Delhi District Court
Seema Vinayak & Anr vs Rajiv Mahajan (Through Lrs) on 9 June, 2017
IN THE COURT OF SH. HARISH KUMAR : ADDL. DISTRICT
JUDGE -13 : CENTRAL DISTRICT ; TIS HAZARI COURTS : DELHI
CS No.: 10018/16 (Old No. 316/16)
In re:
1. Seema Vinayak & Anr.
W/o Sh. Ravi Bhushan Vinayak
2. Sh. Ravi Bhushan Vinayak
S/o Lae Surender Kumar Vinayak
Both R/o J-3/101, Rajouri Garden,
New Delhi
Also at:
H.No. C-81, 2nd Floor,
Anand Niketan,
New Delhi-110021 ........ Plaintiffs
versus
Rajiv Mahajan (Through LRs)
1. Smt. Kiran Mahajan
W/o Late Rajiv Mahajan
2. Anurag Mahajan
S/o Late Rajiv Mahajan
Both R/o C-02, Ground Floor,
Plot No. 18, Sector - 10,
Fakhruddin Apartments, Dwarka,
New Delhi - 110 075
3. Ms. Neha Mahajan
W/o Sh. Asad Samad
D/o Late Rajiv Mahajan
R/o B-4/17, First Floor,
Safdarjung Enclave, New Delhi ...... Defendants
SUIT FOR MANDATORY INJUNCTION AND/OR POSSESSION OF THE LIFT
WELL AND STORE ROOM ON THE TERRACE FLOOR OF PROPERTY
BEARING NO. C-81, ANAND NIKETAN, NEW DELHI-110 021 BY THE
DEFENDANTS TO THE PLAINTIFF
Date of institution of present suit : 06.10.2005
Date of receiving in this court : 14.03.2016
Date of reserving order : 30.05.2017
Date of Order : 09.06.2017
JUDGMENT
This judgment shall dispose of suit filed by plaintiffs against CS No.:10018/16 Smt. Seema Vinayak & Ors. v. Sh. Rajiv Mahajan & Anr. Page No. 1 of 17 defendant seeking relief of mandatory injunction and possession of the lift well and store room on the terrace floor of the property bearing no. C-81, Anand Niketan, New Delhi.
1. It has been stated in the plaint that plaintiffs Smt. Seema Vinayak and Sh. Rajiv Bhushan Vinayak are the co-owners of the entire second floor and terrace floor along with the superstructure standing thereon with proportionate indivisible ownership right in land underneath, in the property No. C-81, Anand Niketan, New Delhi. It has been further mentioned that they acquire the ownership right in above said two floors vide two sale deeds, both dated 16.08.2001 executed between the plaintiffs and the defendants herein and plaintiffs have enjoyed uninterrupted exclusive possession of the entire terrace floor except for one servant room and a common bath cum toilet facility which are being used by the servants of the owners of the first floor.
2. It has been further stated that second floor being owned by the plaintiffs, one of the servant quarters on the terrace floor besides the common rights in the bath cum toilet is also owned by the plaintiffs being owner of the second floor. It has been further mentioned that plaintiffs are residing in Rajouri Garden at the address given herein above in the cause title ever since the purchase of the second and terrace floors of property bearing No. C-81, Anand Niketan, New Delhi and plaintiffs have let out the second floor to a company executive, whose servant is occupying the servant room on the terrace floor.
3. It has been further stated that vide sale deed dated 16.08.2001, the defendants had sold to the plaintiffs, the entire terrace floor along with all superstructure standing thereon above the second floor in the property No. C-81, Anand Niketan, new Delhi except the servant spaces/rooms as mentioned herein above and a common toilet CS No.:10018/16 Smt. Seema Vinayak & Ors. v. Sh. Rajiv Mahajan & Anr. Page No. 2 of 17 cum bath against a total consideration of Rs. 5 lakh and plaintiffs had been given the right in the Sale deed to carry out further construction on the terrace floor and in which plaintiffs were to provide for servant rooms and common toilet cum bath facilities for owners of the first and second floors, on the terrace above the third floor. It has been further mentioned that entire terrace floor in the sale deed dated 16.08.2001 which only exclude the two servant spaces and common bath cum toilet, there is no reference to any alleged lift well or alleged store room in the sale deed which could have been intended to be excluded from the sale and in the sale deed it has been specifically stated that vendors have handed over vacant possession of the said portion i.e. the entire terrace floor with super structure standing thereon besides the proportionate indivisible ownership right in the land.
4. It has been further stated that defendant no. 2 has been living on the ground floor of the same property, second and terrace floors whereof were purchased by the plaintiffs and initially defendant no. 1 also lived in the annexe on the ground floor with his family but after selling the first floor premises to a third party, he shifted out of the said annexe to some premises in Dwarka and this was possible because of some arrangement/partition interse between the defendants whereby defendant no. 2 retained the entire ground floor and defendant no. 1 encashed the share by sale of the upper floors. It has been further mentioned that apart from lift well which is a hollow well running from the ground floor through till the terrace, in which the defendants had given the plaintiffs to understand they could install a lift in the well for which it had been created, there was also a small space on the terrace floor adjoining the lift well, which has been referred to as a store room in the suit filed by defendant no. 1 and said space was lying vacant over the years and had a small click lock placed on it by the plaintiffs.
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5. It has been further mentioned that on 02.08.2005 defendant no. 1 sent his son to the terrace of the property situated at C-81, Anand Niketan, New Delhi sometime in the forenoon along with labourers and labourers demolished one of the walls between the alleged store room and the alleged lift well and after being informed about the said incident when son of defendant no. 1 was challenged the same afternoon by the plaintiffs, he placed a lock on the alleged store room after breaking open the earlier one and slipped away. Thereafter, plaintiff lodged a complaint with the local police about the incident. It has been further mentioned that defendant no. 1 had filed a suit for injunction seeking to restrain the plaintiffs from dispossessing him from the said premises i.e. alleged store room and the alleged lift well situated on the terrace floor over and above the second floor in premises no. C-81, Anand Niketan, New Delhi as also to restrain the plaintiffs from breaking open the lock on the suit premises or to sell the same or alienate it. It has been further mentioned that defendant no. 1 attempted to get a local commissioner appointed to visit the site, who also prepared a site plan of the terrace floor. It has been further mentioned that sale deed would clearly show that at no point of time did the defendants intend to retain any part of the premises in question as the alleged lift well was supposed to be used for installing a lift, which the defendants failed to do so and the alleged store room on the terrace floor was part of the superstructure which had not been excluded by the defendants.
6. It has been further mentioned that after selling the property to the plaintiffs as far as back in August, 2001, the defendants had no right, title or interest in any portion of the property situated on the second and terrace floor of C-81, Anand Niketan, New Delhi. It has been further mentioned that defendant herein filed the suit for injunction against the plaintiffs herein and the said suit is pending in the Court of Gorakh Nath Pandey, the then Civil Judge, Delhi and the plaintiffs are contesting the CS No.:10018/16 Smt. Seema Vinayak & Ors. v. Sh. Rajiv Mahajan & Anr. Page No. 4 of 17 suit separately and challenging the interim injunction granted against them by the then Ld. Judge.
7. It has been further mentioned that plaintiffs are the owners of the entire terrace floor and every part of it except one servant room and the common facility by way of a toilet cum bathroom. It has been further mentioned that defendants while selling the second and terrace floors to the plaintiff had said that originally the plans had been sanctioned to have a bathroom in the place where the lift well has been created and they would install a lift and at the time of finalization of sale, the defendants represented that they had provided for a smaller bathroom while leaving the lift well open for the buyers of the first and second floors to install the lift and they could covert that part of the well as falling in the portion of each floor. It has been further mentioned that the action on the part of defendant no. 1 to send his son to gain possession and control over the space on the terrace referred to as store room and the lift well is a device created by the defendants in league with each other to extract more money out of the plaintiffs when nothing is due or payable to the defendants in any manner. Hence, the present suit.
8. In written statement defendants have taken the stand that suit filed by the plaintiff was in fact counter blast to the suit filed by the defendants as the defendant no. 1 has never sold the lift well and store room and he has been in continuous possession of the same. Defendants have further raised objection that the plaintiff had not approached the court with clean hands and had no locus standi or cause of action and the suit has not been property valued. On merits, defendant admitted that plaintiffs are co-owner of entire second floor and terrace floor along with superstructure standing thereon with proportionate indivisible ownership rights in the land underneath in property no. C-81, Anand Niketan, Delhi but lift well and adjoining store room/space was not sold.
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9. It has been pleaded that the space for lift well from bottom to top and one store room are in occupation of the defendant no. 1. It has been further submitted that there were separate portion/space for lift well and when the lift well was not installed in the premises, the lift well as well as its operation room situated at the top of the terrace was converted by the defendant into store room and since the construction of the same some domestic articles are lying in the suit premises and the said portion was never sold by defendants to any buyers including plaintiffs and therefore, plaintiffs have no right, title and interest over the lift well room with its operation room, now converted into store room. Defendants have denied that they have unauthorisedly come in possession of the alleged lift well and store room. It has been submitted that except the lift well room with store room, entire terrace above the second floor was sold out to the plaintiffs in August, 2001 and some domestic items of the defendants are lying there in the store room. Rest of the contents of the plaint has been denied by the defendants.
10. Plaintiff thereafter filed replication and denied the averments made in the written statement reiterating the contents of the plaint.
11. On the pleadings of the parties following issues were framed by the Ld. Predecessor of the Court vide its order dt 17.05.2006:-
1. Whether the appellant's (wrongly typed) suit is suffering from any defect as alleged in para no. 1 to 5, if so, to what defect and to what effect? OPD.
2. Whether the plaintiff is entitled for the decree of mandatory injunction and possession as claimed in respect of suit property? OPP.
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12. Plaintiff examined two witness i.e. plaintiff no. 2 Ravi Bushan Vinayak as PW-1 and one Shri Jagdamba as PW-2. Plaintiff no. 2 as PW- 1 filed his affidavit in examination in chief Ex. PW-1/A and relied upon sale deed dated 16.08.2011 Ex. PW-1/1, site plan Ex. PW-1/2, complaint made to police Ex. PW-1/3, certified copy of local commissioner report Ex. PW-1/4. PW2 in his examination in chief deposed on the lines of plaint. He was cross examined and in cross examination, plaintiff admitted that Som Prakash, defendant No.2 and brother of defendant No.1 was living on the ground floor of the property No. C-81 which building consist of three storeys i.e. ground floor, first floor, second floor and terrace floor. He further deposed that first floor belong to Virender Bhalla. The second floor is owned by plaintiffs. He admitted that there are two different sale deeds for second floor and the terrace floor and both sale deeds are in the names of plaintiffs. He denied the suggestion that there are two sides of terrace. He admitted that there are two servant quarters on the terrace one for the servant of owner of first floor and another for servant of owner of second floor. He denied the suggestion that there are separate portion of lift room and lift well.
13. PW1 further deposed that portion of lift well at the level of first floor was sold to him and remaining portion of lift well belonged to respective owners of other floors. He further deposed that lift well and the room had been constructed when they purchased the premises. He further deposed that the room of lift well is on the roof of second floor. He further admitted that room adjoining of lift well before it was sold to plaintiff was being used as store. He again deposed that he did not know in what manner said room was being used before his purchase. He further deposed that when floor was sold to plaintiff vacant possession of room and lift well was handed over to him. He denied the suggestion that room adjoining the lift well was never sold to any occupant or that defendant has been using the same as store since premises was sold to CS No.:10018/16 Smt. Seema Vinayak & Ors. v. Sh. Rajiv Mahajan & Anr. Page No. 7 of 17 plaintiff. He also admitted that on the date of cross examination no goods belonging to the plaintiff are kept in the room in dispute. He volunteered that prior to 02.08.2005, cleaning gadgets etc. used to be kept in the said room up to the time when the premise was let out on 19.01.2002 and thereafter it was lying vacant. He further deposed that servant Jagdamba was living in the servant quarter. He denied the other suggestions given by the defendant.
14. The servant Jagdamba was examined as PW-2 who filed affidavit Ex. PW-2/A in his examination in chief and deposed that he was employed as domestic servant with plaintiffs with effect from 17.10.2001 and remained in such employment with them till 18.01.2002 and during period of his employment he was staying in the servant quarter on the terrace floor of the property. In cross examination he deposed that there was small store room near the lift well in which he used to keep the cleaning implements. He further deposed that there is no lift well i.e. space for installing lift from ground floor to terrace. He denied the suggestion that he never kept the said room under his lock and key.
15. Defendant No.1 examined himself as DW-1 and filed his affidavit Ex. DW-1/A in his examination in chief and deposed on the lines of his written statement. In his cross examination the sanction plan of the property came on record as Ex. DW-1/P1 and he admitted that in the sanction plan Ex. DW-1/P1 lift well is not shown but he deposed that portion toilet is shown and he volunteered that toilet was sanctioned for the ground floor, first floor and second floor. He admitted that lift well was not sanctioned. He admitted in cross examination that there was one servant of the plaintiff namely Jagdamba. He admitted that there was partition wall between the alleged lift well and alleged store room. He admitted that the partition wall had a big hole.
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16. DW1 further admitted that he got demolished the wall. He corrected himself by saying that he got made hole in the wall. He admitted that plaintiff had given complaint to police and he was called at Police Station. He further deposed that content of sale deed are correct except with respect to lift well and one room and he had given possession of the premises sold vide Ex. PW-1/1 except lift well and lift room. He denied the suggestion that there was no lift room in the premises. He volunteered that lift room was there at ground floor, first floor and second floor. He again said that there was lift room at the second floor. He volunteered that lift room was attached to the lift well on second floor. He admitted that he had sold the entire first floor and shifted to Dwarka and since 2003 not living in the property. He admitted that only one stair is leading to the terrace of second floor and there are two servant quarters on the terrace of which one belongs to owner of the first floor and another for the owner of second floor. He admitted that he had no documentary proof to show his possession of the room adjacent to lift well since 16.08.2001 to 02.08.2005.
17. Defendants examined son of defendant No.1 namely Anurag Mahajan as DW-2 who deposed particularly with respect to incident that took place on 02.08.2005 when the plaintiffs allegedly stopped him from opening the store room on the terrace floor. In cross examination he deposed that he was not sure if he was present at the time of attestation of the affidavit. In cross examination his presence on 02.08.2005 was not denied by him and with respect to qualrrel that took place on 02.08.2005. He, however, sought to dispel the allegation against him and sought to put blame on plaintiffs.
18. Defendant also examined one Anju Kapani as DW-3. He deposed to the effect that he had seen the store room being opened and locked by the son of defendant in his presence in the year 2003 and CS No.:10018/16 Smt. Seema Vinayak & Ors. v. Sh. Rajiv Mahajan & Anr. Page No. 9 of 17 2004. In cross examination he deposed that he did not know when defendants sold the second floor and terrace floor to the plaintiffs but he volunteered that store room and lift room on the terrace were not sold. He had not seen the sale deed executed by the defendants in favour of the plaintiffs nor was he present when the sale deeds were executed.
19. It is worthwhile to note that during the pendency of the case both defendants expired and their respective legal heirs were brought on record. Arguments have been heard from the side of the counsel for plaintiff. Defendant has filed written argument.
20. After appreciating the arguments, pleadings, evidence and material on record, issue wise findings are as under:-
ISSUE NO.1. Whether the appellant's (wrongly typed as appellant instead of plaintiff's) suit is suffering from any defect as alleged in para no. 1 to 5, if so, to what defect and to what effect? OPD.
21. Onus to prove this issue is upon the defendants. In written statement defendants in preliminary objection no. 1 to 5 have submitted that the suit filed by the plaintiff is counter blast to the suit filed by the defendant no. 1. Defendant no. 1 never sold out the lift well and store room which remained in custody possession of the defendant no. 1; that Plaintiff have not approached the court with clean hands; that plaintiffs have no locus standi to file the present suit; that no cause of action have accrued in favour of plaintiffs and the suit has not been valued properly as per the market value of the subject matter of the plaintiff.
22. Thus, from the consolidated reading of the preliminary objections, the first objection is with respect to valuation of the suit property. In examination in chief, defendant is completely silent with respect to valuation of the suit property. So has done the other witnesses CS No.:10018/16 Smt. Seema Vinayak & Ors. v. Sh. Rajiv Mahajan & Anr. Page No. 10 of 17 of the defendants. The effect of non averment/testimony about the value of the subject property in the testimonies of any of the witnesses of the defendants calls for the court to draw an adverse inference against the defendants. Since, no testimony in this regard has come on record from defendant nor has any material been placed on record by the defendants in this regard, it can reasonably be concluded that defendants have given up this objection. Not only this when plaintiff's witnesses were in the witness box not a single question was asked with respect to valuation, therefore, defendant has failed to prove any defect in the valuation of the suit property and therefore the objection of the defendant qua the valuation of the suit property is hereby rejected.
23. The next objection relates to cause of action, locus standi and whether lift well and adjacent room was sold or not. Said objections will be taken care of while deciding issue no. 2.
24. So far as objection with regard to not approaching the court with clean hands is concerned, defendants have not pointed out as to what was the material fact which has not been disclosed by the plaintiff so as to dis-entitled the plaintiff from maintaining the present suit. Neither in their evidence nor in pleading nor in their written argument, it has been pointed out by defendants as to what was concealed by the plaintiff and therefore, since defendant has failed to point out anything on record in this regard, the objection is not sustainable.
In view of the above discussion, issue no .1 is decided against the defendants and in favour of plaintiff.
ISSUE NO. 2. Whether the plaintiff is entitled for the decree of mandatory injunction and possession as claimed in respect of suit property? OPP.
25. Onus to prove this issue is upon the plaintiffs. Plaintiff have CS No.:10018/16 Smt. Seema Vinayak & Ors. v. Sh. Rajiv Mahajan & Anr. Page No. 11 of 17 claimed that plaintiffs purchased the second floor and terrace floor except one servant quarters and common bath and toilets on the terrace floor vide sale deeds dated 16.08.2001. There are two separate sale deeds in respect of second floor and terrace floor. Sale deed dt 16.08.2001 Ex. PW-1/1 is in respect of the terrace floor. It is the case of the plaintiff that on the terrace floor i.e. the floor upon the second floor there were two servant quarters one of which was to be owned by the owner of the first floor and other was to be owned by owner of the second floor.
26. It is the case of the plaintiff that vide sale deed dated 16.08.2001Ex PW1/1, defendants had sold to the plaintiffs the entire terrace floor along with super structure standing thereon above the second floor in property no. C-81, Anand Niketan except the servant spaces/rooms as mentioned herein above and a common toilet cum bath. Plaintiff has further pleaded that apart from the lift well which is a hollow well running through from the ground floor till the terrace in which defendant had given the plaintiff to understand that they could install a lift in a well for which it had been created, there was a small space on the terrace adjoining lift well which had been referred to as a store room in the suit filed by the defendant no. 1. The said space was lying vacant over the years and the small click lock placed on it by the plaintiffs. This small space forms part of the structure existing on the terrace floor above the second floor. Thereafter plaintiff has pleaded that on 02.08.2005, defendants through labourer demolished the wall between the alleged store rooms and alleged lift well and subsequently taken possession.
27. Case of the defendant in nutshell is that the said lift well and the adjoining room was never sold to plaintiffs and have always been in possession of the defendants. The allegation of forcible demolition and consequent taking of possession has been denied. Defendant has not disputed the sale deed dated 16.08.2001 Ex. PW-1/1 executed in favour CS No.:10018/16 Smt. Seema Vinayak & Ors. v. Sh. Rajiv Mahajan & Anr. Page No. 12 of 17 of plaintiffs.
28. Defendants have argued their case on the lines of the written statement i.e. that saids portion were never sold to plaintiffs and was always in possession of the defendant No.1.
29. There is no dispute that on the date of presentation of the plaint, possession of the said adjoining room of the lift well is with defendant No.1. Whether defendant No.1 was in possession even prior to 02.08.2005 or whether he came into possession of the suit property on 02.08.2005 is immaterial as the present suit is admittedly based on title and therefore, whether defendant illegally occupied it or not will not be material but the material question will be what right, title or interest plaintiffs or defendants have got in respect of the said portion/room adjacent to the lift well.
30. There is no dispute that initially terrace floor was owned by defendants. There is no dispute that terrace floor has been sold by the defendants vide sale deed dated 16.08.2001 Ex. PW-1/1. There is no dispute that the contents of sale deed dated 16.08.2001 Ex. PW-1/1 have never been challenged by the defendants nor has defendant ever filed any suit for making any correction, amendment or modification with respect to any contents mentioned therein. In view of Section 91 and 92 of Indian Evidence Act, oral evidence are excluded when there is written evidence available. Since, the contents of sale deed dated 16.08.2001 Ex. PW-1/1 is not in dispute the averment made in the sale deed will sort out the dispute between the parties and will also clarify as to what portion was exactly sold to the plaintiffs vide sale deed Ex PW1/1 and whether or not any portion on the terrace was retained by the defendants or excluded from the sale to plaintiffs.
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31. Bare perusal of the sale deed shows that Sale Deed Ex PW1/1 in its narrative has following paragraph:-
"And whereas the Vendors for their bonafide needs and requirements with their sound and disposing mind, with free Will, without any outside pressure of any kind whatsoever, have agreed to sell the entire Terrace over and above the second floor (excluding of two servant spaces belonging to the owners/residents of First and Second Floor with a common toilet and bath), of the property bearing no. C-81, Anand Niketan, New Delhi, measuring 360.49 sq. yards. (hereinafter referred to as "the said portion"), unto the Vendee for a total sum of Rs. 5,00,000/- (Rupees Five lacs only) and the Vendees have agreed to purchase the same from the Vendors, for the same amount.
32. Further the terms and condition of the Sale Deed Ex PW1/1 has following clauses:-
2. That the Vendors have handed over the vacant and physical possession of the said portion, hereby sold, to the Vendee on the spot.
3. That now the Vendors doth hereby sell, convey, grant, transfer and assign all their rights, titles, interests, claims, benefits in the said portion with super-structure standing therein, along with proportionate undivided, indivisible and impartiable share of ownership rights in the land beneath the same, including easements and appurtenances, whatsoever, pertaining to the said Portions TO HAVE AND TO HOLD THE SAME UNTO THE Vendee, ABSOLUTELY & FOREVER.
4. that the Vendors admit that they have been left with no right, title, interest, claim or lien of any nature whatsoever in the said portion, hereby sold, and the same has become the absolute property of the Vendees, with the right to use, enjoy, sell and transfer the same by whatever mean they like, without any demand, objection, claim or interruption by the Vendors or any person(s) claiming under or in trust for them."
33. Thus, perusal of the sale deed makes it clear that defendants Rajiv Mahajan and Som Prakash have sold entire terrace over and above the second floor excluding spaces/servant rooms belonging to the CS No.:10018/16 Smt. Seema Vinayak & Ors. v. Sh. Rajiv Mahajan & Anr. Page No. 14 of 17 owners/residents of first and second floor with a common toilet and bath of the property bearing no. C-81, Anand Niketan, New Delhi measuring 360.94 Sq. Yards. The language of the sale deed is clear and unambiguous and does not admit of any other meaning with regard to subject of sale. The defendants are bound by the terms and condition mentioned in the sale deed Ex PW1/1.
34. No doubt during the cross examination a weak attempt was made by the DW-1 to dispute the contents by deposing that contents of the sale deed is correct except that room adjoining the lift well and lift well as same have not been sold to plaintiffs. However, this weak averements will not have any effect upon the contents of sale deed Ex PW1/1 particularly when no attempt has been made by the defendant to get it corrected if at all there is any truth in the submission made. Plaintiff filed the present suit in the year 2005 and since then defendant did not get time to seek correction in the sale deed dated 16.08.2001 Ex PW1/1 if at all mistakenly exclusion of lift well and adjoining rooms was not mentioned in the sale deed Ex PW1/1 or if the same were not sold to the plaintiffs.
35. In view of the clear unambiguous language used in the sale deed there is no hesitation to hold that defendants sold the entire terrace floor except the portion left out in the sale deed i.e. servants rooms and common toilet cum bathroom on the terrace floor. Therefore, the claim of the defendant that lift well and adjoining room was not sold is not only false but also smacks of malafide intention on the part of the defendant to make illegal gain. Therefore, plaintiff not only has cause of action against the defendant but has also locus standi to file the present suit for seeking the possession of the room adjoining the lift well and lift well shown green in site plan Ex PW1/2.
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36. Even if for the sake of arguments it is assumed that possession of the adjoining room to the lift well was not delivered to the plaintiff and was in possession of defendants No.1 ever since, even then defendants have got no right to retain the same as the sale deed is clear to the effect that entire terrace floor except servants rooms and common toilet cum bathroom was sold to the plaintiffs. Therefore, once defendants have sold the said portion to plaintiffs, defendants have no right to retain the possession thereof and plaintiff is certainly entitled for the possession of the same and therefore this court does not find it necessary to look into the question as to whether defendants were in possession of the said portion prior to 02.08.2005 or whether they came in possession on 02.08.2005 as the said question is not relevant for the purpose of determining the right, title or interest of either parties in respect of the said portion of the terrace floor of the property bearing no. C-81, Anand Niketan, New Delhi.
37. It is also worthwhile to note that prior to filing the present suit by plaintiffs, defendant No.1 had filed one suit for permanent injunction wherein defendant No.1 had sought the relief of restraining the plaintiffs herein permanent from dispossessing the defendants from the suit property i.e. one store room and lift well. The said suit was contested by the plaintiffs (herein) who were defendants therein and finally the said suit was also marked to this Court and the said suit was finally dismissed under the provisions of Section 35 B of CPC by this court vide order dated 16.01.2017 and no attempt was made by the defendant No.1 herein either to challenge the said dismissal and get the said suit decided on merits.
In view of the above discussion, issue no. 2 is decided in favour of plaintiff and against the defendants.
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38. In view of the findings recorded on all issues, suit of the plaintiff is allowed and accordingly decree of mandatory injunction and/or possession in respect of the store room and the adjoining lift well on the terrace floor marked in Green in the site plan Ex PW1/2 is hereby passed in favour of plaintiff and against the defendants and defendants are directed to handover the said portions to the plaintiffs within 30 days of the judgment.
Since defendants has taken false stand therefore cost of the suit is also awarded in favour of the plaintiff.
Decree sheet be prepared accordingly.
File be consigned to Record Room after necessary compliance.
(Harish Kumar)
Announced in the open Court. ADJ-13( Central)/THC
(Judgment contains 17 pages) Delhi/09.06.2017
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