Delhi District Court
Prabhu Dayal vs Dipin Dhaliwal on 10 January, 2025
IN THE COURT OF MS. PRABH DEEP KAUR, DISTRICT JUDGE-05,
SOUTH EAST DISTRICT, SAKET COURTS, NEW DELHI
MCA DJ 9/24
CIS NO. DLSE01-004819-2024
Prabhu Dayal Vs. Dipin Dhaliwal
Prabhu Dayal
S/o Late Sh. Maya Ram
R/o G-14, Second Floor, Lajpat Nagar-III,
New Delhi
.....Appellant/plaintiff
Versus
1. Sh. Dipin Dhaliwal,
S/o Late Daler Singh Dhaliwal,
2. Sh. Hitesh Dhaliwal,
S/o Late Daler Singh Dhaliwal,
Both are R/o G-14, Ground Floor,
Lajpat Nagar-III, New Delhi-110024
....Respondents/Defendants
3. Mrs. Alka Malik,
W/o Sh. Sandeep Malik
4. Sh. Sandeep Malik,
S/o Late R.K. Malik,
Both are R/o G-13, Second Floor,
Lajpat Nagar-III, New Delhi-110024
.... Proforma Respondents/Defendants
Registered on : 13.05.2024
Argument concluded on : 09.12.2024
Decided on : 10.01.2025
MCA NO. 9/2024 Page no. 1 of 18
Prabhu Dayal Vs. Dipin Dhaliwal Dated 10.01.2025
Digitally signed
by PRABHDEEP
PRABHDEEP KAUR
KAUR Date: 2025.01.10
16:42:13 +0530
JUDGMENT
1) The present appeal filed by the appellant/plaintiff assails the order dated 23.02.2024 (hereinafter referred to as "the impugned order") in suit bearing no. CS SCJ 78/2020 passed under Order 7 Rule 11(b) CPC by Ld. Civil Judge -03, South East, Saket Courts, New Delhi. For the sake of convenience, parties will be referred by their original status.
2) The factual matrix of the case is that plaintiff filed the suit for declaration, mandatory and permanent injunction without consequential relief against the defendants.
3) The plaintiff is owner of the second floor of the suit property vide sale deed dated 22.06.2004 and defendant no. 1 and 2 are owners of the ground floor acquiring ownership vide sale deed dated 03.11.2014 and 16.05.2015 respectively. Now the defendant no. 1 and 2 claimed that they are owners of entire ground floor and terrace of the third floor of suit property vide sale deed dated 03.11.2014 and 12.05.2015 respectively. While as per plaintiff, he has prior and better right to terrace of the third floor of the property and common parking. As per plaintiff, defendant no. 3 and 4 have raised the construction of third floor over the terrace of second floor unauthorizedly and in contravention of sanctioned building plan and thus, constructions of third floor is illegal and not binding upon plaintiff. Interestingly, plaintiff has questioned the legality of construction of third floor by defendant no. 3 and 4 and despite that plaintiff has not sought any relief against them stating that they have been impleaded as proforma party. Thus, the dispute revolves around the legality of construction of third floor, the share of the plaintiff in the land underneath the building and common area, usage of common terrace over the third MCA NO. 9/2024 Page no. 2 of 18 Prabhu Dayal Vs. Dipin Dhaliwal Dated 10.01.2025 Digitally signed PRABHDEEP by PRABHDEEP KAUR KAUR Date: 2025.01.10 16:42:21 +0530 floor and parking area of property bearing no. G-14, Lajpat Nagar-III, New Delhi (hereinafter called as suit property).
4) During proceedings before Ld. Trial Court, plaintiff moved an application u/O 6 Rule 17 CPC for amendment in the plaint with respect to valuation of suit property and the application was allowed vide order dated 23.11.2020 whereby plaintiff was allowed to mention the valuation of the suit property as Rs. 02 lakhs, instead of Rs. 20 lakhs.
5) Thereafter, vide order dated 23.02.2024 i.e. impugned order, the application of defendant no. 1 and 2 moved under Order 7 Rule 11 CPC was disposed off and following order was passed i.e. "Therefore, it is clear that for the purpose of declaration, plaintiff has to value the suit as per its market value at the time of filing of the suit. Accordingly, plaintiff is directed to value the suit for the purpose of reliefs of declaration as per the market value of the property in question i.e. the terrace and qua sale deed dated 03.11.2014 and sale deed dated 16.05.2015. Consequently, plaintiff is also directed to amend his pleadings to incorporate the above changes within 30 days from today."
6) Being aggrieved by the above order, plaintiff has filed the present appeal.
Grounds of appeal 6.1 While, the suit was properly valued for the purpose of pecuniary and territorial jurisdiction of the Ld. Trial Court at Rs. 02 Lacs as well as proper Court fee had been affixed on the plaint for Sea the reliefs claimed as specified in para-23 of the plaint as per Article 17 (iii) of the Schedule- ll of the Court Fees Act, 1870. Ld. Trial Court has wrongly and distortedly mentioned in the said impugned Order that the defendants have claimed MCA NO. 9/2024 Page no. 3 of 18 Prabhu Dayal Vs. Dipin Dhaliwal Dated 10.01.2025 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date: 2025.01.10 16:42:28 +0530 that suit is to be valued of Rs. 02 Cr at the Market Value of the property in dispute i.e. Terrace and qua sale deed dated 03.11.2014 and sale deed dated 12.05.2015 of the respondents. While, from prima facie reading of plaint, the prayer clause A and B for the declaratory decree and prayer Clause C to E for the injunction reliefs, the property in dispute is entire terrace/roof of unauthorised third floor and common area i.e. open/stilt car parking space including entire front setback area. The said property in dispute are the part of non-habitable common area and not included in the saleable area and in the FAR in the building plan of the said property as per RTI Reply dated 23.02.2023 of the MCD on the record. Hence, said terrace has no Market Value. Even, said sale deed dated 03.11.2014 and sale deed dated 12.05.2015 of the respondents have no Market Value as per Chapter III, Section 7 (iii), (b) of the Court fees Act, 1870. The respondent No.1 & 2 have maliciously and falsely submitted and claimed that the suit should be valued approximately of Rs. 2, Cr at the Market Value of the property in dispute i.e. terrace and qua sale deed dated 03.11.2014 and sale deed dated 12.05.2015, while property in dispute is entire terrace of unauthorised third floor and common area i.e. stilt car parking space including entire front setback area. 6.2 The, need of correction of typographical error of the suit value as Rs. 02 lacs instead of Rs.20 Lacs for the purpose of pecuniary and territorial Jurisdiction of the Ld. Trial Court, had been duly allowed by the Predecessor Ld. Judge Sh. Aashish Gupta ACJ/CCJ/ARC vide Order dated 23.11.2020 on merit U/o VI Rule 17 of CPC, thereafter the appellant/plaintiff had filed the amended plaint dated 27.11.2020 on the record incorporated with changes of the suit value as Rs. 02 lacs.
MCA NO. 9/2024 Page no. 4 of 18
Prabhu Dayal Vs. Dipin Dhaliwal Dated 10.01.2025
Digitally signed by
PRABHDEEP PRABHDEEP KAUR
KAUR Date: 2025.01.10
16:42:36 +0530
6.3 Plaintiff is a resident and owner of entire Second Floor i.e. Third
dwelling unit of property No. G-14, Lajpat Nagar-lIl, New Delhi-110024 by virtue of an Agreement to Sell dated 07.06.2004 and Sale Deed dated 22.06.2004 with proportionate undivided and indivisible ownership right and Share in the land underneath i.e. (1/3rd implied share) along with all structures standing thereon, without exclusive terrace right. But the Appellant had been explicitly conferred upon unconditional "Full Right of Access/Entry and use on the said common terrace/roof by virtue of his sale documents, apart from right to get the overhead water tanks repaired/ cleaned and for the repairing of water pipelines etc. at all reasonable times. Respondent No 1 and 2 are the owner of entire Ground Floor unit of plinth Area/ built-up Area of (65.20 + 65.20) = 130.41 Sq. Meters under sale vide sale deed dated 03.11.2014 and sale deed dated 12.05.2015. But they have falsely and dishonestly submitted and mentioned in the Written Statement and in the application dated 04.03.2020 U/O 7 Rule 11 of CPC, that, they had purchased the entire terrace of the Third Floor and alleged stilt car parking space i.e. part of common area, apart from plinth area of 130.41. Sq. Meters. 6.4 Ld. Trial Court has completely overlooked the said RTI Reply dated 23.02.2023 of the MCD in respect of the suit property duly filed on the record. Ld. Court has overlooked the building norms of the Delhi Building Bye-Laws dated 23.07.1998 prior to 22.09.2006, while from prima facie reading, it is applicable to suit property of Plot Area of 167.22 Sq. Meters for the sanction of the building plan for 03, (three) Dwelling Units i.e. Ground, First and Second Floor as shown in Sr. No.4 of the table of the building norms subject to furnishing of an undertaking by the MCA NO. 9/2024 Page no. 5 of 18 Prabhu Dayal Vs. Dipin Dhaliwal Dated 10.01.2025 Digitally signed PRABHDEEP by PRABHDEEP KAUR KAUR Date: 2025.01.10 16:42:42 +0530 applicant/ owner that no extra dwelling unit shall be created. Therefore, said unauthorised third floor and terrace of the third floor are not included in the saleable area and in the FAR in the sanctioned building Plan. Therefore, the property in dispute i.e. terrace of unauthorised third floor has no Market Value.
6.5 Ld. Trial Court has wrongly and irrelevantly resorted to Delhi High Court Rules under Volume I, Chapter 3, Part C, Rule 7 for the Valuation of Suit in said impugned Order dated 23.02.2024, which is not applicable and not maintainable in violation of Court Fees Act, 1870 and Suits Valuation Act, 1887 as well as in violation of judgments of the Hon'ble Supreme Court of India and Judgments of other Hon'ble High Courts on the record.
6.6 It has been further argued that Building Norms of the Delhi Building bye-laws have been overlooked by Ld. Trial Court because, the Ld. Trial Court has completely overlooked and failed to appreciate the relevant building norms of the Delhi Building Bye-laws dated 23.07.1998 prior to 22.09.2006 placed on the record and passed an erroneous, distorted and arbitrary order. The Judgments of the Hon'ble Supreme Court, ignored by the Ld. Court. Because, the Ld. Trial Court has completely ignored the Judgment of Hon'ble Supreme Court of India in Civil Appeals No. 2811-13 of 2010, decided on March 29, 2010, SUHRID SINGH ALIAS SARDOOL SINGH VS RANDHIR SINGH AND OTHERS; Tarun Chandrakar S/o Late Babulal Chandrakar Versus Smt. Kumari Bai and Ors, before the Hon'ble High Court of Chattisgarh, Bilaspur in W-P -227 No229 of 2016.
6.7 As per the relevant and binding Judgment of the Hon'ble Supreme
MCA NO. 9/2024 Page no. 6 of 18
Prabhu Dayal Vs. Dipin Dhaliwal Dated 10.01.2025Digitally signed
by PRABHDEEP
PRABHDEEP KAUR
KAUR Date: 2025.01.10
16:42:47 +0530
Court of India in Civil Appeal No.4577 of 2022 decided on June 16,2022 in the case titled as BHARAT BHUSHAN GUPTA VS PRATAP NARAYAN VERMA AND ANOTHER. "Market value does not become decisive of suit-valuation merely because an immovable property is subject-matter of litigation".
6.8 Ld. Trial Court has wrongly and distortedly mentioned in the Para 2 of the impugned Order dated 23.02.2024 and denied that the plaintiff asserts that he has a prior and better right to the third Floor of the property and common parking located in the property for its use and enjoyment. While, said Third Floor had been constructed illegally & unauthorizedly, even no revised plan for the construction of the third floor is found sanctioned in the office record of the MCD as per RTI Reply dt. 23.02.2023 of the MCD in respect of suit property on the record. Moreover, said common terrace of the third floor and alleged stilt parking space are not included in the saleable area and in the FAR in the sanctioned plan of the suit property as per RTI Reply dt. 23.03.2023. Hence, said erroneous and arbitrary Order dated 23.02.2024 is liable to be quashed & set aside by the Hon'ble Court.
6.9 It has been further argued that respondents are guilty of fraudulent and unscrupulous conduct. It has been further argued that application U/O 7 Rule 11 of CPC is barred by Limitation /Res-Judicata. The Ld. Court has ignored the Written Arguments dated 15.12.2023 for the production of Form-A by the respondents on the record. Ld. Trial Court has wrongly resorted to Delhi High Court Rules under Volume I, Chapter 3, Part C, Rule 7 for the Valuation of Suit. Respondents/ defendants are manipulating and influential persons and they are the Property Dealers by MCA NO. 9/2024 Page no. 7 of 18 Prabhu Dayal Vs. Dipin Dhaliwal Dated 10.01.2025 Digitally signed PRABHDEEP by PRABHDEEP KAUR KAUR Date: 2025.01.10 16:42:52 +0530 profession in the name of Dhaliwal Estates, their, motive is to defraud and to grab entire common area i.e. stilt parking including entire front setback area as well as entire common terrace of the Third Floor with right to raise further illegal construction of 5th Dwelling unit on the terrace of third floor as specifically mentioned in the sale deeds and in Clause-18 of the sale deeds of the respondents. While said Third Floor had been constructed unauthorisedly & illegally and is liable to be demolished. Even, no revised plan for the construction of Third Floor is found sanctioned in the record of the MCD as per RTI reply dt, 23.02.2023. Therefore, said impugned Order dated 23.02.2024 is liable to be quashed and set aside with heavy cost on the respondents.
6.10 Plaintiff has also filed written arguments which are part of record and are not repeated herein for the sake of brevity. Therefore, it is prayed that the impugned order be set aside.
7) The defendant no. 1 and 2 have opposed the appeal by filing the written reply. As per defendants, plaintiff has made false averments. Plaintiff has filed suit for declaration qua 1/3rd structure standing on the suit property as in para no. 5 of the plaint, plaintiff has stated that the plaintiff has already filed an application before the Hon'ble Court under Order 6 Rule 17 of CPC for the amendment of Plaint with respect of above noted suit for the Declaration, Mandatory & Permanent injunctions against the defendants. The Plaintiff most humbly files the written submission with necessary information before the Hon 'ble Court for the amendment of plaint and disposal of pending application under Order 39 Rule 1 & 2 of CPC in the interest of Justice as under: -
That the value of the property or Suit as Rs. 20 Lacs or Rs.2 Crores MCA NO. 9/2024 Page no. 8 of 18 Prabhu Dayal Vs. Dipin Dhaliwal Dated 10.01.2025 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date: 2025.01.10 16:42:56 +0530 as stated by the defendants in the Para 3 (a) of their application under order 7 rule 11 of CPC are wrong, baseless, unjustified, unreasonable and not applicable to present suit of the Plaintiff with regard to the payment of ad-valorem court fee for the reliefs prayed and for the purpose of pecuniary and territorial jurisdiction of this Hon'ble Court. It is further submitted that notional suit value of 2.0 lacs for the purpose of pecuniary & territorial Jurisdiction of the Hon'ble Court was inadvertently and wrongly typed as 20 lacs in the para 23 of the plaint. Therefore, the said inadvertent typographical error of the suit value in the plaint is required to be corrected as 2.0 lacs (Two Lacs) in lieu of wrong suit value of Rs.20 lacs for the purpose of pecuniary & territorial jurisdiction of this Hon'ble Court, As this suit of the plaintiff has been instituted before the appropriate Hon'ble Court competent to try this matter for the fair disposal of the suit in the interest of Justice. It is pertinent to submit that the ad- valorem court fee has to be decided and levied on the basis of valuation of relief prayed or on the subject matter of the suit according to Court Fees Act, 1870 and not on the basis of property valuation or suit valuation. Therefore, plaintiff has affixed the required Court Fee of Rs.20/- i.e. (19.50) on the suit as provided under Article 17 (!!!) of the Schedule II of the Court Fee Act for seeking each declaratory decree without consequential relief or any other profit and also paid the Fixed Fee of Rs.13/- for each injunction as prayed without any monetary relief according to Court Fees Act, 1870 as shown in the Schedule II of the Act and relevant pages of the Court Fees Act, 1870 are annexed herewith. That the pending application under order 6 rule 17 of CPC before the Hon'ble Court for the amendment of the plaint is a Bona fide and MCA NO. 9/2024 Page no. 9 of 18 Prabhu Dayal Vs. Dipin Dhaliwal Dated 10.01.2025 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date: 2025.01.10 16:43:02 +0530 legitimate for the determination of pecuniary & territorial Jurisdiction of the Hon'ble Court, and not meant for the evasion of ad-Valorem Court Fee. Furthermore this amendment of the plaint will not cause any prejudice or injustice to defendants. It has been also averred in the Reply to the application of the Defendants u /o 7, Rule 11 of CPC that the proper Court fee has been affixed on the suit for each relief as prayed in the suit as per The Court Fees Act, 1870. Further if the affixed Court Fee on the suit is found deficient during the trial of the suit, the plaintiff shall be liable to pay for the same. The copies of Judgments passed by the Hon'ble High Court of Chhattisgarh for the Pecuniary Jurisdiction of the Court and Court Fees are annexed herewith.
8) The Trial Court records was summoned and perused.
9) I have heard Ld. Counsel for the parties and perused the record.
10) The plaintiff filed the suit for declaration and injunction with following reliefs i.e. A). Pass a decree for the declaration in favour of the plaintiff and against the defendants No. 1 and 2, whereby declare that the said defendants have no exclusive or independent rights, title or interest over the entire terrace of third floor as well as over the said common area i.e. car parking space including entire front setback area on the ground level in the building of the suit property as shown in red color and marked as A & C in the site plan of the suit property annexed herewith.
B). Pass a decree for the declaration in favour of plaintiff and against the defendant No.1 and 2 that the Sale Deeds dt. 03.11.2014 vide registration No. 10075 of defendant No.l and Sale Deed dt. 16.05.2015 vide registration No.4161 of defendants No.2 are not having, any effect or MCA NO. 9/2024 Page no. 10 of 18 Prabhu Dayal Vs. Dipin Dhaliwal Dated 10.01.2025 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date: 2025.01.10 16:43:06 +0530 binding upon the plaintiff and on his proportionate undivided and indivisible rights, interest and share i.e. 1/3rd share in the land, underneath the building with all structures standing thereon the said plot/ suit property in any manner whatsoever.
C). Pass a decree for the mandatory injunction in favor of plaintiff and against the defendants No. 1 and 2 and their representatives etc. whereby directing the said defendants and their representatives etc. to remove their unauthorized and illegal Lock from the entrance Door of the said common terrace of the Third Floor of the suit property or directing the defendants to share/ give one of the keys of the lock of the said terrace entrance door to plaintiff to enable him and his representatives etc. to have unrestricted and free access over the said common terrace of third floor for seeing and maintenance of water tanks, pipelines, installation of I.V antenna etc. or for any necessary repairing work etc. or for the use and enjoyment as well as for the natural rights of light, air and sun etc. or in case of an emergency in the building. Further restraining the said defendants No.1 and 2 permanently from causing any hinderance, obstruction or inconvenience in the free access/entry of the plaintiff and his representatives etc. over the said terrace of third floor of the suit property.
The said terrace is shown in red color and marked as -C in the site plan annexed and a photograph as showing the lock on the terrace entrance door is annexed herewith the plaint.
Further the said defendants also be directed to remove their unauthorized lock from the said store room to enable the plaintiff and his representatives to have free access over the said store room over the terrace of third floor for the necessary use and storing of building MCA NO. 9/2024 Page no. 11 of 18 Prabhu Dayal Vs. Dipin Dhaliwal Dated 10.01.2025 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date: 2025.01.10 16:43:10 +0530 maintenance and repairing materials and tools etc. The said store room with lock as shown in photograph is annexed herewith the plaint. D). That pass a decree of mandatory injunction in favor of plaintiff and against the defendants No. 1 and 2, whereby directing the said defendants to remove their old and broken wooden items, door frames, sanitary wares and Junk etc. from the said terrace, common stair case and from the said store room adjoining the mumty over the terrace of the suit property. The said broken sanitary wares and other materials and Junk etc, as shown in the photographs are annexed herewith the plaint.
Further restraining the said defendants No.1 and 2 permanently from encroaching upon or keeping any wooden item, material or junk etc, on the said common terrace, in the said stair case or in the store room over the terrace of the suit property unauthorizedly and Illegally. E). That pass a decree of mandatory injunction in favour of plaintiff and against the defendants No. 1 and 2 whereby directing the said defendants to remove their unauthorized and illegal lock from the front entrance Gate of the suit property or share one of the keys of the lock of the said entrance Gate to plaintiff to enable him and his representatives and other co-owners of the suit property to have unrestricted and free access/entry over the said undivided common space i.e. alleged car parking space on the ground level in the suit property for the use and enjoyment and for other useful purposes etc. The said parking space is as shown in red color and marked as- A in the site plan annexed herewith and shown as in photograph annexed herewith the plaint. F). Pass a decree for the permanent injunction in favor of Plaintiff and against the defendants, No.1 and 2 and their representatives etc. whereby MCA NO. 9/2024 Page no. 12 of 18 Prabhu Dayal Vs. Dipin Dhaliwal Dated 10.01.2025 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date: 2025.01.10 16:43:16 +0530 restraining the said defendants and their representatives etc. from carrying out any construction, addition, alteration or any erection over the said common terrace of Third Floor of the suit property unauthorizedly and in violation of sanctioned building plan of the suit property. The terrace is shown in red color marked as C in the site plan is annexed herewith the plaint.
11) In the present suit, plaintiff has specifically challenged the construction of third floor on the allegations that it is unauthorized construction and therefore, defendant no. 3 and 4 are necessary and proper party despite the plaintiff taking the plea that defendant no. 3 and 4 are proforma parties.
12) Perusal of record shows that initially the plaintiff has valued the suit as Rs. 20 lacs and later on plaintiff moved an application u/O 6 Rule 17 CPC and vide order dated 23.11.2020 plaintiff was allowed to amend his pleadings qua valuation of the suit to Rs. 2 lacs from Rs. 20 lacs. Now the plaintiff has taken the plea that vide order dated 23.11.2020, his amendment application has been allowed and now defendants cannot move the application u/O 7 Rule 11b CPC for the alleged under valuation of Court fees. As far as this plea is in concerned, this Court is in agreement with the observations of Ld. Trial Court as recorded below:
"9. The first limb of argument presented by the plaintiff is that the instant issue is barred by issue res-judicata in light of order dated 23.11.2020 of Ld. Predecessor of this Court, wherein the plaintiff was allowed to amend his pleadings qua valuation of the suit to Rs. 2,00,000/- from Rs. 20,00,000/- and therefore, the issue of valuation of the suit and consequent court fees cannot be agitated by way of an application under Order VII R 11 CPC. I do not agree with the interpretation of law presented by the plaintiff on the point of issue res-judicata as an application under O VIR 17 CPC cannot be deemed at par with an application under O VII R 11 CPC. Upon perusal of order dated 23.11.2020 of the Ld. Predecessor of this Court, it is clear that the application of the plaintiff under O VI R 17 CPC was allowed on the grounds that the MCA NO. 9/2024 Page no. 13 of 18 Digitally signed Prabhu Dayal Vs. Dipin Dhaliwal Dated 10.01.2025 by PRABHDEEP PRABHDEEP KAUR KAUR Date: 2025.01.10 16:43:21 +0530 plaintiff is the dominus litus and he is at liberty to value the suit as per his wishes. However, the merits of the averments qua valuation were not discussed by the Ld. Predecessor while deciding the application under O VI R 17 CPC as the merits of the averments are now under scrutiny by way of an application under O VII R 11 CPC. It is an unambiguous preposition of law that yardstick necessary to decide an application under O VI R 17 CPC and under O VI R 11 CPC are distinguishable from each other. Merely allowing an application under O VI R 17 CPC will not ipso-facto lead to the conclusion that the plaint is now free from any objection that can lead to rejection of plaint. Therefore, the assertion of the plaintiff that an order under O VI R 17 CPC would act as a bar on assessing the merits of the plaint itself is completely misguided."
13) Further, merely because defendants have filed the written statements, it does not mean that they cannot file the application u/O 7 Rule 11 CPC and it is settled principle that legal objections can be taken up at any stage and therefore, the plea of plaintiff that application of the defendant moved under Order 7 Rule 11 CPC is time barred is not tenable.
14) In the present appeal, plaintiff has vehemently taken the plea that even the third floor has been constructed without any sanction plan and thus, plaintiff is even challenging the construction of third floor, though no specific relief has been sought by the plaintiff that the construction of third floor is declared as illegal.
15) Further, present case is a classic case of witty and clever drafting wherein in the grab of reliefs of declaration, plaintiff is not only asserting exclusive or defined share i.e. 1/3rd share in the land underneath the building/suit property and common area, plaintiff is also challenging the construction of third floor despite claiming no relief against defendant no. 3 and 4 who are stated to be owners of third floor.
Admittedly, at present there are four dwelling units in the suit property i.e. ground floor, first floor, second floor and third floor and there MCA NO. 9/2024 Page no. 14 of 18 Prabhu Dayal Vs. Dipin Dhaliwal Dated 10.01.2025 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date: 2025.01.10 16:43:26 +0530 is one basement in the suit property.
As per the sale deed dated 22.06.2004 in favour of plaintiff, plaintiff has "proportionate, undivided share, indivisable and impartible ownership right in the land underneath with all structures standing thereon". As per plaintiff, he has 1/3rd share in the land underneath the suit property and despite that plaintiff is only challenging the sale deeds in favour of defendant no. 1 and 2 stating that the sale deeds in favour of defendant no.1 and 2 have no impact over the 1/3rd share of the plaintiff in the underneath land of the suit property but it is apparent from the record that the sale deeds in favour of defendant no. 3 and 4, in pursuant to which defendant no. 3 and 4 have raised construction of the third floor have direct impact upon the undivided and proportionate and indivisible share of plaintiff in the land underneath the suit property. Despite that surprisingly, plaintiff has averred that defendant no. 3 and 4 are only proforma parties.
16) Further, clearly plaintiff is not merely seeking a declaration or injunction regarding his right to use the common area but he is asserting exclusive ownership or exclusive share or defined share to the extent of 1/3rd share in the land underneath the suit property and the common area and therefore, plaintiff cannot take the plea that the suit property is only the common terrace incapable of having any market value.
17) Further, the judgments relied upon by plaintiff deal with the question of court fees and not the valuation of the suit. In the present case, Ld. Trial Court has agreed that plaintiff has correctly computed the court fees for the relief of declaration and Ld. Trial Court has rightly observed that:
MCA NO. 9/2024 Page no. 15 of 18 Prabhu Dayal Vs. Dipin Dhaliwal Dated 10.01.2025 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date: 2025.01.10 16:43:30 +0530
"Be that as it may, upon perusal of the reliefs, it is found that the relief of mandatory and permanent injunction i.e. prayer (c) to (f) emanates from the sale deed dated 22.06.2004 of the plaintiff qua second floor of the property bearing no. G-14, Lajpat Nagar-III, New Delhi-110024 and therefore, are independent of the reliefs of declaration. Therefore, it is clear that the two reliefs of declaration are simplicitor without any consequential relief as asserted by the plaintiff himself during his arguments and his written arguments. In such a situation, it is clear that the court fees for the relief of declaration, as correctly pointed out by the plaintiff would be computed as per Article 17(iii) of Schedule II of the Court Fees Act, 1870".
18) The grievance of the plaintiff is with respect to the directions of Ld. Trial whereby plaintiff was directed to value the suit for the purpose of reliefs of declaration as per market value of property in question i.e. terrace and qua sale deed dated 03.11.2014 and sale deed dated 16.05.2015.
Admittedly, plaintiff has sought the simplicitor relief of declaration without consequential relief and Ld. Trial Court has rightly observed that:
"Upon perusal of Section 7 of Court Fees Act, one can easily understand that Section 7(IV)(c) only speak of declaratory decree and consequential relief. In such a situation, for the relief of simplicitor declaration aid has to be taken of Delhi High Court Rules for the purpose of valuation of the suit as suit for mere declaration simplicitor cannot be considered within the ambit of Section 7(iv)(c) of Court Fees Act.
Accordingly, in the present case, Court fees shall be computed in accordance with Article 17(iii) of Schedule II of Court Fees Act i.e. fixed court fees shall be payable; and for the purposes of valuation Delhi High Court Rules shall be resorted to, wherein it has been stated under Volume I, Chapter 3, Part C, Rule 7 that suits in which plaintiff in the plaint asks for a mere declaration without any consequential relief in respect of property, suit shall be valued at the market value of the property in dispute at the date of institution of the suit.
Therefore, it is clear that for the purpose of declaration, plaintiff has to value the suit as per its market value at the time of filing of the suit."
19) Now the question is what is the property in dispute in the present case. In the present suit, plaintiff is claiming right of usage over the common area and is also seeking declaration to specify or define his share to the extent of 1/3rd share in the land underneath the suit property. Thus, MCA NO. 9/2024 Page no. 16 of 18 Prabhu Dayal Vs. Dipin Dhaliwal Dated 10.01.2025 Digitally signed by PRABHDEEP PRABHDEEP KAUR KAUR Date: 2025.01.10 16:43:35 +0530 plaintiff is not merely seeking declaration or injunction regarding his right to use the common area but is also asserting exclusive and defined share in the common area and land underneath, therefore, the valuation of the suit property in terms of Vol. I, Chapter-III, Part-C, Rule 7 of Delhi High Court rules will be market value of the share claimed by the plaintiff and in such a case suit property for the purpose of valuation would be limited to plaintiff's share in the common area and land underneath the entire building and not to the entire common area and sale deeds dated 03.11.2014 and 16.05.2015. Further, if as per plaintiff common area is not having any market value at present, the plaintiff can specifically mentioned the same in the pleading and Court is nowhere forcing the plaintiff to give a figure but is only asking the plaintiff to clarify the status of valuation because as rightly observed by the Ld. Trial Court that:
"the pleadings i.e. paragraph 23 of the plaint (valuation and court fees) appear to be uncertain regarding the valuation of the suit, as at one place for the purpose of two reliefs of declaration, plaintiff has valued the suit at Rs. 200/- each, wherein in the later part of the paragraph, plaintiff has pleaded "the value of the suit for the purpose of jurisdiction is of Rs. 2,00,000/-, thus this Hon'ble Court has the pecuniary and territorial jurisdiction to try and decide the present suit." Therefore, the plaint is not able to disclose if the valuation of the suit for the purpose of valuation is Rs. 200/- or Rs. 2,00,000/-. Each otherwise, during the arguments, plaintiff was specifically put a query, as to how he arrived at the amount of rs. 2,00,000/- to which it was apprised that Rs. 2,00,000/- is a "notional value". At this stage, I find it opportune to note that a similar situation was considered by the Hon'ble Court of Delhi in the judgment titled as Rajinder Singh Bhatia Vs. Manju Bhatia CSOS 172/21 IA 5682, decided on 22.08.2022, wherein the Hon'ble High Court has held that the plaintiff cannot be allowed to value the suit differently for the purpose of jurisdiction and for the purpose of Court fees."
20) In the opinion of this Court, the property in dispute is the 1/3rd share as claimed by plaintiff in the land underneath the building of suit property and the common area and therefore, plaintiff has to value the suit MCA NO. 9/2024 Page no. 17 of 18 Prabhu Dayal Vs. Dipin Dhaliwal Dated 10.01.2025 Digitally signed PRABHDEEP by PRABHDEEP KAUR KAUR Date: 2025.01.10 16:43:39 +0530 for the purpose of relief of declaration as per market value of property in question i.e. 1/3rd share as claimed by the plaintiff in the common area and the land underneath the suit property i.e. G-14, Lajpat Nagar-III, New Delhi -110024.
CONCLUSION
21) In view of abovesaid reasons, it is hereby held that Ld. Trial Court has rightly appreciated the material placed on record. However, the impugned order dated 23.02.2024 is modified to the extent that "plaintiff is directed to value the suit for the purpose of relief of declaration as per market value of property in question i.e. 1/3rd share as claimed by the plaintiff in the common area and the land underneath the suit property i.e. G-14, Lajpat Nagar-III, New Delhi -110024". Plaintiff is directed to amend his pleadings to incorporate the above changes within 30 days. Accordingly, appeal is disposed off.
All the pending interim applications stand dismissed being not pressed upon.
Copy of this order be sent to the Ld. Trial Court alongwith trial court record. File of the present appeal be consigned to record room.
Digitally signed by PRABHDEEP PRABHDEEP KAUR
KAUR Date: 2025.01.10
16:43:44 +0530
Typed to the direct dictation and (Prabh Deep Kaur)
announced in the open court DJ-05, South East
on 10.01.2025 Saket Courts, New Delhi
MCA NO. 9/2024 Page no. 18 of 18
Prabhu Dayal Vs. Dipin Dhaliwal Dated 10.01.2025