Delhi District Court
Smt. Deepa Pandey vs Sh. Kapil Zutshi on 28 January, 2013
IN THE COURT OF Ms. POOJA GUPTA: CIVIL JUDGE03:
SOUTH DISTRICT: SAKET COURT COMPLEX: NEW DELHI
Civil Suit No.600/10
Unique ID no. 02403C0159952009
IN THE MATTER OF:
Smt. Deepa Pandey,
W/o Sh. Shyam Sunder Pandey,
R/o.: 48, 3rd Floor, Bharat Nagar,
New Delhi110065. .....Plaintiff
Versus
Sh. Kapil Zutshi,
R/o.: 48, 1st Floor, Bharat Nagar,
New Delhi110065. .....Defendant
DATE OF INSTITUTION : 01.07.2009
DATE OF RESERVING JUDGMENT : 23.01.2013
DATE OF DECISION : 28.01.2013
JUDGMENT
1. The plaintiff has filed the present suit seeking permanent injunction against the defendant seeking to restrain the defendant from forcibly interfering and/ or from taking forcible possession of terrace of the property bearing municipal number 48, Bharti Nagar, New Delhi "suit property" as shown in site plan and from dispossessing the Civil Suit No.600/10 Smt Deepa Pandey Vs. Sh. Kapil Zutshi Page 1 of 21 plaintiff from the said terrace in any manner. The plaintiff has also sought mandatory injunction against the defendant directing the defendant to remove their over head water tank and dish antenna of Tata Sky installed on the terrace of the suit property. Facts as per plaint
2. The plaintiff is the absolute and exclusive owner of entire third floor consisting of two flats with terrace rights of the property bearing Municipal No.48, Bharti Nagar, New Delhi110065, ("the suit property") having purchased the same from Sh. Ashfaque Ahmed vide sale deed dated 14.07.2006 duly registered with the office of Sub Registrar V, New Delhi.
3. When the plaintiff purchased the suit property the defendant had an over head water tank for supply to water to the first floor and a dish antenna of Tata Sky installed at the terrace. The plaintiff requested the defendant to remove the water tank to their portion. However despite repeated requests the defendant did not do so. On 15.05.2009 when requested by the plaintiff to remove the water tank and dish antenna the defendant refused to do so and claimed to be owner of the terrace. The defendant also threatened the plaintiff to dispossess her from the terrace and putting their locks and key on the Civil Suit No.600/10 Smt Deepa Pandey Vs. Sh. Kapil Zutshi Page 2 of 21 entrance of the terrace.
4. On evening of 17.05.2009, the plaintiff appraised her husband about the threats after which the plaintiff along with her husband approached the defendant and requested them to remove the tank but were again threatened by defendant of dispossession and implication in false criminal case. On the morning of 19.05.2009, the defendant visited the plaintiff and her husband along with some police officials and asked the plaintiff to unlock the entrance of the terrace or else they will break open the door and take forcible possession of the terrace. They also threatened to get the plaintiff and her husband implicated in a false case. A complaint was lodged by husband of the plaintiff in PSNew Friends Colony dated 20.05.2009. Since the defendants are trying to take forcible possession of the terrace and dispossess the plaintiff without having any right, title or interest in the terrace hence the present suit.
Facts as per the written statement
5. Preliminary objections were raised by the defendant including non joinder of necessary parties i.e. father of the defendant Sh.Bal Kishan Zutshi who was the absolute and registered owner of the suit property; that the plaintiff had not approached the court with Civil Suit No.600/10 Smt Deepa Pandey Vs. Sh. Kapil Zutshi Page 3 of 21 clean hands and suppressed material facts from the court; that the plaint did not disclose any cause of action; that the defendant and his family atleast had easementary right over the terrace under the Indian Easement Act 1882 and the suit was under valued and the proper court fees has not been affixed.
6. As per the written statement, the father of the defendant was the lawful owner of one flat at first floor measuring 75 sq yards with common terrace rights of the property bearing No.48, Bharti Nagar, New Delhi110065 by virtue of registered sale deed dated 15.02.2008 and had the right to install and use the overhead water tanks and Dish TV antenna. The water tank was installed on the terrace even on 15.02.2008 when the sale deed was executed in favour of the father of the defendant by Smt Sangeeta Pawar. Even the dish TV Antena was installed by the defendant for more than one year prior to filing of suit.
7. The present dispute arose as Sh. Shyam Sunder Pandey i.e. husband of the plaintiff was trying to raise illegal construction of fourth floor in contravention of the MCD Bye Laws and the same came to the knowledge of the defendant only when the plaintiff had already constructed one flat at the fourth floor of the building. To keep Civil Suit No.600/10 Smt Deepa Pandey Vs. Sh. Kapil Zutshi Page 4 of 21 the illegal construction hidden, the plaintiff always kept the doors of the terrace locked and Sh. Shyam Sunder Pandey used to assure the defendant that only repair/renovation activity was taking place on the third floor. On 16.04.2009 the defendant came to know that due to blockage of drains and pipes due to construction material and malba water had come inside the first floor.
8. On 07.05.2009 the mother of defendant was physically harassed and assaulted by Sh. Shyam Sunder Pandey and plaintiff when she tried to go to the terrace to check for the reason of the blockage. A complaint in respect of the same was also lodged on 07.05.2009. On merits the defendant denied the averments of the plaintiff. The defendant denied that Sh. Mohinder Kumar vide registered GPA dated 11.04.2001 against consideration appointed Sh Aamir Anis as his General Power of Attorney in respect of the basement, second and third floor with terrace rights of 75 sq yards of the property. The defendant also denied that vide registered General Power of Attorney dated 12.12.2001 Sh Ashfaque Ahmad was appointed as the General Power of Attorney by Sh Aamir Anis of the entire third floor consisting of two flats with terrace rights or that Sh. Ashfaque Ahmad sold the suit property to the plaintiff vide registered Civil Suit No.600/10 Smt Deepa Pandey Vs. Sh. Kapil Zutshi Page 5 of 21 Sale Deed on 14.07.2006.
9. The defendant admitted that at the time of purchase of property, the overhead water tank of the defendant and dish antenna of TATA SKY was already installed on the terrace of the property. The defendant submitted that the defendant did not have any intention nor ever tried to take possession of the terrace but was only invoking his legal rights to use the common area like all occupants. Hence the defendant sought dismissal of the suit.
Replication
10. The plaintiff categorically denied that the suit was bad for nonjoinder of father of defendant as he neither threatened nor claimed rights over the terrace. Smt Sangeeta Pawar had no right, title or interest over the terrace and hence could not have transferred the same to the father of the defendant vide the Sale Deed dated 15.02.2008. The plaintiff denied the averments of the defendant made in the written statement and reiterated the contents of its plaint. Issues
11. From the pleading of the parties following issues were framed by the Ld. Predecessor of this Court:
1 Whether the plaintiff is entitled to decree of permanent injunction? OPP Civil Suit No.600/10 Smt Deepa Pandey Vs. Sh. Kapil Zutshi Page 6 of 21 2 Whether the plaintiff is entitled to decree of mandatory injunction? OPP 3 Whether the suit of the plaintiff is liable to be dismissed for nonjoinder of necessary parties? OPD 4 Whether the suit of the plaintiff is liable to be dismissed under Order 7 rule 11?OPD 5 Relief , if any.
12. In order to prove its case the plaintiff examined herself as PW1 and tendered her evidence by way of affidavit (Ex. PW1/A) reiterating the contents of her plaint. PW1 also relied upon the following documents to prove her case:
•Site plan (Ex. PW1/1) •General Power of Attorney dated 12.12.2001 by which Sh. Ashfaque Ahmad was appointed as the General Power of Attorney by Sh. Aamir Anis of the entire third floor consisting of two flats with terrace rights (Ex. PW1/2) (OSR) •Photocopy of Will dated 12.12.2001 by Sh. Aamir Anis in favour of Sh. Ashfaque Ahmad (Mark A) •Photocopy of Affidavit of Sh. Aamir Anis (Mark B) •Photocopy of Receipt by Sh. Aamir Anis (Mark C) Civil Suit No.600/10 Smt Deepa Pandey Vs. Sh. Kapil Zutshi Page 7 of 21 •Duly registered Sale Deed dated 14.07.2006 (Ex. PW1/6) •Three photographs (Ex. PW1/7 to Ex. PW1/9) The plaintiff witness was duly cross examined by the defendant.
13. In order to prove its defence, the defendant examined himself as DW1 and Sh. Vimal Kumar, Head Clerk from the office of SubRegistrar V, Mehrauli. DW2 was a summoned witness who proved the sale deed Ex. DW2/1 dated 05.07.2006 i.e. the sale deed in respect of the one flat at the second floor in which common terrace rights had been given to the purchaser by Sh. Aamir Anis. DW1 tendered his evidence by way of affidavit (Ex. DW1/A) reiterating the contents of his written statement. DW1 also relied upon the following documents to prove his defence:
•Sale Deed dated 15.02.2008 by Smt Sangeeta Pawar in favour of the father of the defendant (Ex. DW1/1) •Copy of police complaint dated 07.05.2009 by the mother of the defendant (Ex. DW1/2) •Photographs (Ex. PW1/D2; Ex. PW1/D3; Ex. PW1/D4; Ex. PW1/D5 and Ex. PW1/D6) •Photograph taken by defendant on 07.05.2009 (Ex. DW1/3) •Certified copy of Sale Deed dated 05.05.2006 by Sh Aamir Anis in Civil Suit No.600/10 Smt Deepa Pandey Vs. Sh. Kapil Zutshi Page 8 of 21 favour of Smt Sangeeta Pawar (Ex. DW1/4) •Certified copy of Sale Deed dated 05.07.2006 by Sh Aamir Anis in favour of Smt Usha Rani in respect of flat on the first floor (Ex. DW2/1) The defence witnesses were duly cross examined by the plaintiff.
14. Final arguments were advanced by the Ld Counsels for the parties. I have heard the Ld. Counsels and carefully perused the evidence on record. From the evidence on record the issue wise finding are as under:
Issue no.1: Whether the plaintiff is entitled to decree of permanent injunction?
15. The onus to prove this issue was on the plaintiff. The plaintiff has sought permanent injunction against the defendant restraining the defendant, his agents etc. from forcibly interfering and/ or from taking forcible possession of terrace of the property bearing No. 48, Bharti Nagar, New Delhi "suit property" as shown in site plan and from dispossessing the plaintiff from the said terrace in any manner.
16. During her evidence, plaintiff as PW1 has deposed that on 15.05.2009 when plaintiff requested the defendant to remove the Civil Suit No.600/10 Smt Deepa Pandey Vs. Sh. Kapil Zutshi Page 9 of 21 water tank and dish antenna from the terrace, the defendant threatened to dispossess the plaintiff from the terrace and also threatened to put his locks and key on the entrance of the terrace.
17. PW1 further deposed that on the evening of 17.05.2009 the plaintiff appraised her husband about the threats after which the plaintiff along with her husband approached the defendant and requested them to remove the tank but were again threatened by defendant for dispossession and implication in false criminal case.
18. PW1 further deposed that on the morning of 19.05.2009, the defendant visited the plaintiff and her husband along with some police officials and asked the plaintiff to unlock the enterance of the terrace or else they will break open the door and take forcible possession of the terrace. PW1 further deposed that they also threatened to get the plaintiff and her husband implicated in a false case. PW1 further deposed that her husband had lodged a complaint dated 20.05.2009 at PSNew Friends Colony(Ex. PW1/10).
19. PW1 was duly cross examined by the defendant. During her cross examination, PW1 admitted that Ex.PW1/10 did not bear her signatures and also admitted that Ex.PW1/10 did not bear signatures of anybody. PW1 also deposed that the complaint (Ex. PW1/10) had been Civil Suit No.600/10 Smt Deepa Pandey Vs. Sh. Kapil Zutshi Page 10 of 21 filed against the incidents dated 15.05.2009, 17.05.2009 and 19.05.2009. However, perusal of Ex PW1/10 reveals that no averments or reference has been made in respect of any incident dated 15.05.2009, 17.05.2009 or 19.05.2009. No questions were asked nor any suggestions were put by the plaintiff to the defendant when the defendant deposed as DW1 in respect of the incidents dated 15.05.2009, 17.05.2009 and 19.05.2009. No other evidence has been led by the plaintiff nor any other evidence was examined to prove that the defendant threatened to dispossess her from the terrace.
20. As the oral testimony of the PW1 is not being supported by Ex PW1/10 and in the absence of any corroborative evidence on record, the plaintiff has not been able to prove that threats were being extended by the defendant or that there was any threatened dispossession. Hence the relief of permanent injunction as prayed for by the plaintiff can not be granted.
21. Be that as it may, the defendant also cross examined the PW1 as to the correctness of the site plan (Ex. PW1/1). During the cross examination, PW1 deposed that the site plan (Ex. PW1/1) had been prepared by an architect and further deposed that the architect had come to the suit property to prepare the same. DW1 during his Civil Suit No.600/10 Smt Deepa Pandey Vs. Sh. Kapil Zutshi Page 11 of 21 cross examination denied the suggestion that the site plan (Ex. PW1/1) was correct. The architect who drafted the site plan was not examined by the plaintiff to prove the site plan and hence the site plan remains unproved. Since relief of injunction has been sought in respect of the portion shown in the site plan which has not been duly proved and cannot be granted in respect of property which has not been sufficiently identified, hence the relief of permanent injunction cannot be granted to the plaintiff. Accordingly, this issue is decided against the plaintiff and in favour of the defendant.
Issue no. 2: Whether the plaintiff is entitled to decree of mandatory injunction?
22. The onus to prove this issue was on the plaintiff. The plaintiff has sought mandatory injunction against the defendant directing the defendant to remove their over head water tank and dish antenna of Tata Sky installed on the terrace of the suit property as the plaintiff claims to be the exclusive owner of the terrace. On the other hand, the defendant has claimed common rights over the terrace including the right to keep a water tank and install the Tata Sky Antenna.
23. It is not in dispute that the water tank for supply of water Civil Suit No.600/10 Smt Deepa Pandey Vs. Sh. Kapil Zutshi Page 12 of 21 to the first floor of the property i.e. the property of the defendant is placed on the terrace of the third floor and has been on the terrace since 2006. It is also not disputed that the Tata Sky Antenna of the defendant is also placed on the terrace of the third floor.
24. By virtue of Section 38 of the Specific Relief Act, 1963, a permanent injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication. However, when the defendant invades or threatens to invade the plaintiff's right to, or enjoyment of property, permanent injunction may be granted inter alia where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion or where the invasion is such that compensation in money would not afford adequate relief.
25. Thus, in a suit for permanent injunction not only is the plaintiff to make allegations in the plaint as to what right, title or interest he claims in respect of a property and what rights of his he is apprehensive of being violated or interfered with by the defendant but he has also to establish those rights, interest and title and fulfill the conditions necessary for the grant of decree for injunction. Since the plaintiff is deriving her right in the terrace through the previous Civil Suit No.600/10 Smt Deepa Pandey Vs. Sh. Kapil Zutshi Page 13 of 21 owners, it was for the plaintiff to prove that the previous sellers had the right to transfer exclusive terrace rights in the suit property to the plaintiff and also that she now she has the exclusive terrace rights.
26. The plaintiff as PW1 deposed that one Sh. Hardayal S/o Sh. Bedu Ram was the recorded owner of plot of land underneath the property, measuring 150 Sq. yards bearing Khasra No.53 of Village Khizrabad, New Delhi. PW1 further deposed that Sh. Hardayal vide General Power of Attorney dated 17th December 1971, against consideration appointed one Sh. Mohinder Kumar S/o Sh. Dass Mal as his General Attorney in respect of the aforesaid property and the said Sh. Mohinder Kumar, vide registered General Power of Attorney dated 6th November, 1996, against consideration, appointed One Smt. Suman Kumar W/o Sh. Rajiv Kumar, as his General Attorney in respect of the half portion, measuring 75 Sq. yards, of the aforesaid property. PW1 further deposed that Smt. Suman Kumar, vide two separate General Power of Attorney both dated 31.08.2000 against consideration, appointed Sh. Rakesh Kumar Khurana S/o Late Sh. P.D. Khurana and Sh. Aamir Anis S/o Sh. Anis Ahmad as her General Attorneys in respect of 60% and 40% of the aforesaid half portion, respectively. PW1 further deposed that subsequently, Sh. Civil Suit No.600/10 Smt Deepa Pandey Vs. Sh. Kapil Zutshi Page 14 of 21 Rakesh Kumar Khurana, vide registered General Power of Attorney dated 03.07.2001 also appointed, against consideration, Sh. Aamir Anis as his General Attorney in respect of the 60% portion of the said half portion. PW1 further deposed that Sh. Aamir Anis was also appointed as General Power of Attorney of Sh. Mohinder Kumar in respect of basement, second and third floor with terrace rights in 75 sq yards of the property vide General Power of Attorney attested by Notary and dated 11.04.2001.
27. PW1 further deposed that Sh. Aamir Anis, vide registered General Power of Attorney dated 12th December 2001 (Ex. PW1/2) appointed Sh. Ashfaque Ahmad S/o late Sh. Ishtiaque Ahmad as his General Attorney in respect of the suit property i.e. entire third floor consisting of two flats with terrace rights of the property bearing Municipal No.48, Bharti Nagar, New Delhi110065. PW1 further deposed that Sh. Aamir Anis also executed Registered Will, Affidavit and receipt against consideration all dated 12th December, 2001 in favour of Sh. Ashfaque Ahmad (Mark A, B and C) which was inturn sold to the plaintiff vide registered Sale Deed dated 14.07.2006 (Ex. PW1/6).
28. The chain of original documents of the previous owners Civil Suit No.600/10 Smt Deepa Pandey Vs. Sh. Kapil Zutshi Page 15 of 21 of the suit property has neither been placed on record nor proved by oral or documentary evidence. The sellers Sh. Ashfaque Ahmad or Sh. Aamir Anis have also not been examined by the plaintiff in respect of the previous chain or in respect of their capacity to transfer the exclusive rights in the terrace. The plaintiff has even failed to prove that General Power of Attorney dated 12th December 2001 (Ex. PW1/2) in favour of Sh. Ashfaque Ahmad was against consideration as the documents i.e. Will, Affidavit and Receipt all dated 12th December, 2001 in favour of Sh. Ashfaque Ahmad (Mark A, B and C) were not proved. Even in its cross examination, PW1 admitted that she had not placed on record any document apart from her sale deed to show that the sellers were owner of terrace. Thus, the plaintiff has also failed to place on record the original documents to show that the sellers of the suit property were having exclusive rights in the terrace of the third floor at the time when Ex PW1/6 was executed in favour of the plaintiff hence the question of existence of exclusive rights in favour of the plaintiff in the terrace does not arise especially in view of the fact that Ex. PW1/6 itself has reference to only terrace rights and the word "exclusive" is conspicuously absent.
29. On the other hand, the defendant has placed on record Civil Suit No.600/10 Smt Deepa Pandey Vs. Sh. Kapil Zutshi Page 16 of 21 Sale Deed dated 15.02.2008 by Smt Sangeeta Pawar in favour of the father of the defendant (Ex. DW1/1); certified copy of Sale Deed dated 05.05.2006 by Sh Aamir Anis in favour of Smt. Sangeeta Pawar (Ex. DW1/4) and Certified copy of Sale Deed dated 05.07.2006 by Sh Aamir Anis in favour of Smt Usha Rani in respect of flat on the first floor (Ex. DW2/1) wherein Sh Aamir Anis has conferred "common terrace rights" upon the respective buyers. Thus, from the documents, it is clear that Ex. DW1/4 as well as Ex.DW2/1 have been executed prior in time than Ex. PW1/6 and once common rights have been conferred in the terrace, a subsequently executed document in respect of the same terrace cannot create exclusive interest in the terrace as none can transfer a better title than he himself has.
30. Since the previous chain of ownership as well as existence of exclusive terrace rights in favour of plaintiff remains unproved, hence the plaintiff has failed to discharge the onus cast upon her to prove the right/title or interest in the form of exclusive rights in the terrace of the suit property in her favour entitling her to the relief of mandatory injunction as prayed for. Hence, this issue is decided against the plaintiff and in favour of the defendant. Issue no.3: Whether the suit of the plaintiff is liable to be dismissed Civil Suit No.600/10 Smt Deepa Pandey Vs. Sh. Kapil Zutshi Page 17 of 21 for nonjoinder of necessary parties?
31. The onus to prove this issue was on the defendant as the defendant had raised a preliminary objection in its written statement that father of the defendant Sh.Bal Kishan Zutshi who was the absolute and registered owner of the suit property was a necessary party and hence the suit was liable to be dismissed for non joinder of necessary parties.
32. In its replication, the plaintiff contended that as the father of defendant neither threatened nor claimed rights over the terrace, hence the present suit was not liable to be dismissed.
33. It is a settled proposition of law that a necessary party is one without whom no order can be made effectively. It is equally well established that two tests are to be satisfied for determining the question who is a necessary party i.e, there must be a right to some relief against such party in respect of the controversies involved in the proceedings and no effective decree can be passed in the absence of such party.
34. In the present case, the plaintiff is seeking injunction against the defendant for removing the water tank as well as the Tata Sky antenna from the terrace of the suit property. Further the relief Civil Suit No.600/10 Smt Deepa Pandey Vs. Sh. Kapil Zutshi Page 18 of 21 has been sought for injunction against the defendant from forcibly interfering and/ or from taking forcible possession of terrace of the suit property and from dispossessing the plaintiff from the said terrace in any manner. The present suit being a simplicitor suit for injunction and not for declaration of any ownership rights in the suit property nor has any injunction been prayed for which affects the house in any permanent manner, hence for the purposes of the present suit, the father of the defendant is not a necessary party as for the effective adjudication of the matter in controversy in the present suit, no right to any relief against the father of the defendant in respect of the controversies involved in the present matter is disclosed. Further, the presence of the father of the defendant is not necessary for effective decree to be passed in the present case as the threats are alleged to have been extended by the defendant only.
35. Accordingly, this issue is decided against the defendant and in favour of the plaintiff.
Issue no. 4: Whether the suit of the plaintiff is liable to be dismissed under Order 7 Rule 11?OPD
36. The onus to prove this issue was on the defendant as the defendant had raised a preliminary objection in its written statement Civil Suit No.600/10 Smt Deepa Pandey Vs. Sh. Kapil Zutshi Page 19 of 21 that the suit was under valued as the same had not been valued as per the market value and the proper court fees has not been affixed.
37. No evidence was led by the defendant on this issue. As per Section 7 (iv) (d) of the Court Fees Act, 1870, in suits where the relief sought is an injunction, the court fees is payable on the amount at which the plaint has been valued by the plaintiff and not at the market value of the suit property. By way of the present suit, the plaintiff has sought the reliefs of injunction in the form of permanent and mandatory injunctions which have been valued at Rs.130/ each and court fees of Rs.20 has been affixed on the plaint. Thus, there was a deficiency of court fees of Rs.6/.
38. However, it is a settled propsition of law that by virtue of Order VII Rule 11(b) of the Code of Civil Procedure, 1908, mere deficiency of court fees is no ground for rejection of plaint and the plaint can be rejected only if the plaintiff fails to file the deficient court fees within the period directed by the court for the same.
39. On 23.01.2013, the plaintiff filed additional court fees of Rs.20/ thereby removing deficiency and this issue is accordingly decided against the defendant and in favour of the plaintiff. Civil Suit No.600/10 Smt Deepa Pandey Vs. Sh. Kapil Zutshi Page 20 of 21 Relief 40 In view of my findings on issue no.1 and 2, the suit of the plaintiff is dismissed. Parties to bear their own cost.
41. Decree Sheet be prepared accordingly.
42. File be consigned to the Record Room after necessary compliance.
Announced in the open court on 28.01.2013 (Pooja Gupta) Civil Judge03(South) New Delhi Civil Suit No.600/10 Smt Deepa Pandey Vs. Sh. Kapil Zutshi Page 21 of 21