Delhi District Court
Sh. Anil Dua vs Sh. Vijay Sharma on 26 May, 2020
Anil Dua V. Vijay Sharma & Ors.
IN THE COURT OF SH. ARUN SUKHIJA,
ADDITIONAL DISTRICT JUDGE - 07, (CENTRAL DISTRICT)
TIS HAZARI COURTS, DELHI.
SUIT NO.: 237/2018
UNIQUE CASE ID NO.: 613629/2016
IN THE MATTER OF :
Sh. Anil Dua
Son of Shri Sukhdev Dua,
R/o Flat No.101, First Floor,
Sarojini Nagar Market,
New Delhi110023. ....Plaintiff
VERSUS
1. Sh. Vijay Sharma
2. Sh. Pramod Sharma
Both Sons of Late Chand Prakash Sharma,
Both at Shop No.101, Ground Floor,
Sarojini Nagar Market,
New Delhi110023.
3. New Delhi Municipal Council,
Through its Chairman,
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Anil Dua V. Vijay Sharma & Ors.
Palika Kendra,
New Delhi.
4. Land & Development Officer
(Union of India)
Nirman Bhawan,
New Delhi.
Through its Secretary ....Defendants
SUIT FOR DECLARATION, DAMAGES OF RS.7,20,000/
(RUPEES SEVEN LAKHS TWENTY THOUSAND ONLY),
MANDATORY AND PERMANENT INJUNCTION
Date of institution of the Suit : 17/05/2006
Date on which Judgment was reserved : 29/02/2020
Date of Judgment : 26/05/2020
:: J U D G M E N T ::
By way of present judgment, this court shall adjudicate
upon suit for Declaration, Damages of Rs.7,20,000/ (Rupees Seven
Lakhs Twenty Thousand Only), Mandatory And Permanent
Injunction filed by the plaintiff against the defendants.
CASE OF THE PLAINTIFF AS PER PLAINT
Succinctly, the necessary facts for just adjudication of
the present suit, as stated in the plaint, are as under:
(a) The plaintiff is the lawful owner and in possession of one
residential flat bearing no. 101, Sarojini Nagar Market, New
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Delhi (hereinafter referred to as "Flat No.101"). The said flat
was initially allotted to one Shri Bhupesh Nandi, Son of Shri
B.C. Nandi by Director of Estate, Govt. of India and the
plaintiff is the lawful purchaser of the same and in enjoyment
of this flat since February, 1986.
(b) The ownership of plaintiff qua the said flat includes the
aforesaid flat with terrace rights, one common W.C. situated
on the ground floor and courtyard on the ground floor just
behind Shop No.101, Sarojini Nagar Market, New Delhi
(hereinafter referred to as "Shop No.101"). The other cousers
of the said W.C. and Courtyard are the occupiers of Shop
No.101 i.e. defendants no. 1 and 2. The original Lease Deed
dated 19.12.1983 in favour of Shri Bhupesh Nandi, previous
owner, from whom this plaintiff purchased the property fully
describes in Schedule that the owner/allottee of Flat no. 101
has share in the stairs, common passage and in lavatory
block.
(c) The father of Defendants no. 1 and 2 has raised unauthorized
construction in the Courtyard just behind Shop no. 101 and
has also tried to block the passage/ entrance/user of the
lavatory on the ground floor and compelled the plaintiff to file
a civil suit for permanent injunction being Suit No. 41 of 2000
on 04.01.2000. The Ld. Civil Judge has dismissed the
application under Order 39 Rules 1 & 2 by means of Order
dated 03.03.2000.
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(d) The plaintiff, being aggrieved from the Order dated
03.03.2000, has preferred an Appeal before Ld. Senior Civil
Judge, Delhi being MCA No. 119/2000. Vide Order dated
17.08.2004, the appellate Court has held that Courtyard is
not a part of Shop No.101 and W.C. on the ground floor is at
the end of Courtyard and that Written Statement of L&DO
shows that this W.C. is not a part of Conveyance Deed
executed in favour of respondent i.e. occupant of shop on the
ground floor and the appeal was accepted and the application under Order 39 Rules 1 & 2 CPC of the plaintiff was allowed and the then, the respondents/ defendants were restrained from obstructing common passage and shared lavatory and also from demolishing lavatory built on the ground floor for use of the occupants of Flat No.101, Sarojini Nagar Market, New Delhi till the final disposal of the main suit.
(e) The father of Defendants no. 1 and 2 died in the meanwhile and these defendants no. 1 & 2 had filed a Civil Misc. (Main) No. 1131 of 2004 before Hon'ble High Court of Delhi. While hearing the said petition, the Hon'ble High Court of Delhi has held in the Order dated 15.09.2004 that Ld. Counsel for L&DO submits that he has no objection for the construction of W.C. on the first floor. Further, in another Order dated 30.09.2004, it was recorded that Ld. counsel for NDMC submits that NDMC has no objection for the construction of Suit No. 237/2018 Page 4 of 94 Anil Dua V. Vijay Sharma & Ors.
W.C. at the first floor, as per approved standard plan, provided prior approval/ sanction is obtained from NDMC.
(f) In the meanwhile, vide Order dated 18.11.2005, suit filed by the plaintiff was abated by the Court of the then Ld. Civil Judge, Delhi on the ground that the relief claimed is of personal nature against Sh. Chand Prakash Sharma, father of defendants no. 1 & 2. Thereafter, the defendants No.1 and 2 have withdrawn Civil Misc. (Main) as the main suit was abated.
(g) Thereafter, the plaintiff has filed a Writ Petition (Civil) No.4542 of 2006 against the defendants before the Hon'ble High Court of Delhi praying for removal of the unauthorized construction on the ground floor i.e. just behind shop in the Courtyard by defendants no. 1 & 2 and restraining the defendants from putting hindrance to the user of W.C./Lavatory situated on the ground floor by the plaintiff. The Hon'ble High Court of Delhi vide its Order dated 27.04.2006 was of the view that the dispute between the parties is purely a private dispute and it requires appropriate Order from the Civil Court and the plaintiff should approach the Civil Court. With this observation, Writ Petition was not allowed.
(h) The defendants no. 1 & 2, in collusion with defendants no. 3 & 4 and local police, have illegally encroached upon the common Courtyard just behind Shop no. 101 by raising pucca construction thereon and thus, have encroached upon the Suit No. 237/2018 Page 5 of 94 Anil Dua V. Vijay Sharma & Ors.
right of common user of W.C. by the plaintiff. The sewer main hole is existing in the Courtyard and the same has been covered and merged into shop no. 101.
(i) The Defendants no. 1 & 2 have converted the courtyard space into a shop and merged with shop no. 101 and they have gained about 200 sq. ft. excess space. The rental value of the said excess space in Sarojini Nagar Market is more than Rs.40,000/ per month and this space is being used by defendants no. 1 & 2 for more than 3 years despite objections, complaints in writing by the plaintiff to the Government Authorities like defendants no. 3 & 4 and there are orders for removal of unauthorized construction on this excess space, by defendant no.4 but no action has been taken by defendant no.3 since its officials are being bribed regularly by defendants no. 1 & 2. The Defendants no. 1 & 2 have blocked the W.C. on the ground floor and they are not allowing the plaintiff to use the same, in which the plaintiff has absolute right to use the same.
(j) The plaintiff has to install a temporary pot for latrine in his bathroom on the barsati floor, as he was finding very difficult due to constant obstructing behaviour of defendants no.1 & 2, but that system is not working since water sewer line is passing through the courtyard, which has been converted into a shop by defendants no. 1 & 2 and the plaintiff cannot clean the waste of his bathroom, which is passing through the Suit No. 237/2018 Page 6 of 94 Anil Dua V. Vijay Sharma & Ors.
sewer main hole existing in the courtyard and now converted into a shape of shop and the plaintiff is finding it very difficult as a lot of smell is coming and unhygienic conditions are prevailing in the bathroom of plaintiff. Further, on the one hand, the defendants no.3 & 4 have given their consent for construction of independent W.C./Latrine over & above the ground floor/ lavatory block in the Civil Misc.(Main) filed before the Hon'ble High Court of Delhi, but subsequently, for technical reasons and at the behest of and in collusion with Defendants no. 1 & 2, request of plaintiff has been turned down resulting chaotic condition in the house of plaintiff. Even this toilet on the Barsati floor is likely to be removed by defendant no.3 as it is not as per the Sanction Plan and in case, it is removed, then the plaintiff would have no place to go even for urinal except to some public urinal.
(k) The plaintiff is filing the present suit for declaration on the ground that he is one of the coowners qua the Courtyard space and lavatory situated on the ground floor just behind shop no. 101. The Conveyance Deed/ Lease Deed duly executed by the Government of India in the name and favour of Sh. Bhupesh Nandi, previous owner and after transfer of the property in the name and favour of plaintiff, all the rights have been inherited/vested in the plaintiff in the aforesaid portion/ amenities alongwith Flat No.101.
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(l) The plaintiff is entitled for damages and which are quantified in the sum of Rs.7.20 Lakhs for preceding 36 months @ Rs.20,000/ per month, to which this plaintiff is minimum entitled to get being coowner to the extent of 50% share in the said common portion/ space on the ground floor, which is now being illegally and unauthorizedly used by defendants no. 1 & 2.
(m) The plaintiff wants that the unauthorized construction on the Courtyard and which has been merged into shop no. 101 may be reverted back to its original position and that directions for removal of the unauthorized construction, as shown in the plan, may kindly be issued by a decree of mandatory injunction in favour of plaintiff and against defendants thereby directing the defendants to remove the same and to bring the same to its original condition/ position.
(n) A decree of permanent injunction restraining the defendants no. 1 & 2 from blocking lavatory on the ground floor to the user of plaintiff and his family members may kindly be passed in favour of plaintiff since the plaintiff is the coowner/couser of the same.
(o) A decree of permanent injunction restraining the Defendants no. 1 and 2 from transferring, alienating or parting with the physical possession of the portion illegally constructed on the ground floor in the courtyard just behind shop no. 101 and Suit No. 237/2018 Page 8 of 94 Anil Dua V. Vijay Sharma & Ors.
also the lavatory block and adjacent space thereto, to any person, without the consent and permission of the plaintiff. CASE OF THE DEFENDANTS NO. 1 & 2 AS PER WRITTEN STATEMENT Succinctly, the case of the Defendants no. 1 & 2 is as under:
(a) This Court has no jurisdiction to try and entertain the present suit in view of the Order dated 26.04.2006 passed by Hon'ble High Court of Delhi in WP (C) No.4542/2006 titled Sh. Anil Dua Vs. NDMC & Ors., wherein the Hon'ble High Court has clearly stated and decided that there is no common toilet between the shop and flat owner and there is no evidence that the owner of the ground floor shop and the owners of first floor have to share a common toilet.
(b) The courtyard and WC are in the exclusive and absolute ownership and possession of the allottee/ owner of shop no. 101, Sarojini Nagar Market, New Delhi since beginning and is fully charged to the shop owner and as per sanctioned plan rear courtyard has been merged with the shop. The Conveyance Deed and Lease Deed, both dated 16.01.1984 alongwith the line plan executed in favour of the allottee/ owner of shop no. 101, Sarojini Nagar Market, New Delhi by the Govt. of India clearly shows, describes and proves that the courtyard and W.C. of the shop no. 101 are fully charged to the shop owner and the owner of the shop has exclusive and Suit No. 237/2018 Page 9 of 94 Anil Dua V. Vijay Sharma & Ors.
absolute right, title, ownership and interest to use and occupy the same exclusively. Not only this, but the allottee/owner of the shop has been exclusively assessed and charged with the house tax of the courtyard covered with the asbestos sheets and merged with the shop for the past more than 25 years and copy of notice under Section 80(2) of the Punjab Municipal Act, 1911 issued to Sh. Chand Prakash, owner of shop no. 101, Sarojini Nagar Market, New Delhi being dated 15.12.1984 and letter dated 17.05.1984 clearly shows and proves that the rear courtyard is fully charged to the shop owner and is also exclusively assessed for the house tax to the shop owner.
(c) The Lease Deed and Conveyance Deed, both dated 19.12.1983 and the line plan of flat no. 101, Sarojini Nagar Market, New Delhi do not show and reflect that the rear courtyard of W.C. on the ground floor, in any manner, belong to the flat owner. The allottee of flat no. 101 was leased and charged with 198.745 sq. feet area and this does not include the area of back courtyard of ground floor in the corner of which W.C. is situated. The Conveyance Deed and Lease Deed of the allottee of flat no. 101, Sarojini Nagar Market, New Delhi further reveal that the courtyard belongs to shop no. 101 and is not common between the owner of the shop and owner of the flat.
(d) Without prejudice to all other rights and contentions of Defendants no. 1 & 2 and not admitting herein, it is Suit No. 237/2018 Page 10 of 94 Anil Dua V. Vijay Sharma & Ors.
submitted that the present suit filed by plaintiff is otherwise barred by law of limitation.
(e) The present suit is also liable to be dismissed in view of the provisions contained in Section 3 of the Delhi Law (Special Provisions) Act, 2006. The declaratory suits/decrees fall under Chapter IV of the Specific Relief Act, 1963.
(f) The plaintiff has also concealed the very material fact from this Court that the L&DO in his Written Statement filed in the suit no. 41/2000 (new no. 45/2005) tilted as "Sh. Anil Dua Vs. Sh. Chand Prakash Sharma" has categorically and clearly stated that the measurement of land charged to flat no. 101, Sarojini Nagar Market, New Delhi as per the lease deed is 198.745 sq. feet. This does not include the area of back courtyard at ground floor in the corner of which W.C. is located. Further, the plaintiff has concealed the very material fact that in the C.M. (Main) 1131/2004 titled "Sh. Chand Prakash Sharma through his L.R.'s versus Sh. Anil Dua & Anr." filed before the Hon'ble High Court of Delhi, the Hon'ble Court vide order dated 25.08.2004 had directed the L&DO to clarify whether the open courtyard form part of the shop on the ground or it is common for the shop owners and flat owners and in compliance of the above orders, in the affidavit filed on behalf of the L&DO. It was clearly stated that the rear courtyard as well W.C. situated in the corner of the courtyard is fully charged to the shop owner and as per existing Suit No. 237/2018 Page 11 of 94 Anil Dua V. Vijay Sharma & Ors.
standard plan of the Sarojini Nagar Market, duly approved by the NDMC, the rear court yard has been merged with the shops and toilet has been provided in the first floor flats. It was further clarified and stated in the said affidavit that inadvertently, the printed column pertaining to share in staircase, common passage and lavatory block were not deleted in the Conveyance Deed of the owner/ allottee of the flat no. 101, Sarojini Nagar Market, New Delhi.
(g) The plaintiff has concealed and suppressed the very material fact from this Court that plaintiff himself had filed and instituted the suit for declaration, permanent cum mandatory injunction bearing Suit No.66/2002 before the Ld. Civil Judge, Delhi seeking declaration that plaintiff is also entitled for being charged 1/3rd of the ground rent of rear courtyard and the said suit was strongly opposed by the L&DO & Union of India. In opposition to the prayer sought in the said plaint, the Union of India/ L&DO in its Written Statement clearly stated that the relief sought by the plaintiff in the suit cannot be granted since the rear courtyard is fully charged to the shop owner and otherwise also, the prayed relief cannot be granted since the area charged to the flat owner, as per the lease deed is 198.745 sq. feet and by no way, the plaintiff can seek any relief in contravention of the Lease Deed and ultimately, the said suit was dismissed as withdrawn on 12.04.2005.
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(h) The plaintiff was adamant and bent upon and continued with his illegal and unlawful activities and started interfering in the peaceful possession and enjoyment of the property of defendants no. 1 & 2 and was trying to encroach upon space/ roof above the rear courtyard, the defendants no. 1 & 2 herein filed and instituted a suit for mandatory injunction bearing no. 109/2002 (new suit no. 794/06/02) titled as Sh. Vijay Sharma & Anr. Vs. Sh. Anil Dua & Anr. and upon the interim application under Order 39 Rules 1 & 2 CPC filed on behalf of the plaintiffs in the said suit, the defendant no.1/ plaintiff herein was restrained from interfering or using the roof of the ground floor portion, which is in occupation of the plaintiff vide Order dated 19.04.2004. The plaintiff also tried to trespass upon the property of defendants and fought, abused and breached the peaceful enjoyment of the property for which FIR No. 79/2002 and FIR No.412/2003 were also registered against the plaintiff with Police Station Sarojini Nagar, New Delhi. The plaintiff has filed numerous cases without any basis in order to harass the defendants and just to grind his own wheel on baseless and false grounds. The recital of the cases filed by the plaintiff is as under: S. Case No. Title Particulars Status No.
1. Suit No. Anil Dua Vs. Sh. Suit for Dismissed 41/2000 Chand Prakash permanent (new no. Sharma & Ors. injunction.
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45/05)
2. W.P. (C) No. Anil Dua Vs. Writ petition Dismissed
2651/2000 Union of India & under Article
Oth. 226 of
Constitution of
India.
3. Suit no. Anil Dua Vs. Suit for Dismissed
66/2002 Union of India & Declaration,
Oth. permanent
cum
mandatory
injunction.
4. W.P. (C) No. Anil Dua Vs. Writ petition Dismissed
10323/ 2004 NDMC & Oth. under Article
226 and 227 of
the
Constitution of
India.
5. Suit No. Anil Dua Vs. Suit for Pending
318/2004 Vijay Sharma & permanent
Oth. injunction.
6. W.P. (C) No. Anil Dua Vs. Writ petition Dismissed
4542/2006 NDMC & Oth. under Article
226 and 227 of
the
Constitution of
India.
7. Suit No. Anil Dua Vs. Suit for Pending
CS/72/2006 Vijay Sharma & declaration, Oth. damages, mandatory and permanent injunction.
8. Suit No. Anil Dua Vs. Suit for Pending 134/2006 Vijay Sharma & recovery of Oth. Rs.4 Lakhs as damages Suit No. 237/2018 Page 14 of 94 Anil Dua V. Vijay Sharma & Ors.
mandatory &
permanent
injunction.
(i) The Site Plan filed with the plaint nowhere shows or describes that the owner of flat no. 101, Sarojini Nagar Market, New Delhi has any right either in the rear courtyard or W.C. or the said land was ever charged to the allottee of the said flat, rather it clearly shows that rear courtyard and W.C. situated therein are exclusively belong to the shop/ground floor owner. The plaintiff deliberately and intentionally has also not filed the affidavit on behalf of the L&DO before the Hon'ble High Court in C.M. (Main) No.1131/2004, wherein, it was clearly stated that the rear courtyard is fully charged to the ground/shop owner and inadvertently, the printed column pertaining to share in staircase, common passage and lavatory block were not deleted in the Conveyance Deed of the flat owner. The plaintiff has also deliberately and intentionally not filed the Order dated 26.04.2006 passed by Hon'ble High Court of Delhi in W.P. (C) No. 4542/2006, wherein, it was held by the Hon'ble High Court that toilet situated on the ground floor is not common between the owner of the flat and owner of the shop.
(j) It is undisputed and candid clear that plaintiff is having bath cum toilet on the first floor of the flat. By means of relief of declaration sought in the present suit, the plaintiff wants to Suit No. 237/2018 Page 15 of 94 Anil Dua V. Vijay Sharma & Ors.
and is trying to enhance and extent his chargeable/lease area, of which he is not entitled and has no right. Vide Conveyance Deed and Lease Deed, both dated 19.12.1983, the owner/ allottee of Flat No.101, Sarojini Nagar Market, New Delhi was charged with 198.745 sq. ft. of area and the said chargeable area of 198.745 sq. ft. does not include the courtyard and W.C. on the ground floor shop no. 101, Sarojini Nagar Market, New Delhi. The public authorities have rightly refused the request of plaintiff vide letter and communication dated 24.03.2005 and 05.08.2005.
(k) On merits, the contents of the plaint have been denied. The owner of shop no. 101 and owner of flat no. 101 were charged on 2/3rd and 1/3rd ratio of total common area under lease. Since the total area of land under common charge/ lease was 596.2343 sq. feet, therefore, the owner of shop no. 101 was charged with 2/3rd of 596.2343 sq. feet, which is 397.4893 sq. feet and the owner of flat no. 101 was charged with 1/3rd of 596.2343 sq. ft., which comes to 198.745 sq. feet. Hence, the common area between the owner of shop no. 101 and owner of flat no. 101 is only 596.2343 sq. feet, out of which, 2/3rd is charged to the shop owner and 1/3rd is charged to the flat owner. The area measuring 225.0156 sq. feet towards the courtyard and steps was exclusively, independently and additionally charged and leased to the owner of shop no. 101, hence, the total charged/ leased area of shop no. 101 is Suit No. 237/2018 Page 16 of 94 Anil Dua V. Vijay Sharma & Ors.
820.8466 sq. feet. The area of rear courtyard situated on the ground floor is 17'4½" x 11' ½", which is exclusively and separately charged and leased to shop/ ground owner and the owner of flat has no right, title or interest in the said courtyard. After the death of Sh. Chand Prakash Sharma, his sons namely Sh. Vijay Sharma & Sh. Pramod Sharma have become the owners of shop no. 101 and all the lease hold rights in respect of shop no. 101 have been substituted in the name of defendants no. 1 & 2 and defendants no. 1 & 2 have been informed in this regard vide letter no. L&DO/PSIV/3714, dated 19.10.2004 issued by the Government of India, Ministry of Urban Development, Land & Development Office, Nirman Bhawan, New Delhi that the property bearing shop no. 101, Sarojini Nagar Market, New Delhi now stands in the books in the names of Sh. Vijay Sharma & Sh. Pramod Sharma, both S/o Late Sh. Chand Prakash Sharma. The contents of Conveyance Deed and Lease Deed executed in favour of owner of flat no. 101, Sarojini Nagar Market, New Delhi are as follows: "Bounded by North Courtyard of Shop No. 101 and service lane below.
Bounded by South Service Road below.
Bounded by East Service Road below.
Bounded by West Flat no. 102"
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From the above, it is candid clear that the courtyard situated on the ground floor is in exclusive ownership and possession of the allottee of shop no. 101, Sarojini Nagar Market, New Delhi and the plaintiff has no right over courtyard or W.C. CASE OF DEFENDANT NO. 3 AS PER WRITTEN STATEMENT Succinctly, the case of defendant no.3 is as under:
(a) The suit of plaintiff is bad for misjoinder of parties as defendant no.3 is not a necessary party. The suit is not maintainable for want of service of mandatory statutory notice in terms of provisions of Section385 of the NDMC Act. There never existed any privity of contract between the plaintiff and defendant no.3 at any point of time.
(b) The suit and claim of plaintiff is liable to be rejected against defendant no.3 in terms of the contents of plaint, wherein, the plaintiff himself has fixed the responsibility and liability against defendant no.1 alone.
CASE OF DEFENDANT NO. 4 AS PER WRITTEN STATEMENT Succinctly, the case of defendant no.4 is as under:
(a) The suit of plaintiff is bad on account of nonjoinder of necessary parties as the defendant no.4 is not a necessary party. The Central Government has decided to transfer various markets under the Ministry of Urban Development to the local bodies viz. NDMC and MCD and the Notification in this regard was issued on 24.03.2006. Sarojini Nagar Market has been transferred to NDMC.
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(b) Notice under Section 80 CPC has not been sent to defendant no.4 i.e. Union of India.
(c) On merits, the contents of the plaint have been denied. It has been admitted that as per record of the office of defendant no.1, Lease Deed and Conveyance Deed in respect of Flat No.101, S.N. Market, were executed on 19.12.1983 between the President of India and Sh. Bhupesh Nandi, S/o Sh. B.C. Nandi. Sh. Bhupesh Nandi had sold the property to Sh. Anil Dua vide Sale Deed dated 06.02.1986 in the name of Sh. Anil Dua. As per Lease Deed, the land charged to Flat No. 101 is 198.745 sq. ft., this does not include the area of back courtyard at ground floor in the corner of which W.C. is located. The description in the schedule of Conveyance Deed that the owner/ allottee of flat no. 101 has share in the lavatory block appears to be due to clerical error.
(d) The area of rear courtyard in Sarojini Nagar Market is fully charged to the ground floor shop owners and the flat owners have no right in that. However, in most of the cases, both the flats and shops in Sarojini Nagar Market were allotted to the same persons and therefore, they continued to use the W.C., which was originally constructed in the ground floor shops, till construction of separate W.C. in the flat. In cases, where the shops and flats were allotted to different persons, the flat owners continued to share the W.C. in the shops on the ground floor with the consent of shop owners till they made Suit No. 237/2018 Page 19 of 94 Anil Dua V. Vijay Sharma & Ors.
their own arrangements in the flat. In the instant case also, CPWD was advised vide letter dated 03.01.2001 to provide separate W.C. in the bathroom in flat no. 101, Sarojini Nagar Market at the cost of licensee of the flat, as provided under the existing standard plan of the market. However, when inspection of Flat No.101, Sarojini Nagar Market was carried out on 17.04.2002, one bath and W.C. was found at site. REPLICATIONS AND ISSUES The plaintiff filed replications and controverting the assertions made in the Written Statements filed by defendants no. 1, 2, 3 and 4 and reiterated the contents of the Plaint.
From the pleadings of the parties, following issues were framed vide Order dated 10.08.2011: ISSUES
1. Whether suit of the plaintiff for relief of declaration is barred by law? OPD
2. Whether suit of the plaintiff is barred by Section 41(h) of the Specific Relief Act 1963 (wrongly written as 1983) ? OPD
3. Whether suit for declaration simplicitor without claiming decree of possession is not maintainable? OPD
4. Whether the suit of the plaintiff is barred under Order 2 Rule 2 CPC? OPD
5. Whether the Plaintiff is entitled for the decree of declaration as prayed for? OPP Suit No. 237/2018 Page 20 of 94 Anil Dua V. Vijay Sharma & Ors.
6. Whether Plaintiff is entitled for damages @ Rs.20,000/ pm being coowner of 50% share in the courtyard portion situated in the ground floor behind shop no.101, Sarojini Nagar Market, New Delhi? OPD
7. Whether the Plaintiff is entitled for damages pendentelite and future as claimed for? OPP
8. Whether the Plaintiff is entitled for decree for mandatory injunction against the defendant as prayed for? OPP
9. Whether Plaintiff is entitled to decree for permanent injunction against the defendants as prayed for?
10. Relief ?
EVIDENCE OF THE PLAINTIFF AND DEFENDANTS AND DOCUMENTS RELIED UPON BY THEM:
Plaintiff, in order to prove his case, led plaintiff's evidence and examined the following summoned witnesses:
1. Sh. Mangesh Kumar, Sr. Assistant, EstateII, NDMC as PW1, who brought the summoned record i.e. file related to Flat No.101, First Floor, Sarojini Nagar, New Delhi and stated that Ex.PW1/1 is the true copy of plan issued by CPWD for shop no. 101, ground floor. Ex.PW1/2 is the true copy of plan issued by CPWD of flat no. 101 (first floor), Ex.PW1/3 is the copy of lease deed of said flat. He further stated that there is some difference between the record brought by him on that day. In their record, in the lease deed 2/3rd to ground floor and 1/3rd to first floor = 198.745 is written while in Suit No. 237/2018 Page 21 of 94 Anil Dua V. Vijay Sharma & Ors.
Ex.PW1/3, "1/3rd to ground floor" is written in place of "1/3rd to first floor". He stated that he cannot say whether Ex.PW1/4 is the copy of Conveyance Deed. He stated that he cannot say whether Ex.PW1/5 is the copy of Sale Deed as there is cutting on it. He stated that he cannot say whether Ex.PW1/6 is the true copy i.e. mutation letter as date is not clear on that document. Ex.PW1/7 is the true copy of letter dated 11.10.73 issued by Director of Estate. He stated that he cannot verify the genuineness of Ex.PW1/8 as this document is not in their records. Ex.PW1/9 is the letter dated 24.03.2005 issued by NDMC to Sh. Anil Dua.
2. As the abovenamed summoned witness was transferred and hence, in his place, Sh. Raman Dhingra, Sr. Assistant, Dept. EstateII, NDMC, New Delhi was examined by the plaintiff as PW2. This witness has proved on record the certified copy of CPWD Plan of flat no. 101, Sarojini Nagar as Ex.PW2/1. Certified copy of CPWD plan of flat no. 101, Sarojini Nagar as Ex.PW2/2. Certified copy of lease deed of flat no. 101, Sarojini Nagar as Ex.PW2/3. Certified copy of conveyance deed of flat no.101, Sarojini Nagar as Ex.PW2/4. Certified copy of mutation letter dated 19.03.1987 is Ex.PW2/5. Certified copy of sale deed dated 06.02.1986 executed by Bhupesh Nandi in favour of Anil Dua as Ex.PW2/6. Certified copy of letter dated 11.10.1973 issued by Director of Estates as Ex.PW2/7. Certified copy of Complaint dated 24.01.2000 as Ex.PW2/8.
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Certified copy of complaint dated 31.12.2003 as Ex.PW2/9. Certified copy of letter dated 26.03.1979 as Ex.PW2/10.
During crossexamination, the dimensions of common passage have been reflected at encircled portion at pointC of Ex.PW2/RX1. The line plan as Ex.PW2/RX2. The line plan of flat no. 101 is Ex.PW2/RX3. True copy of letter dated 15.09.1973 is Ex.PW2/RX4. True copy of complaint dated 30.10.1973 is Ex.PW2/RX5. True copy of letter dated 16.11.1973 is Ex.PW2/RX6. True copy of letter dated 08.11.1973 is Ex.PW2/RX7. True copy of letter dated 15.01.1974 is Ex.PW2/RX8. True copy of letter dated 19.02.1974 is Ex.PW2/RX9. True copy of letter addressed to Executive Engineer, CPWD is Ex.PW2/RX10. True copy of pages no. 1 to 6 of noting portion of Order dated 03.03.82 and subsequent proceedings till 11.04.1983 is Ex.PW2/RX11. Certified copies of letters are Ex.PW2/RX12 and Ex.PW2/RX13. The draft lease of Bhupesh Nandi of Flat No.101, Sarojani Market, Delhi is Ex.PW2/RX14. The Conveyance Deed pertains to Shop No.101, Sarojani Nagar Market in favour of Sh. Chand Prakash is Ex.PW2/RX15. Certified copy of letter dated 30.09.1999 of Sh. Chand Prakash is Ex.PW2/RX16. Certified copy of letter dated 11.10.1999 in respect of shop no. 101, Sarojani Nagar Market is Ex.PW2/RX17. The clarification by SHO, Sarojani Nagar was caused in respect of Shop no. 101 and the same is Suit No. 237/2018 Page 23 of 94 Anil Dua V. Vijay Sharma & Ors.
Ex.PW2/RX18. Ex.PW2/RX19 is letter dated 31.12.1999. Photocopy of letter dated 24.03.2005 addressed to Sh. Anil Dua is Ex.PW2/RX21. Certified copy of Memorandum dated 13.01.2003 is Ex.PW2/RX24. The original signed office copy of written statement filed in case titled as Anil Dua Vs. Chand Prakash Sharma filed by L&DO is Ex.PW2/RX26 and copies of seven photographs are Ex.PW2/RX27.
3. Sh. Raman Dhingra, Sr. Assistant, Department of EstateII, NDMC, New Delhi, posted at Palika Kendra was reexamined as PW2A as official witness for Director EstateII, NDMC. The earlier examination of the witness was done as a witness for Directorate of Estate, Govt. of India as the records of Directorate of Estate have already been sent to NDMC as transferred.
PW2A has brought on record the attested photocopy of Inspection Report dated 10.03.1989 as Ex.PW2A/1. Inspection Report dated 22.02.2000 carried out by L&DO in shop no. 101, Sarojini Nagar, Delhi as Ex.PW2A/2. Copy of letter bearing no. L&DO PS.IV/383 dated 29.04.2002 as Ex.PW2A/3. Copy of letter no. L& DO/PS.IV/3715 dated 19.10.2004 issued by L&DO to defendants no. 1 & 2 is Ex.PW2A/4. The detailed calculation report as per notice dated 19.10.2004 is Ex.PW2A/5. The action taken report on the complaint dated 18.02.2005 of the plaintiff is Ex.PW2A/6.
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The attested copies of Conveyance Deeds of flat nos. 102, 129, 146, 192 are Ex.PW2A/7 to 10.
4. Sh. Mangal Saini, UDC, L&DO Department, R.P. Cell Section as PW3 twice.
In his first statement recorded on 02.09.2011, he stated that he had seen documents Ex.PW3/3 and Ex.PW3/4 and he cannot say that these documents were received in their office. He cannot say that seal on document Ex.PW3/3 is of their office. He cannot say that reply Ex.PW3/1 was given by their department in response to letters Ex.PW3/3 and Ex.PW3/4. During crossexamination, he stated that it is correct that Ex.PW3/4 is a voucher issued by Axis Bank and their department had no concern with this voucher. He has not brought the record pertaining to RTI as the same was not summoned by the Court.
In his second statement recorded on 02.09.2011, he stated that he has seen document Ex.PW3/1 i.e. copy of RTI application. There is no document in record brought by him to verify the genuineness of these documents. He identified the signatures of Sh. Surender Singh, Dy. L&DO at point X. He has seen Sh. Surender Singh writing and signing before him. He has seen document Ex. PW3/2, he cannot verify the genuineness of this document as copy of same was not in their record. He voluntarily stated that this document was pertaining to RTI Cell.
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During crossexamination of PW3, certified copy of Written Statement of Defendants no.1 and 2/U.O.I. filed in the case titled as Anil Dua Vs. Union of India & Ors. was Ex.PW3/D1. Certified copy of Written Statement of defendant no.2 filed in the case titled as Anil Dua Vs. Chand Prakash Sharma & Anr. was Ex.PW3/D2. Copy of Short Affidavit on behalf of respondent no.2 filed in the case titled as Chand Prakash Sharma (Through his legal heirs) Vs. Anil Dua & Ors. was Ex.PW3/D3.
5. Sh. Krishan Kant, Assistant (RKD Branch) from Hon'ble High Court of Delhi as PW5, who brought on record the WP (C) No. 4542/2006 titled as Anil Dua Vs. NDMC and CM (M) No. 1131/2004 titled as Chand Prakash Sharma Vs. Anil Dua. The Order dated 25.08.2004 is Ex.PW5/1 and 27.08.2004 is Ex.PW5/2 respectively passed by Hon'ble Mr. Justice O.P. Dwivedi and passed in CM (M) No. 1131/2004 and short affidavit filed by L&DO alongwith Site Plan (6 pages) on 31.08.2004 are Ex.PW5/3. He further stated that Ex.PW4/6 is the Order dated 26.04.2006 passed by Hon'ble Mr. Justice Pradeep Nandrajog in WP(C) No. 4542/2006.
6. Sh. Ghanshyam, LDC (Record Room, Session), Tis Hazari Courts, Delhi as PW6, who brought on record the Order dated 17.08.2004 passed by Sh. Daya Prakash, the then Ld. Sr. Civil Judge in MCA No.119/2000 as Ex.PW6/1.
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7. Sh. M.K. Gautam, Junior Engineer (Civil), Enforcement Building Regulations, 2nd Floor, Pragati Bhawan, NDMC as PW7 and his examination in chief was deferred on the ground that he did not bring the summoned record. Thereafter he was not examined.
The plaintiff has also examined himself as PW4. PW4 has filed his evidence by way of affidavit, wherein he reiterated and reaffirmed the contents of the plaint. PW1 in his testimony has relied upon the following documents:
(i) Certified copy of photograph about the toilet in dispute as Ex.PW4/1.
(ii) Copy of Order dated 17.08.2004 passed by Sh. Daya Prakash, the then Ld. Civil Judge, Delhi is Ex.PW4/2.
(iii) Copies of Orders dated 15.09.04 and Order dated 30.09.2004 passed in CM (Mains) 1131/04 by Hon'ble High Court of Delhi are Ex.PW4/3 and Ex.PW4/4 respectively.
(iv) Copy of Order dated 25.11.2005 in the same case is Ex.PW4/5.
(v) Copy of Order dated 26.04.2006 in civil Writ Petition No. 4542/2006 is Ex.PW4/6.
(vi) Site Plan is Ex.PW4/7.
(vii) Complaints dated 24.01.2000 are Ex.PW4/8 and
Ex.PW4/9.
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(viii) Complaint dated 02.04.2002 is Ex.PW4/10.
(ix) Complaint dated 31.12.2003 is Ex.PW4/11.
(x) Complaint dated 06.12.2004 is Ex.PW4/12.
(xi) Complaint dated 14.02.2005 is Ex.PW4/13.
(xii) Complaint dated 18.08.2008 is Ex.PW4/14.
(xiii) Copy of Standard Plan is Ex.PW4/15.
(xiv) Copy of Letter dated 06.04.1979 addressed to Director of Estate is Ex.PW4/16.
(xv) Information received through RTI vide Letter dated 17.12.2003 is Ex.PW4/17.
During crossexamination, following documents were exhibited:
1. Certified copy of the Civil Suit No. 66/2002titled as Anil Dua Vs. UOI in the Court of Sh. Daya Prakash, the then Ld. Civil Judge, Delhi is Ex.PW4/RX1.
2. Certified copy of the suit no. 45/05 titled as Anil Dua Vs. Chand Prakash Sharma is Ex.PW4/RX2.
3. Copy of plaint in the suit for damages is Ex.PW4/RX3.
4. Letter written by Sh. Chand Prakash is Ex.PW4/RX4.
5. Copy of Letter from L&DO is Ex.PW4/RX6.
6. Ex.PW4/RX28 is Plaint of Suit No.109/2002 (New Number 269/10/2002) titled as Vijay Sharma Vs. Anil Dua and Ors.
7. Copy of plaint in a suit for permanent injunction in civil courts, Delhi is Ex.PW4/RX29.
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8. Certified copies of CWP No. 2651/2000 titled as Anil Dua Vs. Union of India & Ors. filed before the Hon'ble High Court alongwith the Order dated 03.08.2000 passed by Hon'ble High Court are Ex.PW4/RX30 and Ex.PW4/RX31.
9. Certified copies of plaint filed before the then Ld. Senior Civil Judge, Delhi (obtained from the Court of Ms. Somya Chauhan, the then Ld. Civil Judge, Delhi is Ex.PW4/RX32.
10. Certified copies of plaint and certain orders passed by the then Ld. Civil Judge in respect of Suit No. 639/11/02 tilted as Vijay Sharma & Ors. Vs. Anil Dua & Ors. is Ex.PW4/RX33.
11. Certified copy of Order dated 05.08.2004 in CWP No. 10323/04 is Ex.PW4/RX34.
12. Certified copy of Order dated 26.04.2006 in CWP No. 4542/2006 is Ex.PW4/RX35.
13. Certified copy of the documents/ pleadings in CM(M) No. 1131/04 are Ex.PW4/RX36 and
14. Fee receipt of capitalise value of Bhupesh Nandi of 06.04.1979 is Ex.PW4/RX37.
On the other hand, the defendants No.1 and 2 have examined the summoned witness Sh. Dharam Pal, Inspector Tax, Suit No. 237/2018 Page 29 of 94 Anil Dua V. Vijay Sharma & Ors.
House Tax Department of NDMC, Palika Kendra, New Delhi as DW 1, who had brought the following documents:
1. Copy of letter no. 3126/Tax dated 17.05.1984 issued by NDMC to Shri Chand Prakash as Ex.DW1/1.
2. Notice No.409/Tax dated 10.01.1984 issued by NDMC to Shri Chand Prakash as Ex.DW1/2.
3. The mutation stood in the name of Sh. Vijay Kumar and Sh.
Promod Kumar in respect of shop no. 101, Sarojini Nagar Market, New Delhi vide mutation no. 2704/AST/Tax/2005 dated 25.10.2005 as Ex.DW1/3.
The defendants No.1 and 2 have also examined Shri Pramod Kumar Sharma as DW2. DW2 has filed his evidence by way of affidavit and placed reliance upon the following documents:
1. Conveyance Deed dated 16.01.1984 of Shop No.101 is Ex.DW 2/1.
2. Letter dated 19.10.2004 issued by L&DO Office is Ex.DW2/2.
3. Certified copy of Order of Writ Petition No.4542/06 is Ex.DW 2/3 (Colly.).
4. Certified copies of Order passed in C.M. No. 1131/04 is Ex.DW2/4 (Colly.).
5. Copy of Order dated 12.04.2005 passed by Sh. Vidya Prakash in Suit No.66/02 is Ex.DW2/5.
6. Copy of Order dated 19.04.2004 and 18.02.2006 passed in Suit no. 109 is Ex.DW2/6 (Colly.).
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7. Copies of FIR No.79/02 and 412/03 are Ex.DW2/7 and Ex.DW2/8 and
8. The notice dated 15.12.1984 is Ex.DW2/9.
This Court heard final arguments at length, as advanced by Ld. Counsels for the parties. I have perused the material available on record and also the written submissions filed by Ld. counsels for Plaintiff and defendants No.1 and 2. ISSUE WISE FINDINGS ISSUES NO.1, 3 & 5
1. Whether suit of the plaintiff for relief of declaration is barred by law? OPD
3. Whether suit for declaration simplicitor without claiming decree of possession is not maintainable? OPD
5. Whether the Plaintiff is entitled for the decree of declaration as prayed for? OPP The aforesaid issues no. 1, 3 and 5 are interrelated and interconnected to each other and accordingly, they are decided together.
FINDINGS AND CONCLUSIONS OF THE COURT On 31.07.2019, the Plaintiff has given the following Statement: "Without prejudice to my other rights, I do not wish to press upon my claim of ownership over the rear court yard on the ground floor except the portion of the WC situated at the Suit No. 237/2018 Page 31 of 94 Anil Dua V. Vijay Sharma & Ors.
corner of the rear courtyard. By making this Statement, I am not in any way foregoing my easementary rights over the back court yard or common usage rights as all the pipe lines essential for the usage of civic enmities required for enjoyment of my property passes through the rear court yard on the ground floor. Also I am not foregoing any future rights or benefits available to me over and above the back court yard as per the applicable standard plan and government policies. I am also not foregoing my right to claim damages for causing hindrance in the enjoyment of my rights over the WC and court yard, as I have paid the capitalized value of the structure, licence of which was granted to me for 99 years in my lease deed and conveyance deed."
On 07.01.2020, the Plaintiff has given the following Statement: "I am the plaintiff in the present case. Under the wrong legal advice I had prayed for a relief of declaration thereby declaring me as a coowner qua the courtyard space and lavatory situated at the ground floor just behind the shop no. 101, Sarojini Nagar Market, New Delhi. Since I am deriving my title over the said lavatory block vide registered Lease Deed and Conveyance Deed, both dated 19.12.1983, I do not require any declaration with respect to the same. Therefore, I do not press for my relief of declaration."
The aforesaid issues are related to the declaration only, therefore, in view of the aforesaid statements, specifically statement dated 07.01.2020, nothing requires to be adjudicated as far as the relief of declaration is concerned. In view of the aforesaid statements, the aforesaid issues no.1 and 3 became redundant, Suit No. 237/2018 Page 32 of 94 Anil Dua V. Vijay Sharma & Ors.
however, this Court, while adjudicating the other issues, would consider the implication of withdrawal of the relief of declaration and further, whether in the facts and circumstances of the present case, the plaintiff was required to seek the relief of possession. Accordingly, the relief of declaration, as sought by the Plaintiff, is dismissed as not pressed and the aforesaid issues are decided in the aforesaid terms.
ISSUE NO.4
4. Whether the suit of the plaintiff is barred under Order 2 Rule 2 CPC? OPD FINDINGS AND CONCLUSIONS OF THE COURT The Ld. Counsel for defendants No.1 and 2 in order to support this issue has broadly argued to the following effect:
(a) Re: Suit No. 66/2002:
(i) Plaintiff before filing Suit No. 66/2002 had filed writ petition No. 2651/2000 seeking (i) declaration of above referred letters dated 11.10.1999 and 31.12.1999 issued by L&DO as illegal and void, (ii) sought directions to L&DO to charge 1/3 of the ground rent of the courtyard of ground floor from him and (iii) declare charging of ground rent of complete courtyard area from the Defendants as illegal.
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(ii) The Hon'ble High Court while dismissing the
above writ petition vide order dated 3.8.2000 observed that proper remedy of the Plaintiff is to file a suit where he can challenge the orders of the public authorities. Liberty to file the suit was granted.
(iii) Suit No. 66/2002 was filed on 31.1.2002 i.e. after a gap of more than 1 year 4 months from order dated 23.8.2000. In this suit defendants were deliberately not impleaded as parties, whereas in the above writ petition 2651/2000, defendants' father (since deceased) was impleaded as Respondent. Defendants filed impleadment application. Before the said application could be decided, Plaintiff withdrew the suit on 12.4.2005.
(iv) That as per allegations/averments made in the plaint of Suit No. 66/2002 filed by the Plaintiff, his conveyance deed and lease deed documents dated 19.12.1983 were incomplete , defective and misleading and the line plan annexed to the lease deed did not reflect the location of the lavatory in the premises.
(v) The reliefs sought by the Plaintiff in the above suit were against the above said letters of L&DO Suit No. 237/2018 Page 34 of 94 Anil Dua V. Vijay Sharma & Ors.
dated 11.10.1999 and 31.12.1999 and for rectification/amendment of his own lease deed and conveyance deed both dated 19.12.1983.
(vi) The above suit was contested by NDMC and L&DO by filing their respective written statements. The above suit was withdrawn on 12.4.2005 by the plaintiff through his counsel. Reason given for such withdrawal was two orders, firstly order dated 17.8.2004 passed by Senior Civil Judge in Misc. Appeal on the issue of interim injunction and other order dated 30.9.2004 passed by High Court in CM (Main) Petition No. 1131/2004 filed by Defendants against the above order dated 17.8.2004.
(vii) None of the above orders in any manner granted or gave the plaintiff any reliefs which he had sought in Suit No. 66/2002. Thus, the above reliefs sought in the above suit No. 66/2002 had nothing to do with the above two orders. In view of the above, after withdrawing the above suit in April 2005, Plaintiff is debarred and estopped from raising any claim or contention raised in the above suit since he did not seek any liberty from the said court while withdrawing suit No. 66/2002. In the present Suit No. 237/2018 Page 35 of 94 Anil Dua V. Vijay Sharma & Ors.
suit, the substance of the contentions by the Plaintiff while claiming coownership in the courtyard or WC is inconsistent and contrary to the stand and pleas taken by him in above said suit No. 66/2002 which is he withdrew.
(viii) Besides above, at the same time, the plaintiff cannot permitted to take plea which is contrary to or inconsistent with those taken by him earlier but were not proved as the suit itself was withdrawn after L&DO and NDMC had strongly contested the suit and impleadment application was filed by the Defendants.
(ix) In view of the above, present suit is barred under Order 2 Rule CPC and the plaintiff is estopped from claiming any right in courtyard or WC in the said courtyard, because he himself had withdrawn his claim and relief in the said courtyard, which he had sought in Suit No. 66/2002.
(b) Re: CWP No. 4542/2006 & ORDER DATED 26.4.2006
(i) Plaintiff has deliberately misrepresented by not bringing out truthfully the real contents and effect of the order dated 26.4.2006 passed by Suit No. 237/2018 Page 36 of 94 Anil Dua V. Vijay Sharma & Ors.
the Hon'ble High Court in above writ petition which was filed by the plaintiff on the same subject which forms part of present suit.
Observations made in the order dated 26.4.2006 on certain relevant factual aspects are crucial and have a direct bearing on the merits of the present suit. One of the findings recorded in the aforesaid order dated 26.4.2006 is that there was already existing WC/Toilet on the first floor of the flat of the Plaintiff. This fact has not been disclosed by the Plaintiff in the plaint contents of which rather give a misleading impression that as if at the time of filing of the suit there was no WC on the first floor flat of the Plaintiff.
(ii) Important findings/factual observations made by the High Court in paras 1 and 9 confirms the existence of Bath cum Toilet on the first floor flat of the plaintiff, whereas para 5 of the order records clear finding that conveyance deeds of the parties dated 19.12.1983 and 16.1.1984 do not evidence that the owners of both the floors have to share a common toilet.
(iii) In the order dated 26.4.2006, the High Court having noticed the existence of the Toilet on Suit No. 237/2018 Page 37 of 94 Anil Dua V. Vijay Sharma & Ors.
First floor and having found nothing in the conveyance deeds of the parties suggesting that ground floor WC was to be shared by the owners of both the floors, the only liberty which the High Court gave was that if the Plaintiff wanted to have an additional Toilet/WC i.e. above over the one existing on the first floor, then he could approach the civil court for the aforesaid purpose.
(iv) But in the plaint filed on 17.5.2006 i.e. within 20 days after the above order dated 26.4.2006, none of the above said findings and observations made in the above order have been disclosed by the Plaintiff in a transparent manner. Rather, the whole case has been prepared by the plaintiff indicating as if at the time of filing of the suit there was no toilet/WC facility at all on the first floor. In fact the Plaintiff has misused the order dated 26.4.2006 by seeking such reliefs, which in view of unchallenged findings recorded in paras 1, 5 and 9 of the said order dated 26.4.2006, cannot be sought/claimed by him. The issue of having facility of additional WC on the ground floor has Suit No. 237/2018 Page 38 of 94 Anil Dua V. Vijay Sharma & Ors.
not been narrated or pleaded in the correct perspective in the plaint.
(v) It is submitted that the liberty granted by Hon'ble High Court to the Plaintiff was for seeking relief for additional toilet from the civil court, whereas, the plaint has not been framed by giving correct background nor for additional toilet/WC.
(vi) It is further submitted that the reliefs sought in the present suit cannot be allowed or accepted in view of a clear finding given by the High court to the effect that the Plaintiff was already having Toilet/WC on the first floor.
It is apposite to reproduce the provisions of Order II Rule 1 & 2 CPC: "1. Frame of suit.--Every suit shall as far as practicable be framed so as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them.
2. Suit to include the whole claim.--(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish and portion of his claim in order to bring the suit within the jurisdiction of any Court.
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(2) Relinquishment of part of claim.--Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.
(3) Omission to sue for one of several reliefs.--A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.
Explanation.--For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action."
The Constitution bench of Hon'ble Supreme Court in Gurbux Singh v. Bhooralal, AIR 1964 SC 1810, while explaining the true scope of Order II Rule 2 of CPC, laid down the parameters as to how and in what circumstances, a plea should be invoked against the plaintiff. The Hon'ble Mr. Justice Ayyangar J. speaking for the Bench held as under:
"In order that a plea of a bar under Order 2 Rule 2(3) of the Civil Procedure Code should succeed the defendant who raises the plea must make out (1) that the second suit was in respect of the same cause of action as that on which the previous suit was based;
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(2) that in respect of that cause of action the plaintiff was entitled to more than one relief;
(3) that being thus entitled to more than one relief the plaintiff, without leave obtained from the Court omitted to sue for the relief for which the second suit had been filed."
There is no dispute between the parties that the plaintiff filed Suit No.41/2000 for Permanent Injunction against father of defendants No.1 and 2. The facts of the said suit may be said to be somewhat similar to the facts of the present case, however, there are also subsequent events in the present suit. During the pendency of the said suit, the Plaintiff has filed suit No.66/2002 on a different cause of action impleading defendants No.3 and 4 only as defendants.
In suit No.66/2002, the defendants No.1 and 2 were not even the parties, though, they have filed the application for impleadment under Order 1 Rule 10 CPC and admittedly, the said suit was withdrawn prior to even deciding of the said application.
At the time of withdrawal of suit No.66/2002, the Suit No.41/2000 was still pending adjudication. The suit No.41/2000 was abated on account of the fact that suit for injunction against the father of defendants no.1 & 2 was in personal in nature and after the death of father of defendants no. 1 & 2, the said suit was not allowed to continue against his LR's, as the right to sue does not survive against defendants no.1 and 2. The primary Suit No. 237/2018 Page 41 of 94 Anil Dua V. Vijay Sharma & Ors.
requirement of Order 2 Rule 2 CPC is that the earlier suit must also be between the same parties. The earlier suit i.e. suit No.41/2000 was between the plaintiff and father of Defendants no.1 & 2 and the same was abated, as the right to sue was not survived against Defendants no.1 and 2. The defendants No.1 and 2 were not the parties in the said suit. Similarly, the defendants No.1 and 2 were not even parties in Suit No.66/2002, although, suit No.66/2002 was based on different cause of action as that of Suit No.41/2000. At the cost of repetition, the Suit No.41/2000 was pending when Suit No.66/2002 was withdrawn by the Plaintiff. The defendants No.1 and 2 have also filed an application under Order 7 Rule 11 CPC on similar pleas, which were dismissed by Ld. predecessor of this Court vide order dated 08.08.2011.
Furthermore, the pleadings and observations, in the earlier suits and writ petitions, may be relevant for the merits of the case and the same will be considered while deciding the other issues on merits, however, the same cannot, by any stretch of imagination, is a ground of bar to the present suit under Order 2 Rule 2 CPC. Moreover, the Order 2 Rule 2 CPC speaks about the Suit and not the Writ Petitions. In my considered view, the bar under Order 2 Rule 2 CPC would not be applicable in the present case.
Accordingly, in view of the discussions made hereinabove, the issue no.4 is decided against the defendants and in favour of the plaintiff.
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ISSUES NO. 2, 6, 7 & 92. Whether suit of the plaintiff is barred by Section 41(h) of the Specific Relief Act 1963 (wrongly written as 1983)? OPD
6. Whether Plaintiff is entitled for damages @ Rs.20,000/ pm being coowner of 50% share in the courtyard portion situated in the ground floor behind shop no.101, Sarojini Nagar Market, New Delhi? OPD
7. Whether the Plaintiff is entitled for damages pendentelite and future as claimed for? OPP
9. Whether Plaintiff is entitled to decree for permanent injunction against the defendants as prayed for?
The aforesaid issues 2, 6, 7 and 9 are interrelated and interconnected to each other and accordingly, they are decided together.
FINDINGS AND CONCLUSIONS OF THE COURT The relevant portion of internal communication/letter dated 15.09.1973 by Executive Engineer to the Director of Estate is reproduced as under: "....Subject: Unauthorised construction near laterine down stairs to flat no.101 Sarojini Nagar New Delhi.
Ref: D.O. letter No.DE/MKT/SM.101.F dt. 5.7.73 The Flat of the first floor is occupied by Smt. Ava Nandi a widower and the shop on the corresponding down floor is occupied by Sh. Chand Prakash. There is only one laterine located on the open court yard. This latrine was previously jointly used by the shopkeeper and occupant of the flat but Suit No. 237/2018 Page 43 of 94 Anil Dua V. Vijay Sharma & Ors.
the use of laterine by occupant of the flat are being denied by the shopkeeper. The door of the laterine was also found locked during inspection.
It was stated by the shop keeper that while revising the rent of the shop the water and electricity connections of the laterine were taken into account and as such the laterine cannot be used by others.
Infact the laterine should be entirely at the disposal of the family members of the flats and shop keeper can use common laterine outside constructed by the N.D.M.C. The other alternative is that existing bath room of the flat which is sufficiently spacious on can be converted into W.C. cum bath by providing W.C. and a small partition at one side. There is also no difficulty in making necessary connections to manhole adjacent the building.
The shopkeeper has made unauthorized construction on the courtyard...."
The aforesaid letter reveals that the same was an internal letter between Executive Engineer and the Directorate of Estate of L&DO. The Executive Engineer was giving two options to the Directorate of Estates i.e. i) The latrine should be entirely at the disposal of the family members of flats and the shopkeeper can use the common latrine constructed outside by the N.D.M.C. and ii) alternatively, the existing bathroom of the flat, which is sufficiently spacious, can be converted into W.C.cumbathroom by providing W.C. and a small partition wall at one side. Therefore, the same was Suit No. 237/2018 Page 44 of 94 Anil Dua V. Vijay Sharma & Ors.
only the proposal of which was exchanged between the Executive Engineer and the Directorate of Estates.
The relevant portion of Letter dated 11.10.73 Ex.PW2/7 from defendant No.4 to Shri Chand Parkash is reproduced as under: "New Delhi, dated 11/10/73 Shri Chand Parkash, Shop No. 101, Sarojini Market, New Delhi.
Subject: Unauthorised construction near latrine down stairs to flat No.101, Sarojini Market, New Delhi.
Dear Sir, I am directed to say that it has been reported that you do not allow the occupant of the flat above your shop to use the latrine which is meant for their use also. This is objectionable and you are directed to allow them to use it, under intimation to this Directorate.
Yours faithfully, ( B.B. Rao ) Asstt. Director of Estates Copy with reference to her letter dated 15673 is forwarded to Smt. Ava Nandi, Flat No.101, Sarojini Market New Delhi for information.
( B.B. Rao ) Asstt. Director of Estates"
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The aforesaid letter was addressed from the Office of Directorate of Estates by Asst. Directorate of Estates to Shri Chand Parkash, the father of defendants no.1 & 2. The tone and tenor of the aforesaid letter reveals that aforesaid latrine is part & parcel of the shop but the shop owner is not allowing the flat owner to use the same, which is also for their use.
The relevant portion of the letter dated 05.11.73/14.11.73 Ex.PW2/RX6 from defendant No.4 to Smt. Ava Nandi is reproduced hereunder: "......I am directed to refer to your letter dated 15673 on the above subject and to request you to indicate in the first instance whether you are prepared to pay the cost of providing the separate W.C in the flat by the C.P.W.D..........."
The aforesaid letter was addressed from the Office of Directorate of Estates by Asst. Directorate of Estates to Smt. Ava Nandi. The aforesaid letter clearly reveals that Smt. Ava Nandi was given the second option, which was given to Directorate of Estates by Executive Engineer vide letter dated 15.09.1973 i.e. existing bathroom of the flat, which is sufficiently spacious, can be converted into W.C.cumbathroom by providing W.C. The relevant portion of the letter dated 30/31.10.73 Ex.PW2/RX5 from Late Chand Parkash to defendant No.4 is reproduced hereunder: ".......I am to refer to your Registered A.D. letter No.DE/MKT/SM/101F, dated the 11th October 1973 on Suit No. 237/2018 Page 46 of 94 Anil Dua V. Vijay Sharma & Ors.
the above subject and to state that the following facts have not been taken into consideration before asking me to allow the occupant of the flat above my shop No.101,Sarojini Market, New Delhi :
1. When the shop was allotted tome several years ago, the Flat in question was being used as a office and not as Residential Flat. Hence there was no trouble whatsoever at that time.
2. The latrine in question is situated within the boundary area of the shop in question and nothing to do with the above flat. Right from the beginning I have been regularly paying electric charges for the electricity used in the said latrine. Moreover the water connection to the said latrine is also from my water meter and I pay water charges for the same. The rent of the shop includes proportionately rent of latrine actually meant for the shop.
3. For the last several years the latrine was never used by the occupant of the flat and they very well understood that the same was meant for the shop only. I fail to understand as to how this question has been brought to your notice. It is an admitted fact that no family can even for a day carry on without latrine. In view of this the occupants of the flat did not use the latrine because they were fully aware that the same was not meant for them.
4. At the time of converting office accommodation into residential one and allowing the same to the present family it was for the Estate Office to make necessary arrangements for providing latrine to them. This was also done in many other cases by the Govt.
Suit No. 237/2018 Page 47 of 94 Anil Dua V. Vijay Sharma & Ors.
5. Before taking a final decision in the matter, I would request you to kindly keep the fact in view that the occupant of the flat has grown up daughters and my business being a tailoring one, the tailors quite frequently use the latrine. If the Govt. takes a one sided decision, I would not be responsible for any untoward happening that may occur at any time.
I would, therefore, request you most humbly to keep in view of all the above facts in view. I would be glad to appear before you in person if so desired. Moreover the number of my own tailors working with me is so large that it would be practically impossible for both the tailors and the occupant of the above flat.
The best solution to the problem would be to provide latrine to the occupant of the flat just adjacent to Kitchen as has been done in various other markets viz. Krishna Market, Lajpat Nagar, New Delhi, by the Government itself.
Hoping to receive a favourable reply. ......"
The letter dated 08.11.73 Ex.PW2/RX7 from Late Chand Parkash to defendant No.4 is reproduced hereunder: "With reference to your letter no. DE/MKT/SM101/F dated 11.10.73 asking me to allow the use of the latrine to the occupant of Flat No. 101 Sarojini Nagar Market, I would very much like to state in brief for favour of kind consideration and favourable action with a hope that no partial action would be imparted to me. This is in continuation of my letter dated..
Suit No. 237/2018 Page 48 of 94 Anil Dua V. Vijay Sharma & Ors.
1. That the laterine provided is attached with the shop only right from the very beginning.
2. That the provision of the water and electricity is from the shop and the occupant of the shop is to subscribe the consumption of both.
3. That the laterine is hardly sufficient to meet the requirements of my own and my workers and family members and it is not feasible for me to permit the use of laterine to the occupants of the flat.
4. That to provide the facility of the laterine to the flat holders is, I understand, the liability of the Department and no provision is binding upon me.
5. That there is no provision ever in my lease deed that I will have to allow the use of the laterine to the occupant of the flat.
6. I would state that the allotment of the shop and flat are two different issues and are executed on two different licence/ lease deeds, to which I understand these are two units and the provision of laterine for the flat is required to be separate and the Department should not force me to part with my share of allotment under any threat or coercion. ........"
The aforesaid letters were written by Shri Chand Parkash to the Directorate of Estates. The aforesaid letters also show that W.C. was part & parcel of the Shop and father of defendants no.1 & 2 has asked defendant No.4 to reconsider the Suit No. 237/2018 Page 49 of 94 Anil Dua V. Vijay Sharma & Ors.
direction, which was issued to him. Shri Chand Prakash has clearly agitated that latrine was attached with the shop right from the very beginning. The provisions for water and electricity were also provided from the shop by father of defendants No.1 & 2.
The relevant portion of letter dated 19.02.74 Ex.PW 2/RX9 from Smt. Ava Nandi to defendant No.4 is reproduced hereunder: ".....Reference your letter no. DE/MKT/SM101 dated 16.11.73 regarding flat No.101 Sarojini Market, New Delhi. I do not understand that in the existing space a W.C. is possible. I have also not been given an idea of the cost involved in the construction of separate W.C. I request that a responsible official may be instructed to examine the space in my presence.
I would also urge that the provision of an alternative W.C. for my residence is the responsibility of the Directorate of Estates. ....."
The relevant portion of letter dated 15.1.74 Ex.PW 2/RX8 written by Directorate of Estates to Smt. Ava Nandi is reproduced hereunder: "...I am to refer to the correspondences ending with this Directorate letter of even No. dated 161173 (copy enclosed) on the above subject and to request you to furnish the required information urgently. Your request of 15673 can be processed further only on receipt of your reply. ....."
The relevant portion of internal communication dated 17.4.74 Ex.PW2/RX10 between Assistant Directorate of Estates Suit No. 237/2018 Page 50 of 94 Anil Dua V. Vijay Sharma & Ors.
i.e. defendant No.4 with the Executive Engineer CPWD New Delhi is reproduced hereunder: ".....I am to refer to your letter No.24(15)/73GD/11378 dated 1591973 on the above subject and to request you to let us know the cost of providing a separate latrine in the flat as suggested by you in your aforesaid letter. ...."
Thereafter, there are no communications, which are on record, between Smt. Ava Nandi with defendant no.4 or viceversa and similarly, there are no communications between Sh. Chand Parkash and defendant no.4 or viceversa. There is no oral or documentary evidence, which has been placed on record, which could elicit out that whether Smt. Ava Nandi or for that matter, Shri Bhupesh Nandi or the Nandi family was using the W.C. in question. There is also no record to show that Smt. Ava Nandi or Shri Bhupesh Nandi or Nandi Family had contributed anything towards the electricity and water charges for the W.C. in question. There is also no documentary record, which has been produced on record that the house tax or the ground rent of the W.C. in question was ever paid/ tendered, either in full or towards their share, to the concerned authority by Smt. Ava Nandi or Shri Bhupesh Nandi or Nandi Family. Similarly, the Plaintiff has also not produced any record.
The plaintiff had laid a lot of emphasis on the Conveyance Deed dated 19th December, 1983 executed in favour of Shri Bhupesh Nandi (Exhibit PW1/4 and Exhibit PW2/4) in order Suit No. 237/2018 Page 51 of 94 Anil Dua V. Vijay Sharma & Ors.
to claim the share in W.C. on the ground floor. It is apt to reproduce the relevant portion of the property details from Ex.PW 1/4, which is as follows: "SCHEDULE ABOVE REFERRED TO ALL THAT Flat No.101,Sarojini Market, New Delhi double storeyed brickbuilt flat consisting of one room, Verandah, Bath Room, Kitchen & open court yard. Total area 596.2343 sq.ft. charged 2/3rd to G.F. & 1/3rd F.F. with fixtures and fittings situate the site being held on lease by indenture of lease dated ................ and more particularly described in the Schedule thereunder written TOGETHER WITH all buildings, privileges, easements and apurtenance whatsoever to the said shop/flat belonging or usually held or enjoyed therewith OR HOWSOEVER OTHERWISE the said shop/flat is or heretofore was called or known or should be described or distinguished.
Description of the structure of the Transferred Premises.
(i) All that ground floor brick built Flat No.101 (First Floor/Second Floor/Residential/flat).
(ii) .............................................................. share in the staircase and original C.P.W.D. Construction share in the common passage................................... and share in the lavatory block.
Bounded by North Court yard of Shop No.101 &Service Lane below.
Bounded by South Service Road below.
Bounded by East Service Road below Bounded by West Flat No.102"
Suit No. 237/2018 Page 52 of 94 Anil Dua V. Vijay Sharma & Ors.
The question arises for consideration is that whether the aforesaid clause unequivocally and unambiguously provides the right to Shri Bhupesh Nandi in the W.C. on the ground floor of the property in the rear court yard of Shop No.101.
It is clearly mentioned above that "All that Flat No.101, Sarojini Nagar, New Delhi double storeyed brickbuilt shop/flat consisting of one room, verandah, bathroom, kitchen and open courtyard total area 596.2343 sq. ft. charged 2/3 rd to G.F. & 1/3rd to F.F."
This Court cannot lost the sight of the fact that there were communications between defendant No.4 and Smt. Ava Nandi way back in the year 1973 and 1974 i.e. much prior to the execution of Conveyance Deed and Nandi family was aware about the fact that Late Shri Chand Parkash, father of defendants No.1 and 2 has not allowed them to use the latrine/ W.C. on the courtyard of Shop No.101. Despite the said dispute, the details of the Conveyance Deed incorporated hereinabove, nowhere, mentions about the W.C. at all. If there was any intention to transfer the rights in the W.C., then, there ought to have been specific description of W.C. at first instance and on that very place and it ought to have recorded the W.C. on the ground floor in the rear courtyard of Shop No.101 at the said place and it was expected from the Nandi Family to have got incorporated specifically when Late Chand Parkash, father of defendants No.1 and 2 had specifically not allowed the Nandi family to use the W.C. The Suit No. 237/2018 Page 53 of 94 Anil Dua V. Vijay Sharma & Ors.
subsequent parts i.e. (i) and (ii) are under the "Description of the structure of the Transferred Premises". The structure of the Transferred Premises cannot, in anyway, derogatory and contrary to the main clause of the Schedule of property, which was described hereinabove in detail. The subsequent portions i.e. (i) and (ii) are subparts of the main clause.
The Ld. Counsel for Defendants no.1 & 2 has argued that Original C.P.W.D. Construction, as mentioned in 2 nd column of
(ii) is actually to be read with Column (i) i.e. after Flat No.101, as the Flat No.101 in isolation would not carry any meaning. The Ld. Counsel for Defendants no.1 & 2 has further argued that the word "Original C.P.W.D. construction" in the Conveyance Deed of defendants No.1 and 2 is referred against Shop No.101 i.e. column
(i).
The arguments of Defendants no.1 & 2 appear to be plausible and logical arguments. The "Original C.P.W.D. Construction" is not written against ......share in the stair case and the same is also not written against .... share in the lavatory block, but the same is mentioned prior to share in the common passage and the same does not carry any meaning.
Furthermore, PW2 i.e. one of the witnesses of Plaintiff has brought the draft copy of the Conveyance Deed, which is Exhibit PW2/RX13 and as per said Exhibit PW2/RX13, the "Original CPWD Construction" has been mentioned against column
(ii), but the column (ii)Point A in Exhibit PW2/RX13 which Suit No. 237/2018 Page 54 of 94 Anil Dua V. Vijay Sharma & Ors.
reflects "share in the staircase, share in the common passage and share in the lavatory block" has been struck off. This is the witness of plaintiff himself and the plaintiff has not even sought re examination of the said witness regarding the aforesaid document i.e. Exhibit PW2/RX13, which was put in the crossexamination by Defendants No.1 and 2.
The PW2 has also brought the Conveyance Deed of Flat No.102, Flat No.129 and Flat No.146 and the same are Exhibits PW2A/7, PW2A/8 and PW2A/9 respectively. The perusal of the column (ii)Point A of said Conveyance Deeds which reflects "share in the staircase, share in the common passage and share in the lavatory block" has been struck off. There is no dispute that Flat No.102 is the adjacent to Flat No.101 and in the Conveyance Deed of Flat No.102, the said portion is struck off. The PW2 is the witness of plaintiff and he has demonstrated himself that in all the said flats, the L&DO has struck off the said portion. The draft Conveyance Deed of Flat in question also reflects the same. One fails to understand, why defendant No.4 would give special treatment to Shri Bhupesh Nandi when in other flats, the said portion was struck off and moreso, in the draft Conveyance Deed, Flat No.101 was struck off. The averment of L&DO appears to be correct that inadvertently, in the copy of Conveyance Deed of Shri Bhupesh Nandi, the said portion was not struck off, however, in the draft Conveyance Deed kept by the L&DO and copy of the same - Exhibit PW2/RX13 produced by PW2, shows that the said portion Suit No. 237/2018 Page 55 of 94 Anil Dua V. Vijay Sharma & Ors.
is struck off. The Policy matter of defendant No.4, who is State, cannot be different for different persons and it has to maintain equality. The defendant No.4 was not expected to give preferential treatment only in respect of Flat No.101 and more so, when in the adjacent Flat No.102, the L&DO has not given any such treatment.
The Ld. Counsel for plaintiff submits that rectification of the document can only be done in terms of Section 26 of the Specific Relief Act and in terms of said Section, only two conditions are provided i.e. if the act was done under the Mutual Mistake or by Fraud. The Ld. Counsel for plaintiff has further argued that L&DO has nowhere sought the rectification of the said document at any point of time.
The Defendants no.1 & 2 have filed the Writ Petition (C) No. 7317/2007 and relevant portion of Order dated 25.05.2011, which was passed by the Hon'ble Single Bench of Hon'ble High Court, is reproduced as under: "11. Consequently, the writ petition is allowed and a direction is issued to the NDMC, which has now taken over from the L&DO, to call for the original conveyance deed of Flat No. 101 and delete the column at page 4 under the head Schedule above referred to "(ii).................... share in the stair case and ............... share in the common passage .................. and share in the lavatory block". The NDMC is directed to issue the necessary memorandum/letter in terms of this judgment within two weeks clarifying that Respondent No. 2 has no right, title or interest in the ground floor portion/premises which belongs to Shop No. 101."
Suit No. 237/2018 Page 56 of 94 Anil Dua V. Vijay Sharma & Ors.
The Plaintiff has challenged the said order in LPA 599/2011 titled as Anil Dua Versus Union of India and Ors. and vide Order dated 25.07.2011, the Hon'ble Division Bench of the Hon'ble High Court has held as under: ".....In the course of hearing, we have been apprised that the respondent No.1 has already issued a corrigendum carrying out the rectification. In view of the aforesaid, we are only inclined to direct that the rectification that has been carried out by the respondent No.1 shall be subject to the final adjudication of the suit and while the suit is decided, any observations made by the writ court or anything stated in this order shall not be pressed into service."
It is not that the aforesaid portion of the Conveyance Deed was not challenged, but even the Order was passed by Hon'ble Single Bench of Hon'ble High Court, however, the same has been kept in abeyance by the Hon'ble Division Bench of Hon'ble High Court, subject to the decision of this case.
Furthermore, it is apt to reproduce Section18 of the Specific Relief Act, 1963, which is as follows: "18. Nonenforcement except with variation.-- Where a plaintiff seeks specific performance of a contract in writing, to which the defendant sets up a variation, the plaintiff cannot obtain the performance sought, except with the variation so set up, in the following cases, namely:--
(a) where by fraud, mistake of fact or mis representation, the written contract of which performance is sought is in its terms or effect Suit No. 237/2018 Page 57 of 94 Anil Dua V. Vijay Sharma & Ors.
different from what the parties agreed to, or does not contain all the terms agreed to between the parties on the basis of which the defendant entered into the contact;
(b) where the object of the parties was to produce a certain legal result which the contract as framed is not calculated to produce;
(c) where the parties have, subsequently to the execution of the contract, varied its terms."
The present case is not the case of Specific Performance, but definitely, the plaintiff, by means of the present suit, wants to specifically enforce the Contract i.e. the said portion of the said Conveyance Deed (Exhibits PW1/4 and PW2/4), which was executed by defendant no.4 in favour of Shri Bhupesh Nandi. The defendant no.4 has sought the variation of the same on account of inadvertent mistake, since when the dispute was brought to the notice of L&DO.
Shri Chand Parkash father of defendants no.1 & 2 has written the letter dated 01.10.1999 to L&DO and by means of letter dated 11.10.1999 (Exhibit PW2/RX17), the L&DO has responded the said letter. The relevant portion of the said letter is reproduced as under: "I am to refer to your letter dated 1.10.99 at the above cited subject and to inform you that the as per the lease deed/conveyance deed and plan attached share with the rear court yard has been fully charged to ground floor and common passage in rear measuring 11'4½" x 2'2 ½"
Suit No. 237/2018 Page 58 of 94 Anil Dua V. Vijay Sharma & Ors.
has been charged 2/3rd to ground floor and 1/3rd to First floor. ......"
The S.H.O., P.S. Sarojini Nagar, New Delhi has also written Letter dated 13.12.1999 Exhibit PW2/RX18 to the L&DO. The relevant portion of the said letter is reproduced as under: "For the reasons recorded above, it is requested that your goodself may depute any responsible officer to clarify as to who is the owner of the courtyard on ground floor and lavatory existing therein or jointly occupied by shop and flat owners no. 101, Sarojini Nagar Market or otherwise. It is further requested that matter may please be looked in to on top priority as there is all possibility of breach of peace and any untoward incident could take place in case of delay, if any. ......"
The L&DO has responded to the said letter by means of Letter dated 31.12.1999 (Exhibit PW2/RX19). The relevant portion of Ex.PW2/RX19 is reproduced hereunder for apt understanding: "I am to refer to your letter no. 8104/SHO/S.Nagar dated 15.12.99 received in this office on 16.12.99 on the above subject and to say that as per the lease & conveyance deed and line plan attached thereto, the area of court yard measuring 17'4½" x 11'4½" including the land underneath W.C. which is situated in a corner in this court yard, has been fully charged to Ground Floor.
It is further to say that earlier also in the year 1973 there was a similar dispute between licencees of flat & shop in regard to the use of W.C. At that time the ownership of the flat and the shop vested with the Central Government through the Directorate of Estates. As the licencee of Suit No. 237/2018 Page 59 of 94 Anil Dua V. Vijay Sharma & Ors.
shop had objected to the use of W.C. by the licencee of the flat, the Directorate of Estates had suggested that C.P.W.D. may provide a W.C. in the bath room in the flat at the cost of the licencee of the flat. The ownership rights have since been given to the licencees. ......"
[Portions bolded in order to highlight] The plaintiff has challenged the Letters dated 11.10.1999 and 31.12.1999 by filing the W.P(C) No.265/2000. The relevant portions of the prayers, as sought in the said Writ Petition, are reproduced as under: "It is, therefore, most respectfully prayed that this Hon'ble court may be pleased in the interest of justice to issue a writ in the nature of certiorari and or mandamus directing/quashing/settingaside the impugned order/letter of respondent No.2 at No. L&DO P.S. IV/ shop no.101/SN Mkt./743 dt.11.10.99 and letter No.L&DO/PSIV/1002 dt.31.12.99 and also declaring the above said order marked as Annex.P3&P4 illegal, void, arbitrary, discriminatory, unconstitutional and against the principles of natural justice, fair play and good conscious and declaring that the petitioner is entitled for being charged of the 1/3rd ground rent of the rear court yard land of the ground floor.
It is further prayed to direct the respondent No.1 to 3 for taking steps to restore the lavotary to the petitioner's use and his family members which is illegally blocked by the respondent No.4 and the respondent no.4 be also directed to unlock the lavotary and give access to the petitioners and his family members for their use.
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Anil Dua V. Vijay Sharma & Ors.
2) Respondent No. 1 to 3 be directed to charge 1/3rd
ground rent of the court yard from the petitioner and order of the respondent No.2 be declared illegal and further be directed to amend the lease and conveyance deed or prepare fresh lease and conveyance deed in respect of flat/shop No.101,Sarojini Market, New Delhi.
3) It is prayed that the respondent No.1 to 3 may kindly be directed to charge 1/3rd of the ground rent of rear courtyard in ground floor from the petitioner being the user of lavotary constructed on the ground floor court yard since date of construction by the CPWD. As also the petitioner is entitled to the right of additional construction over the rear court yard by the respondent No. 1 to 3.
The said Writ Petition was dismissed by Hon'ble High Court vide Order dated 03.08.2000, the relevant portion of the said Order is reproduced as under: "There is dispute between the petitioner and the fourth respondent with reference to the premise in the writ petition. The writ petition arises so many questions of facts which cannot be gone into the writ petition. The proper remedy of the petitioner is to file a suit wherein he can challenge the orders of the public authorities after issuing necessary notice if required. The petitioner cannot invite this court to decide a writ petition as if it is suit. Granting liberty to the petitioner to file a suit if so advised, the writ petition is disposed of. ......"
Thereafter, the plaintiff has filed the suit bearing No.66/2002 challenging the Order dated 31.12.1999. The para no.13, para no.14 and prayer clause of the said suit are reproduced as under for apt understanding: Suit No. 237/2018 Page 61 of 94 Anil Dua V. Vijay Sharma & Ors.
"13. That the Lease Deed and the Conveyance Deed dated 19.12.83 did not mention any location of the lavatory for the use of the residents of this residential flat allotted and subsequently leased by the Government of India. These Deed documents are incomplete, defective, misleading and amounts to carrying injustice to the existing and future rights of the flat residents though this lavatory and the rights of the lessee are described in the schedule referred to in the Conveyance Deed at page no.4, but no mention of its location is described and also no charge of ground rent of the premises of the lavatory land is charged from the residential flat lessee.
14. That the line plan attached to the Deed documents did not reflect the location of the Lavatory in the leased premises though it reflects the rear courtyard and the common passage very clearly. It mentions the CPWD construction but the CPWD constructed lavatory is not at all shown in the above defective line plan, the line plan attached with the Lease Deed is marked at Annexure E. This omission to reflect the location of this lavatory amounts to mislead the factual position of the existing rights of the flat residents, resulting in hardships to the residents in the use of the above lavatory, provided at the ground floor courtyard."
"It is, therefore, mosts respectfully prayed that this Hon'ble Court may kindly be pleased to quash/set aside the impugned order/letters of the Defendant No.2 bearing No.L&DO/PSIV/shop No.101 / S.N. Market / 743 dt. 11.10.99 and letter No. L&DO/ PSIV/1002 dt.
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31.12.1999, and also declare the above said letters/ orders as illegal, void, arbitrary, discriminatory and against the principles of natural justice, fair play and good conscious and further this Hon'ble Court may also declare that the Plaintiff is also entitled for being charged 1/3 of the ground rent of the rear courtyard land.
It is, further prayed that this Hon'ble Court may kindly be pleased to rectify/ amend the site plan of the leased land, issued by them in respect of the lease documents of the property No.Flat No.101, Sarojini Market, New Delhi and also do the necessary rectifications and amendments in the Lease Deed dt. 19.12.83 and the Conveyance Deed dt. 19.12.83, to mark, reflect and describe the location of the CPWD constructed lavatory which is in existence as a part and parcel of the allotment and subsequently leased along with the land and building and also to restrain the defendants No.1&2 from attempting to alter the existing rights of the Plaintiff in the lavatory at the ground floor by involving CPWD or any other agency to shift the status of the existing lavatory as such shift will be against the terms and conditions of the Lease Deed and Conveyance Deed dt. 19.12.83, by passing an order through means of mandatory injunction.
It is further prayed that this Hon'ble Court may kindly be pleased to restrain the Defendant No.3, for passing, sanctioning the site plan for the additional construction in the rear courtyard land of the shop No.101, Sarojini Market, New Delhi, marked in red colour in the Annexure A, without settling the rights of the Plaintiff, by passing an order of decree by means of permanent injunction. ...."
(Portions bolded in order to highlight) Suit No. 237/2018 Page 63 of 94 Anil Dua V. Vijay Sharma & Ors.
The aforesaid suit was withdrawn by the Plaintiff and the implications of the same have been discussed hereinbelow.
The Ld. counsel for plaintiff, during the course of arguments, has vehemently argued that right in W.C. in question by means of the Conveyance Deed (Exhibit PW1/4 and Exhibit PW 2/4) is unequivocal, unambiguous and absolutely crystal clear and for this reason, the plaintiff was not required to seek declaration of his right in the said WC and furthermore, the plaintiff has not pressed the relief of declaration by means of his Statement dated 07/01/2020. It is further argued by Ld. counsel for the Plaintiff that Judgment of Anathula Sudhakar Versus P. Bucchi Reddy (Dead) by LRs and Ors., (2008) 4 SCC 595, as relied upon by defendants no.1 & 2, is not applicable to the facts of this case, as there was no cloud, not to speak of semblance of cloud, on the title of plaintiff on the W.C. in question.
Firstly, the said arguments of Ld. Counsel for plaintiff are totally contrary to the submission made in paras no.13 & 14 of the aforesaid Suit No.66/2002 (which are reproduced hereinabove). The perusal of paras no.13 & 14 clearly reveals that as per the Plaintiff's own admission, the documents executed by L&DO i.e. Conveyance Deed and Lease Deed, are incomplete, defective and misleading.
Secondly, in my considered view, the original C.P.W.D. Construction, which is referred in clause ii) just prior to "...share in Suit No. 237/2018 Page 64 of 94 Anil Dua V. Vijay Sharma & Ors.
the common passage" refers to original CPWD Construction relating to flat in question and the same cannot, by any stretch of imagination, to be read as Original CPWD Construction of Shop as the Original CPWD Construction of Flat and Shop are different and the same has been produced on record by Plaintiff's witness, specifically PW2. The CPWD Construction Plan of Flat No.101 nowhere reflects the W.C. in question and moreover, as discussed hereinabove, the word "Original C.P.W.D. Construction" is not written against ......share in the stair case and the same is also not written against .... Share in the lavatory block, but the same is written prior to share in the common passage.
Furthermore, the plaintiff has withdrawn Suit No.66/2002 only on the ground that Order dated 17.08.2004 was passed in MCA No.119/2000 by the then Ld. Senior Civil Judge, Delhi. In my considered view, the issues in Suit No.66/2002 and issues in Suit No.41/2000 (out of which order dated 17.08.2004 in MCA No.119/2000) were totally different and they were having totally different implications. The Order dated 17.08.2004 in MCA No.119/2000 and that too, Order passed in the application under Order 39 Rules 1 & 2 CPC, which is always interim in nature as the interim order mergers into final order, in no way, affects the final outcome of Suit No.66/2002. The withdrawal of Suit No.66/2002, by means of Order dated 12.04.2005, would have serious implications to the rights of plaintiff, as claimed and alleged in the present suit. The withdrawal of the suit was based upon the Suit No. 237/2018 Page 65 of 94 Anil Dua V. Vijay Sharma & Ors.
application under Order 23 Rule 1 CPC i.e. unconditional withdrawal. The subclauses (1) to (4) of Rule 1 CPC of Order 23 CPC are reproduced as under: "1. Withdrawal of suit or abandonment of part of claim.--
(1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim:
Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court.
(2) An application for leave under the proviso to subrule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other person.
(3) Where the Court is satisfied--
(a) that a suit must fail by reason of some formal defect, or
(b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subjectmatter of such suit or such part of the claim.
Suit No. 237/2018 Page 66 of 94 Anil Dua V. Vijay Sharma & Ors.
(4) Where the plaintiff-- (a) abandons any suit or part of claim under subrule (1), or
(b) withdraws from a suit or part of a claim without the permission referred to in subrule (3), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subjectmatter or such part of the claim."
The bare perusal of Order dated 12.04.2005 shows that plaintiff has not sought withdrawal of the Suit under SubRule (3) of Rule (1) of Order 23 CPC, but the same has been withdrawn on the application under SubRule (1) of Rule (1) of Order 23 CPC and this means that the plaintiff shall be precluded from instituting any fresh suit in respect of such subjectmatter or such part of the claim. In order to appreciate the same, it is relevant to look into the stand taken by the Union of India and L&DO in Suit No.66/2002. The reply to paras no.9 & 10 of the Written Statement filed by Union of India and L&DO is reproduced as under: "9 & 10. That, in reply to the contents of paras No. 9 and 10 of the plaint it is submitted that the shopkeeper requested in October, 1999 for confirming the jurisdiction of the rear courtyard and he was informed on 11.10.1999 that "as per lease deed/conveyance deed and plan attached therewith the rear court yard has been fully charged to ground floor and common passage in rear measuring 17' 41/4" 2'23/4" has been charged 2/3rd to ground floor and 1/3rd to first floor". In December, 1999 a similar letter from the SHO, P.S. Sarojini Nagar asking for the confirmation regarding the ownership of Suit No. 237/2018 Page 67 of 94 Anil Dua V. Vijay Sharma & Ors.
the courtyard was received and a similar reply was also given to him on 31.12.1999. The question of informing the plaintiff separately does not arise because as per the lease deed the measurement of land charged to flat No.101 is 198.745 sq. ft. which does not include the area of back courtyard at ground floor in the corner of which W.C. located."
The L&DO has also taken its stand in C.M.(M) No. 1131/2004. The relevant portion of para no.6 of the Short Affidavit filed by defendant No.4L&DO in C.M.(M) No.1131/2004 is reproduced as under for apt reference: "That the Hon'ble Court also directed the L&DO to clarify whether the open court yard forms part of the shops on the ground floor or it is common for the shop owners and flat owners. In this connection it is submitted that the area of rear courtyard in the Sarojini Nagar Market is fully charged to the ground floor shop owners and this courtyard is not common for the shop owners and the flat owners. However, in most of the cases, both the flats and shops were allotted to the same persons and therefore, they continued to use the W.C. which was originally constructed in the ground floor shops. In cases where the shops and flats were allotted to different persons the flat owners continued to share the W.C. in the shops on the ground floor till they made their own arrangements in the flats. In accordance with this, in October, 1973, when a complaint was received from the allottee of flat No.101, Sarojini Nagar Market that the shop owners was not allowing her to use the latrine in the shop, the shop owners, vide letter dt. 11.10.1973, was advised to share the latrine. A copy of the letter dt. 11.10.1973 is annexed to this affidavit as Annexure R4. However, the shop owners did not agree to this and Suit No. 237/2018 Page 68 of 94 Anil Dua V. Vijay Sharma & Ors.
therefore, it was felt that the only solution to the problem was to construct separate W.C. in the flat. Therefore, the allottee of the flat No.101, Sarojini Nagar Market was advised on 16.11.1973 to indicate her willingness to pay the cost of construction of separate W.C. in the flat. A copy of letter dt. 16.11.73 is annexed as Annexure R5. In response to that, Smt. Ava Nandi, allottee of flat No.101, Sarojini Nagar Market vide letter dt. 19.2.1974 requested to examine the feasibility of providing separate W.C. in the flat and also to intimate the cost of the same. A copy of the letter dt. 19.2.1974 is annexed as Annexure R6. Thereafter, there were a series of representations from Mrs. Ava Nandi regarding fixation of licence fee and regularization of allotment and therefore, the issue of separate latrine in the flat was not followed up. However, in the lease deed dated 19.12.1983 it was clearly mentioned that the flat owner will have right in 1/3rd area of land under superstructure and that no right in the land under superstructure of lavatory block. However, in the conveyance deed, under the schedule of the property, even though it was mentioned that it was original CPWD construction, inadvertently, the printed column pertaining to share in staircase, common passage and lavatory block were not deleted."
The Plaintiff was very much aware about the stand of L&DO prior to withdrawal of the said suit, but still, the plaintiff has chosen to withdraw the said suit unconditionally without taking leave of the Court by means of Order dated 12.04.2005. Thus, the stand of L&DO, which was taken in the said suit as well in other proceedings, has attained finality for all intents and purposes, as the plaintiff shall be debarred to challenge the same in subsequent proceedings in view of SubRule 4 of Rule 1 of Order 23 CPC.
Suit No. 237/2018 Page 69 of 94 Anil Dua V. Vijay Sharma & Ors.
Furthermore, in Suit No.66/2002, the plaintiff has sought setting aside of letter dated 11.10.99 (Exhibit PW2/RX17) and letter dated 31.12.1999 (Exhibit PW1/RX19) alongwith other reliefs, as mentioned hereinabove and the said letters would necessarily have to be read against the plaintiff in view of withdrawal of the suit. In view of withdrawal of the suit, the letter dated 11.10.99 (Exhibit PW2/RX17) and letter dated 31.12.1999 (Exhibit PW1/RX19) have attained finality for all intents and purposes, as the plaintiff shall be debarred to challenge the same in subsequent proceedings in view of SubRule 4 of Rule 1 of Order 23 CPC.
Furthermore, in order to appreciate the Original CPWD Plan, the relevant portion of crossexamination of PW2 dated 07.10.2011 is also reproduced as under: "It is correct that in PW2/2 the first floor plan of Flat No.101 is reflected in red colour at point A. It is correct that said plan was submitted by B.C.Nandi owner of Flat No.101, under his signatures. The same was certified by CPWD Mr. K.K. Ram. The encircled portion of the CPWD Certificate is point B of Ex. PW2/2.
The Plan of shop No.101, ground floor was submitted by owner of ground floor certified by CPWD vide Ex. PW2/1. The schedule of the area of Ex.PW2/1 is "1. total plot area + half width half stair case 812.19 sq. ft. 2. total covered are of shop + WC = 609.18 sq. feet.
It is correct that the ground floor plan is marked as point A in Ex.PW2/1 which shows rear courtyard is point A1 and WC at point A2...."
Suit No. 237/2018 Page 70 of 94 Anil Dua V. Vijay Sharma & Ors.
The PW2 was the Plaintiff's witness. The said cross examination of PW2 clearly shows that Original CPWD Plan of Flat No.101 was submitted by Shri B.C. Nandi and Original CPWD Plan of Shop No.101, which includes courtyard and WC, was submitted by Shri Chand Parkash. The procedure for the Conveyance Deed was started on or about 1979 and the Conveyance Deed was executed on 19th December, 1983. There was dispute regarding WC since 1973 between Nandi family and Shri Chand Parkash, then why, Shri Bhupesh Nandi has not got included the WC in question in the Site Plan submitted by him and certified by CPWD, which has been reflected as Original CPWD Plan in the Conveyance Deed of Flat No.101. If the WC was the part & parcel of Flat No.101, then, the same ought to have been included in the Original CPWD Plan submitted by Shri Bhupesh Nandi and not by the owner of Shop No.101.
Moreover, the plaintiff has acquired the right in Flat No.101 by means of Sale Deed dated 6 th February, 1986. The same was executed by Shri Ashok Kumar as Attorney of Shri Bhupesh Nandi. As per the said Sale Deed, the registered GPA was executed on or about 18.1.1984. During the cross examination of plaintiff, it has been admitted by plaintiff that Power of Attorney was executed by Sh. B.C. Nandi in favour of nominee of the Plaintiff. The said property was basically purchased by Plaintiff in the year 1984 as the Power of Attorney was executed in the month of January, 1984 in favour of the nominee. The perusal of record also reveals that Suit No. 237/2018 Page 71 of 94 Anil Dua V. Vijay Sharma & Ors.
prior to execution of the said Sale Deed, the permission was sought from L&DO by Shri Ashok Kumar i.e. nominee of the plaintiff as attorney of Shri Bhupesh Nandi and not by Sh. Bhupesh Nandi. The permission of Sale was granted by L&DO vide Letter dated 07.11.1985. The said property must have been purchased by plaintiff after physical verification of the property. After verification of the property, the plaintiff must be aware of the fact that there is no W.C. in the Flat. The Plaintiff must have asked the Nandi family about W.C./lavatory. The Nandi Family must have told that the WC in question was used by them. Furthermore, during the cross examination of plaintiff, it has been categorically mentioned by the Plaintiff that he knows that there was dispute between Shri Chand Prakash and Shri B.C. Nandi about the suit property till 1976 and the said dispute was in respect of W.C. However, in spite of the same, in the Sale Deed dated 06.02.1986, that too, executed by the nominee i.e. Ashok Kumar in favour of the plaintiff, there is no mention of the W.C. or its common use, which was in existence on the Courtyard of Shop No.101. One fails to understand, if the Conveyance Deed in favour of Shri Bhupesh Nandi was giving the right of W.C., then what stopped the plaintiff to specifically incorporate about W.C. in question or its common use in the Sale Deed dated 06.02.1986 and moreso, effectively, when the said Sale Deed was executed after about 2 years of the purchase of property, as GPA was executed in favour of nominee of the plaintiff in the month of January, 1984. The plaintiff has also admitted during Suit No. 237/2018 Page 72 of 94 Anil Dua V. Vijay Sharma & Ors.
crossexamination that he is Graduate and he has been residing in the vicinity of Sarojini Nagar since birth. It is also admitted that the plaintiff has other properties also in the area apart from the property in dispute. Therefore, he was in the knowledge of entire facts of the Sarojini Nagar Market Area. It is also relevant to reproduce certain portion of the crossexamination of PW4: "..........It is true that Sh. B.C. Nandi transferred the suit property to me whatever was in his name. It is true that mutation of same was done in my favour as per original lease deed. I have not brought that original lease deed today with me. It is true that same is in my possession. It is true that as per Site Plan Ex.PW2/RX3, the courtyard of ground floor and WC has not been shown as part of flat no. 101, Sarojini Nagar, Market.......
.........It is true that in site plan Ex.PW2/2, there is no mention that I have a right in common with the defendants to use Verandah and WC on the ground floor. Vol. As I was paying rent for residential unit, I had right in common to WC at courtyard at ground floor. It is true that I have never challenged genuineness of the site plan Ex.PW2/2, which is certified by CPWD. It is true that I have not been charged any ground rent, house tax, property tax separately in relation to WC and Verandah on ground floor of suit property. Vol. I have been paying rent for enjoying facility of WC and Verandah. It is true that my bathroom is at point E in said site plan (Ext.PW2/2). It is true that I have been charged for a total area (carpet area 596.2343 sq.ft.) on the first floor. It is true that the area of twothird has charged for ground floor and one third has been charged for first Suit No. 237/2018 Page 73 of 94 Anil Dua V. Vijay Sharma & Ors.
floor, which is 198.745 sq. ft. Apart from house tax, I am paying only ground rent to NDMC in respect of my area. It is true that I have charged ground rent for area measuring 198.745 sq.ft. only. It is true that leas amount and ground rent are same. When I purchased this property from Sh. B.C. Nandi, bathroom at first floor was in existence. The existence of bathroom at first floor has not been specifically mentioned in sale deed in my favour. It is true that there is no mentioned in the sale deed that I have a common interest in respect of WC at the ground floor. WC on the ground floor is within courtyard of ground floor shop. I never requested the seller Sh. B.C. Nandi to modify the sale deed executed in my favour. I had received a letter from L&DO copy of which is Ext.PW4/RX6......"
"......It is true that I had no document to verify that courtyard was part of first floor premises....."
"I have no document i.e. receipt etc. to verify that I have paid capitalized value of the courtyard or superstructure after I purchased the same in the year 1986. I do not remember whether any site plan of property purchased by me was annexed with the sale deed. It is true that courtyard is not specifically mentioned in the sale deed executed by previous owner in my favour. It is true that since 1999 said courtyard is fully covered and is being used for commercial purposes."
"I have written evidence to show that my previous owner was in possession of courtyard and toilet. It is true that both i.e. courtyard and toilet were electrified in the year 1986 when I purchased the same. It is true that I never paid electricity Suit No. 237/2018 Page 74 of 94 Anil Dua V. Vijay Sharma & Ors.
charges or water charges for the said toilet or courtyard......."
"I have not brought the original receipt of the payment made by me for use of lavatory. It is correct to suggest that my title in respect of the first floor and the defendants No.1 and 2 title in respect of ground floor is independent of each other......"
"At this stage witness is confronted with document Ex.PW1/5. It is correct that on page No.2 on Ex.PW1/5, the area purchased by me has specifically been mentioned with description, area mentioned with boundary which I admit to be correct. It is correct that the sale deed Ex.PW1/5 do not specifically mentioned my co ownership over ground floor shop or any of its portion in flat No.101........."
[Portions bolded in order to highlight] The aforesaid conduct of the plaintiff, at the time of execution of the Sale Deed itself, shows that W.C. in the bathroom of the first floor was either in existence since the said period i.e. from purchase of the said property or the plaintiff has not at all resided in the said property and the same has been used for other purposes i.e. other than residence.
The learned counsel for Defendants no.1 & 2 has also argued that Lease Deed has to prevail and the Deed of Conveyance should yield to the contents of the Lease Deed. The Lease Deed of Suit No. 237/2018 Page 75 of 94 Anil Dua V. Vijay Sharma & Ors.
Flat No.101 also refers to the Schedule referred to and the same is reproduced as under: "The schedule above referred to.
Description of land leased jointly with First Floor/Second Floor/Ground Floor.
(1) Land under the superstructure measuring about 40'71/2"x13'81/2"+17'-41/2"x2'-33/4"=596.2343 sq.ft. Charged 2/3rd to G.F. and 1/3rd to G.F.=198.745 sq.ft.
Description of land leased jointly under ,staircase and lavatory block and common passage.
(i) Land under superstructure of staircase measuring ............................... charged ...................................
(ii) Land under superstructure of lavatory block measuring ............................... charged ...................................
(iii) Land under common passage measuring 17'-41/2"x2'-33/4" equal to 41. sq. ft. Charged 2/3rd to G.F. and 1/3rd to F.F. Bounded by North Court yard of Shop No.101 and Service Lane below.
Bounded by South Service Road below.
Bounded by East Service Road below.
Bounded by West Flat No. 102."
Suit No. 237/2018 Page 76 of 94 Anil Dua V. Vijay Sharma & Ors.
The description of land leased jointly under staircase and lavatory block and common passage has been struck off in the Lease Deed. The Land under common passage has been specifically mentioned. The argument of Ld. counsel for defendants no.1 & 2 appears to be reasonable and plausible and the same is also accepted by this Court that Conveyance Deed must yield to Lease Deed and the same cannot be contrary to the terms of Lease Deed.
It is also pertinent to note that the boundary described on North Side in the Lease Deed, Conveyance Deed and Sale Deed of Flat No.101 clearly stipulates that North is bounded by Courtyard of Shop No.101 and Service Lane. The said boundary itself shows that the Courtyard belongs to Shop No.101. The boundary on the North Side of Lease Deed and Conveyance Deed of Shop No.101 reflects Service Lane. The boundary on the North side, as depicted by the L&DO in Lease Deed and Conveyance of Flat No.101, shows the Courtyard and thereafter, Service Lane and in the Shop No.101, it depicts only Service Lane, this further endorses the stand of L&DO in various proceedings that W.C. is part & parcel of the Courtyard, which is attached to Shop No.101. Otherwise, the boundary shown on the North side of the Conveyance Deed and Lease Deed of Shop No.101 ought to have reflected W.C. instead of Service Lane alone.
The Ld. counsel for plaintiff has raised the issue that in case, the submission of L&DO is accepted that portion was inadvertently not struck off, then, the same would lead to the Suit No. 237/2018 Page 77 of 94 Anil Dua V. Vijay Sharma & Ors.
conclusion that plaintiff has no share in the passage and stair case also. The said argument of plaintiff has also no merits for the simple reason that it has been categorically mentioned under the column of "Schedule Above referred to" that "......Together with all buildings, privileges, easements and appurtenances whatsoever to the said shop/flat belonging or usually held or enjoyed therewith........" The said rights given to the plaintiff in the Conveyance Deed, would give the right to use the stair case and passages, which are necessary for reaching to Flat No.101.
There is another aspect of the matter, the word "Original CPWD Construction" is neither mentioned against ....... share in the staircase nor the same is also not mentioned against .........share in the lavatory block, but the same is mentioned prior to share in the common passage. The detailed discussion has already been made hereinabove as far as Original CPWD Construction is concerned. Now coming to the question, what is the meaning of "Lavatory Block"? The plain and ordinary meaning of the "Lavatory Block"
cannot be taken as single unit, but the same would definitely means more than one unit, otherwise, there was no requirement to mention the same as "Block". There is no CPWD Construction Plan, which has been placed on record, which shows the Lavatory Block i.e. more than one unit of Lavatory. Furthermore, in the said Conveyance Deed, there is no mention about the location of the said Lavatory Block and whether the same is attached with Ground Floor Shop or at some other place. Moreover, at the cost of Suit No. 237/2018 Page 78 of 94 Anil Dua V. Vijay Sharma & Ors.
repetition, Original CPWD Construction, as shown in the Conveyance Deed of Flat No.101, nowhere, shows that W.C. in question.
The detailed discussions made hereinabove, reveals that even, as per the case of plaintiff and documents relied upon by the plaintiff, it cannot be said that plaintiff has unequivocal, unambiguous and absolutely crystal clear title in the W.C. on the ground floor, which is part & parcel of the Courtyard. It is also pertinent to reproduce para no.9 of Order dated 26.04.2006 passed by the Hon'ble High Court in WP(C) No.4542/2006: "....9. Petitioner admittedly has a bathroom cumtoilet on the first floor. If he needs an additional one and he insists that he has a right to build on the existing structure on the ground floor owner, petitioner has to obtain an appropriate order from a civil court.."
(Portion bolded in order to highlight) In my considered view, from the detailed discussions made hereinabove, the plaintiff has utterly failed to show that plaintiff has the right, title and interest in the W.C. in question, which is part & parcel of the Courtyard of Shop No.101.
Furthermore, in my considered view, there was serious cloud on alleged title of W.C., even as per the case presented and claimed by the plaintiff and the plaintiff was required to seek the relief of declaration. Moreover, in terms of the pleadings, evidence Suit No. 237/2018 Page 79 of 94 Anil Dua V. Vijay Sharma & Ors.
and case presented by plaintiff, the plaintiff was not in possession of the WC and therefore, the Plaintiff was also required to seek joint possession of the WC. The plaintiff has, in fact, sought the declaration, but the same was not pressed in view of the Statement dated 07.01.2020, however, the plaintiff also has not sought joint possession. The Judgment of Anthula Sudhakar (Supra), as relied upon by Ld. Counsel for Defendants no.1 & 2 is squarely applicable to the facts & circumstances of the present case and the Judgments of (1) Satya Pal Anand Versus State of M.P. & Ors. and (2) Thota Ganga Lakshmi & Another Versus Government Of Andhra Pradesh, as relied upon by Ld. counsel for the plaintiff is not at all applicable to the facts of the present case. This Court is not adjudicating, whether the relief of declaration, as originally pleaded by the plaintiff, was within the period of Limitation, as the same was not pressed by the plaintiff.
At the cost of repetition, this Court reiterates that the Plaintiff has failed to prove his right, title and interest in the W.C. in question. Otherwise also, the suit for Permanent Injunction simplicitor for the relief of Lavatory/W.C. in question is also not maintainable in view of the Judgment of Anthula Sudhakar (Supra).
The Ld. Counsel for plaintiff has also placed reliance on Section60 of the Indian Easements Act, 1882 and in my considered Suit No. 237/2018 Page 80 of 94 Anil Dua V. Vijay Sharma & Ors.
view, in view of the detailed discussions made hereinabove, the said reliance is also totally misplaced.
The prayer no.(i) was already not pressed by the plaintiff by means of Statement dated 07.01.2020 and the same is accordingly dismissed as not pressed. The prayer clause (iii) is repeated twice - the first is pertaining to future damages and the second one is for mandatory injunction. In view of the detailed discussions made hereinabove, the plaintiff is not entitled to any relief, as prayed in prayers (ii), (iii) [pertaining to future damages],
(iv) and (v) of prayer clause.
Accordingly, in view of the discussions, as adumbrated hereinabove, the issues no.2, 6, 7 and 9 are decided against the plaintiff and in favour of Defendants no.1 & 2 in the aforesaid terms.
ISSUE NO.8
8. Whether the Plaintiff is entitled for decree for mandatory injunction against the defendant as prayed for? OPP FINDINGS AND CONCLUSIONS OF THE COURT The plaintiff has argued that Defendants no.1 & 2 have carriedout the unauthorized construction/breaches either on Shop No.101 or on the rear Courtyard and W.C. of Shop No.101 and the plaintiff is relying upon the various documents. In order to effectively understand the said documents, relevant details of the same are reproduced as under: Suit No. 237/2018 Page 81 of 94 Anil Dua V. Vijay Sharma & Ors.
(a) Ex.PW4/RX4 dated 25.08.1976 written by Late Shri Chand Parkash Sharma to defendant No.4 and the relevant portion is reproduced as under: "Subject: Show Cause Notice No.DE/MKT/SM101 dated 13.8.76 in respect of my shop No.101 Sarojini Market, New Delhi.
Sir, With reference to your office notice mentioned above alleging therein that I have covered the courtyard of my shop with asbesto sheets. In this connection I have to submit as under : That I have demolished the said coverage.
It is requested that the said notice in question be treated as cancelled or withdrawn, if necessary by conducting spot enquiry......."
b) The breaches, as mentioned in Ex. PW2A/1, dated 10.03.1989, are as under: "UNAUTHORIZED CONSTRUCTION - YES
1. Verandah enclosed by putting iron shutter on 2 sides & kept on wooden racks between shop no. 101 & 102.
2. Rear open space covered with A.C. Sheets 2' x11'11¼"
c) The breaches, as mentioned in Ex.PW2A/2, dated 22.2.2000, are as under: Suit No. 237/2018 Page 82 of 94 Anil Dua V. Vijay Sharma & Ors.
1. Part of rear courtyard m/a 12'7½" x 12'1½" has been enclosed and covered and being used as part of the shop.
2. Front verandah has been enclosed m/a 8' 1½"x 13' 1½" and being used as part of the shop.
3. Area around W/C in rear courtyard has been enclosed, covered and locked ma 4'9"x12'1½" and being used as store.
UNAUTHORIZED CONSTRUCTION, IF ANY: YES
1. Rear court yard has been covered, enclosed and partitioned - area m/a (12'4½ " x 11'4½" 6'1½" x 5'6")= 163.95 sq. ft.
2. Part of area leased to shop No. 102 m/a 2' - 3¾" x 9' 1½" = 21 10 beneath stair case has been encroached by the lessee."
d) The breaches, as mentioned in Ex.PW2/23, dated 17.04.2002, are as under: "(i) Central court yard m/a 12'0"x10'6" has been covered pucca. (OLD Breach).
(ii) u/a room on B.F is m/a 18'3"x13'6" (Pucca) (Old).
(iii) u/a Bath on B.F is m/a 7'6"x8'0" (Pucca) (Old).
(iv) u/a coverage on B.F. (Above central court yard & Kitn.) is m/a 14'10½" x 12'1½" + 8'0" x 6'3" (A.C.C. sheets) (Fresh)"
e) The breaches, as mentioned in the letter dated 29.4.2002 Ex.PW2A/3, are as under: Suit No. 237/2018 Page 83 of 94 Anil Dua V. Vijay Sharma & Ors.
"UNAUTHORIZED CONSTRUCTION:
1. On 10.3.89
(i) Verandah enclosed by putting iron shutter on 2 sides and kept wooden racks between Shop No. 101 & 102.
(ii) Rear open space covered with A.C. sheets 2'x 11' - 11 ¼"
2. On 22.2.2000
(i) Rear courtyard has been covered, enclosed and partitioned (17'4½ "x 11'4½" 6'1½"x 5'6") = 163.95 sq. ft.
(ii) Part of area leased to Shop No. 102 measuring 2' 3¾"x 9'1½"= 21.10 sq. ft. beneath stair case has been encroached by you.
3. On 16.11.2000
(i) Rear courtyard covered and being used as shop (17' 4½"x 11'4½"))6'1½"x5'6") 163.95 sq. ft.
4. On 17.4.02
(i) Rear courtyard covered (17'4½"x 11'4½")(6'1½"x 5'6") = 163.95 sq. ft.
MISUSE:
1. On 22.2.2000 Suit No. 237/2018 Page 84 of 94 Anil Dua V. Vijay Sharma & Ors.
(i) Part of rear courtyard measuring 12'7½"x 12'1½"
has been enclosed and covered and being used as part of the shop.
(ii) Front verandah has been enclosed measuring 8'1½"x 13'1½" and being used as part of the shop.
(iii) Area around W.C. in rear courtyard has been enclosed, covered and locked measuring 4'9"x 12' 1½" and being used as store.
2. On 16.11.2000
(i) Front verandah measuring 8'1½"x 13' 6" has been enclosed and being used as shop.
3. On 17.4.02
(i) Front verandah measuring 8'1½"x 13' - 6" has been enclosed in shop.
2. The aforesaid breaches are in contravention of clause no. 1 (iii), (iv). (v). (vi) & (vii) of the Lease Deed.
3. You are therefore, hereby required to remove the aforesaid breaches within 15 days from the date of issue of this letter.
4. You are also liable to pay the charges (which will be intimated to you hereafter) for having committed the breach of terms of the lease shown in para 1 above for the period of their existence.
5. In case of your i)failure to remove the breaches within 15 days of the issue of this notice and (ii) failure to pay the charges for past breaches within 15 days of Suit No. 237/2018 Page 85 of 94 Anil Dua V. Vijay Sharma & Ors.
the intimation thereof further action under the Clause II of the lease deed for the violation of the Clause I
(iii), (iv), (v), (vi) & (vii) will be taken against you to re enter upon the premises in accordance with the terms of the Lease Deed.
6. It is further brought to your notice that once the property is reentered, the reentry may not be withdrawn or if withdrawn it may be on such terms and conditions as the Lessor may deem fit. It may, therefore ,be noted that if no intimation regarding removal of the breaches is received from you within 15 days from the date of issue of this letter, the proposed action will be taken and in that case all consequences as spelt out above shall follow and you will become unauthorised occupant of public premises liable to eviction by due process of law."
f) Ex.PW2A/5Page No.2123 dated 21.08.2003 shows the breaches and amount charged and the same are reproduced as under: "1. Damages charges: 10.3.89 to 31.3.89 @ Rs.666/ PA = Rs.40.00 1.4.89 to 31.3.91 @ Rs.1295/ PA = Rs.2590.00 1.4.91 to 31.3.98 @ Rs.1554/ PA = Rs.10.878.00 1.4.98 to 21.2.2000 @ Rs.1788/ PA = Rs.3390.00 22.2.2000 to 14.7.04 @ Rs.19490/ PA = Rs.85596.00
2. Misuse charges: 10.3.89 to 31.3.89 @ Rs.11178/ PA = Rs.674.00 Suit No. 237/2018 Page 86 of 94 Anil Dua V. Vijay Sharma & Ors.
1.4.89 to 31.3.91 @ Rs.21735/ PA = Rs.43470.00
1.4.91 to 31.3.98 @ Rs.26082/ PA = Rs.182574.00
1.4.98 to 14.7.04 @ Rs.29994/ PA = Rs.188592.00
1/10th penalty on above = Rs.41531.00
3. Ground rent:
15.1.89 (P70/C) to 14.7.04 @ Rs.691.40 PA = Rs.10717.00 Int. @ 10% from 15.1.89 to 14.7.04 = Rs.8573.00"
g) Ex.PW2A/4 dated 19.10.2004 shows the breaches and the amount Charged and the same are reproduced as under: "Damages charges: 10.3.89 to 31.3.89 @ Rs.666/ PA = Rs.40.00 1.4.89 to 31.3.91 @ Rs.1295/ PA = Rs.2590.00 1.4.91 to 31.3.98 @ Rs.1554/ = Rs.10878.00 1.4.98 to 21.2.2000 @ Rs.1788/ PA = Rs.3390.00 22.2.2000 to 14.7.04 @ Rs.19490/PA = Rs.85649.00 15.7.04 to 14.1.05 @ Rs.19490(Pro.) = Rs.9745.00
2. Misuse charges: 10.3.89 to 31.3.89 @ Rs.11178/ PA = Rs.674.00 1.4.89 to 31.3.91 @ Rs.21734/PA = Rs.43468.00 1.4.91 to 31.3.98 @ Rs.26080/PA = Rs.182560.00 1.4.98 to 14.7.04 @ Rs.29992/PA = Rs.188580.00 15.7.04 to 14.1.05 @ Rs.29992/PA = Rs.14996.00 1/10th penalty on above = Rs.41603.00
3. Ground rent: 15.1.89 to14.7.04 @ Rs.691.40/ PA = Rs.10717.00 15.7.04 to 14.1.05 @ Rs.691.40/PA = Rs.345.70 Suit No. 237/2018 Page 87 of 94 Anil Dua V. Vijay Sharma & Ors.
Int.@ 10% from 15.1.89 to 15.1.04 = Rs.8641.00"
h) Ex.PW2A/6 shows the Internal of defendant No.4 regarding unauthorized construction/ breaches.
Per Contra, Ld. Counsel for defendants No.1 and 2 has argued that courtyard of Shop No.101 was covered long back and the same was assessed to House Tax and the defendants No.1 and 2 have relied upon the following documents:
a) Notice dated 10.01.1984 -Exhibit DW1/2 issued by NDMC for assessment of House Tax, which includes, the covered area rear Courtyard.
b) Payment of House Tax vide Receipt dated 17.05.1984 -Exhibit DW1/1.
c) Letter dated 25.10.2005 -Exhibit DW1/3 for change in the name for payment of property tax.
The Ld. Counsel for defendants No.1 and 2 has also argued that NDMC has clearly opined vide letter dated 03.07.2003 (Ex.PW2/20) that no action of removal of the shed is required. The relevant portion of the letter dated 03.07.03 is reproduced as under: Suit No. 237/2018 Page 88 of 94 Anil Dua V. Vijay Sharma & Ors.
"Sub: Removal of unauthorized construction in respect of Flat No.101, Sarojini Nagar Market and Shop No. 101, Sarojini Nagar Market, New Delhi.
Sir, With reference to your letter NO. L& DO/PSIV/453 dated 21.5.2003 regarding the subject cited above. It is to inform you that action for the removal of shed in the rear open space of shop was initiated by the NDMC. However, the party produced documentary evidence that the shed in question is in existence since 1984 i.e. before the amendment of Punjab Municipal Act, 1911 and also it has been assessed to house tax.
In view of the legal position explained above, no action for removal of the shed under question can be taken at this stage by the NDMC."
The Plaintiff has also given following various complaints regarding unauthorized construction:
a) Complaint dated 24.1.2000 to NDMC and L&DO Exhibit PW4/8 and Ex. PW4/9.
b) Complaint dated 02.04.2002 to L&DOExhibit PW4/10.
c) Complaint dated 31.12.2003 to L&DOExhibit PW4/11.
d) Complaint dated 06.12.2004 to SHOExhibit PW4/12.
e) Complaint dated 14.02.2005 to L&DOExhibit PW4/13.
f) Complaint dated 18.08.2008 to NDMCExhibit PW4/14.
g)
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Anil Dua V. Vijay Sharma & Ors.
The Ld. Counsel for Defendants no.1 & 2 has argued that even for the sake of arguments that there were unauthorized construction/breaches done by Late Chand Parkash or for that matter Defendants no.1 & 2, still they are covered under Section 3 of the Delhi Law (Special Provisions) Act, 2006 and no action can be taken against the alleged unauthorized construction/breaches. In order to buttress the said arguments, the Ld. Counsel for defendants no.1 & 2 has relied upon the following meetings of the NDMC:
(i) Minutes of meeting held on 15.10.2007 in the Chamber of Minister of State (U.D.) Government of India, Nirman Bhawan, New Delhi and
(ii) Minutes of meeting held on 01.05.2008 at conference room of MOS(UD), Nirman Bhawan, New Delhi.
It has also been argued by Ld. Counsel for defendants No.1 and 2 that defendant no.3 has also sanctioned the Site Plan with regard to the rear courtyard of the property bearing Shop No.101.
The following documents clearly reveal that the Defendants no.1 & 2 or for that matter, their predecessor i.e. father Sh. Chand Parkash, have done the breaches/unauthorized construction:
a) Ex. PW2A/1 dated 10.03.1989
b) Ex.PW2A/2 dated 22.2.2000 Suit No. 237/2018 Page 90 of 94 Anil Dua V. Vijay Sharma & Ors.
c) Ex.PW2/23 dated 17.04.2002
d) Ex.PW2A/3 dated 29.4.2002
e) Ex.PW2A/5 dated 21.08.2003
f) Ex.PW2A/4 dated 19.10.2004
g) Ex.PW2A/6 Internal Noting pertains to defendant No.4 regarding unauthorized construction/ breaches.
The aforesaid reports are of defendant no.4 and at present, NDMC is the sole agency and defendant no.4 has no role to play in the property in question. The NDMC vide its letter dated 03.07.2003 is taking the stand that no action is required for removal of the Shed in question. The aforesaid Minutes dated 15.10.2007 and 01.05.2008 also primafacie reveal that the property is protected under Delhi Law (Special Provisions) Act, 2006, nonetheless, the plaintiff disputes the said protection.
The fact of the matter is that NDMC has not carriedout the inspection of the suit property in order to demonstrate the breaches/unauthorized construction in Shop No.101 or the rear courtyard, which includes W.C. also.
In my considered view, interest of justice would be served if defendant no.3, who is sole agency, as the defendant no.4 has handedover the entire charge and files to defendant no.3, to inspect Shop No.101 and the rear courtyard, which includes the Suit No. 237/2018 Page 91 of 94 Anil Dua V. Vijay Sharma & Ors.
W.C., located on the ground floor of Sarojini Nagar Market, New Delhi within a period of three months from today. The period of three months is given owing to pandemic of Covid19. Thereafter, the defendant no.3, within a period of 15 days, would intimate both plaintiff and Defendants no.1 & 2 whether there are any breaches/unauthorized construction. If the defendant No.3 would find the breaches/unauthorized construction, then, defendant No.3 would also inform them the following aspects:
a) What is effect of House Tax Assessment (as relied upon by defendants no. 1 & 2 in this case) on such breaches/unauthorized construction.
b) Whether said breaches/unauthorized construction are covered under Delhi Law (Special Provisions) Act, 2006 (as relied upon by the Plaintiff in this case).
c) What is the effect of sanctioned site plan of the rear courtyard on such breaches/unauthorized construction.
After receipt of the Report from defendant no.3, the plaintiff and Defendants No.1 & 2 are permitted to make their own representations within a period of 15 days. After receipt of the representations from the plaintiff and Defendants no.1 & 2, as the case may be, the defendant no.3 would take its own decision within a period of one month and the same would again be communicated by defendant no.3 to plaintiff and Defendants no.1 & 2.
Suit No. 237/2018 Page 92 of 94 Anil Dua V. Vijay Sharma & Ors.
In case, finally defendant no.3 would come to the conclusion that there are breaches/unauthorized construction, which are neither condonable or compoundable nor covered under Delhi Law (Special Provisions) Act, 2006 and the sanctioned Site Plan of the courtyard would have no bearing or effect on the said breaches/ unauthorized construction, then, after a period of two months of communicating the same to plaintiff and defendants no.1 & 2, the defendant no.3 is directed to demolish the same after adopting and following due procedure, as prescribed under law.
It is made clear that the Plaintiff and/or defendants No.1 and 2, as the case may be, are permitted to challenge the final decision of defendant No.3 in accordance with law.
Accordingly, in view of discussions made hereinabove, issue no.8 is decided in the aforesaid terms. RELIEF:
From the discussions, as adumbrated hereinabove, I hereby pass the following FINAL ORDER
(a) The prayer (i) was already not pressed by the plaintiff by means of Statement dated 07.01.2020 and accordingly, the same is dismissed as not pressed. The suit of the Plaintiff, as prayed in prayers (ii), (iii) [pertaining to future damages],
(iv) and (v) of prayer clause, is hereby dismissed.
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(b) A decree for mandatory injunction is passed in terms of operative part of decision of issue no.8 and the said directions are not repeated for the sake of brevity and be read as mutatis mutandis.
(c) In view of the final decision, the pending applications, if any, stand infructuous and the same are hereby dismissed being infructuous.
(d) The parties shall bear their own respective costs of litigation.
Decreesheet be prepared accordingly in terms of this decision.
File be consigned to Record Room after due compliance. Announced in the open court on this 26th Day of May, 2020.
(ARUN SUKHIJA)
ADJ07 (Central)
Tis Hazari Courts, Delhi
Suit No. 237/2018 Page 94 of 94