipulation in the sale deed Ex.PW-1 is qualified by the words 'more-fully described in the plan Annexure A' which showed that the parties to the sale deed gave preference to the Plan and the sale deed further provides that the predecessor in interest of the Defendant would be the owner of the portion sold 'on the terms and conditions therein contained' which include the term that area sold to predecessor in interest of Defendant was only portion show in color red and if the interpretation given by the Defendant was to be accepted the same would render various other portion of the sale deed nugatory. It is further argued that the reliance placed by the Defendant on the clause of the sale deed that the user of the terrace at the back had also been sold subject to the right of the vendor to place the cooling tower/water tanks on small portion there was completely misplaced as the terrace was clearly CS No. 7973/16 Page no. 36 of 78 marked on the second floor of the property, whereas the said portion was on the first floor. It is further stated that only the user of the terrace had been sold which did not confer any ownership right on the Defendant. It is further stated that Clause I of sale deed specifically provides the property being the portion of 450 square yards on the first floor was the absolute property of the predecessor in interest of the Plaintiff and no right was given to the predecessor in interest of the Defendant to construct anything over the said property and the sale deed of the predecessor in interest of the Defendant clearly provides that the predecessor in interest of the Defendant shall not encroach upon the said property on the said floor, which further reflected that the said property belonged to the Plaintiff. It is further argued that the contention of the Defendant that the rights under the sale deed dated 23.12.1981 were not carried forward in the latter's Sale Deed was misplaced since the Sale Deeds specifically provide that all the rights of the vendors were being sold by the vendors and all the portions of the said property which were sold vide Sale Deed 23.12.1981 belonged to the Plaintiff herein. It is contended that the Defendant had not incorporated any pleading to the effect that it was required by law to keep the setback vacant and for that reason, the stipulation was provided for in the Sale Deed dated 22.12.1981 and 23.12.1981 and since there was no such pleading in evidence, no argument could be raised qua the said allegation. It is further argued that the portion of the property admeasuring 450 sq. feet on the ground floor, just below CS No. 7973/16 Page no. 37 of 78 the said property was always covered. It is argued that the Plaintiff has raised an alternate contention that she was also entitled to a relief of possession on the basis of possessory title, since the Plaintiff was in possession of the said property till the filing of the present suit and water tanks and water connection of the Plaintiff had been shifted from the said property to the top floor illegally. It is submitted that the possession of Plaintiff over the said property was also evident from the fact that water tanks of the Plaintiff were lying over the suit property which are clearly visible from the photographs filed alongwith the report of the Local Commissioner Ex. DW1/P2 and the water bills in respect of water connection were in the name of Ram Dev, the husband of Smt. Indira Rani, which clearly shows that the same pertains to the water connection installed at the first floor of the property. Further, the deposition of PW1 and PW2 in their evidence by way of affidavit that the water tanks were kept on the first floor portion have been proved during trial as these witnesses have withstood the cross-examination and the Defendants have not led any evidence of any water connection in the premises in its name. It is argued that the Defendant has failed miserably to provide any proof that the water tanks of the Plaintiff were installed on the top floor portion and no witness has deposed to this effect. It is stated that the water tanks of the Plaintiff have been illegally shifted from first floor to top floor after filing of present suit and this is also evident from the very fact that in the photographs annexed alongwith the report of Local CS No. 7973/16 Page no. 38 of 78 Commissioner, the water pipes were only existing upto the first floor and all such pipes were old pipes, whereas, the photographs filed by the Plaintiff on 13.03.2009 showed the water pipes going to the upper floors were entirely new. It has been argued further that the Plaintiff has no concern in the remaining area of the property except portion of 450 sq. feet of the first floor being the said property which solely belonged to the Plaintiff and it is the specific case of the Plaintiff that at the time of purchase of suit property by her, there already existed a roof over the entire first floor portion. It is stated that the Plaintiff was not aggrieved by the existence of any roof on the first floor portion of the said property but was only concerned with the construction being undertaken by the Defendant over the said property being 450 sq. feet portion of the first floor. It is stated that the report of the Local Commissioner falsifies the claim of the Defendant and the reliance of the Defendant on the evidence of DW6 and DW7 is of no help to the Defendant as the same would only show the existence of roof on the first floor and not of any construction over the 450 sq. feet portion being the said property. It is further stated that though the Defendant claims the construction to be carried out in the year 1993-1994, the same was belied by document Ex. DW6/3 which mentions the year of construction as 1992 and as per evidence of DW1/7, the regularization application was rejected by MCD and no reason has been shown for the rejection. It is further argued that Mr. Rakesh Sharma, who had examined himself as DW3 was completely silent as to CS No. 7973/16 Page no. 39 of 78 any construction being raised by them. It is argued that none of the witnesses examined by the Defendant has deposed about undertaking any construction in the year 1993-1994 and even the evidence of DW7 was of no consequence as the file was not paginated and the documents existing in the file were photocopies which makes it clear that the file brought by DW7 was manipulated. It is further argued that the alleged MOU dated 12.10.1993 was completely forged and fabricated and there was no reference of any MOU in any of the Sale Deeds. It is argued that the contention of the Defendant that the construction was raised after the execution of MOU was contrary to the pleadings set forth by the Defendant in his written statement wherein in para 3 of para-wise reply on merits, it has been stated that although the condition did exist in the Sale Deed of 1981, however, the same did not apply to the Sale Deed of 28.10.1993 on account of the fact that construction had been raised pursuant to MOU. It has been further argued that the defence witnesses examined by Defendant namely DW-2, DW-3 and DW-4 have given contradictory statements with respect to presence of persons at the time of execution of alleged MOU and other details which showed that the alleged MOU was false and fabricated. Further, it was argued that area sold to predecessor in interest of Defendant was clearly described in sale deed dated 22.12.1981 which did not include any right in basement under the staircase and the Defendant no. 1 had not provided that he was in possession of any portion of basement under the staircase.
CS No. 7973/16 Page no. 40 of 78 It was argued on behalf of Ld. Counsel for Plaintiff that the alleged MOU was executed for the benefit of minors and the alleged signatory of the alleged MOU, Mrs. Sunita Sharma, the mother of minors has not been examined and the said MOU was without any consideration which was not possible. It is argued that the report of the Local Commissioner clearly shows that there was space below the staircase which was in exclusive possession of the Plaintiff. It was submitted that Plaintiff was entitled to reliefs sought by her in the present suit as she was the owner of the disputed portion and possession should be handed over to her.
27. The Ld. Counsel for Defendant, on the other hand, has argued that the submissions made by the Plaintiff were contrary to the terms of sale deed dated 27.09.2004 executed in favour of Plaintiff and that the Defendants were the owners of the entire first floor, second floor and entire terrace including the staircase at the side line of the property, including the area over and above the covered courtyard and improvised garage ad-measuring 450 square feet and the same was purchased by Defendants vide two separate sale deeds both dated 03.04.2006. It was submitted that the construction over and above the covered courtyard and improvised garage was already existing at the time of purchase of the entire first floor and entire second floor at the said property by Defendant on 03.04.2006 and both the said floors were fully constructed/covered even before the Plaintiff and the Defendants CS No. 7973/16 Page no. 41 of 78 purchased their respective portions in the said property as duly reflected from the Government/Municipal records placed on record. It was stated that the said constructions was carried out in pursuance of the MOU dated 10.12.1993 between the erstwhile owner of the Plaintiff's portion of the said property and even before the parties herein purchased their respective portions in the said property and therefore, the said suit has been filed without any cause of action. It is argued that the setback on the rear portion of the said property including the rear portion on the ground floor as well as the first floor of the said property had to be kept open to sky as per prevailing laws. It is further argued that the improvisations made by the Plaintiff post amendment shows that the Plaintiff had improvised her case to stake claim of ownership of 450 square feet on the rear portion of the first floor of the said property and that there was an after thought of staking her claim in respect of the area measuring 400 square feet on the rear portion on the first floor of the said property. It is argued that as per the sale deed dated 23.12.1981 executed by Guru Sharan in favour of Indra Rani, no portion whatsoever on the first floor of the said property had been sold to Indra Rani and the same could not be sold to plaintiff as being alleged by the Defendant. It is argued that the portion already sold to the predecessor in interest of Defendant could not by any stretch of imagination be sold to Plaintiff on the next day by a subsequently executed sale deed dated 23.12.1981 and therefore, the sale deed executed earlier shall prevail over the sale deed executed subsequently. It CS No. 7973/16 Page no. 42 of 78 is further argued that the reading of the aforesaid sale deed as a whole made it clear that the purchaser had no right to use or to make any construction above 11 feet height on the ground floor. It is stated that the area of 450 square feet on the rear portion of the first floor was not shown in red color but in orange and purple lines in the site plan appended to the sale deed of Indira Rani and the aforementioned area had already been sold to RCKCSS vide sale deed dated 22.12.1981. It was argued that it was a settled position of law that the contents of the sale deed will prevail over the site plan. It is stated that bare perusal of sale deed dated 28.10.1993 made it apparent that the description of the property as well as other terms and conditions under went a change and after purchasing the dwelling unit on the ground floor, the Sharmas in the year 1994 reconstructed the said dwelling unit on the ground floor by demolishing the walls of the two rooms and covered the open set back ad-measuring 450 square feet by making the covered area to be 750 square feet on the ground floor. It is argued that the Sharmas further constructed a lower ground floor/basement having a covered area of 750 square feet on the ground floor and RCKCSS broke all the walls of their rooms, bathroom, kitchen and covered the open veranda and open set back on the rear portion of the first floor by making the covered area to be 2250 square feet. It is further stated that on the second floor, RCKCSS demolished the barsati and the open urinal and carried out full construction making the covered area to be 2250 square feet on the second floor and this aforesaid CS No. 7973/16 Page no. 43 of 78 construction was carried out only after the execution of the MOU between Sharmas and RCKCSS. It is further stated that as per Clause 9 of the sale deed dated 24.12.2003 and 30.01.2004, the purchaser had been given a right to place water tanks or cooling tower or cooler or air conditioner on the top terrace instead of the designated area on the rear portion on the first floor of the said property as mentioned in the sale deed dated 23.12.1981 and 28.10.1993. It is argued that the description of property sold to Plaintiff by M/s. JR Modi Finance Private Limited was the same as the description mentioned in the sale deeds dated 24.12.2003 and 31.01.2004 executed in favour of M/s. JR Modi Finance Private Limited by Sharmas, which established the fact that the entire first floor and second floor of the property were fully constructed even before the Plaintiff and Defendant purchased their respective portion in the said property. It is stated that the Plaintiff has not been provided any rights, title or interest under her sale deed on any area on the first floor. It is argued that the contents of the sale deed dated 22.12.1981 makes it absolutely clear that Guru Saran had sold the entire first and second floor of the said property (including 450 square feet above the covered courtyard and improvised garage at the rear portion on the first floor) along with terrace rights and staircase on the side lane to RCKCSS (predecessor in interest of Defendant) vide sale deed dated 22.12.1991 and reading of clause I of the aforesaid sale deed make it evident that the use of entire terrace on the back (alleged disputed 450 square feet of the said property) had also CS No. 7973/16 Page no. 44 of 78 been sold to RCKCSS subject only to the right of predecessor in interest of Plaintiff to keep a water tank or a cooling tower in a small portion enmarked in purple color slanting lines in plan annexed thereto. It is further argued that if the interpretation placed by the Plaintiff was to be accepted it would lead to a unreasonable conclusion that the owner of the property has to take permission of a third party for using his/her own property. It is further argued that RCKCSS vide sale deeds dated 03.04.2006 sold the entire first and second floor of the said property with terrace rights to the defendant including the right to further construction thereon. It is further argued that Defendants after the execution of sale deed in 2006 was carrying on the repair and renovation work on the first and second floor of the suit property when the present false and frivolous suit was filed by the Plaintiff. It is argued that the evidence got recorded by the Defendants during trial made it clear that the first and second floor had been duly constructed prior to the filing of the present suit. It is further argued that construction was carried out pursuant to the MOU and Rohan Sharma had deposed before the court and he had not challenged the existence of the validity of the present suit. It is argued that the MOU did not require compulsory registration under law and was a valid document which was executed by the mother on behalf of the minors. It is argued that construction of basement on behalf of predecessor in the interest of Plaintiff was a prima facie case of execution of MOU between the predecessor interest of both the parties. It is CS No. 7973/16 Page no. 45 of 78 argued that the report of Local Commissioner corroborated with the submissions of the Defendants that the first and second floor of the premises were already constructed. It is argued that the four water tanks as shown on the first floor of the premises, as per the report of the Local Commissioner belonged to the defendant and were temporarily kept on the first floor for temporary supply of water for repair and strengthening work being carried out by the Defendants in their portion of the said property and as per the sale deed of the Plaintiff dated 27.09.2004, the Plaintiff only had a right to keep water tanks on the top floor of the terrace and not on the first floor of the premises. It is stated that the Plaintiff had not proved that the water bills placed on record by the Plaintiff PW2/1 belonged to the husband of Indira Rani and the plaintiff only required one water tank and not four which were kept on the first floor of the premises. It is argued that the Plaintiff has not impleaded M/s. J. R. Modi Finance Pvt. Ltd. whose sale deed dated 29.07.2004 has been challenged by them. It is argued that there was no space under the staircase which was evident from the two site plans annexed along with the sale deed and the plaintiff had encroached upon an area of 13 sq. ft under the staircase and the area admeasuring 83.6 sq. ft. in the basement (of the said property) which also find in the report of the Local Commissioner. It is argued that the Plaintiff had also incorrectly valued the suit and the value of the suit property is above 35 lacs which is more than what has been averred by the Plaintiff. It is CS No. 7973/16 Page no. 46 of 78 prayed that the suit be dismissed with costs.
28. My issue-wise findings is as under:
Issue no. 1, 2, 4 and 5 are decided together being inter-connected.
(I) Whether the Plaintiff has any right to restrain construction on an area admeasuring 450 square feet on the rear side of property No. E-28, South Extension above the level of the ground floor?OPP.
(ii) If the above issue is decided in favour of the Plaintiff whether the Plaintiff is entitled to an order of demolition of the construction on the aforesaid portion?OPP
(iv) Whether the Plaintiff is entitled to the relief of possession of any portion of the property and if so, which portion?OPP
(v) If the above issue is decided in favour of the Plaintiff, whether the Plaintiff is entitled to any mesne profit and if so at what rate and for what period ?OPP 28.1 The onus to prove these issues was on the plaintiff.
At the outset, it is pertinent to mention that the plaintiff's predecessor in interest was Smt. Indira Rani who had a sale deed executed in her favour dated 23.12.1981 Ex. P-2. The Defendant's predecessor in interest were Sh. Ram Chandra Krishna Chandra Saree Store (RCKCSS) who had a sale deed executed in their favour dated 22.12.1981 Ex. P3. The relevant portions of sale deed Ex. P-3 are:
Clause 1: "that in consideration of a sum of Rs.
CS No. 7973/16 Page no. 47 of 78 14,00,000/- (Rupees fourteen lakhs only), the Vendors hereby sell, transfer and convey to the Purchaser, the first and the second part II Market, New Delhi, more fully described in the plan Annexure 'A' to these presents together with the staircase opening on the side lane, to hold the same as absolute owners on the terms and conditions herein contained. The area hereby sold has been shown in red colour in the plan annexed hereto. It is made clear that the user of the terrace on the back has also been sold to the Purchaser subject only to the right of the Vendors to place the cooling tower/water tank in a small portion thereof. Such interest in the land as is necessary for the ownership and enjoyment of the first and the second floor is also transferred. The property sold forms part of a larger property. The possession of the property has been delivered to the Purchaser. That the Purchaser shall permit Vendors to instal a water tank or a cooling tower in the portion measuring 457cms x 282 cms depicted in purple colour slanting lines in the plan annexed hereto. It is made clear that for the purpose of attending to the cooling tower/water tank, no right of easement/passage is retained or will be claimed through the staircase. The Purchaser will not construct anything on the portion marked with orange colour slanting lines in the plan annexed hereto. However, over the rest of the areas the Purchaser will be free to carry out such construction as the Purchaser may desire. The Vendors undertake that the walls on the ground floor premises will not be altered of removed inasmuch as they bear the weight of the structure on the first floor."
28.2 Similarly, the relevant recital/clauses of sale deed executed on 23.12.1981 between Guru Sharan and Indira Rani Ex.P-2 are introduced below:
Clause 8 "whereas a portion on the ground floor of the said property comprising of two rooms each measuring 9 ft. 71/2 inch x 11 ft. 9 inch (3 mt. X 3.6 mt.) together with a WC measuring 3 ft. 6 inch x 4 ft. (1.1 Mt. X 1.2 Mt.) and covered space (under the existing staircase leading to the first floor) and the rear courtyard measuring 15 ft. x 30 ft. (41.82 Mt.) = 450 sq. ft.) is under the tenancy of Dr. Ram Dev on a monthly rental CS No. 7973/16 Page no. 48 of 78 of Rs 150/- per month. That in consideration of a sum of Rs. 26,000/- (Rupees twenty six thousand only) the Vendors hereby sell, transfer and convey to the purchaser full absolute and unrestricted right to the portion of the land and building comprising of two rooms on the ground floor each measuring 9 ft. 71/2 inch x 11 ft. 9 inch (3 mt. X 3.6 mt.) together with WC measuring 3.6 inch x 4 ft. (1.1 Mt. X 1.2 Mt.) and covered courtyard and the improvised garage measuring 450 sq. ft. (41.82 st. Mt., except a portion of the area falling below the staircase measuring 83.6 sq. ft. (7.77 sq. Mt.) in property No. E-28 NDSE Part-II, New Delhi, to hold the same as absolute owner on the terms and conditions contained herein. The area hereby sold has been shown in red colour in the plan annexure 'A' annexed to these presents. The rights, title and interest in the freehold land measuring 69.95 sq. Mt. (752.64 sq.ft.) and shown in red colour in the plan Annexure 'A' hereto annexed (which does not include the portion of the area under the staircase) is conveyed to the purchaser as an absolute owner. The Purchaser has absolute right to use to space opening into adjoining room and lying below the staircase measuring 78.3 sq.ft. (7.77 sq. Mt.) in any manner she likes, however, such conveyance will not entitle the Purchaser to use or construct anything above the ground floor ceiling (the ground floor ceiling being at a height of about 11 ft.) and the Vendors will be entitled to construct over and above two rooms measuring 3 Mt. X 3.6 Mt. Each subject to indemnifying against any loss or damage that may arise or accrue or caused to the property of the Purchaser. However, the right of construction by the Vendors shall not extend to the portion over the covered courtyard and the improvised garage measuring 450 sq. ft. (41.82 sq. Mt.) which is shown in orange and violet colour slanting lines in the plan Annexure'A' hereto. The vendors will not put any door or have any access or encroachment to the first floor portion of the courtyard measuring 15 ft. x 30 ft.
= 450 sq. ft. (41.82 sq. mt.) which is the absolute property of the Purchaser. The walls of the two rooms and the staircase will continue to serve as load bearing walls for the upper stories without jeopardising the existing super structure of the building . The purchaser will be free to dig basement but shall not be entitled to do so in a way that causes danger or risk to the rest of CS No. 7973/16 Page no. 49 of 78 the building. These terms have been inserted because the property hereby conveyed forms part of a large property hereby conveyed forms part of a large property. The property is sold subject to the tenancy of Dr. Ram Dev. Dr. Ram Dev agrees to all the terms herein contained. That the Purchaser will not use or build any further structure over the existing covered courtyard measuring 752.64 sq. ft. However, the purchaser will be permitted to install a water tank or a cooling tower, cooler or air-conditioner in the portion measuring 15 ft.x 9 ft. 3 inch=138.75 sq. ft. (12.89 sq. mt.0 depicted in purple colour slanting lines in the plan Annexure 'A' hereto. On the Vendors part, the Vendors will not construct anything on the portion marked with orange coloured and purple coloured slanting lines in the plan Annexure 'A' hereto. However, over the two rooms the Vendors will be free to carry out such construction as the Vendors may desires, after duly indemnifying the Purchaser against any loss, damage etc. that may arise or accrue or caused to the existing building. The Vendors shall not have ay right to use any portion of the rear courtyard for the purpose of obtaining entry to the first floor portion and have agreed to build a new entrance at his own cost opening into the side lane towards the market for the staircase leading to the first floor. The door of the existing staircase opening in the courtyard shall be closed permanently".
28.3 Thus it is clear from the perusal from the aforesaid document that RCKCSS vide sale deed dated 22.12.1981 had been sold the first and second floor of the property no. E-28, New Delhi, South-Extension, Part II Market together with the staircase opening on the side lane as the absolute owner and the user of terrace had also been sold to RCKCSS subject to the right of the Vendor i.e. Guru Sharan to place cooling tower/water tank in a small portion thereof and such interest in the land as would be necessary for ownership and enjoyment of first and second CS No. 7973/16 Page no. 50 of 78 floor was also being transferred. The aforesaid sale deed also further clarified that the purchaser i.e. RCKCSS shall permit the vendors i.e. Guru Sharan to install a water tank on a cooling tower in the portion measuring 457 cms x 282 cms depicted in purple color slanting line in the site plan annexed in the sale deed and it further made it clear that no right of easement/passage was retained or would be claimed through the staircase. On the other hand, careful perusal of Ex. P-2 which is sale deed dated 23.12.1981 between Guru Sharan and Indira Rani (predecessor in rest of the plaintiff) reflects that Guru Sharan sold Indira Rani full absolute and unrestricted right to the portion of the land and building comprising of two room on the ground floor each measuring 9ft. 71/2 inch x 11 ft. x 9 inch together with WC measuring 3.6 inch x 4 ft. and covered courtyard and improvised garage measuring 450 sq. ft. except a porting falling below the staircase measuring 83.6 sq. ft. as an absolute owner and the aforementioned sale deed further made it clear that the purchaser i.e. Indira Rani had the absolute right to use the space opening into the adjoining room and lying below the staircase and further granted the vendors right to construct over and above the two rooms measuring 3 mt. X 3.6 mt, which, however, did not extend to the portion over the covered courtyard and improvised garage measuring 450 sq. ft. It is further stated that the vendor will not put any door or have any access over the first floor portion of the courtyard measuring 450 sq ft. which was the absoulte property of the purchaser i.e. Indira Rani. Further the sale deed provided CS No. 7973/16 Page no. 51 of 78 that Indira Rani would be permitted to install a water tank or a cooling tower, cooler of air-conditioner in the portion measuring 15ft x 9 ft. 3 inch = 138.75 sq ft.
28.4 Therefore, perusal of these two aforementioned sale deeds reflect that while the predecessor in interest of Defendants had been sold the entire first and second floor of the building, the predecessor in interest of the Plaintiff was sold the ground floor. It is pertinent to mention that the sale deed executed in favour of Predecessor in interest of Defendant i.e. Ex. P-3 was one day prior to the sale deed executed in favour of predecessor in interest of Plaintiff i.e. Ex. P-2. Therefore, what portion of property E-28, NDSE Part-II, New Delhi was sold to the predecessor in interest of Defendants could not be sold to the predecessor in interest of the Plaintiff vide a sale deed which was executed one day later i.e. on 23.12.1981 by the same vendor namely Guru Sharan. At this stage, it is relevant to mention that perusal of site plans annexed with both Ex.P-2 and Ex.P-3 reflect that the purple colour slanting lines were en-marked on the first floor of the premises which reflected that only the right to keep water tank/cooler was granted/permitted to the predecessor in interest of Plaintiff was on the first floor of the premises and no portion of first floor was sold to the Predecessor in interest of Plaintiff. It can thus not be implied from careful reading of both the sale deeds Ex. P-2 and Ex. P-3 as a whole, that any portion of the whatsoever on the first floor of the property had been sold to CS No. 7973/16 Page no. 52 of 78 Indira Rani i.e. the predecessor in interest of the plaintiff. It is further a settled position of law that the contents of the sale deed will prevail over a site plan and reliance in this regard is placed on the judgment of R.N Dawar vs. Ganga Saran AIR 1993, wherein it was held by the Hon'ble High Court of Delhi that it was well settled that inasmuch case where map differs, the terms of grant must prevail. The right to property must be expressed in the title and when so expressed will not be limited by the map.
28.5 Furthermore, it is also come on record during trial that Ms. Indra Rani sold her portion in two equal shares to Master Rohan Sharma and Ms. Prakshi Sharma vide sale deeds executed on 28.10.1993 and the relevant portions of these two sale deeds, Ex.P3 and Ex.P4 are reproduced as under:-
"Now therefore the indenture witnesses that the vendor doth hereby grant, convey, transfer, assign and assure unto the said Vendee one half of her rights, title and interest in the said property acquired by her by virtue of the said Sale Deed dated 23.12.1981 being portion of the land and the building at the said E-28, New Delhi, South Extension Part-II, New Delhi consisting of two rooms on the ground floor each measuring 9' 7-1/2" x 11 '9" (3 met. X 3.6 mt.) together with the WC measuring 3 '6" x 4' (1.1 mt x 1.2 mt) and covered courtyard and the improvised garage measuring 450 sq. ft (41.82 sq. mt) together with the rights, title and interest in the freehold land underneath measuring 69.95 sq. mt. (752.64 sq. ft.) but excluding the space falling below the staircase measuring 83.6 sq. ft. (7.77 sq. mt) together with all the rights facilities, privileges, easements, benefits advantages belonging or in any way appertaining to the said property and one half of all the rights, title and interest whatsoever of the vendor into and upon the said property and one half of all the estates, rights, titles and interests whatsoever of the vendor unto and CS No. 7973/16 Page no. 53 of 78 upon the said property with the tenant therein TO HAVE AND TO HOLD the said property described hereinabove and hereby conveyed, transferred, assigned, assured AND every part and parcel thereof together with all its rights and appurtenances unto the Vendee absolutely and forever free from all encumbrances, liabilities, charges, liens, mortgages, injunctions and lis-pendens And that the Vendor doth hereby covenant with the Vendee that the absolute interest which the vendor professes to transfer subsists and that the vendor has good right, full power and absolute authority to grant, convey, transfer, assign and assure the said property hereby granted, conveyed, transferred, assigned and assured AND that it shall be lawful for the Vendee for all the times hereafter to enter into and upon the said property and hold and enjoy the same and every part thereof with every right and appurtenances whatsoever AND to receive the rents, issues and profits thereof without any interruption, disturbances, claim or demand from the Vendor AND that the Vendor shall and will from time to time and at all times hereafter upon every requests and at the cost of the Vendee make, do and execute with all property dispatch all such further and other lawful and reasonable acts, deeds, conveyance, matter and things whatsoever for the further better or more perfectly assuring and said property unto the vendee in the manner aforesaid AND that hereafter if any person in any manner claims any interest or right of ownership or co-ownership in the said property or any part thereof, the Vendor shall indemnify the Vendee AND that all the electricity, maintenance, municipal, water and other charges and outgoings in respect of the said property upto the date of execution of this deed shall be the liability and borne by the Vendor AND that the walls of the two rooms and the staircase in the said property will continue to serve as load bearing walls for the upper storeyes without jeopardizing the existing super structure of the building AND that the Vendee will be free to dig basement but shall not be entitled to do so in a way that causes danger or risk to the rest of the building AND that the Vendee will not use or built any further structure over the existing covered courtyard measuring 752.64 sq. ft. but will be permitted to instal a water tank or a cooling tower, cooler or air conditioner in the portion measuring 15 ft CS No. 7973/16 Page no. 54 of 78 x 9 ft. 3 inch = 138.75 sq. ft. ( 12.89 sq. mt.) over the roof of the covered set back."
28.6. It is pertinent to mention that Rohan Sharma and Prakshi Sharma were the predecessor in interest of the Plaintiff and had been sold one half undivided share each of two rooms on ground floor measuring 9 ft 7.5 in. x 11 ft. 9 in. together with WC measuring 3ft 6 inch x 4 ft., and covered courtyard and improvised garage measuring 450 sq. ft., together with a right, title and interest in the free hold land underneath measuring 69.95 sq. mt., but excluding the space falling below the staircase measuring 83.6 sq. ft. Therefore, perusal of the aforesaid two sale deeds Ex.P3 and P4 reflect that Ms. Indira Rani had sold to them together the same description of property as had been purchased by her vide sale deed dated 23.12.1981 Ex.P2.
28.7. Thereafter, it has come on record during trial that Prakshi Sharma and Rohan Sharma executed two sale deeds in favour of M/s. JR Modi Finance Private Limited on 24.12.2003 and 30.01.2004 Ex.P5 and Ex. P6 respectively and the relevant clauses/recitals in these sale deeds are reiterated below:-
"AND whereas after the purchase of the said dwelling unit on Ground Floor, the said Rohan Sharma and Prakashi Sharma re-constructed the dwelling unit on Ground Floor and made the Lower Ground/Basement on the said plot of land.
AND WHEREAS the VENDOR has agreed to sell, convey transfer and assign to the VENDEE and the VENDEE has agreed to purchase the 1/2 (one half) undivided share in the Shop on Lower Ground Floor/Basement and Ground Floor of the said property, CS No. 7973/16 Page no. 55 of 78 having an total area 1500 square feet (being equivalent to 1/2 of 1500 square feet i.e. 750 square feet), along with 15% undivided, indivisible and impartible ownership rights in the freehold land underneath measuring 209 square meter (i.e. 250 square yards), bearing no. 28 (shop), in Block E, situated at New Delhi South Extension Part-II, (Market), New Delhi, with all rights, title and interest, easements, privileges and appurtenances thereto, with all fittings fixtures, electricity and water connection, structure standing thereon, with all rights in common driveway, entrances, passages, staircase, and other common facilities and amenities provided therein, hereinafter referred to as "
THE SAID SHARE OF THE SAID PORTION OF THE SAID PROPERTY" for a total sale consideration of Rs. 10,00,000/-(Rupees Ten Laks only).
1. That in consideration of the sum of Rs.
10,00,000/-(Rupees Ten Laks only) which has already been received by the VENDOR from the VENDEE, vide cheque no. 647828 dated 18.12.2003, drawn on Oriental Bank of Commerce, Hauz Khas, New Delhi, the receipt of which the VENDOR hereby admits and acknowledges, in full and final sell, transfer and assign all her rights, titles and interests in the said share of the said portion of the said property, fully described above, together with 15% undivided indivisible and impartible ownership rights in the freehold land underneath the said building to the VENDEE, on the terms and conditions herein contained provided that nothing herein stated shall confer or deemed to have conferred upon the VENDEE exclusively any right or title to the common driveway passages, staircase, overhead water tanks, sewers, water meters and other common facilities to the exclusion of the VENDOR and or the VENDEE or owners or occupants of the other units of the said building.
3. That the VENDOR admits that she has been left with no right, title, interest, claim or lien of any nature whatsoever in the said share of the said portion of the said property, hereby sold, and the same has become the absolute property of the VENDEE, with the right to use, enjoy, sell, gift, mortgage, lease and transfer the same by whatever mean it likes, without any demand, objection, claim or interruption by the VENDOR or any person(s) claiming under or in trust for her.
CS No. 7973/16 Page no. 56 of 78
9 that the VENDEE shall have full right of access
through staircase to the top terrace at all reasonable times to get the overhead tank repaired/cleaned etc. and to install T.V Antenna. However, the VENDEE shall have full right to get installed to install a water tank, cooling tower, cooler or air-conditioner on area of 15 feet x 9 feet 3 inch = 138.75 square feet (i.e. 12.89 square meter) over the roof/terrace of the covered set back.
28.8. Perusal of the aforesaid two sale deeds Ex.P3 and Ex.P4 reflect that the description of the property transferred by Rohan Sharma and Prakashi Sharma to M/s. JR Modi Finance Limited under went a change and the sale deeds further categorically mentioned reconstruction of the dwelling unit on the ground floor and the construction of basement on the plot of land and the total area of the lower ground floor/basement and ground floor was stated to be 1500 square feet (having equal area of 750 square feet each). Further, the right to install water tanks/cooling tower and TV antenna was now stated to be installed at top terrace with the purchaser having full right to access through staircase the top terrace at all reasonable times to get overhead tank repaired/ cleaned etc., and to install TV antenna along with the right to install a water tank/cooling tower on area 15 feet x 9 feet 3 inch over the roof/terrace of the covered set back. These sale deeds therefore, mentioned about the covered set back as well as top terrace and basement which are not a part of the description of property of the earlier sale deeds as discussed in preceding paragraphs.
CS No. 7973/16 Page no. 57 of 78 28.9. It is seen as per record that thereafter, M/s. JR Modi Finance Private Limited transferred his share in property bearing no. E-28, NDSE-II vide sale deed Ex.P7 dated 27.09.2004 to the Plaintiff herein Ms. Renu Singh. The recitals/clauses of this sale deed in favour of the Plaintiff with respect to her rights, title and interest are reiterated for the sake of gravity:-
"AND WHEREAS after the purchase of the said dwelling unit on Ground Floor, the said Rohan Sharma and Prakashi Sharma, re-constructed the dwelling unit on Ground Floor and made the Lower Ground/Basement on the said plot of land.
Thus in the manner aforesaid, the VENDOR herein, became the sole absolute and exclusive owner of Shop on Lower Ground Floor/Basement and Ground Floor of the said property having a total area 1500 square feet, alongwith 30% undivided, indivisible and impartible ownership rights in the freehold land underneath measuring 209 square meters (i.e. 250 square yards) bearing no. 28 (shop), in Block E, situated at New Delhi, South Extension Part-II, (Market), New Delhi, which is self acquired portion of the VENDOR and the VENDOR has full right, absolute authority to sell, dispose off and transfer the aforesaid portions in whole or in parts and none else except the VENDOR has any right, title or interest in the same.
AND WHEREAS the VENDOR has agreed to sell, convey, transfer and assign to the VENDEE and the VENDEE has agreed to purchase the aforesaid shop on Lower Ground Floor/Basement and Ground Floor of the said property, having an total area 1500 square feet, alongwith 30% undivided, indivisible and impartible ownership rights in the freehold land underneath measuring 209 square meters (i.e. 250 square yards) bearing no 28 (shop), in Block E, situated at New Delhi, South Extension Part-II, (Market) New Delhi with all rights, title and interest, easements, privileges and appurtenances thereto, with all fittings, fixtures electricity and water connection, structure standing thereon, with all rights in common driveway, entrances, passages, staircase and other common facilities and amenities provided therein, hereinafter referred to as "THE SAID PORTIONS OF CS No. 7973/16 Page no. 58 of 78 THE SAID PROPERTY" for a total sale consideration of Rs. 35,00,000/- (Rupees Thirty Five Lacs Only).
1.That in consideration of the sum of Rs.
35,00,000(Rupees Thirty Five Lacs Only) which has already been received by the VENDOR from the VENDEE, vide cheque No. 110717, dated 27.09.2004, drawn on United Bank of India, Kamla Nagar, Delhi, the receipt of which the VENDOR hereby admits and acknowledges, in full and final settlement, the VENDOR doth hereby agree to grant, convey, sell, transfer and assign all its rights, titles and interests in the said portions of the said property, fully described above, together with 30% undivided indivisible and impartible ownership rights in the freehold land underneath the said building to the VENDEE, on the terms and conditions herein contained provided that nothing herein stated shall, confer or deemed to have conferred upon the VENDEE exclusively any right or title to the common driveway passages, staircase, overhead water tanks, sewers, water meters and other common facilities to the exclusion of the VENDOR and or the VENDEE or owners or occupants of the other units of the said building.
2.That the actual physical vacant possession of the said portions of the said property has been delivered by the VENDOR to the VENDEE, who has assumed its possession and is now the lawful owner of the same.
9.That the VENDEE shall have full right of access through staircase to the top terrace at all reasonable times to get the overhead tank repaired/cleaned etc., and to install T.V. Antenna. However, the VENDEE shall have full right to get installed a water tank, cooling tower, cooler or air conditioner on area of 30 feet x 18 feet 6 inch 277.5 square feet (i.e. 25.78 square meter) over the roof/terrace of the covered set back.
28.10. The description of property transferred to Renu Singh/ Plaintiff herein vide sale deed dated 27.09.2004 Ex.P7 has a similar description as of the sale deeds executed in favour of M/s.
CS No. 7973/16 Page no. 59 of 78 JR Modi Finance Private Limited. It is a settled position of law that a person cannot transfer a better title then what has been acquired by him. Reliance is also placed in this context on the judgment of Puran Chand & Co vs. Ganesh Lal Tara Chand & ors AIR 1988 Delhi 1 by Hon'ble Delhi High Court, wherein it was held that the general rule is that a person cannot transfer or otherwise confer a better tile on another than he himsef has. Therefore, Renu Singh, the Plaintiff herein was transferred those rights, title and interests as had been acquired by M/s. JR Modi Finance Private Limited by way of her sale deed Ex. P7.
28.11. The Defendants have placed on record during trial the sale deeds dated 03.04.2006 between RCKCSS and in favour of the Defendants herein are Ex.D1 & Ex.D2 and the relevant recitals regarding the description of property as well as rights and interests are reproduced herein below:-
"And whereas the vendors have agreed to sell, transfer, convey and assign to the Vendee and the Vendee has agreed to purchase the entire first floor of the said property, alongwith proportions undivided, indivisible and impartible ownership rights in the said plot of land measuring 250 sq. Yds. , bearing no. E-28, situated at New Delhi South Extension Part-II (market), privileges, easements and appurtenances, with all fittings, fixtures, connections, structure standing thereon, with all rights in common passage, staircase, entrance and all other common facilities and amenities as are provided in the said building, hereinafter referred to as 'The Said Portion of the Said Property' for a total consideration of Rs. 1,08,00,000/- (Rs. One Crore Eight Lacs only).
"And whereas the vendors have agreed to sell, transfer, convey and assign to the Vendee and the Vendees have CS No. 7973/16 Page no. 60 of 78 agreed to purchase the entire second floor and entire terrace over and above the entire second floor of the said property(with right to construct and own any areas/floor on the said terrace and subsequent terrace thereupon and there above, upto the limits of sky), alongwith proportions undivided, indivisible and impartible ownership rights in the said plot of land measuring 250 sq. Yds. , bearing no. E-28, situated at New Delhi South Extension Part-II (market), New Delhi with all rights of ownership, possession, privileges, easements and appurtenances, with all fittings, fixtures, connections, structure standing thereon, with all rights in common passage, staircase, entrance and all other common facilities and amenities as are provided in the said building, hereinafter referred to as 'The Said Portion of the Said Property' for a total consideration of Rs. 90,00,000/- (Rs. Ninety Lacs only).
28.12 Furthermore, perusal of the aforesaid sale deeds reflects that the chain of predecessor in interest of the Defendants along with the area sold to the Defendant have been categorically described in the aforesaid sale deed and these sale deeds further reflects that the Defendant had been sold and transferred entire first floor and second floor and terrace of property bearing no. E- 28, NDSE-II, New Delhi, with rights to construct any area/floors on the said terrace and subsequent terraces thereon and thereabove upto the limits of the sky. It would be pertinent to mention that these documents had been admitted by the Plaintiff during trial and have not been disputed.
28.13 Therefore, perusal of all the aforesaid sale deeds reflect that the description of property underwent a change after 1993 both qua the portion of property which were sold to the Plaintiff CS No. 7973/16 Page no. 61 of 78 and to the Defendants respectively. It is also an admitted fact that none of these sale deeds qua which the rights and interest had been transferred to the Plaintiff and the Defendants have been disputed and denied by any of the parties interse each other in the present suit. In this context, the Defendants have relied upon the Memorandum of Understanding (MOU) dated 10.12.1993, Ex.DW-3/1 to explain the construction of basement and the construction of covered portion of the setback of 450 square feet in the property after 10.12.1993. The Plaintiff has vehemently challenged the validity of this MOU on the ground that the same does not find any mention in the subsequent sale deed, apart from being forged and having no sanctity in the eyes of law. It is pertinent to mention that the same has been executed by the mother of Rohan and Prakashi Sharma on their behalf, since they were minors. The original MOU is on record, although, the same has been disputed and denied by the Plaintiff. Perusal of the same reflects that it has been executed on 10.12.1993 between M/s. RCKCSS and Rohan and Prakashi Sharma, through their mother Ms. Sunita Sharma being their natural guardian wherein it was agreed that RCKCSS who is the predecessor in interest of the Defendants was the owner and in possession of the entire first floor and second floor together with staircase opening from the side line and also the terrace on the back and basement right under the staircase area in the land underneath measuring 250 square yards and Rohan and Prakashi Sharma being owners and in possession of two rooms on the ground floor each CS No. 7973/16 Page no. 62 of 78 admeasuring 9 feet x 7 feet 5 inch together with WC and covered rear courtyard and improvised garage admeasuring 450 square feet except portion falling below the staircase measuring 83.6 square feet with right to dig basement underneath and that Rohan and Prakashi Sharma desired to renovate their portion and the parties therefore reached to an understanding whereby they agreed to do addition and alteration above the said portion and all the costs and expenses so incurred to be reimbursed by RCKCSS to Rohan and Prakashi Sharma on no profit no loss basis and it was further agreed that Rohan and Prakashi Sharma shall construct the second floor over the rear courtyard and also over the two rooms on the ground floor and covered rear courtyard and improvised garage measuring 450 square feet and also basement underneath and other works and raise other such constructions on the above said construction as was mutually agreed. This MOU further allocated the parties .i.e. RCKCSS and Rohan and Prakshi Sharma the following share as per the sale deeds respectively:-
First Party: Entire first floor, entire second floor of the said property including above the rear courtyard each floor measuring 30' x 75', together with Terrace Rights above the Second floor of the area above Rear Courtyard measuring 450 Sq. Ft. And also basement underneath the stair case area measuring 83.6 Sq. Ft.
Second Party: Rear portion of ground floor measuring about 226 Sq. Ft. Together with W.C. (measuring 3'-6' x 4') and covered rear courtyard measuring 450 Sq. Ft. And also basement underneath the above portion of ground floor, (except portion of stair case measuring 83.6 Sq. Ft. On ground floor and basement).
CS No. 7973/16 Page no. 63 of 78 28.14. In order to prove the MOU Ex.DW-3/1, the Defendants examined DW-2 KP Malhotra, who is one of the attesting witnesses to the aforesaid MOU. Mr. K.P Malhotra, stated during his cross-examination that apart from him Rakesh Sharma and Rajiv Rastogi were also present at the time of execution of the aforesaid MOU. Similarly, the father of Rohan and Prakashi Sharma examined himself as DW-3 and stated that the MOU was signed by his wife Sunita Sharma at his instance and Ravish Rastogi and Rakesh Sharma were present at the time of execution and that he had not seen the document after its execution. He stated that the said document was not registered and that the payment of construction would have to be borne by the parties individually. The Defendant on the other hand in his cross-
examination stated that R.K Sharma, his wife, Viresh Rastogi, Capt. K.P Malhotra were present when MOU was signed. Perusal of the relevant clauses of this MOU reflect that the parties namely RCKCSS and Rohan and Prakashi Sharma being owners of their respective shares in E-28, New Delhi, South Extension, had agreed to do alteration and additions in the property of their respective shares. However, this document did not create or transfer any right, title or interest in the property of either of the party beyond what had been sold to them through their respective sale deeds. Perusal of the MOU, Ex.DW-3/1, reflects that there was also no exchange of any consideration by way of this MOU and only the cost of construction was borne by each party CS No. 7973/16 Page no. 64 of 78 individually of their respective share. Therefore, the contention of Ld. Counsel for Plaintiff that the MOU was invalid document has no substance and in fact, the subsequent sale deeds only corroborate the construction as agreed by the predecessor in interest of both the parties by way of this MOU Ex.DW-3/1. In fact, father of Rohan and Prakashi Sharma, who has been examined as DW-3 has not challenged or denied the existence of this MOU and has in fact deposed that the same was executed at his behest by his wife Ms. Sunita Sharma for and on behalf of their minor children Rohan and Prakashi Sharma, who were the owners and the predecessor in interest of Plaintiff. In view of the aforesaid, it can be said that the construction of basement which is now a part of the property owned by the Plaintiff herein was done pursuant to the MOU, Ex.DW-3/1 and perusal of the sale deeds of M/s. JR Modi Finance Limited and the Plaintiff herein confirms that they were also transferred apart from ground floor, the rights/ title and interest in basement also.
28.15 With respect of the next contention of the Ld. Counsel for the Plaintiff that since the MOU was unregistered, the same was invalid as per law, it is pertinent to mention that as already discussed, this MOU was a joint agreement and understanding between RCKCSS and Rohan and Prakashi Sharma for addition and alteration of their respective portion of property and it did not confer any additional right, title or interest to any party thereto. Therefore, merely because the same was unregistered CS No. 7973/16 Page no. 65 of 78 would not invalidate this document as there is specific mention of additional construction in subsequent sale deeds of the Predecessor's in interest of both the parties after 1993 which reflect the intention that the parties to the MOU i.e. RCKCSS and Rohan and Prakashi Sharma had a consensus ad idem in respect of additional alterations/additional construction including that of the basement, which was purchased by the Plaintiff herein along with the ground floor, which included the covered portion of the set back of the 450 square feet.
28.16 The counsel for the Plaintiff has contended that the water- tanks were lying on the first floor portion of the property and which was also confirmed by the report of the LC and the water tanks of the Plaintiff had been illegally shifted from the first floor portion to the top floor. It is further the contention of Ld. Counsel for Plaintiff that the existence of the roof on the first floor was never disputed by the Plaintiff but the Plaintiff had grievance and objection to the construction being carried out by the Defendant on the 450 square feet portion of the first floor, which was also confirmed by the report of the local commissioner.
28.17 At this stage, it is pertinent to note that a Local Commissioner was appointed by the Hon'ble High Court of Delhi, who filed is report dated 17.08.2008. As per the report of the Local Commissioner, the new wall has been raised and the door had been affixed at the entry leading to the stairs and both CS No. 7973/16 Page no. 66 of 78 the parties agreed that they were old stairs which lead to the first floor. With respect to the first floor portion, Local Commissioner has reported that there were four tanks on the first floor and there were three girders on the first floor 450 square feet area and there was a new girder next to the new girder. It further stated that there was a rear wall towards the side road which was wet and newly plastered and it could not be said, whether the said wall was new or old as there was wet plastered. It was further stated that slab of roof/ceiling of the first floor is of RCC construction and there was no wall between the disputed 450 square feet and rest of the floor. On the second floor, it was stated that there were three new girders on the 450 square feet ceiling on the second floor and the ceiling of a new RCC construction and there was no scaffolding material on the disputed 450 square feet area on the second floor and the walls appeared to be newly constructed and the plaster was wet. It was further stated that there was no stairs leading to the terrace of the second floor and there was no access to third floor/terrace from the old stairs leading to 450 square feet area. It was further mentioned in the report that there was a newly constructed staircase from the ground floor leading to first, second floor and terrace and the new staircase were not meant for the 450 square feet disputed area. With respect to the terrace it was stated that new walls had been raised on the terrace on the side lane and E-29 and rear wall was incomplete and under construction. It was further stated that first floor wall was newly constructed and the bricks and plaster appeared new, however, CS No. 7973/16 Page no. 67 of 78 the projection of the first floor ceiling appeared to be an old construction.
28.18 Perusal of the report of the Local Commissioner and the photographs annexed with reflects that the first floor over the contentious portion of 450 square at the rear of the property already existed at the time of filing of the suit. As discussed the report of the Local Commissioner confirmed the existence of the first floor as well as of a second floor above the 450 square feet, though, it stated that there was a new RCC structure on the second floor and the terrace above the second floor. In this regard and to corroborate the existence of first floor the Defendant has also examined DW-6 Rakesh Kumar, Zonal Inspector of MCD and DW-7 Jawahar Khan LDC office of Building Department, Central Zone, Lajpat Nagar while DW-6 got the assessment order dated 08.02.1999 for the year 1995-1996 along with notice under Section 126 of the DMC Act and record of house tax pertaining to property no. E-28, Defendant No. 7 produced the application dated 30.03.2000 for regularization of construction along with annexures Ex.DW-7/1. These witnesses produced the record which prima facie confirmed the presence of the entire first floor and second floor being covered before the purchase of property by both the Plaintiff and the Defendants herein. Admittedly, the application for regularization Ex.DW-7/1 which had been moved by RCKCSS was dismissed as per the testimony of DW-7, it however, corroborates the claim of the Defendant that the CS No. 7973/16 Page no. 68 of 78 additional construction and alterations were carried out by the predecessor in interest of both the parties in the suit and the first and second floor on the property were already constructed, when the Plaintiff and Defendant's herein purchased their respective portions of property.
28.19 With respect to the contention of the Plaintiff, wherein reliance is placed on water bills Ex.PW-2/1(colly) issued in the name of Ramdev being addressed to the first floor of the property ti show that Plaintiff was the owner of the first floor/ dispute portion, it is seen that the sale deeds of Indra Rani, who was the predecessor in interest of the Plaintiff and is stated to be the wife of Ramdev will not have much bearing on the merits of the present case, since the issuing of water bills in favour of Ramdev would not prove the contention that the predecessor in interest of the Plaintiff was the owner of the first floor as perusal of the water bills Ex.PW-2/1 specifically states Dr. Ram Dev to be a tenant and not the owner. Be that as it may, the Plaintiff has not examined the aforesaid person as a witness during trial to prove or corroborate his assertion.
28.20 Significantly, the Learned Counsel for the Plaintiff had admitted before the Hon'ble High Court of Delhi vide proceedings dated 13.10.2009 that the first floor over the said portion i.e. 450 square of the rear of the property had already been constructed and the same has been recorded by the Hon'ble CS No. 7973/16 Page no. 69 of 78 High Court of Delhi in paragraph No. 5 of order dated 13.10.2009. Thus, the Plaintiff herein seems to be blowing hot and cold at the same time in the present suit. While during her cross-examination PW-1/Plaintiff has admitted to the construction of basement and covered area of set back on the ground floor, she is disputing the construction on the first and second floor of the property. Further, the entire plaint is silent as to the construction of basement and the covered set back on the ground floor. Also, it is seen that initially while only a relief of permanent and mandatory injunction was sought by the Plaintiff herein, the Plaintiff thereafter to preferred to amend the suit further seeking relief of possession, injunction and mesne profit.
28.21 Furthermore, as already discussed above the Defendants has been sold the entire first and second floor along with terrace of the property vide sale deed dated 03.04.2006, hence the question of Plaintiff being entitled to possession of any portion of the 450 square feet area of rear side of the property is untenable and the claim of the Plaintiff in that regard was without any basis, unwarranted and baseless. Furthermore, the issue of mesne profit, if any, is also decided against the Plaintiff in view of the fact that in the considered opinion of the court, the Defendant was the owner of the entire first and second floor of the property including the disputed portion of 450 square feet on the rear side. Therefore, in view of the evidence brought on record by the parties and on the basis of the observations made above, the CS No. 7973/16 Page no. 70 of 78 Plaintiff is not entitled to any right to restrain construction on an area ad-measuring 450 square feet on the rear side of the property No. E-28, South Extension-II, New Delhi, above the level of ground floor as well as not entitled to any order of demolition of the construction on the aforesaid portion. The Plaintiff is also not entitled to relief of possession of any portion of the property or any mense profit. These issues are accordingly decided against the Plaintiff.
29. Issue No. 3 -Whether the claim of the Plaintiff for demolition of construction above the ground floor was barred by time. OPD?
The onus to prove this was on the Defendant.
It has been vehemently contended by the Ld. Counsel for Defendant that since the construction on the property was carried out pursuant to the MOU dated 10.12.1993 Ex.DW-3/1 and the first floor was fully constructed prior to purchase of the portion of property of both the Plaintiff and the Defendants respectively, the present suit was barred by limitation. The Plaintiff had filed the suit initially on 17.10.2008 and thereafter by way of amended plaint had sought relief of possession of the dispute portions/declaration to be in possession of the 450 square feet area at the rear end of the first floor along with the peaceful and vacant possession and mesne profit along with the permanent injunction seeking restrain of Defendants from damaging, demolition or altering the staircase situated at the side lane and CS No. 7973/16 Page no. 71 of 78 connecting the ground floor to the first floor of the property along with a right of ingress and egress qua the portion of 450 square feet area at the rear portion of the first floor. As already observed earlier, the disputed portion of 450 sq. feet was already constructed and was in existence, even when the Plaintiff herein purchased the property vide sale deed dated 27.09.2004 Ex. P7. The construction which is being sought to be demolished by way of the present suit of 450 square feet above the rear portion of the first floor was evidently in existence along with the basement which is owned by the Plaintiff herein, after 10.12.1993. The Plaintiff came into possession of her portion in 2004 after the execution of the Sale Deed Ex.P7. The Plaintiff did not take any action despite being aware about the said construction and in fact has been enjoying basement rights which was also construction pursuant to MOU Ex.DW-3/1. It hard to imagine that the Plaintiff was not aware about the construction in the said property when she herself was purchasing the basement constructed in terms of MOU and the recitals/clauses of the sale deed Ex.P7 dated 27.09.2004 also reiterate the factum of additional constructions/alteration. Reliance in this context is placed on the judgment of Faqir Chand (Through LRs) Vs. Laila Ram(Through LRs), AIR 1994 Delhi 161, to observe that in the present case, since the construction was stated to be completed after the execution of MOU dated 10.12.1993 Ex.DW-3/1, much prior to the property being purchased by the Plaintiff herein and therefore, the limitation was three years from when the CS No. 7973/16 Page no. 72 of 78 construction was completed for seeking the relief of mandatory injunction. Accordingly, the claim of the Plaintiff for demolishing of construction is found to be hopelessly barred by time. This issue is decided in favour of the Defendant.
30. Issue No. 6 - Whether the Plaintiff has any right to install water tank or cooling tower or air conditioner at any portion on the first floor above the rear portion of any property, or whether the said right, if any, of the Plaintiff is satisfied with the installation of water tanks on the top terrace of the property?OPP.
The onus to prove this issue was on the Plaintiff. As already discussed above, the Plaintiff while purchasing her portion of the property vide sale deed Ex.PW-1/7 had acquired right, title and interest on the ground floor and the lower ground floor/basement with the right to install a water tank or a cooling tower or an air conditioner over the top terrace. As already discussed earlier, the subsequent sale deeds after the Sharma's of both the predecessor of interest of Plaintiff and Defendant as well as in the sale deeds of Plaintiff and the Defendant reflect a change in language and more specifically there is a change in the description of place with reference of place to keep the water tank being installed on the first floor shifted to that of top terrace. Thus, the Plaintiff had acquired her right, title or interest by way of the sale deed Ex.PW-1/7 which is the basis of her claiming ownership and rights on the ground floor and the basement, gives her a right to install a water tank or CS No. 7973/16 Page no. 73 of 78 cooling tower or air conditioner on the top terrace. Therefore, the claim of the Plaintiff that the same would be installed on the first floor rear side portion of 450 square feet is devoid of merits as admittedly the property is a two and a half storey building with a open terrace above the second floor. The Plaintiff has in view of the aforesaid facts and observation failed to discharge the onus and to show her entitlement to keep water tank on the first floor rear portion. Accordingly, this issue is also decided against the Plaintiff.
31. Issue No. 7 - Whether any MOU dated 10th December 1993 was executed and if so, validly for and/or on behalf of the then owners of the property and if so, to what effect thereof?OPD The onus to prove this issue was on the Defendant and the Defendant have examined DW-2 Capt. K.P Malhotra, DW-3 Rakesh Sharma and DW- 4 Rohan Sharma to prove the execution and validity of the MOU, Ex.DW-3/1 dated 10.12.1993. As already discussed above, this MOU was executed between RCKCSS and Master Rohan and Ms. Prakashi Sharma being the owners of their respective portions of their property and thereafter constructions was carried out including alterations by the aforesaid parties pursuant to the mutually accepted agreement i.e. MOU. It has also been discussed earlier that there was no exchange of any consideration and each party had paid the actual amount of cost of construction qua their respective shares. It is further pertinent to mention that in the subsequent sale deeds CS No. 7973/16 Page no. 74 of 78 there is a clear mention of additional construction in the covenants and recitals along with a change in the description in the property. The original MOU, Ex.DW-3/1 has been proved on record during trial by the Defendants. Therefore, the non registration of the MOU as contended by the Ld. Counsel for Plaintiff would not have much bearing on the validity of the MOU as the same is being used only for collateral purpose and inference regarding execution of MOU can be made out even from the bare reading of subsequent sale deeds of the property executed after 1993 including that of the Plaintiff and the Defendant. The Defendant has been able to discharge the onus and accordingly, the MOU is held to be executed validly by the owners i.e. the predecessors in interest of both the Plaintiff and Defendant. Therefore, this issue is decided in favour of the Defendant.
32. Issue No. 8 - Whether the suit is not correctly valued for the purpose of court fee and jurisdiction, if so, to what effect? OPD.
The onus to prove this issue was on the Defendant. Though, the Defendant has claimed that the market value of the property of 450 sq. feet on the rear side portion/ disputed portion on the first floor of the property is above 35 lakhs, which is the value averred by the Plaintiff but no evidence, or proof has been lead in this regard by the Defendant during trial. Merely claiming that the market value of the portion is above Rs. 35 lacs without CS No. 7973/16 Page no. 75 of 78 any corroborative proof does not establish/prove the claim of the Defendant in any manner. It is further pertinent to mention that the suit was filed before the Hon'ble High Court of Delhi in 2008 and was thereafter transferred to this Court on 01.03.2016. In the absence of any evidence being lead on record by the Defendant about the exact valuation of suit or in any other manner it cannot be said that the suit has been incorrectly valued by the Plaintiff. Accordingly, this issue is decided against the Defendant.
33. Two additional issues were framed by the Hon'ble High Court of Delhi vide order dated 05.11.2009, firstly, whether the Defendant had right to demolition the staircase on the rear portion of the property and secondly, if the Defendant had such right, after the demolition of the staircase, whether they have any right to use the area in question on the ground floor.
33.1 By way of the sale deeds of the Defendant Ex.DW-1/9 and Ex.DW-1/10, the Defendants has purchased the entire first, second floors and terrace of the suit property along with all rights in common passage, staircase, entrance, and all other common facilities and amenities provided in the building. The Plaintiff had purchased the ground floor portion as well as the basement vide sale deed Ex.P7. In the plaint it has been stated that the staircase on the ground floor leading to the first floor and second floor was the only staircase in the entire premise which connected the entire building and it was a common staircase, which the Plaintiff has a right to use without any hindrance in the CS No. 7973/16 Page no. 76 of 78 sale deed. It is further averred that the Plaintiff had been using the space underneath the staircase for keeping its goods and equipments and the Defendants should not be permitted to demolish the staircase as the Plaintiff has right to access its own portion of the first floor. The Defendants on the other hand, denied that the staircase was the common one and added that Plaintiff only had access to use the same for accessing the water tanks on terrace. It is further the case of the Defendants that the Defendant had made a separate staircase from the front of the building which would give access to Plaintiff to her water tanks at the terrace. The Defendants claimed ownership of this staircase in their Written Statement. During cross-examination, the Plaintiff/PW denied the suggestion that as per the sale deed executed in her favour, the area under the staircase could only be used for the purpose of WC and could not be retained by her exclusively. She further stated that she had bought the 750 square feet from the erstwhile owner, which included the space under the staircase. PW-2 stated that he could not tell that upto which floors was the staircase leading to. The Defendant as DW-1 as during his cross-examination deposed that in the year 2008 that he got more girders put on the first floor as well as got a new staircase constructed from the front of the building. He stated that the size of the first and second floor existing as of today was 2250 square feet including the staircase.
34. Perusal of the record further reflects that the disputed CS No. 7973/16 Page no. 77 of 78 staircase is a part and parcel of the property bearing no. E-28, South Extension-II, New Delhi and is one of the common area therein. Accordingly, the Defendant does not have right to demolish the staircase, since the staircase was in existence even at the time of purchase of property by both the Plaintiff and Defendants herein. These issues are accordingly decided.
35. In view of the aforesaid facts and discussions, these issues are accordingly decided.
Relief
36. From the discussions, as adumbrated hereinabove, in final analysis the Plaintiff has failed to prove her claim and her entitlement to the 450 square feet area on the rear portion of the property bearing no. E-28, NSDE-II, New Delhi. The suit is accordingly, dismissed. Parties to bear their cost. Decree-sheet be prepared accordingly.
File be consigned to record room.
Announced in the Open Court on 08.08.2022 (Gurmohina Kaur) Additional District Judge South District: Saket Courts New Delhi CS No. 7973/16 Page no. 78 of 78