Delhi District Court
M/S Mars Construction Company vs Sh. Bhagat Ram Oberoi on 16 April, 2009
1
IN THE COURT OF SH. AJAY GOEL LD. SCJ CUM
RC(CENTRAL)DELHI
RCA-229/02
In the Matter :-
1. M/s Mars Construction Company,
A Partnership Firm Having Its Office At:
518, OSIA Building,
12, Nehru Place,
New Delhi-110019
2. Sh. Brahm Arneja
S/o Sh. Lekh Raj Arneja
R/o N-51, Panchsheel Park,
New Delhi.
3. Smt. Chanchal Parwanda
W/o Sh. S.R. Parwanda
R/o C-28, Panchsheel Enclave,
New Delhi.
4. Sh. Reena Parwanda
W/o Sh. Dinesh Parwanda
R/o C-28, Panchsheel Enclave,
New Delhi
5. Sh. Dinesh Parwanda
S/o Sh. S. R.Parwanda
R/o M-45, Market,
Greater Kailash-II
New Delhi-110048
6. Sh. Lakshman S. Gopalani
S/o Sugnomal Gopalani
R/o W-167, Greater Kailash-II
New Delhi-10048
7. Sh. Rajeev Gopalani
S/o Sh. Lakshman S. Gopalani
R/o W-167, Greater Kailash-II
2
New Delhi-110048 .....Appellants
VERSUS
1. Sh. Bhagat Ram Oberoi
S/o Sh. G.C. Oberoi
R/o S-205, Greater Kailash-II
New Delhi.
2. Sh. Virendra Oberoi
S/o Sh. Bhagat Ram Oberoi
R/o S-205, Greater Kailash-II
New Delhi-110048 ......Respondents
Date of Filing: 7.11.02
Date of Assignment to this court: 16.12.08
Date of Arguments: 31.3.09
Date of Decision: 16.4.09
JUDGMENT
1. By this judgment I shall dispose off this appeal filed against the judgment/decree passed by Ld. Trial court vide order dated 7.9.02. The facts of the case are that the respondents/plaintiffs had filed the suit for permanent injunction against the appellants/defendants on the ground that he is absolute owner of entire second floor portion of the suit property which was constructed by defendants No. 1 & 2 who sold it to one Moolchand and Co. which was subsequently purchased by them by 3 registered sale deed and now the plaintiffs were enjoying all the benefits of second floor but the defendants are bent upon carrying out construction of the second floor without any title or interest in him. The defendants No. 1, 2 and 3 were ex-parte and only defendants No. 4 & 5 filed the statement. The defendants No. 6 & 7 were also proceeded against ex-parte, though the appeal has been filed by all the defendants. In the WS filed by defendants No. 4 & 5 certain preliminary objections were taken including that the suit is bad for non-joinder of necessary parties and further that construction of the additional floor would not affect the right of the plaintiff and would not cause structure damage to the entire building, though it was admitted by the defendants No. 4 & 5 that terrace floor is not possession of the owner to whom they have sold. Replication was filed by the plaintiff denying the contents of the WS and reaffirmed the contents of the plaint. After completing the pleadings, the following issues were framed:-
1.Whether the suit is bad for non-joinder of necessary parties?OPD
2.Whether the plaintiff is entitled for the relief as prayed?OPP
3.Relief.4
2. Plaintiff has examined PW namely Sh. Virender Oberoi who stated that present suit has been filed in respect of 2nd floor portion of the property bearing No. M-45 Greater Kailash-II market, New Delhi -48 and had purchased the property in November 1993 from Sh. Moolchand and Co. As stated the 2nd floor was in his possession. As stated the roof was in common property of all the occupants of the building and he had 1/5 share in the land.
3. The defendant examined one namely Sh. Sunil Kumar Goel in chief but produced Sh. M.C. Goel in cross-exmination, who stated that Smt. Reena Parbhandha defendant No.4 had asked him to appear and to give statement on behalf of defendant No.1. As stated Smt. Reena Parbhandha is the wife of defendant No.5 Sh. Dinesh Parbhandha and stated that he was working in Trinity Touch Pvt. Ltd. and the defendant No.5 was the Director of the said company.
4. I have gone through the record and have heard argument of both the counsels. My issue-wise findings are given below:
5. Issue No. 1:- Whether the suit is bad for non-joinder of necessary parties?OPD:-The onus of proving this issue was on the defendant but 5 Ld. Trial counsel failed to assail the findings of issue No. 1. No particular of necessary parties were supplied and cross-examination is silent on this aspect. Hence this issue was rightly decided by Ld. Trial court and findings on same are reaffirmed in favour of the plaintiff.
6. Issue No. 2:Whether the plaintiff is entitled for the relief as prayed?OPP:- While deciding the issue No.2, the Ld. Trial court has gone through the evidence led by the party and the averrments made. It is clear from the file that there are no averrments of defendants No. 1, 2,3, 6 & 7 and there is no evidence on their behalf hence the arguments are beyond pleadings and cannot be taken into account. Further more there is unchallenged testimony of the plaintiff witness as in this case only defendant No. 4 has produced one Sh. Sunil Kumar Goel for evidence in chief but in cross-examination one Mr. M.C. Goel appeared. There seem to be typographical error either in writing the name of witness as M.C. Goel as signatures seem to be of Sunil Goel but taking into consideration the arguments of appellant that this is Sunil Kumar Goel, his evidence is read. The defendant failed to rebut the evidence produced by P-1. The statement of DW-1 is in capacity of the employee. He is not even the 6 attorney. The Ld. Counsel for the respondent has relied upon AIR 2004, Andhra Pradesh, 309 Padma Vatamma Vs. S. Sudha Rani and argued that GPA can appear as the witness only in his personal capacity and he cannot speak about facts which are within personal knowledge of the party. The case of the plaintiff/respondent is rather on the better footing as in the present case the witness is not even GPA of attorney but rather is employee without having any knowledge of the facts. The Counsel has further placed reliance upon 1993(3) SC cases page 73 and argued that if the parties abstain from entering the witness box and does not face cross- examination then adverse inference has to be drawn against him. The Ld. Trial court rightly observed while deciding this issue that there is admission on the part of appellant/defendant by way of pleadings in the WS wherein it is mentioned that the terrace floor is in possession of the owners to whom the defendant has sold and who had made the temporary teen shed on it. Thus the original vendors i.e. defendant/appellants were left with no title or interest in terrace floor. I find the support for this view from the sale deed placed on record by the plaintiff i.e. Ex. PW-1/1 to PW-1/3 wherein it has been mentioned categorically that vendees are 7 given the possession of property mentioned in sale deed pertaining to respective portion alongwith 1/5th proportionate undivided share in land which clearly shows that when vendees have been given the land then the right goes up to sky limit qua his respective share and it cannot be stated that the roof right will not be included in that 1/5 share. The appellant has failed to show as to what rights were left with them when the property was sold to Moolchand & Co. without reserving their rights. The witness has failed to depose on merits of the case which clearly proves that appellant has no right to the said terrace of second floor. Even this witness has admitted that at the time of sale of the property the proportionate right in the land was also sold to the respective owner and further he has no knowledge that whether any construction can or cannot be done on second floor which clearly shows that defendants themselves are not sure of their right. The findings of the Ld. Trial court are just and legal as made out from the pleadings of the parties and do not deserve any interference. Thus in these circumstances the findings of Ld. Trial Court on issues No. 1 & 2 are reaffirmed.
7. Relief: Resultingly, on the affirmation of findings on issues, as above it is 8 held that appeal has no merits and it deserves dismissal. Decree sheet be prepared as appeal stands dismissed with cost. Copy of this judgment be sent to Ld. Trial court along with TCR. Appeal file be consigned to record room.
Announced in the open court on AJAY GOEL 16.4.09 SCJ CUM RC(Central)Delhi/16.4.09