Allahabad High Court
Suresh Khiyani vs Jassi Apartment Welfare Society on 12 June, 2020
Equivalent citations: AIR 2020 ALLAHABAD 176, AIRONLINE 2020 ALL 1159
Author: Vivek Kumar Birla
Bench: Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD RESERVED AFR Court No. - 46 Case :- SECOND APPEAL No. - 156 of 2020 Appellant :- Suresh Khiyani Respondent :- Jassi Apartment Welfare Society Counsel for Appellant :- Gulrez Khan,Adil Jamal Counsel for Respondent :- Ashish Kumar Srivastava Hon'ble Vivek Kumar Birla,J.
1. Heard learned counsel for the appellant and Sri Ashish Kumar Srivastava, learned counsel for the respondent.
2. Present appeal has been filed for setting aside the judgment and decree dated 4.11.2019 passed by Additional District Judge, Court No. 23, Kanpur Nagar in Civil Appeal No. 33 of 2019 (Jassi Apartments Welfare Society vs. Suresh Khiyani) arising out of O.S. No.1079 of 2011 (Jassi Apartments Welfare Society vs. Suresh Khiyani), which was dismissed by the trial court vide judgment dated 11.02.2019.
3. The plaintiff-respondent filed a suit for permanent prohibitory injunction as well as mandatory injunction for removal of the constructions raised during pendency of the suit. The suit was filed on the ground that Flat No. 102 was purchased by the defendant alongwith common space, which was encroached upon by him alongwith his wife during pendency of the suit on 25.1.2014 and the open common parking area was surrounded by a wall for personal use and illegally encroached upon by his wife Smt. Arti Khiyani and his son Rishi Khiyani. The suit was contested by the defendant and denying the plaint allegations it was pointed out that Flat No. 102 was purchased in the name of Smt. Arti Khiyani through registered sale deed dated 9.12.2010 and as such she is a necessary party to the suit and therefore, the suit is bad for non-joinder of parties. It was alleged that the area in dispute is not a common passage and the same is under the ownership of Smt. Arti Khiyani. The same is not for common use of the residents. The suit was dismissed by the trial court vide judgment dated 11.2.2019 holding that it is not proved from the documentary evidence that it was a common parking place. It was further found that PW-1 and PW-2 through their oral evidence though supported the plaint case, however, their statement does not inspire confidence and on this ground the issue no. 1 as to whether the plaintiff is entitled for mandatory injunction was decided against the plaintiff and ultimately the suit was also dismissed. Issue no. 4 as to whether the court has jurisdiction to hear the suit; issue no. 5 as to whether the suit is barred by Order 7 Rule 11 CPC; and issue no. 6 as to whether the suit is barred by Section 41 of the Specific Relief Act, 1963 were decided against the respondents.
4. The appeal filed by the plaintiff was allowed by the lower appellate court. Two points for determination as per Order 41 Rule 31 CPC were framed by the lower appellate court (1) whether the land in front of Flat No. 102 is a common place open for use of all the flat owners of Jassi Apartment? and (2) whether the suit is barred by any legal infirmity? While deciding first point of determination as to whether the space in front of Flat No. 102 (belonging to the defendant) is a common place open for use of flat owners of Jassi Apartments, upon consideration of the sale deed (Paper No. 20-Ga) it was found that the constructed area of 37.16 sq. mts., which consist of 1 room 1 hall, latrine, bathroom, kitchen was sold to the defendant. An undivided share in the land measuring 24 sq. mts. together parking space was also mentioned in the sale deed and the map. Thus, it was found that the undivided share for common use has not been sold. In the building there are 12 flats. It was admitted by the PW-1 that the outer wall of the building was demolished by the Nagar Nigam and he again raised the wall allegedly on the oral instructions of the Society. He stated that some wall was existing but he had raised the wall in his own area. Thus, points of determination no. 1 was decided against the defendant and in favour of the plaintiff. Insofar as second points for determination as to whether the suit suffers from any legal infirmity it was also noticed that Paper No. 35-Ga is the registration certificate of the society and it was found that although a society was registered during pendency of the suit, however, the suit for injunction can be filed against the person against whom cause of action is existing and therefore, there is no mis-joinder or non-joinder of the parties and the suit does not suffer from any legal infirmity.
5. Challenging the same learned counsel for the appellant-defendant submitted that the suit was not cognizable by the civil court in absence of written complaint to the Board and prior permission of the competent authority in view of Section 25 (3) and (4) of the U.P. Apartment (Promotion of Constructions, Ownership and Maintenance) Act, 2012; suit filed by the unregistered society was not maintainable in view of Section 6 of the Societies Registration Act, 1980; after commencement of the Real Estate (Regulation and Development) Act, 2016 (hereinafter referred to as 'RERA') and in view of Section 43 of the Act of 2016 civil appeal shall not be cognizable by the civil court; the property / place in dispute is in front of Flat No. 102, which belongs to Smt. Arti Khiyani, who has not been impleaded in the suit and thus, the same is bad for non-joinder of necessary parties; and the findings recorded by the lower appellate court are perverse in nature and the same is liable to be set aside. Learned counsel for the appellant has also drawn attention to substantial questions of law framed in the memo of appeal. The same are quoted as under:-
"(i) Whether the suit plaintiff/respondent was cognizable by civil court in absence of any written complaint to the board and without prior permission of the Competent Authority in view section 25(3) & (4) of the U.P. Apartment (Promotion of Construction, Ownership & Maintenance) Act, 2010?
(ii) Whether the suit on behalf of unregistered society was maintainable in view of section 6 of the Society Registration Act, 1980?
(iii) Whether the Civil Appeal pending before the Civil Court after commencement of Real Estate (Regulation and Development) Act, 2016 was cognizable by the Appellate Tribunal in view of section 43 of the Act 2016 and judgment of Appellate court is without jurisdiction?
(iv) Whether the suit of the plaintiff was liable to be dismissed on the ground of non joinder of necessary party Smt. Arti Khiyani who is the owner of Flat No.102?
(v) Whether the documents relied upon by the appellate court were admissible in evidence and conclusive to prove that the disputed place/property is reserved for common and parking area?
(vi) Whether Pw-1 could depose on behalf of Secretary of alleged society in the absence of any registered power of attorney?
(vii) Whether the finding of the appellate court is based on surmises and conjectures?"
6. Per contra, learned counsel for the respondent has submitted that the grievance was against the defendant, who has encroached the open common area and as such the suit was not bad for non-joinder of necessary parties even if the wife of the defendant was the owner of Flat No. 102; provisions of the Acts being relied on by learned counsel for the appellant, are not applicable in the present case; the society was undisputedly registered; further, in a suit for injunction an aggrieved person can file a suit against another person and therefore, the suit was perfectly maintainable and at the time of filing of the suit even if the society is not registered and was registered during pendency of the suit the relief of injunction cannot be refused to the plaintiff on this ground alone; there is no perversity in the findings recorded by the lower appellate court and findings are based on correct appreciation of the documentary evidence on record.
7. I have considered the submissions and have perused the record.
8. On perusal of record I find that the suit has been filed in respect of a common area shown as parking place by dotted line in the plaint map and that the defendant be restrained from encroaching upon any other common area of the apartment campus. The suit was filed in November, 2011. During pendency of the suit this area was encroached upon by raising a permanent wall on 25.1.2014 regarding which even a complaint to the police was also made and therefore, the relief clause was amended and a relief was added by seeking relief in the nature of mandatory injunction regarding removal of the wall constructed during pendency of the suit.
9. Before proceeding further it would be necessary to note the relevant contents of the sale deed dated 10.9.2004 of Flat No. 102 executed in favour of Smt. Arti Khiyani w/o defendant no. 1. Relevant extract of the sale deed is quoted as under:-
".....
AND WHEREAS Smt. Narinder Kaur W/o Balbir Singh and Jasvinder Singh S/o Balbir Singh as a land owner and Trimurti Builders through its proprietor Rajendra Kumar Agarwal S/o lat Devi Dayal Agarwal as a builder jointly sold and transferred Flat No. 192 on Ground Floor having covered area admeasuring 37.16 Sq. constructed at freehold plot No. 179 Block R.N. Ratan Lal Nagar Kanpur Nagar known as 'Jassi Apartment' alongwith undivided share in the land admeasuring 24 Sq. Meters together with parking space on ground floor of the premises alongwith common use of entire facilities and amenities provided in the Apartment by virtue of registered sale deed dated 9.0.2004 ........
.....
1. That in pursuance of the agreement and in consideration of Rs. 7,25,000/- (Seven Lacs twenty five thousand only) paid by the Vendee to the Vendor, as per details given at the foot of this Sale Deed, the receipt of which the Vendor hereby acknowledge and confirm before Sub-Registrar, Kanpur. The Vendor as full and absolute owner and in full possession of his senses, hereby transfer, conveys and sell to the Vendee by way of absolute sale of Flat No. 102 on Ground Floor having covered area admeasuring 37.16 Sq. Meters constructed at freehold plot No. 179 Block R.N. Ratan Lal Nagar Kanpur Nagar known as 'Jassi Apartment' alongwith undivided share in the land admeasuring 24 Sq. Meters together with parking space on ground florr of the premises alongwith common use of entire facilities and amenities provided in the complex fully detailed and bounded given at the top of this Sale Deed and more fully delineated and shown in the map annexed herewith, together with absolute use of common areas and facilities as the foundations, columns, girders, beams, supports, main walls, corridors, lobbies, stairs - stairways and entrance to an exit from the building constructed on the said premises and intended for common use and installation of common services such as power, light, water, sewerage etc., water reservoir, lift pump, motor, pipes, ducts and all apparatus and installation in the said premises existing for common use and the passage etc. shall also be in common use of the flat owners in the premises belonging or in any wise appertaining to or usually held or enjoyed therewith or reported to belong to the flat hereby demised and all the estate, rights, title and interest whatsoever of the Vendor in the said flat and free from all charges and encumbrances TO HOLD the same UNTO and to the use of the Vendee forever and as absolute owner thereof without let or hindrance.
2. That the Vendor has on this day handed over the vacant and physical possession of the said flat to the Vendee. Now the Vendee is full and absolute owner of the said flat with all rights, title absolute and perfect. They are now authorized and empowered to get their name mutated in the records of Nagar Nigal Kanpur etc. as absolute owner and to get the membership of the Flat Owners Association. She has also full right to make any addition, alteration within the walls of the flats without damaging the existing wall, roofs, etc. and to exercise all their rights over the said flat as absolute owner.
.....
9. That the Vendor has handed over the original sale deed document No. 9095 of 2004 to the Vendee. The Vendee has read and understands the contents of the said sale deed and they are fully satisfied with entire contents thereof. All the terms and conditions of the said sale deed shall be applicable on this Sale Deed and the Vendee shall abide by the same henceforth."
(Emphasis Supplied)
10. It is also pertinent to note that the area sold has been clearly mentioned in the map annexed with the sale deed at page 95 of the paper book. This map clearly indicates that the covered area of Flat No. 102 is 37.16 sq. mts. and undivided share in the land is 24 sq. mts. In the map on western side of the flat open space has been clearly shown. This document was not appreciated by the trial court although the defendant himself has place the photocopy of the same as Paper No. 21-Ga/1 to 21-Ga/15. This document which was admittedly filed by the defendant himself, was considered by the lower appellate court while deciding points for determination no. 1, which was framed to the effect that the space in front of Flat No. 102 is a common open space available for use of flat owners of Jassi Apartments.
11. I find that the property purchased by the wife of defendant no. 1 is well defined and leaves no room for doubt that the area in question is an undivided open space for use of all the flat owners. Internal page 6 of the sale deed (Page 86 of the paper book) clearly mentions the covered area 37.16 sq. mts. constructed at freehold plot No. 179 Block R.N. Ratan Lal Nagar Kanpur Nagar known as Jassi Apartment alongwith undivided share in the land admeasuring 24 sq. mts. together with parking space on ground floor of the premises alongwith common use of entire facilities and amenities provided in the apartment by virtue of registered sale deed dated 9.9.2004. In paragraph 2 of internal page 9 of the sale deed (page 89 of the paper book) it has been clearly provided that the flat owners has full right to make any addition, alteration within the walls of the flats without damaging the existing walls, roofs, etc. Thus, it clearly indicates that they are fully aware of the same and are bound by such terms. It is, therefore, clear that the defendant, whose wife was owner of Flat No. 102, who has purchased the flat in the name of his wife, (in other words, his wife is owner of Flat No. 102), is fully aware of the area sold and that the common area is for use of all the flat owners. He is also aware of the fact that the construction or making addition or alteration is permitted only within the walls of the constructed area and not beyond that and that the constructed area is 37.16 sq. mts. only and the undivided share in the land measuring 24 sq. mts., is a common space open for use of all the flat owners.
12. It is pertinent to point out that admittedly, construction in the shape of wall was not raised within the walls of the constructed area measuring 37.16 sq. mts. sold to him or his wife. The allegations of encroachment are against the defendant that he has encroached the open land. A suit for injunction is maintainable against the person, who has raised illegal construction or has shown to have done some unauthorized act or has encroached the open area. Therefore, I find that the objection that the suit was bad for non-joinder is not attracted in the present case. Photocopy of the sale deed was filed by the defendant, which was not disputed by the plaintiff and thus, it was his own document regarding which now he now cannot take u-turn that the same was not admissible as evidence being a photocopy.
13. Insofar as provision of Section 25 (3) and (4) of the U.P. Apartment (Promotion of Constructions, Ownership and Maintenance) Act, 2012 is concerned, suffice to note that the same is in respect of an offence or is criminal in nature and refers to the offence that may have been committed by a person. It is a civil suit for injunction regarding encroachment on common open area. The criminal aspect of any act of a person is a different aspect and for this reason alone it cannot be said that the suit for injunction was not cognizable by the civil court against the private individual, who, according to him, was not the owner of the flat.
14. It is not in dispute that the society was registered during pendency of the suit. Even otherwise, at the instance of the appellant no issue was framed on this ground and even in appeal the same was not raised or insisted upon for framing of points of determination. Therefore, the same cannot be agitated now. Even otherwise, I do not find that this question is a substantial question of law, which is attracted or is required to be answered or requires a decision of this Court in the present appeal, when as per his own document, the defendant was not the owner of the space / property in dispute and has encroached upon the common area open for use of the flat owners of the society, which was ultimately registered during pendency of the suit and defect, if there was any, was removed during pendency of the suit.
15. Insofar as Section 43 of RERA, 2016, which came into force during pendency of the suit is concerned, suffice to note that the order was not passed by the RERA authority under the Act and therefore, the aforesaid provision of the Act is not attracted in the present case, which has arisen out of the suit for injunction instituted in a civil court. Even otherwise, all such grounds were not taken before the trial court or the lower appellate court and I am not inclined to entertain the same.
16. The law is settled that the plaintiff is 'dominus litis' and therefore, it is his discretion to add a party to implead any person. In case no relief is being claimed against any person, he is the best Judge to see against whom he is claiming relief and he cannot be pressed to add party against whom he does not want to fight unless it is the compulsion of the rule of law. In other words, he may choose the persons against whom he wishes to litigate.
17. A reference may be made to judgment of Hon'ble Supreme Court in Mumbai International Airport Private Limited vs. Regency Convention Centre and Hotels Private Limited and others 2010 (7) SCC 417, paragraphs 13 to 15 whereof are quoted as under:-
"13. The general rule in regard to impleadment of parties is that the plaintiff in a suit, being dominus litis, may choose the persons against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief. Consequently, a person who is not a party has no right to be impleaded against the wishes of the plaintiff. But this general rule is subject to the provisions of Order I Rule 10(2) of Code of Civil Procedure (`Code' for short), which provides for impleadment of proper or necessary parties. The said sub-rule is extracted below:
"10 (2) Court may strike out or add parties.- The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added."
14. The said provision makes it clear that a court may, at any stage of the proceedings (including suits for specific performance), either upon or even without any application, and on such terms as may appear to it to be just, direct that any of the following persons may be added as a party: (a) any person who ought to have been joined as plaintiff or defendant, but not added; or (b) any person whose presence before the court may be necessary in order to enable the court to effectively and completely adjudicate upon and settle the question involved in the suit. In short, the court is given the discretion to add as a party, any person who is found to be a necessary party or proper party.
15. A `necessary party' is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the Court. If a `necessary party' is not impleaded, the suit itself is liable to be dismissed. A `proper party' is a party who, though not a necessary party, is a person whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in disputes in the suit, though he need not be a person in favour of or against whom the decree is to be made. If a person is not found to be a proper or necessary party, the court has no jurisdiction to implead him, against the wishes of the plaintiff. The fact that a person is likely to secure a right/interest in a suit property, after the suit is decided against the plaintiff, will not make such person a necessary party or a proper party to the suit for specific performance."
(Emphasis Supplied)
18. Same view was expressed by the Hon'ble Supreme Court in Gurmit Singh Bhatia Vs. Kiran Kant Robinson and others 2019 AIR (SC) 3577 after considering earlier law in paragraph 5.2 it was held as under, extract whereof is quoted as under: -
"............. The Plaintiffs cannot be forced to add party against whom he does not want to fight. If he does so, in that case, it will be at the risk of the plaintiffs."
(emphasis supplied)
19. A reference may be made to judgment of Hon'ble Supreme Court in the case of Kasturi vs. Uyyamperumal 2005 (6) SCC 733, wherein the Hon'ble Supreme Court has considered the principle of dominus litis. This judgment was recently relied on by Hon'ble Supreme Court in the case of Gurmit Singh Bhatia vs. Kiran Kant Robinson and others 2020 (1) ARC 381.
20. In the present case the plaintiff was not seeking relief against the wife of the defendant, who may be the owner of Flat No. 102 and the allegation was against the defendant that he has encroached upon the common area, may be in active support of his immediate family members i.e. wife and son, as such wife of the defendant was not a necessary party to the suit and it cannot be said that the suit is bad for non-joinder of necessary parties.
21. A Constitutional Bench of 5 Judges of Hon'ble Apex Court in Sir Chunilal vs. Mehta and sons Ltd vs. Century Spining and Manufacturing Co. Ltd AIR 1962 SC 1314 has considered the question 'as to what is the substantial question of law'. Various judgments of High Courts and Full Bench were considered by the Hon'ble Constitutional Bench and it was held that if the question is settled then it would not be a substantial question of law. Paragraph 6 of the aforesaid judgment is quoted as under:-
"6. We are in general agreement with the view taken by the Madras High Court and we think that while the view taken by. the Bombay High Court is rather narrow the one taken by the former High Court of Nagpur is too wide. The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law."
(emphasis supplied)
22. Therefore, it is clear that merely because in the substantial questions of law so framed in the memo of appeal involving interpretation of any particular provision of the law by itself could not be substantial questions of law.
23. In the opinion of this Court, no substantial question of law is involved in the present appeal, which requires any interpretation by this Court in view of the law laid down by Hon'ble Apex Court in Sir Chunilal vs. Mehta and sons Ltd (supra) and the questions framed in the memo of appeal, even if are treated to be questions of law, they are not open to interpretation.
24. I have already considered this issue in the case of (Harihar Tiwari vs. Kshetriya Sri Gandhi Ashram (Second Appeal No. 94 of 2020) decided on 27.1.2020.
25. For the discussions made hereinabove I find that no substantial question of law is involved in the present case.
26. The appeal is devoid of merits and is accordingly dismissed.
Order Date :- 12.6.2020 Lalit Shukla