Delhi District Court
Saji Joseph & Ors vs Manoj Kumar Jha & Anr on 26 December, 2016
Saji Joseph & Ors vs Manoj Kumar Jha & Anr
IN THE COURT OF SH. AJAY PANDEY, ADDL. DISTRICT JUDGE05,
ROOM NO. 605, SOUTH DISTRICT, SAKET COURTS, NEW DELHI
In the matter of
RCA No. 8879/16
Case ID No. DLST010028342015
1. Saji Joseph
S/o Late Sh K P Joseph
R/o First Floor, Plot No. 886/1C
Ward No. 8, Min, Mehrauli,
Tehsil Hauz Khas, New Delhi
2. Lais John
S/o Sh. M J John
R/o II Floor, Plot No. 886/1C
Ward No. 8, Min, Mehrauli,
Tehsil Hauz Khas, New Delhi
3. Saumya Lais
W/o Sh. Lais John
R/o II Floor, Plot No. 886/1C
Ward No. 8, Min, Mehrauli,
Tehsil Hauz Khas, New Delhi
4. Leena Kurian
W/o Sunny Thomas
(Through Power of Attorney of Sh. Sunny Thomas)
R/o II Floor, Plot No. 886/1C
Ward No. 8, Min, Mehrauli,
Tehsil Hauz Khas, New Delhi
5. Umesh Kumar Singh
R/o Upper Ground Floor, Plot No. 886/1C
Ward No. 8, Min, Mehrauli,
Tehsil Hauz Khas, New Delhi
6. Poonam Singh
RCA No.8879/16 Page 1 of 52
Saji Joseph & Ors vs Manoj Kumar Jha & Anr
W/o Sh. Umesh Kumar Singh
R/o Upper Ground Floor, Plot No. 886/1C
Ward No. 8, Min, Mehrauli,
Tehsil Hauz Khas, New Delhi .............Appellants
Versus
1. Manoj Kumar
S/o Sh. Lootan Jha
D29A, Rajpur Khurd Colony
Behind Tiboli Garden,
Chattarpur, New Delhi74
2. Meenu Jha
W/o Sh. Manoj Kumar Jha
D29A, Rajpur Khurd Colony
Behind Tiboli Garden,
Chattarpur, New Delhi74 ..............Respondents
Date of Institution : 15.05.2015
Date of reserving the Judgment : 12.12.2016
Date of pronouncement : 26.12.2016
Decision : Dismissed
APPEAL UNDER SECTION 96 OF THE CPC AGAINST THE JUDGMENT
AND DECREE DATED 17.04.2015 PASSED BY MS. TANVI KHURANA,
CIVIL JUDGE01 (SOUTH) IN CIVIL SUIT NO. 479/2014 THEREBY
PARTLY DECREEING THE SUIT FOR DECLARATION AND
PERMANENT INJUNCTION
JUDGMENT
1. This is an appeal filed by the plaintiffs against the order dated 17.04.2015 of learned Civil Judge, thereby partly decreeing the s.uit of the plaintiffs to the extent of injunction against demolition of wall, digging of floor, construction of new rooms in parking area or alienating parking area. Remaining RCA No.8879/16 Page 2 of 52 Saji Joseph & Ors vs Manoj Kumar Jha & Anr reliefs including the relief for declaring registered sale deed dated 04.06.2009 in favour of the defendants, as null and void and removal of alleged walls in the parking area was declined.
2. The parties are referred to by their ranks before the trial court for the sake of convenience.
3. Plaintiffs filed the suit before the learned Civil Judge, South with allegations that they are the owners of their respective flats in building Plot No. 886/1C Ward No. 8, Min, Mehrauli, Tehsil Hauz Khas, New Delhi and defendants encroached the parking area and demolished wall meant for protection of security guard and started constructions. Following reliefs were sought: a. Decree of declaration to declare an alleged Sale Deed dated 04.06.2009 vide registration NO. 6952 registered on 08.06.2009 in the SubRegistrar Office Mehrauli, New Delhi in the name of Defendant No. 2 as null and void. b. Prohibitory Injunction against demolition of wall, digging of floor, new construction in the parking area and selling/alienating the parking area to the third party. c. Mandatory Injunction directing defendants to remove walls, bricks and other materials dumped by defendants in parking area.
d. Perpetual Injunction restraining defendants from alienating, selling or creating third party interest or from entering the premises suit building or parking area and doing any RCA No.8879/16 Page 3 of 52 Saji Joseph & Ors vs Manoj Kumar Jha & Anr construction work or occupying the parking area i.e. the ground floor and from obstructing the peaceful use and enjoyment of the said parking area at Plot No. 886/1C, Ward No. 8, Min, Mehrauli, Tehsil Hauz Khas, New Delhi.
4. The judgment of the Learned Trial Court was delivered deciding the following issues: ISSUES:
1. Whether the plaintiff is entitled to the declaration declaring the sale deed dated 04.06.2009 in favour of defendant no. 2 is null and void? OPP
2. Whether the plaintiff is entitled to prohibitory injunction against the defendant etc. to stop the demolition of wall, digging of floor, stop construction of new wall and room in parking area and from alienating the parking area as prayed for? OPP
3. Whether the plaintiff is entitled to mandatory injunction as prayed for?OPP
4. Whether the plaintiff is entitled to perpetual injunction as sought in prayer (c) as prayed for?OPP
5. Whether the suit is not maintainable in the present form as the suit has been filed without any cause of action? OPD
6. Whether the present suit is not maintainable as being barred by Section 41 Specific Relief Act, 1963 and Proviso Section 34 SRA and law of estoppel? OPD RCA No.8879/16 Page 4 of 52 Saji Joseph & Ors vs Manoj Kumar Jha & Anr
7. Whether the suit is barred by law of limitation? OPD
8. Whether the suit is bad for nonjoinder of necessary parties, if yes, its effect? OPD
9. Whether the suit is not maintainable as proper valuation has not done and court fees has not been filed? OPD
5. Issue no. 1 and 4 were decided against the plaintiffs. Remaining issues were decided in favour of plaintiff.
6. The Learned Trial Court granted injunction in favour of plaintiffs restraining the defendants from doing construction or alienation in the parking area barring the land measuring 33.45 sq mts covered in the sale deed 04.06.2009 of the defendants.
7. The Trial Court further granted relief of mandatory injunction in favour of plaintiffs directing the defendants to remove bricks or material or other debris, if same has been dumped in the parking are i.e front portion of the ground floor after leaving 33.45 sq mts area towards the back.
8. The plaintiffs are aggrieved with the rejection of relief covered under issue no. 1 and 4 and further restraining the relief of injunction to the parking area, after leaving 33.45 sq mts from the back. Counsel for the plaintiff submitted that the plaintiffs were entitled for injunction in the entire ground floor area and a decree of declaration as prayed in the suit.
RCA No.8879/16 Page 5 of 52Saji Joseph & Ors vs Manoj Kumar Jha & Anr BRIEF FACTS OF CASE AS STATED IN THE APPEAL:
9. That plaintiffs are the absolute owners of the different floors in the Plot No. 886/1C, Ward No. 8, Min, Mehrauli, Tehsil Hauz Khas, New Delhi (hereinafter referred to as the suit property) in the manner: Particulars Floor owner Plaintiff no. 1 First Floor Plaintiff no. 2 and 3 Second Floor Plaintiff no. 4 Third Floor Plaintiff no. 5 and 6 Upper Ground Floor
10. The aforesaid floors are constructed flats at the suit property. Ground floor consists of staircase and common parking area for the plaintiffs.
11. Entire suit property was originally purchased by one Sh. Ashok Kumar Khattar from Sh. Sanjay Mehta and then latter sold the aforementioned floors as flats in the following manner: S. No. Date of Seller Buyer Floor Sold Total Plith Plith Area Sale Area Transfered
1. 17.04.08 Sanjay Mehta Ashok Khattar 5 Floors 440 440
2. 23.04.08 Ashok Khattar Pushpa Rani 2 nd and 3rd 351 87.8
3. 23.12.08 Ashok Khattar Babita Upper Ground 351.30 87.82
4. 23.01.09 Ashok Khattar Plaintiff no.1 1st floor 351.3 87.82
5. 13.07.09 Pushpa Rani Sushil Kr. Agarwal 2nd Floor 351.162 87.82
6. 29.10.09 Babita Plaintiff 5 and 6 Upper Ground 351.30 87.82
7. 20.09.11 Sushil Kr Agarwal Plaintiff 2 and 3 2nd floor 439 87.8
8. 23.03.12 Pushpa Rani Plaintiff no. 4 3rd Floor 351.162 87.79
12. All the sale deeds/general power of attorney RCA No.8879/16 Page 6 of 52 Saji Joseph & Ors vs Manoj Kumar Jha & Anr concerning the four floors i.e. upper ground, first, second and third floor, transferred absolute right to its buyers/vendees over their floors as flats alongwith undivided proportionate, indivisible and impartible ownership rights in the land underneath with all fittings, fixtures and all common facilities like staircase, common passage, common parking area.
13. In first week of November, 2013 defendant no. 1 trespassed the parking area of the suit property and started construction of a room after demolishing the guard room. The same was objected to by the plaintiff , who were perplexed at the entire event and telephoned Sh. Ashok Kumar Khattar erstwhile seller of the suit property who informed of having no knowledge about the same and further informed that defendant no. 1 has no right in the parking area.
14. On 07.11.2013, plaintiff approached the police and SDMC but to no avail. It is further stated that on 16.11.2013 and 18.11.2013, defendant no. 1 forcefully started the construction and demolished the guard room in the car parking area in the ground floor.
15. On the said illegal acts of defendants, plaintiff filed the suit for injunction against the defendant seeking prohibitory, mandatory and perpetual injunction, which was lateron on filing of written statement by defendants was amended to the suit for RCA No.8879/16 Page 7 of 52 Saji Joseph & Ors vs Manoj Kumar Jha & Anr declaration, prohibitory and mandatory and perpetual injunction.
16. In the said suit learned Trial Court passed impugned judgment and decree.
17. The findings of the Learned Trial Court vide judgment dated 17.04.2015 annexed with the appeal as annexure A1 are based on wrong premises and are alleged erroneous and unsustainable on following grounds: GROUNDS TAKEN IN APPEAL:
18. The judgment and decree of the Learned Trial Court dated 17.04.2015 is challenged by the plaintiffs in this appeal on the grounds that:
i). That the total saleable plinth area in the suit property was only 351.3 sq meters and the same was already sold by Sh Ashok Kumar Khatter to the previous vendees/buyers vide sale deed/GPA and thus the sale deed dated 04.06.2009, in favour of defendant no.2 could not be got executed in favour of defendant no. 2, which fact the trial court failed to understand.
ii). That the common area and facility which consist of common roof right, common parking at ground floor are not saleable portion as the same is common to all.
iii). That the alleged sale deed of the defendant no. 2 RCA No.8879/16 Page 8 of 52 Saji Joseph & Ors vs Manoj Kumar Jha & Anr dated 04.06.2009 is bogus document and the entire transaction is a sham as the plinth area transferred vide the impugned sale deed is 33.45 sq. meters whereas the total saleable plinth area of 351 sq mts was already sold by Sh. Ashok Kumar Khattar in four floors of 87.8 sq. meters each.
iv). That all the sale deeds/GPA which are prior to 04.06.2009 clearly mention total plinth area as 351.3 sq meters only and each floor plinth area to be approx. 87.8 sq meters and therefore, if actual vendor Ashok Kumar Khattar sold the entire saleable plinth area of 351.3 sq meters to vendees prior to 04.06.2009 than the same vendor cannot execute a fresh sale/transfer of 33.45 sq meters out of the total plinth area of 351.3 sq. meters. It is averred that the observation of the trial court in this regard is also defective.
v). That none of the sale deeds/GPA concerning the suit property prior to 04.06.2009 has any mention of any flat in the ground floor, nor there is a whisper of its size i.e 33.45. sq meters mentioned or added to the total saleable plinth area in such manner as " 351.3 +33.45"
vi). That the vendees/buyers of sale deeds/GPA concerning the suit property prior to 04.06.2009 have paid the consideration amount for their respective floors as well as for the common areas and facilities in the suit property which exclusively includes common parking area at the ground floor, once the same is sold as 'common' then the portion in the said common area could not be sold again to another person, which is contrary to RCA No.8879/16 Page 9 of 52 Saji Joseph & Ors vs Manoj Kumar Jha & Anr law and Sh. Ashok Kumar Khattar has not acquired any right to sell a portion in the ground floor used as common parking/stilt parking by the plaintiffs.
vii). That the trial court wrongly placed reliance on sale deed executed between Sh. Sanjay Mehta who is stated to be the erstwhile owner of the property and Sh. Ashok Kumar Khattar which was for the sale of entire building (plinth area mentioned as 440 sq mts) instead of the subsequent sale deeds/GPA which were prior to 04.06.2009, wherein it was mentioned that the total saleable plinth area is 351.3 sq meters and common area and facilities like roof, staircase and common parking.
viii). That definition of 'common area' as defined under the Delhi Apartment Ownership Act, 1986 includes parking areas and thus, the trial court was in error to conclude that the socalled sale deed dated 04.06.2009 of the defendant no. 2 confer title to her for her alleged 33.45 sq meters portion in the ground floor parking and ignored the sale documents prior to 04.06.2009 which mention common parking on parking area at the suit property.
ix). That the alleged sale deed of defendant no. 2 is a document where its priority comes after the previous sale deeds/GPA relying on section 48 of the Transfer of Property Act, 1882 and the area claimed by the defendant vide their sale deed is an admitted common area which is exclusively transferred to the plaintiffs through their inherited sale deeds/GPA.
x). That from the original sale deed of Sanjay Mehta and RCA No.8879/16 Page 10 of 52 Saji Joseph & Ors vs Manoj Kumar Jha & Anr Ashok Kumar Khattar, it is clear that the total plinth area of the suit property is 440 sq meters and the total saleable plinth area of the suit property i.e 351.3 sq meters was transferred to plaintiffs vide sale deeds/GPA, as the common area and facility, the plaintiffs are the exclusive owners of the ground floor of the suit property.
xi). That the alleged sale deed of the defendant no. 2 dated 04.06.2009 reflects the total plinth aread of the suit property as 351.3 sq meters which is already sold by the original owner Ashok Kumar Khattar vide its previous transactions.
xii). Plaintiff while placing reliance on 'Sheila Devi & Anr vs Santosh Devi' RSA No. 104/2011 dated 03.01.2014" of the Delhi High Court, contended that the sale deed dated 04.06.2009 of defendant no. 2 has become a subsequent document and there is no propriety to it.
xiii). That the trial court erred in placing reliance on the alleged sale deed dated 04.06.2009 and ignored previous sale deeds/GPA. In the event of inconsistency concerning different documents, the documents executed first would be given effect.
xiv). That the common area and facility had been earmarked including the common parking on parking area and thus, the plea of transfer of a portion from the common parking/nonsaleable floor was unavailable and could not be claimed by the defendants.
xv). That the undivided interest over the common area and facility including the common parking at the ground floor RCA No.8879/16 Page 11 of 52 Saji Joseph & Ors vs Manoj Kumar Jha & Anr exclusively belonged to the plaintiffs vide sale deeds/GPA executed in their favour prior to the sale deed dated 04.06.2009 and the claim of the defendants over the common area was unavailable.
xvi). That actual owner/vendor Ashok Kumar Khatter could not have conveyed any such right or ownership to the defendants as he had already sold the same to the plaintiffs as a common area.
xvii). That the trial court did not perceive the concept that the saleable area in an apartment building is equal to 100% of the undivided interest in the land as well as the common area and facility. Thus, the total saleable area of 351.3 sq meters purchased by the plaintiff through their sale deeds/GPA is equated to the corresponding percentage of the undivided interest in land as well as the common area.
xviii). That the common area and facility including common parking at the ground floor is a vested right of the plaintiffs, which is derived from their inherited sale deeds/GPA which are prior to the sale deed of defendant no. 2.
xix). That trial court in para 37 of the impugned judgment, on one hand states that the plaintiffs have comprehensively established the first ground of plinth area and also about parking lot but on the other hand states no conclusion can be drawn upon the parking area at the ground floor as no site plan are attached to any sale deed. Plaintiff challenged the observation of the trial court stating that if the trial court is of the opinion that plaintiff RCA No.8879/16 Page 12 of 52 Saji Joseph & Ors vs Manoj Kumar Jha & Anr could establish saleable plinth area and about parking lot then it is conclusive that a common area cannot be sold subsequently to anyone even though the transfer is through a sale deed. xx). That in the affidavit in evidence of plaintiff no. 1 as well as in cross examination it was confirmed by plaintiff that when he purchased the flat on the first floor from Ashok Kumar Khattar the total saleable plinth area was and is 351.3 sq meters and the ground floor was the common parking area which is in conformity to his sale deed dated 23.01.2009. xxi). That the trial court has erred in making an observation in para 29 of the impugned judgment that none of the plaintiffs have averred that Ashok Kumar Khatter had demolished any part of the construction before selling the property or any modification was carried out for reducing the constructed area by him from 17.04.2008 to 23.04.2008. Plaintiff protested that there was no reason to state so because there is no demolished part in the suit property.
xxii). That the trial court made an error in para 29 of the impugned judgment in understanding that the plinth area of the suit property/building was mentioned as 351.3 sq meters through the original sale deed between Sanjay and Ashok Khattar mentions total plinth area to be 440 sq meters for the simple reason that the remaining portion/area i.e. 440351.3 = 88 sq mts approx is the ground floor used as the common parking area, common staircase, common passage etc. xxiii). That trial court made an error in para 32 of the RCA No.8879/16 Page 13 of 52 Saji Joseph & Ors vs Manoj Kumar Jha & Anr impugned judgment by concluding the date of execution of the sale deed of plaintiff no. 1 executed for sale of flat at first floor in the suit property as 23.09.2009 instead of 23.01.2009. Further that the trial court in para 39 observed that the sale deed in question is dated 04.06.2009 which is prior to the sale deeds of all the plaintiffs, which is wrong and sale deed of plaintiff no. 1 should have been treated with first priority. xxiv). It is further stated that the appeal is preferred by the plaintiff as the trial court has failed to conclude that the ground floor is a common area and facility comprising of common parking, common passage, common staircase etc and cannot be sold/transferred and instead focused on a lesser issue that the sale deed does not describe the parking area. It is further stated that if the common area and facility in a residential building is once sold to the vendees/plaintiffs as a common area then the same cannot be sold further as exclusive to anyone/defendants as the common area and facility like common roof , common passage, common parking area in a multi storeyed building are common to all its occupants.
xxv). It is further averred that the trial court concluded in para 37 of the impugned judgment that documents without fail mentioned that common parking rights are attached with floor/flat purchased but area of the parking lot has not been mentioned in any of the sale deeds but failed to appreciate:
a). the deposition of plaintiffs who have inherited their rights over their flats/floors as well as common parking area at the ground RCA No.8879/16 Page 14 of 52 Saji Joseph & Ors vs Manoj Kumar Jha & Anr floor through the sale deeds/GPA prior to the alleged sale deed of defendant no. 2.
b). admission of defendants that ground floor area is the common parking area
c). common presumption that the common parking on parking area cannot be outside the suit property.
d). 88 sq meters which were left from the total saleable plinth area in all the sale deeds/GPA especially the ones which are prior to the sale deed of defendant no. 2 was and is meant for ground floor only.
xxvi). That the trial court has erred in concluding that burden to prove the sale deed of defendant no. 2 as sham and bogus transaction lies with the plaintiffs as the burden for the same was effectively shifted by the plaintiffs on to the defendants. xxvii). That the trial court wrongly concluded in para 40 of the impugned judgment that it is an admitted fact that defendants are in possession over the disputed portion which implies that possession was with the defendants at the time of filing of the suit.
xxviii). That the defendants could not produce any document other than their alleged sale deed to prove uninterrupted possession over the portion in the suit property since the date of their alleged purchase on 04.06.2009 xxxi). That the ground floor parking area in the suit property is an enclosed parking area and not a constructed area which is included in the structural measurement of the building and for this reason the original sale deed between Sh. Sanjay and RCA No.8879/16 Page 15 of 52 Saji Joseph & Ors vs Manoj Kumar Jha & Anr Sh. Khattar included ground floor in total plinth area showed the same as 440 sq meters.
REPLY OF DEFENDANTS/RESPONDENTS:
19. Respondents filed their reply stating interalia that the appeal is merit less and that there are no grounds of objections to the decree appealed against and that the plaintiffs had dragged the defendants into dishonest and unnecessary litigation and real cost should be imposed on the plaintiffs in favour of the defendants and that the plaintiffs have played fraud and perjury before the trial court and are liable to be prosecuted u/s 340 CrPC and that the plaintiffs have raised various fresh grounds not taken by them in the trial court.
20. It is further stated by the respondents in their reply that the ground floor area of the premises is divided into three portions that is constructed ground floor, common parking area and ramp and stairs. The property had no guard room as alleged by the plaintiffs.
21. The witnesses of plaintiff i.e. PW1 and PW3 in their cross examination before the trial court stated different locations of the alleged guard room providing the falsehood of their stand.
22. Various grounds taken in the appeal are denied and it RCA No.8879/16 Page 16 of 52 Saji Joseph & Ors vs Manoj Kumar Jha & Anr is stated that defendants are in possession of the ground floor flat and plaintiffs are creating nuisance in their enjoyment and possession. Dismissal of the appeal is prayed.
SUBMISSIONS OF PARTIES AND DISCUSSION:
23. Both the parties filed their respective written submissions in appeal.
24. Detailed oral arguments were also heard, in which both the parties emphasized and supported their pleadings by referring the record of the Learned Trial Court.
25. While arguing the appeal, learned counsel for the plaintiff submitted that most important issue required to be decided in the suit was whether what was sold to defendants in the impugned sale deed 04.06.2009 was actually saleable or not?
26. In this regard, counsel for the plaintiff relied on the sale deed in favour of plaintiff no. 1 Ex. PW2/1. Counsel for the plaintiff submitted that the sale deed Ex PW2/1 of plaintiff no. 1/Saji Joseh was executed prior to the sale deed of defendant no.
2. The total plinth area as stated in the said sale deed was 351.3 sq meters only. The sale deed executed prior thereto for the upper ground floor and other floors also reflected the total plinth area of the building almost 351 sq meters.
RCA No.8879/16 Page 17 of 52Saji Joseph & Ors vs Manoj Kumar Jha & Anr
27. Submissions of learned counsel for the plaintiffs are that the total plinth area of 351 sq mts was covered by the documents executed by the original transferrer Sh. Ashok Kumar Khattar in the transfer of the upper ground, first, second and third floors, measuring 87.89 sq mts each.
28. He submits that after selling the total plinth area of 351 sq mts covered under the sale deeds of upper ground, first, second and third floors nothing was left to be sold in favour of defendants.
29. For the purpose of convenience at page 2223 of her judgment, learned trial court had summarized the documents of the plaintiffs reflecting the total plinth area. The said table is reproduced herein below: S. Document no. Parties Floor Total Parking No. Plinth Area (in sq mts.) 1 Ex. PW1/2 Mr. Sanjay Entire 440 No (Sale Deed) Mehta and Building mention Mr. Ashok (ground Kumar floor) Khattar 2 Ex PW1/X Mr. Ashok II & III 351 Common (GPA) Kumar Parking Khattar & Smt RCA No.8879/16 Page 18 of 52 Saji Joseph & Ors vs Manoj Kumar Jha & Anr Pushpa Rani 3 Ex. PW1/4 Mr. Ashok UGF 351.30 Common (Sale Deed) Kumar Parking Khattar & Ms. Babita 4 Ex. PW1/3 Smt II 351.62 Car (Sale Deed) Pushpa Parking Rani & Sh.
Sushil
Kumar
Aggarwal
5 Ex.PW 2/1 Mr Ashok I 351.30 Common
(sale deed) Kumar Parking on
OSR Khattar & parking
Mr. Saji area
Joseph
6 Ex. PW3/4 Smt Babita UGF 351.30 Common
(sale deed) & Smt Parking at
Poonam parking
and Sh. area
Umesh
7 Ex. PW 3/3 Mr. Sushil II 439 Common
(Sale Deed) Kumar & car
Mr. Lais parking at
John , Smt ground
Sommya floor
Lais John
8 Ex. D1 Smt III 351.162 Common
(Sale Deed) Pushpa car
Rani & parking at
Smt Leena ground
Kurian floor
30. It is admitted case of the parties that all the sale deeds RCA No.8879/16 Page 19 of 52 Saji Joseph & Ors vs Manoj Kumar Jha & Anr in their favour were executed by Ashok Kumar Khattar or a transferee from him.
31. PW1/2 is the sale deed dated 17.04.2008, through which Sh Ashok Kumar Khattar purchased the entire building from its erstwhile owner Sh Sanjay Mehta. Admittedly, the total plinth area of the building in the said document is mentioned as 440 sq mts.
32. Learned Trial Court concluded that the original sale deed of the entire building mentioned the plinth area as 440 sq mts which differed with time in subsequent deeds. She quoted the example of the GPA of the second and third floor executed by Sh Ashok Kumar Khattar in favour of Smt Pushpa after almost a week in which total plinth area was changed to 351.30 sq mts.
33. She further noted that in the subsequent sale deed Ex PW3/3 dated 20.09.2011, in favour of plaintiff no. 2 and 3, again the total plinth area was shown as 439 sq mts. Learned Trial Court for these reasons, amongst others held that neither of these documents speak cogently about the plinth area. Therefore, complete reliance cannot be placed upon recitals of plinth area in these documents.
34. Counsel for the plaintiff has sought to explain the differences of the plinth area mentioned in the original documents RCA No.8879/16 Page 20 of 52 Saji Joseph & Ors vs Manoj Kumar Jha & Anr i.e. Ex. PW1/2 by Sh. Sanjay Mehta in favour of Sh Ashok Kumar Khattar submitting that Sh. Ashok Kumar Khattar purchased the entire floors i.e. entire constructed building from Sanjay Mehta. The building consisting of ground, upper ground, first, second and third floor (calculation 87.8 sq mts x 5 floors = approx. 439/440 meters) but later Ashok Kumar Khattar sold upper ground, first , second and third floor as residential flats to vendees/buyers mentioning in each of their sale deeds, the total plinth area as 351.3 sq mts and transferred plinth area of each floor as 87.8 sq mts with common rights over land underneath, common area and facilities, common passage, common parking at ground floor. He submits that total saleable plinth area was only 351 sq mts. The Learned Trial Court failed to understand that the common area or facility like stair case, parking etc which were common to plaintiffs are not saleable and therefore the plinth area in the sale deeds/GPA executed by Ashok Kumar Khattar subsequent to his purchase of entire property vide Ex. PW2/1, was mentioned as 351 sq mts only.
35. He further submits that the trial court ignored the testimony of plaintiffs that the total plinth area in sale deed in favour of plaintiff no. 2 and 3 Ex. PW 3/3 was mentioned as 439 by typographical mistake only.
36. The court is not ready to buy oral arguments/statements of plaintiffs as against the written RCA No.8879/16 Page 21 of 52 Saji Joseph & Ors vs Manoj Kumar Jha & Anr documents. It is rightly observed by learned trial court that in the original sale deed of entire building total plinth area is mentioned as 440 sq mts. It differed with time. In some subsequent sale deeds it was mentioned as 351 sq mts. In one subsequent sale deed Ex. PW3/3 it was again mentioned as 439 sq mts. No effort was made by either of the plaintiffs for corrections of the plinth area as mentioned in Ex. PW3/3. Hence, it is rightly observed by the trial court that no concrete conclusions can be drawn upon the plinth area of the premises on the basis of the documents in favour of parties.
37. In addition thereto , this court is of the opinion that even if some wrong measurements of area is mentioned in either of the sale deeds same would not divest the beneficiary or transferee of the sale deed off his rights if the property was transferable and the transferor was competent to transfer and the transfer was not hit by the provisions of law.
38. Hence, this ground taken by counsel for the plaintiff is not of much substance unless the plaintiff is able to prove that the transaction between the transferor and the transferee is hit by any of the abovesaid reasons.
39. Counsel for the plaintiff next argued that the transfer in the impugned sale deed dated 04.06.2009 is hit by Delhi Apartment Ownership Act. 1986 because the ground floor of the RCA No.8879/16 Page 22 of 52 Saji Joseph & Ors vs Manoj Kumar Jha & Anr property was a common parking area, which cannot be transferred exclusively in favour of any individual against the rights of the occupier or owners of the different apartments or flats in the property.
40. Learned Counsel for the defendant on the other hand submits that Delhi Apartment Ownership Act has not yet been notified and the same is not yet applicable. Hence, plaintiff cannot place any reliance thereupon.
41. Learned Counsel for the defendant has further argued that in none of the sale deeds of plaintiffs or in the original sale deed Ex. PW1/2 of Sh Sanjay Mehta in favour of Sh Ashok Kumar Khattar, the entire ground floor is referred or mentioned as common parking nor common parking ever existed in the entire ground floor. He submitted that since the time of purchase by Sh Ashok Kumar Khattar the ground floor was divided into two portions, one the constructed area i.e the flat of the defendant and other open area used as common parking.
42. Per contra, counsel for the plaintiffs submitted that there was no flat or constructed area as alleged by the defendants at the ground floor and their existed only a small guard room, walls of which were demolished by the defendant to construct his alleged flat after encroaching upon the parking area.
RCA No.8879/16 Page 23 of 52Saji Joseph & Ors vs Manoj Kumar Jha & Anr
43. The material question to be decided here is, whether the alleged flat of the defendant is constructed in the open area of the ground floor provided or used for parking purposes.
44. Learned counsel for the plaintiff submitted that none of the sale deeds of plaintiffs concerning the suit property has any mention of any flat in the ground floor nor there is any mention of its size i.e. 33.45 sq mts added to the total saleable plinth area.
45. The court do not find substance in his submissions because even the sale deed in favour of plaintiff no.1 Saji Joseph does not mention about the details of constructions in his flat nor mentions existence of other flats apart from his flat. There is no mention in either of the sale deeds that entire ground floor is/was being used as parking area. Admittedly, a basement also exists in the property. There is no mention of the basement in either of the sale deeds. Hence, non mentioning of the flat at ground floor in the sale deeds of plaintiffs is not sufficient to reflect that no flat existed at the ground floor.
46. The building was completely constructed, when plaintiffs bought their respective portions in the same. This fact was even admitted by PW3 in his cross examination in page 3 recorded on 06.08.2014, where he stated: ".... the building was completed constructed when I purchased my RCA No.8879/16 Page 24 of 52 Saji Joseph & Ors vs Manoj Kumar Jha & Anr property....."
47. There is no avermant or statement of either of the plaintiffs that any construction or demolition in the building was carried out in any area except as alleged against the defendant.
48. As per the avermants in the plaint, in the first week of November 2013, defendant no. 1 alongwith his associates started to demolish the wall which was put for the safety of security guard. As per the testimony of plaintiff's witness there was only one guard room constructed on the ground floor which was demolished by defendants to build their flat. The demolition and construction activities of defendants as per the avermants in the plaint started around after first week of November of 2013.
49. As per the cause of action paragraph no. 17 of the plaint, cause of action arose in favour of plaintiffs when on 05.11.2013 defendant no. 1 started dumping the building material. It also arose on 07.11.2013 when he started demolishing the walls of guard room and digging the floor of parking area in presence of Police. It also arose on account of construction and demolishing by the defendant no. 1 at the instance of his wife defendant no. 2 on 16.11.2013 and 18.11.2013.
50. From the above narrations, it is clear that the plaintiffs have alleged that defendants on 07.11.2013 started RCA No.8879/16 Page 25 of 52 Saji Joseph & Ors vs Manoj Kumar Jha & Anr demolishing the walls for protection of security guard or the guard room. On 16.11.2013 and 18.11.2013 the work of construction and demolition was on going.
51. In this appeal also in para 9 the plaintiffs state: " 9) That on 07.11.2013, plaintiff approached police and SDMC but all in vain. On 16.11.2013 and 18.11.2013, defendant no. 1 forcefully started the construction and further demolished the guard room in the car parking area at ground floor causing danger and damage to the entire building"
52. The plaint appears to have been signed on
19.11.2013.
53. Affidavit in support of plaint was also sworn on the same date.
54. The case was marked to the court of learned Civil Judge on 20.11.2013, when dasti summons were issued to the defendants for 21.11.2013.
55. On 21.11.2013 a local commissioner was appointed by the learned trial court to verify the position at site with the directions to measure the area of the parking area and report on RCA No.8879/16 Page 26 of 52 Saji Joseph & Ors vs Manoj Kumar Jha & Anr the same.
56. The local commission was executed on 22.11.2013.
57. Alongwith the plaint various documents including some photographs were filed by the plaintiffs. Hence, it can be safely said the photographs filed alongwith the plaint must have been taken on or before 19.11.2011 - 20.11.2011.
58. Photograph Ex PW1/6 (colly) at page 70 is one of the said photographs filed by the plaintiffs with original plaint. It is admitted by the witnesses of plaintiffs that the said photograph Ex PW1/6 at page 70 depicts the alleged encroached area of parking by the defendants.
59. There is another photograph at page no. 69 which is also part of Ex PW1/6 (colly) filed by the plaintiffs and admitted by the defendants which reflects some demolition, breaking of walls, some fresh raising of brick wall without plaster, installation of new window frame etc.
60. As per the avermant in the plaint, on 05.11.2013 defendants started dumping the building material. On 07.11.2013 they started demolishing the walls of parking. On 16.11.2013 and 18.11.2013 they again made demolition and construction in the alleged parking area.
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61. Photograph at page 70 reflects smooth walls of the alleged area, where the alleged encroachment was made. There appears old white wash with smooth plaster, well installed door and window. Painted window panes and grills and a ventilating window. In front of the said area two cars appear to have been parked.
62. Plaintiffs stated that this photograph reflect the encroachment after the alleged demolition and construction by defendants. The encroached area lies behind the wall shown in admitted photograph at page 70.
63. There are other photographs filed at page 6869 forming part of the same Ex. PW1/6. Three such photographs , two at page no. 68 and one at page no. 69 are also admitted by the defendants.
64. PW1 in his cross examination stated about these photographs as follows: " ....The witness is shown with one photograph of Mark C at page no. 70 at the top. The witness has stated that said photograph is of the ground floor. The photograph is clicked in November 2013 just after the demolition. I do not remember exact date. However, the same was taken somewhere in the third week of November RCA No.8879/16 Page 28 of 52 Saji Joseph & Ors vs Manoj Kumar Jha & Anr 2013. When I purchased the flat on 27.03.2012 there was a wall. I am not having any car. I do not remember whether any of the flat user used to park his car beyond the point (wall, window and doors as shown in the photograph). The wall, window and door, shown in the paragraph may be somewhere near the end of the ground floor. It is wrong to suggest that the ground floor is divided in two portion, one is constructed flat area and other is the parking area. It is wrong to suggest that the photograph at page 70 at the top is an old photograph...."(emphasis supplied)
65. In his cross examination at page 4 he stated that the position shown in photograph at page 69 bottom, depicts the same position, which was found in photograph no. 16 of the report of the Local Commissioner.
66. It is reiterated here hat a local commissioner was appointed by the learned Trial Court to inspect the suit property and to measure the parking area therein. The Learned Local Commissioner inspected the property on 22.11.2013 and filed his report on 29.11.2013. Alongwith his report he filed 36 photographs depicting the suit property, alleged demolition, construction and alleged encroachment.
67. As per order XXVI rule 10 (2), the report of the Learned Local Commissioner has to be an evidence in the suit. The RCA No.8879/16 Page 29 of 52 Saji Joseph & Ors vs Manoj Kumar Jha & Anr said provision provides as follows: "10 (2) Report and deposition to be evidence in suit: The report of the Commissioner and the evidence taken by him )but not the evidence, without the report), shall be evidence in the suit and shall form part of the record; but the court or, with the permission of the Court, any of the parties to the suit may examine the Commissioner personally in open Court, touching any of the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which he has made the investigation."
68. None of the parties requested for examination of the Learned Local Commissioner and the report of the Commissioner is part of the record.
69. PW2, Saji Joseph, Plaintiff no. 1 in his cross examination was also shown photograph at page 70 (top photo) part of the exhibit PW1/6 (colly). He also stated that the said photograph was taken after the demolition by defendants. He further stated that photograph may be of first and second week of November 2013.
70. Following question/answer was asked from him: " ....Q. Do you have any photographs of guard room Ans. The right inner corner shown in the photograph at RCA No.8879/16 Page 30 of 52 Saji Joseph & Ors vs Manoj Kumar Jha & Anr page 70 top photo is guard room ad measuring 10 to 12 feet approximately and on the left side there was a wall. (Vol. The windows shown in the photographs pertains to after demolition and construction...."
71. PW3 who is also plaintiff no. 2 in the suit, in his cross examination recorded on 06.08.2014, at page 4 also made following statement qua these two photographs and the photographs submitted with the report of learned local commissioner.
" At this stage witness is shown one photograph at page no. 70 (top photo). Witness states that the photograph pertains to ground floor and may be taken somewhere at the end of second week of November 2013.
The witness is shown another photograph at page 69 bottom. The witness states that this photograph pertains to previous to photograph at photograph page 70 top.
The present status of the ground floor is according to the photographs submitted by the local commissioner.
At this stage witness is shown the site plan submitted by the local commissioner. Witness states that there was a wall in the middle where now the window and doors are located.
The witness has now stated that the current status is as per photograph no. 16 submitted by local commissioner.."
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72. From these testimonies, it is clear that the witnesses of the plaintiff, during their cross examination, stated that the photographs shown at page 68, 69 and 70 included the photographs of the alleged construction and demolition and encroachment by defendants. They further stated that the photograph at page 70 was taken after the alleged construction and demolition while photographs at page 6869 were taken prior to the alleged construction or demolition.
73. In any case all the witnesses of the plaintiff admitted that as on date the condition of the property and the alleged parking area is as per the report of the local commissioner.
74. Top photograph at page 70, appears to be depicting the front of some house or room which has one independent window, one door, another big window adjacent to the door, one small ventilating window. Beyond the wall in which the windows and doors are fixed no car can be parked.
75. The walls in which these doors and windows are fitted appear to be old construction with old white wash, painted window panes and grills.
76. As compared to this photograph, photographs at page no. 69 depict some old construction and some newly raised wall, some portion of old demolished wall, some debris and old waste RCA No.8879/16 Page 32 of 52 Saji Joseph & Ors vs Manoj Kumar Jha & Anr material. In addition thereto, a newly installed window frame, below which exists some old constructed wall and at one side of which exists some new wall is also shown. In addition thereto, one old window, which also appears in the photograph at page 70 is also shown in the photograph at page 69.
77. These photographs filed on 20.11.2013 alongwith plaint read in the light of the pleadings and report of Local Commissioner, sufficiently depict that the alleged new demolition and construction carried out by the defendants is shown in photographs at page 68 and 69. As already observed on 16.11.2013 to 18.11.2013 defendant were continuing the demolition and construction. Plaintiff categorically stated so in his plaint as well as in his appeal. As an ordinary prudent man, the plaintiff would have filed photographs of the alleged construction to seek immediate relief from the court. Plaintiff filed photographs alongwith the plaint. Immediately on assignment of the case on 20.11.2013, learned trial court granted them the earliest possible date for next hearing on 21.11.2013 alongwith dasti summons to be served upon the defendants. On 21.11.2013 the trial court restrained the defendants from creating any construction in the suit property and further to not to create third party interest in the same and also appointed local commissioner to measure the parking area and report on the same. The local commission was executed of 22.11.2013.
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78. Witness of the plaintiff admitted that present status of the ground floor is according to the photograph submitted by the local commissioner.
79. On comparison of the photographs at page 68, 69 and 70 with the photographs of learned local commissioner, it is found that the existing condition of the property is as depicted in the photographs at page 68 and 69. Except that , the photographs at page 68 and 69 depict the demolition of some old wall and raising of new wall in the same demolished portions. Fixing of new wooden window frame without pane and opening of an entrance for a door. Neither the window shutters in new window frame nor the door is fitted. On the other hand, photographs of learned local commissioner reflect that the glass pane is fixed in the newly installed window frame, a door is fixed at the entrance meant for the door. In the area around newly installed door and window frame, some new plaster and white wash is done thereby covering the newly constructed unplastered wall and demolished wall/area reflected in photograph at page 6869.
80. If all these photographs are seen in sequence, there is not an iota of doubt that photograph at page 70 in which there is smooth and even plaster, old white wash, apparent spider web on corners of wall, dirt/dust spots, was taken prior in time amongst all these photographs. The photographs at page 68 and 69 were taken at the time of alleged construction and demolition by the RCA No.8879/16 Page 34 of 52 Saji Joseph & Ors vs Manoj Kumar Jha & Anr defendants. Photographs filed by learned local commissioner were taken when the said alleged construction got completed but was not properly finished. There is no new construction in photograph at page 70. There is no building material in the said photograph. There is no debris/ malba depicted in the said photograph. In contrast thereto, new unplastered wall and change of location of door and window is shown in photograph at page 69 some debris or malba and waste materials is also shown.
81. Hence, the witnesses of plaintiff made false testimony on oath that photograph at page 70 was taken after the alleged demolition/construction by the defendants. As already observed, the photographs could have been taken on or before 19.11.2013 - 20.11.2013 because the photographs were filed alongwith the plaint which come up for hearing in the court on 20.11.2013. Photographs bear the date of filing as 20.11.2013.
82. By the time learned local commissioner visited the site, the unplastered wall shown in photograph at page 68 and 69 were already got plastered. The door entrance was fitted with a wooden door without paint. A freshly installed window frame was also fitted with the glass pane as shown in photograph no. 18 in the report of learned local commissioner.
83. It is important to mention here that the newly raised walls as shown in photograph at page no. 68 and 69 did not go RCA No.8879/16 Page 35 of 52 Saji Joseph & Ors vs Manoj Kumar Jha & Anr beyond the already existing walls, window and doors as shown in photograph at page 70. They are exactly in the same alignment with old wall. Behind the outer door and window as shown in the photograph existed two rooms , one small space and lobby, as reported by the local commissioner the size of the constructed area consisting two rooms and one small space and lobby which was measured in portion a, b, c and d was: Room (a): 16 feet x 8 feet 10 inches (width x 9 feet (height with false ceiling) and 9 feet 4 inches (without false ceiling).
Room (b): 13 feet (length) x 9 feet (width) x 9 feet 10 inches (height).
Room (c): 5 feet (length) x 3 feet (width) x 9 feet 10 inches (height).
Room (d): 4 feet 2 inches (length) x 3 feet (width) x 9 feet 10 inches (height).
84. Considering that the new construction depicted in the report of learned local commissioner or as shown in photograph at page 68 and 69 was strictly in alignment with the old construction as shown in top photograph at page 70. This court has no hesitation to rule that defendant did not make any construction thereby extending the already existing old construction in the RCA No.8879/16 Page 36 of 52 Saji Joseph & Ors vs Manoj Kumar Jha & Anr ground floor of the suit property. Defendant however, had made an alteration and modification in the location of one door and a window existing in the old construction and a new door and window was installed in the same alignment shifting its location on wall after breaking a portion of the old existing outer wall.
85. Some new modifications behind the wall towards inner side also appear to have been done. This fact was even admitted by the defendant in the written statement. Defendant in his written statement also stated that he was changing the location of the door and window as well as toilets etc in his flat according to the Vaastu Principles.
86. The above discussion falsify the claim of the plaintiffs and clarifies that there was no encroachment in the area, where the cars could have been parked earlier.
87. The photographs alongwith the plaint clearly depicts that the length of the area at ground floor where the car could have been parked ended with the walls shown in photograph at page 70 filed alongwith plaint and photographs no. 7, 9, 15, 16 shown in the report of learned local commissioner.
88. On the basis of the testimony of the witness of plaintiffs also, preponderance of probability suggest that no cars were parked beyond the walls shown in photograph at page no.
RCA No.8879/16 Page 37 of 52Saji Joseph & Ors vs Manoj Kumar Jha & Anr
70.
89. PW1 in his cross examination had stated that he do not remember whether any of the flat users used to park their car beyond the point (walls, window and doors) as shown in the photograph at page 70.
90. It is highly improbable that a person is filing the suit against the alleged encroachment of his parking area but he is not aware whether any car was parked at any point of time in the alleged encroached area.
91. It appears that initially the plaintiffs filed the photographs at page 6869 showing the alleged construction and demolition of the defendant. They also filed photographs at page 70 reflecting the earlier position of the existing construction.
92. When they were being caught in these photographs they attempted to take a false stand that photograph at page 70 is subsequent to the photograph at page 6869 but they were caught with the report of the learned local commissioner which on comparison reflects that there were no changes of construction in photographs at page 6869 except that the walls were plastered and white washed, the glass pane was fitted in window frame, door was installed at door entrance.
RCA No.8879/16 Page 38 of 52Saji Joseph & Ors vs Manoj Kumar Jha & Anr
93. The alleged area of flat transferred in favour of defendants by the original owner Sh. Ashok Kumar Khattar is covered inside of these windows walls and door, which existed in photograph at page no. 70 and door are relocated as shown in the photographs at page 6869 as well as in the report of learned local commissioner.
94. None of the plaintiffs has stated that this area was specifically transferred to them. They have made a general statement that they were transferred the property alongwith common parking at ground floor. The area covered under the sale deed dated 04.06.2009 could not have been used for the car parking because the same being a closed area which has two rooms and two small spaces which can be utilized for kitchen/toilet/store. Photographs filed alongwith the report of learned local commissioner reflect that some old toilet seat/commode is lying in an apparent room in the disputed area. The room is also fitted with a fan and also contain some chair and old removed furniture as well as old fitting material, sink and wash basin.
95. The photographs filed by the learned local commissioner especially photograph no. 13 also depict that the ground level of the alleged flat is approximately 6 inches above the area were the cars are parked. The inside floor of that flat appear to be having old white marble floors whereas the ramp of RCA No.8879/16 Page 39 of 52 Saji Joseph & Ors vs Manoj Kumar Jha & Anr the parking appears to be having black cemented construction.
96. The above discussion sufficiently shows that the flat or the area covered under the impugned sale deed dated 04.06.2009 was segregated from the area used for parking.
97. In view of the admissions of the plaintiffs that no new construction except the alleged construction done by the defendant was carried out after the transfer of property from Sh. Ashok Kumar Khattar, it is also established that the said flat or the space existed prior to the purchase of their respective flats by plaintiffs.
98. Hence, it is rightly submitted by counsel for defendants that words "common parking on parking area", "common parking at parking area", "common parking on ground floor", "common parking on parking area", "car parking on ground floor" do not and could not have included the area covered by the alleged sale deed or by the flat of the defendants because no car could have been parked beyond the entrance door or wall of that flat.
99. The plaintiffs falsely testified that there was only wall for protection of security guard or a small guard room measured of 10 x 12 sq feet and defendant demolished the wall of same to make further construction. It is were so, new construction must RCA No.8879/16 Page 40 of 52 Saji Joseph & Ors vs Manoj Kumar Jha & Anr have been shown in photograph at page no.70 PW1/6 (colly) filed by the plaintiff alongwith the plaint. But said photograph does not depict any demolition, new construction, malba and construction material.
100. There is further a very important aspect to be considered in this matter which reflects that original owner Sh. Ashok Kumar Khattar, never divested or withdrew himself from the entire suit property and rather maintained his possession over a portion of the same despite transferring different portions to the plaintiffs.
101. In their replication as well as in the evidence, the plaintiffs admitted that there is a basement in the suit property. At page 7 of their replication plaintiff stated "Moreover the basement necessitated a steep ramp to the parking area i.e in the ground floor which is the cause of increased height of the parking area. The sewage gutter and underground water storage tanks are existing in the basement and the basement is in the illegal possession of Sh. Ashok Kumar Khattar"
102. The above avermant in the replication reflects that even at the time of filing of suit and replication, the original owner Sh. Ashok Kumar Khattar was in possession of the basement of the property.
RCA No.8879/16 Page 41 of 52Saji Joseph & Ors vs Manoj Kumar Jha & Anr
103. Following question and response of PW1 was recorded in the cross examination on 14.07.2014: Q. Do you have any dispute with Ashok Kumar Khattar pertaining to the suit property?
A. I do not have any dispute with the anybody else except the defendants till this time.
Q. I put to you that there have been dispute pertaining to basement of suit property on 5/6 July 2014 between you and Ashok Kumar Khattar and Sanjay, earlier owners?
A. There was some unknown people made an attempt to trespass to the basement portion of our property where it contains our common under ground water tanks and sewer collection tanks located. In this regard the police complaint initiated and inquiry is still going on against the trespassers.
Q. Can you disclose the identity of those unknown people?
A. Police enquiry is going on and as based on the informations Sh.
Ashok Kumar Khattar has executed some documents in favour of one Sanjay Mehta.
Q. Is it the same Ashok Kumar Khattar and Sanjay Mehta who were the previous owners of the suit property?
A. I wish to clarify that it is not Sanjay Mehta rather it is Sh. Rajesh Mehta as an answer to my last question."
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104. This cross examination read with admissions in the replication suggested that Sh. Ashok Kumar Khattr was in possession of the basement of the property at the time of filing of plaint and replication. Lateron, he executed some documents of transfer of the basement in favour of some third party.
105. This again reflects that the entire building of suit property did not remain in possession of the plaintiffs. The documents of defendant i.e. impugned sale deed reflects that defendants have also received the possession of her flat alongwith common parking rights from Sh. Ashok Kumar Khattar after a consideration.
106. All the plaintiffs also received the possession of their respective flats alongwith the common parking areas from Sh. Ashok Kumar Khattar. Common parking area never included flat of defendant covered in the impugned sale deed dated 04.06.2009.
107. Hence, the plaintiffs cannot lay their claim on the area covered in the alleged sale deed.
108. Emphasis of learned counsel for the plaintiffs upon Section 48 of Transfer of Property Act, 1986: "priority of rights created by transferwhere a person purports to RCA No.8879/16 Page 43 of 52 Saji Joseph & Ors vs Manoj Kumar Jha & Anr create by transfer at different times right in or over the same immovable property, and such rights cannot all exist or be exercised to their full extent together, each later created right shall, in the absence of a special contract or reservation binding the earlier transferee, be subject to the rights previously created"
is not relevant for the reasons already cited by learned trial court.
109. Learned Trial Court rightly concluded that no site plan was attached with either of the sale deeds of plaintiffs to reflect that the area covered under the sale deed dated 04.06.2009 was a common parking area.
110. For the reasons given in this judgment it is concluded that area covered in the sale deed dated 04.06.2009 was not included in the common parking area and no cars could have been parked in that area.
111. Hence, there is no question of transfer of this area by the erstwhile owner to the plaintiffs under the head "common parking at parking area", "common parking on ground floor", "common parking on parking area", "car parking on ground floor".
112. Rather the words used in the different sale deeds RCA No.8879/16 Page 44 of 52 Saji Joseph & Ors vs Manoj Kumar Jha & Anr reflect that the parking area at ground floor might not cover the entire ground floor. Though it is stated in the appeal that defendants admitted the existence of common parking area. However, the plaintiffs failed to point out any admission by defendants which may reflect that entire ground floor was used as parking area.
113. The existence of the guard room, as alleged in the plaint is further not probable because the different witnesses of the plaintiff told different locations of the said guard room in their cross examination. No site plan or photograph was filed depicting the said guard room nor its location was explained in the plaint.
114. It is argued by counsel for the plaintiff that in para 32 of the impugned judgment, the trial court made an error of fact in recording the date of the execution of sale deed of plaintiff no. 1 as 23.01.2009. He submits that for this reason the trial court even did not give priority to the sale deed of plaintiff no. 1 over the sale deed of defendant no. 2. He further submits that the sale deed of plaintiff was required to be given first priority over the sale deed of defendant no. 2 and because it mentioned the saleable plinth area of the property as 351 sq mts which was subsequently utilized in the sale deeds of other plaintiffs, the sale deed of defendant no. 2 should have been declared null and void.
115. It is rightly submitted by counsel for the defendant RCA No.8879/16 Page 45 of 52 Saji Joseph & Ors vs Manoj Kumar Jha & Anr that the error in recording of date of the sale deed of plaintiff no. 1 may be a typographical mistake or an over sight but the same would not change the decision in the case.
116. As already observed plaintiffs have failed to establish that the area covered in the sale deed of the defendants was ever transferred to them as common parking area or the same was included in either of their sale deeds. Hence, the correction of the sale deed of plaintiff no. 1 would not make any difference in the decision of the case. However, the date of the said deed of plaintiff no. 1 be read in the judgment as 23.01.2009 instead of 23.09.2009.
117. So far as treating the sale deed of the plaintiff no.1 of this premises at priority is concerned the original sale deed executed by Sh. Sanjay Mehta in favor of Sh. Ashok Kumar Khattar may be treated at top priority. The said sale deed mention plinth area as 440 sq mts. The court has no reason to buy oral supplication of the total plinth area to read as "Total Saleable Plinth Area". In none of the sale deeds words "Total Saleable Plinth Area" are used. Hence, the trial court rightly concluded that not much importance should be given in the total plinth area as mentioned in the sale deeds especially when non of the sale deeds covered the entire building and none mentions that original owners is divested of all rights, title or interest over the entire building.
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118. Contentions of the counsel for the plaintiffs that trial court erred in concluding the burden to prove the sale deed of defendant no. 2 as sham and bogus lies with the plaintiff is incorrect as the same was effectively shifted by the plaintiffs to the defendants is also fundamentally incorrect.
119. In addition to raising the ground of total plinth area given, counsel for plaintiff submitted that defendants cited Sh. Ashok Kumar Khattar as their witness but in the last moment he was dropped for the reasons best known to them. Counsel for plainitff submits that therefore the trial court should have drawn the inference against the defendants.
120. Counsel for the defendant has rightly submitted that the burden of proving that any fact existed is upon the party who wants the court to believe about the existence of the same. Section 101, 102 and 103 of Indian Evidence Act are reproduced herein below: "101. Burden of Proof: Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those fact exist."
"102. On whom burden of proof lies: The burden of proof in a suit or proceedings lies on that person who would fall if no evidence at all were given on either RCA No.8879/16 Page 47 of 52 Saji Joseph & Ors vs Manoj Kumar Jha & Anr side:
"103. Burden of proof as to particular fact: The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person."
121. The fundamental burden to prove its case always rests upon the plaintiff or prosecution and the same never shifts. It is rightly submitted by counsel for defendants that it is the burden of proof to prove a fact and not presumption of proof, which cannot be discharged by the failure of the other party to produce his witness.
122. Plaintiff cannot claim to presume his case as proved because the defendants failed to establish some fact in the written statement. Even in exparte evidence, plaintiff has to prove its case and to explain the contradictions in his testimony, if any. Mere fact that defendant did not examine one or the other witness out of their list of witness, does not prove the claim of the plaintiff. Plaintiff has to positively established its case so that a reasonable prudent man would believe the same. Hence, the submissions of counsel for the plaintiff that defendant did not examine Sh. Ashok Kumar Khattar or that defendant did not prove any ration card, voter card, bank account, gas connection of the suit property or that they do not examine the so called tenants kept by them in the RCA No.8879/16 Page 48 of 52 Saji Joseph & Ors vs Manoj Kumar Jha & Anr disputed area of the suit property, do not come to the benefit of the plaintiff. The burden to prove that the impugned sale deed was bogus or null or void or forged or fabricated always remain upon the plaintiff.
123. It is rightly observed by the trial court that in view of the sale deed dated 04.06.2009 being the registered document, presumption of correctness was attached to the same.
124. Plaintiff failed to establish that the same was liable to be declared null and void for any reason whatsoever.
125. The stand of defendants since beginning has been that the ground floor had a common parking area as well as his constructed flat. Hence, the claim of the plaintiff that the area covered in the sale deed in favour of defendant was or could have been the common parking area is nullified. No benefit of section 48 of Transfer of Property Act, 1882 can be taken by the plaintiff as the said area was never specifically or by implication was bequeathed in favour of plaintiffs. The same could not have been commonly bequeathed in the name of the common parking area at ground floor.
126. Mere mention of the plinth area in documents of the plaintiffs is not sufficient to lay hands in the area in possession of the erstwhile owner or in possession of the defendants.
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127. Even if, it is presumed that the defendants for the first time visited the property on 05.11.2003, they can not be restricted to visit their property because they received their title from the erstwhile owner Sh. Ashok Kumar Khattar, who also transferred the title of their respective flats in favour of the plaintiffs.
128. It is important to mention here that the plaintiffs no. 2 and 6 have their sale executed after the sale deed in favor of the defendant no. 2. The sale deed of defendant was registered on 04.06.2009. The sale deeds in favour of plaintiffs no. 2 to 6 were registered between 13.07.2009 to 23.03.2012. The plaintiffs no. 2 to 6 chose to purchase their respective flats even after the existence of sale deed in favour of defendant no. 2. Submissions of learned counsel for the plaintiffs in this regard that plaintiffs were not aware of the existence of sale deed in favour of defendant no. 2 are not of much weightage. Plaintiffs could have known about the existence of the sale deed by a simple title search in the office of the concerned Sub Registrar. If the plaintiffs chose not to exercise due diligence in making a title search of the property, which they are purchasing they are not entitled to agitate the pre existing right of the prior purchasers. The public office of Sub Registrar was open for their inspection and title search.
129. In view of the foregoing discussion of the court and on the basis of preponderance of probabilities, following findings RCA No.8879/16 Page 50 of 52 Saji Joseph & Ors vs Manoj Kumar Jha & Anr of facts occur:
1. The area included in the sale deed dated 04.06.2009, Ex. DW1/B, in favour of defendant no. 2 executed by Sh Ashok Kumar Khattar was not part and parcel of any of the sale deeds of plaintiffs.
2. No cars were or could have been parked in the said area since the purchase of their respective flats by the plaintiffs.
3. The disputed area covered in the sale deed dated 04.06.2009, was a flat measuring 33.45 sq mts consisting of two rooms and other space.
4. The said document Ex DW1/B was executed by the original owner Sh. Ashok Kumar Khattar in favour of defendant no.2.
5. The plaintiff failed to establish that the document Ex DW1/B was false or fabricated or bogus or liable to be declared null and void on any account whatsoever.
6. Plaintiff no. 2 to 6 purchased their respective properties in ignorance and or without any title search or due diligence against the registered sale deed of the defendant RCA No.8879/16 Page 51 of 52 Saji Joseph & Ors vs Manoj Kumar Jha & Anr no.2.
7. Defendants did not extend the area covered under the sale deed dated 04.06.2009 towards the common parking side and did not make any encroachment.
130. In view of the aforesaid, learned Trial Court has rightly rejected the claims of the plaintiffs under issue no. 1 and 4.
131. The judgment and decree of the Learned Trial Court is upheld.
132. Appeal is dismissed with cost.
133. Appellate Decree be drawn accordingly.
134. Trial Court Record be sent back alongwith a copy of this order.
135. File be consigned to record room.
Announced in the open (AJAY PANDEY)
Court on 26.12.2016 ADJ05 (SOUTH DISTRICT)
(Judgment contains 52 pages) SAKET COURTS, NEW DELHI
RCA No.8879/16 Page 52 of 52