Delhi District Court
Bhatia Apartments Pvt Ltd vs Smt. Aruna Gulaya on 27 October, 2018
Page no. 1 of 27
IN THE COURT OF SH. SUSHIL ANUJ TYAGI, JSCC CUMASCJCUM
GUARDIAN JUDGE ,
DISTRICT: SOUTHEAST, NEW DELHI.
CS No: 50625/16
IN THE MATTER OF :
BHATIA APARTMENTS PVT LTD
THROUGH ITS AUTHORISED
REPRESENTATIVE
REGISTERED OFFICE AT:
W41, GREATER KAILASH
PART1, NEW DELHI48
.....PLAINTIFF
VERSUS
SMT. ARUNA GULAYA
W/O SHRI SURESH GULAYA
R/O S254, 2nd FLOOR,
GREATER KAILASH, PARTII
NEW DELHI
.....DEFENDANT
CS No. 50625/16 (Sushil Anuj Tyagi)
Bhatia Apartments Pvt Ltd. JSCCcumASCJcumGuardian Judge
Vs. South East, Saket Courts:New Delhi
Aruna Gulaya 27.10.2018
Page no. 2 of 27
Date of institution : 26.07.2013
Reserved for Judgment : 20.09.2018
Date of decision : 22.10.2018
JUDGMENT
1. Vide this judgment, I shall dispose off the present suit for declaration
and permanent injunction filed by the plaintiff M/s Bhatia Apartments
(hereinafter called plaintiff) against Aruna Gulaya (hereinafter called
defendant) seeking the following reliefs:
Pass a decree of mandatory injunction in favour of the
plaintiff and against the defendant, directing the defendant
and her servants, nominees, assignees, representatives,
legal heirs etc to remove the servant quarter from the third
floor terrace of house no. S254, Greater Kailash, Part II,
New Delhi and issue the no objection certificate to the
plaintiff to carry out the construction.
Pass a decree of permanent injunction restraining the
defendant, her servants, nominees, assignees,
representatives, legal heirs etc from creating any hindrance
or obstruction in the constructions to be undertaken by the
plaintiff at the third floor terrace of house no. S254,
Greater Kailash, PartII, New Delhi.
CS No. 50625/16 (Sushil Anuj Tyagi)
Bhatia Apartments Pvt Ltd. JSCCcumASCJcumGuardian Judge
Vs. South East, Saket Courts:New Delhi
Aruna Gulaya 27.10.2018
Page no. 3 of 27
PLAINT
2. The brief facts of the case as per the plaintiff are as follows:
2.1. It is alleged that the plaintiff is a company duly registered
under the Indian Companies Act and the present suit is preferred
through Mr. Sunil Bhatia, Director of plaintiff company who is fully
conversant with the facts of the case and has been authorized by the
plaintiff company to prefer the present case vide resolution dated
10th May 2013.
2.2. It is alleged that the plaintiff had purchased plot of land
bearing no. S254, Greater Kailash II, New Delhi measuring 299
square yards from one Smt. Krishna Aneja and the plaintiff thereafter
got the plans sanctioned from the Municipal Corporation of Delhi and
constructed a building at the said plot no. S254, Greater KailashII,
New Delhi.
2.3. It is alleged that the defendant through her representative
approached the plaintiff on 11.05.1995 and applied for the second
CS No. 50625/16 (Sushil Anuj Tyagi)
Bhatia Apartments Pvt Ltd. JSCCcumASCJcumGuardian Judge
Vs. South East, Saket Courts:New Delhi
Aruna Gulaya 27.10.2018
Page no. 4 of 27
floor with car parking and servant quarter. It is alleged that the
plaintiff also issued allotment letter to the defendant and thereafter,
the plaintiff vide registered sale deed dated 23 rd April 1986 sold the
¼th undivided share in the said plot of land along with second floor
comprising of three bed rooms, three bathrooms, drawing cum
dinning, one kitchen, central open court yard, back balconies and
improvised servant quarter on the terrace along with car parking with
the said flat to the defendant.
2.4. It is alleged that the sale deed in favour of the defendant also
declare that the common amenities, such as lights in staircase etc
and boosters consumption etc will be shared equally by the
occupants/owners of the building and also its maintenance.
2.5. It is alleged that the plaintiff has never in the said sale deed
executed in favour of the defendant sold the terrace of the second
floor i.e. third floor. It is alleged that the third floor and the
subsequent floor are in the ownership of plaintiff. The plaintiff had
only sold the second floor to the defendant and only as amenities the
CS No. 50625/16 (Sushil Anuj Tyagi)
Bhatia Apartments Pvt Ltd. JSCCcumASCJcumGuardian Judge
Vs. South East, Saket Courts:New Delhi
Aruna Gulaya 27.10.2018
Page no. 5 of 27
improvised servant quarter on the terrace along with car parking with
the second floor flat was provided to the defendant. The plaintiff had
only provided a temporary structure to the defendant as a servant
quarter on the terrace.
2.6. It is alleged that the other floors below the second floor were
also sold by the plaintiff to different individuals and even in their sale
deeds it was mentioned that none of the occupants/owners of the
building will have right to obstruct the staircase in any way.
2.7. It is alleged that plaintiff has also been in the constructive and
legal possession of the third floor of the house no. S254, Greater
Kailash PartII, New Delhi.
2.8. It is alleged that the plaintiff in early 2013 decided to raise
construction on the third floor of the house no. S254, Greater
Kailash, PartII, New Delhi hereinafter referred as the suit property.
The plaintiff also through a legal notice dated 19.02.2013 dispatched
through registered AD and courier asked the defendant to remove
CS No. 50625/16 (Sushil Anuj Tyagi)
Bhatia Apartments Pvt Ltd. JSCCcumASCJcumGuardian Judge
Vs. South East, Saket Courts:New Delhi
Aruna Gulaya 27.10.2018
Page no. 6 of 27
the servant quarter on the third floor so that the plaintiff can raise
construction thereon.
2.9. It is alleged that the said legal notice was duly received by the
defendant and the same was even replied by the defendant through
his counsel vide reply dated 25.03.2013. In the said reply, the
defendant claimed to be the owner of the third floor terrace that is
the present suit property.
2.10. It is alleged that the plaintiff had also earlier sold the first floor
of the building that is house no. S254, Greater Kailash, PartII, New
Delhi vide sale deed dated 28.01.1986 to one Manju Zaveri and in
the said deed even said Mrs. Manju Zaveri was provided with one
servant bathroom on the suit property that is the third floor. However,
no occupants other than the defendant caused any hindrance in the
rights of the plaintiff to carry out the suitable construction on the suit
property.
2.11. It is alleged that on 05.07.2013, when the plaintiff sent his
CS No. 50625/16 (Sushil Anuj Tyagi)
Bhatia Apartments Pvt Ltd. JSCCcumASCJcumGuardian Judge
Vs. South East, Saket Courts:New Delhi
Aruna Gulaya 27.10.2018
Page no. 7 of 27
representative to take measurement and survey of the suit property,
and asked the defendant to provide the noobjection certificate to the
plaintiff for the construction, the defendant and her servant refused
to issue any NOC and created unnecessary annoyance and
nuisance by shouting and raising voices that the plaintiff shall not be
allowed to carry out any survey, measurements and constructions at
the suit premises.
2.12. It is alleged that the plaintiff was not even able to prepare the
site plan of the suit premises.
2.13. It is alleged that the defendant also on 05.07.2013, threatened
to create third party interest on the suit property and that would
cause irreparable loss and injury which cannot be compensated in
terms of money. It is averred that the defendant may also raise
constructions at the suit premises just to cause further hindrance on
the right of the plaintiff to carry out the valid construction at the suit
property.
CS No. 50625/16 (Sushil Anuj Tyagi)
Bhatia Apartments Pvt Ltd. JSCCcumASCJcumGuardian Judge
Vs. South East, Saket Courts:New Delhi
Aruna Gulaya 27.10.2018
Page no. 8 of 27
WRITTEN STATEMENT
3. Suit of the plaintiff has been opposed by the defendant on the
grounds as follows:
3.1. It is alleged that the present suit has been filed by the plaintiff
with an ulterior motive to harass the defendant. It is alleged that
there exists no cause of action in favour of the plaintiff and against
the defendant. It is alleged that the defendant submits that under the
sale deed dated 23.04.1986, the plaintiff for consideration of Rs.
2.90 lakhs sold to the defendant the exclusive 1/4 th undivided share
in the said plot of land no. S254, Greater KailashII, New Delhi,
along with second floor comprising 3 bedrooms, 3 bathrooms,
drawing cumdining room, 1 kitchen, central open court yard, back
balconies and improvised servant quarter on the terrace along with
car parking. It is further submitted that on perusal of the sale deed, it
can be observed that improvised servant quarter and the car parking
were not given to the defendant as amenities, but the same were
sold by the plaintiff to the defendant for a consideration. As such, no
CS No. 50625/16 (Sushil Anuj Tyagi)
Bhatia Apartments Pvt Ltd. JSCCcumASCJcumGuardian Judge
Vs. South East, Saket Courts:New Delhi
Aruna Gulaya 27.10.2018
Page no. 9 of 27
suit is maintainable against the defendant.
3.2. It is alleged that the defendant does not admit the plaintiff to
be the owner of the terrace, and without seeking a declaration to this
effect, the present suit for injunction is not maintainable.
3.3. It is alleged that the defendant has admitted that the
possession of the terrace is with the defendant and the plaintiff is not
in the possession of the terrace. The plaintiff has not sought the
possession of the terrace, and as such no injunction can be granted
to the plaintiff under Section 14 of the Specific Relief Act.
3.4. It is alleged that the plaintiff admits the ownership of the
defendant of the terrace, and being the owner, the defendant is free
to use and occupy the terrace to suit her requirements. It is
submitted that the plaintiff without any right, title or interest over the
said terrace decided to raise construction on the third floor i.e. the
terrace of the house no. S254, Greater Kailash, PartII, New Delhi in
early 2013.
CS No. 50625/16 (Sushil Anuj Tyagi)
Bhatia Apartments Pvt Ltd. JSCCcumASCJcumGuardian Judge
Vs. South East, Saket Courts:New Delhi
Aruna Gulaya 27.10.2018
Page no. 10 of 27
3.5. It is alleged that the plaintiff without any right over the terrace
directed the defendant to remove the servant quarter on the third
floor so as to raise construction thereon. It is a matter of record that
the defendant through its counsel replied to the legal notice of the
plaintiff vide reply dated 25.03.2013.
3.6. It is alleged that the defendant is having absolute right over
the servant quarter on the terrace above the second floor.
ISSUES
4. On the basis of pleadings of parties, following issues were framed by
the Ld. Predecessor of this Court, vide order dated 17.04.2014.
Sl. Issues Onus
No. to
prove
1 Whether the plaintiff is guilty of concealment of OPD
material facts?
2 Whether the present suit is not maintainable in the OPD
form in which it has been filed?
3. Whether the plaintiff is entitled to a decree of OPP
CS No. 50625/16 (Sushil Anuj Tyagi)
Bhatia Apartments Pvt Ltd. JSCCcumASCJcumGuardian Judge
Vs. South East, Saket Courts:New Delhi
Aruna Gulaya 27.10.2018
Page no. 11 of 27
mandatory injunction as prayed for?
4 Whether the plaintiff is entitled to decree of OPP
permanent injunction as prayed for?
5 Whether the plaintiff is entitled to the cost of the OPP
suit?
6 Relief
5. Matter was then listed for Plaintiff Evidence.
PLAINTIFF EVIDENCE
6. Shri Sunil Bhatia, Plaintiff himself appeared as PW1, who had filed
his evidence by way of Affidavit Ex. PW1/A and relied upon following
documents:
Sl. Exhibits Documents.
no
i Ex.PW1/1 Copy of board resolution passed in the
meeting held on 10.05.2013
ii Ex.PW1/2 (OSR) Photocopy of sale deed dated 30.04.1984
iii Ex.PW1/3 (OSR) Application for allotment
iv Ex.PW1/4 (OSR) Photocopy of allotment letter in favour of
defendant
CS No. 50625/16 (Sushil Anuj Tyagi)
Bhatia Apartments Pvt Ltd. JSCCcumASCJcumGuardian Judge
Vs. South East, Saket Courts:New Delhi
Aruna Gulaya 27.10.2018
Page no. 12 of 27
v. Ex.PW1/5 Photocopy of sale deed in favour of
defendant
vi Ex.PW1/6 Office copy of legal notice sent to the
defendant
vii Ex.PW1/7 (OSR) Photocopy of proof of dispatch of notice
by way of courier and speed post.
viii Ex.PW1/8 Tracking report of courier status
ix Ex.PW1/9 (OSR) Photocopy of reply to the legal notice
x Ex.PW1/10 Certified copy of sale deed dated
28.01.1986
xi Ex.PW1/11 Site plan
7. Mr. Vikas Shukla appeared as PW2, who had filed his evidence by
way of Affidavit Ex. PW2/A.
8. Mr. S. K. Sharma (Summoned witness) appeared as PW3, who had
brought the summoned record i.e. register no. 5416 and register no. 5477
containing the original sale deed dated 28.01.1986 and 23.04.1986.
9. Mr. R. K. Saini (Summoned witness) appeared as PW4, who had
brought the summoned record i.e. Form no. 1 and Form no. 18 filed by the
plaintiff company with the ROC at the time of incorporation. The
CS No. 50625/16 (Sushil Anuj Tyagi)
Bhatia Apartments Pvt Ltd. JSCCcumASCJcumGuardian Judge
Vs. South East, Saket Courts:New Delhi
Aruna Gulaya 27.10.2018
Page no. 13 of 27
photocopies of these two documents are Ex.PW4/1 (OSR) and Ex.PW4/2
(OSR).
10. PE was closed vide order dated 28.11.2014 and the matter was then
listed for DE.
11. Ms. Aruna Gulaya herself appeared as DW1, who had filed her
evidence by way of Affidavit Ex. DW1/A. Shri Kashmir Singh appeared as
DW2 who had filed his evidence by way of affidavit Ex.DW2/1. Shri
Lakshman Paswan appeared as DW3 and filed his evidence by way of
affidavit Ex.DW3/1. Shri Jagbir Singh (summoned witness) appeared as
DW4 who had brought the relevant summoned record pertaining to the
property no. S254, 2nd Floor and terrace, G. K. II, New Delhi.
12. Thereafter, DE was closed on 22.02.2016. Matter was then listed for
final arguments.
13. The final arguments were heard and the judicial record was perused.
FINDINGS
CS No. 50625/16 (Sushil Anuj Tyagi)
Bhatia Apartments Pvt Ltd. JSCCcumASCJcumGuardian Judge
Vs. South East, Saket Courts:New Delhi
Aruna Gulaya 27.10.2018
Page no. 14 of 27
14. My issuewise findings are as follows:
Issue no. 1: Whether the plaintiff is guilty of concealment of
material facts? OPD
15. The onus to prove this issue lies upon the defendant. The defendant
in the WS averred that the present suit is not maintainable as the plaintiff is
guilty of concealing material facts i.e. contents of sale deed dated
23.04.1986executed between plaintiff and defendant. The perusal of the plaint reveals that the plaintiff has alleged that vide registered sale deed dated 23.04.1986, the 1/4th undivided share in the impugned plot of land along with second floor and improvised servant quarter on the terrace along with car parking has been sold by the plaintiff to the defendant. The plaintiff has also filed the registered sale deed dated 23.04.1996 and also relied upon the same as Ex.PW1/5. Thus, it cannot be said from any angle that the plaintiff is guilty of concealment of contents of the sale deed as he himself has filed and relied upon the same. No other concealment of facts has been averred or proved by the defendant during evidence. Thus, this issue is decided against the defendant.
CS No. 50625/16 (Sushil Anuj Tyagi)
Bhatia Apartments Pvt Ltd. JSCCcumASCJcumGuardian Judge
Vs. South East, Saket Courts:New Delhi
Aruna Gulaya 27.10.2018
Page no. 15 of 27
Issue no. 2: Whether the present suit is not maintainable in the form
in which it has been filed? OPD
16. The onus to prove this issue lies upon the defendant. The defendant has alleged that since the defendant does not admit the plaintiff to be the owner of the suit property i.e. terrace, the present suit for injunction is not maintainable without seeking a relief of declaration. It is also alleged that plaintiff is not in possession of the suit property and without seeking the relief of possession, no injunction can be granted in favour of the plaintiff. It is therefore, argued that present suit is not maintainable in the present form.
17. It is trite in law that if there is a cloud over the title of the plaintiff qua the suit property or where the title has been seriously disputed by the defendant, the appropriate remedy is to seek the relief of declaration and simplicitor suit for injunction is not maintainable. It is also settled law that if the plaintiff is not in possession of the suit property then he must seek the relief of possession apart from injunction. The Hon'ble Apex Court in Anathula Sudhakar v. P. Buchi Reddy, (2008) 4 SCC 594, observed that CS No. 50625/16 (Sushil Anuj Tyagi) Bhatia Apartments Pvt Ltd. JSCCcumASCJcumGuardian Judge Vs. South East, Saket Courts:New Delhi Aruna Gulaya 27.10.2018 Page no. 16 of 27 where the title of the plaintiff is disputed or if the defendant claims title or if the title of the plaintiff is under cloud, it is necessary for the plaintiff to file a suit for declaration and consequential relief of injunction, if any. It is observed that simplicitor suit for injunction without seeking the relief of declaration is not maintainable. It is however clarified that where plaintiff's title is supported by documents then mere denial without documents is not enough. The cloud on title would be only when there is some apparent defect or prima facie right of any third party is shown. It was observed thus:
"12. We may however clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to plaintiff's title raises a cloud on the title of plaintiff to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff's title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient. Where the plaintiff, believing that defendant is only a trespasser or a wrongful claimant without title, files a mere suit for injunction, and in such a suit, the defendant discloses in his defence the details of CS No. 50625/16 (Sushil Anuj Tyagi) Bhatia Apartments Pvt Ltd. JSCCcumASCJcumGuardian Judge Vs. South East, Saket Courts:New Delhi Aruna Gulaya 27.10.2018 Page no. 17 of 27 the right or title claimed by him, which raises a serious dispute or cloud over plaintiff's title, then there is a need for the plaintiff, to amend the plaint and convert the suit into one for declaration. Alternatively, he may withdraw the suit for bare injunction, with permission of the court to file a comprehensive suit for declaration and injunction. He may file the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the suit raised only the issue of possession and not any issue of title."
18. In the present case, it is not in dispute that plaintiff was the erstwhile owner of the impugned property i.e. plot no. 254, Block No. S, situated in Greater KailashII, measuring 299 square yards which the plaintiff has purchased from Smt. Krishna Aneja vide sale deed Ex.PW1/2 on 30.04.1984. It is also not in dispute that the defendant has purchased the second floor etc. in the impugned property from the plaintiff vide sale deed Ex.PW1/5 dated 29.04.1986. The defendant has alleged that plaintiff is not the owner of the suit property i.e. terrace, however, no document has been produced by the defendant to show that the terrace has been sold by the plaintiff to defendant or some other person. Admittedly, the sale deed Ex.PW1/5 executed by plaintiff in favour of defendant is without terrace except for the improvised servant quarter on the terrace. Thus, it cannot be CS No. 50625/16 (Sushil Anuj Tyagi) Bhatia Apartments Pvt Ltd. JSCCcumASCJcumGuardian Judge Vs. South East, Saket Courts:New Delhi Aruna Gulaya 27.10.2018 Page no. 18 of 27 said that plaintiff is not the owner of the suit property i.e. terrace and therefore, the suit cannot be said to be not maintainable for want of declaration.
19. As far as the question of possession of the suit property is concerned, it is the contention of the defendant that plaintiff is not in possession of the suit property and the plaintiff must seek the relief of possession, otherwise the suit for injunction is not maintainable. It is trite in law that possession follows title. Since it cannot be said that plaintiff is not the owner of the suit property, it cannot be presumed that plaintiff has lost the possession of the suit property i.e. terrace. It is not the case of the defendant that the entire terrace has been sold by the plaintiff to someone. As per the case of plaintiff, the plaintiff has only sold the floors to the respective persons and not the terrace and thus, the plaintiff retains the ownership of the terrace and also the possession. There is no evidence as to how plaintiff has been ousted from possession. In this background, this court is of the view that the relief of possession is not necessary to be sought by the plaintiff for seeking the relief of injunction. The present issue CS No. 50625/16 (Sushil Anuj Tyagi) Bhatia Apartments Pvt Ltd. JSCCcumASCJcumGuardian Judge Vs. South East, Saket Courts:New Delhi Aruna Gulaya 27.10.2018 Page no. 19 of 27 is decided against the defendant.
Issue no. 3: Whether the plaintiff is entitled to a decree of mandatory injunction as prayed for? OPP & Issue no. 4: Whether the plaintiff is entitled to decree of permanent injunction as prayed for? OPP
20. The onus to prove these issues lies upon the plaintiff.
21. The law for granting injunction is well settled. To decide whether or not to grant injunction, three broad principles are to be considered, which are as follows:
i) That the prima facie case must exist in favour of the applicant.
ii) That the balance of convenience must tilt towards the applicant.
iii) That the applicant will suffer irreparable loss which cannot be compensated in terms of money, if the injunction is not granted in his favour.
22. In the plaint, the plaintiff has prayed for the decree of mandatory injunction against the defendant, his representative etc to remove the servant quarter from the third floor terrace of the impugned property and to CS No. 50625/16 (Sushil Anuj Tyagi) Bhatia Apartments Pvt Ltd. JSCCcumASCJcumGuardian Judge Vs. South East, Saket Courts:New Delhi Aruna Gulaya 27.10.2018 Page no. 20 of 27 issue no objection certificate to the plaintiff to carry out the construction. The contention of the plaintiff is that he has sold the ¼th undivided share of the impugned property along with second floor, improvised servant quarter on the terrace along with the car parking to the defendant. It is alleged that plaintiff has only sold the second floor to the defendant and the rest as amenities with the second floor flat. It is contended that the improvised servant quarter on the terrace along with car parking were only amenities and the plaintiff has only provided a temporary structure as a servant quarter on the terrace to the defendant. To the contrary, it is the defence of the defendant that the plaintiff has sold the second floor along with improvised servant quarter and car parking for valuable consideration and that the improvised servant quarter on terrace is not given as an amenity.
23. It is not in dispute that plaintiff was the owner of the impugned property i.e. land bearing no. S254, Greater KailashII, New Delhi vide registered sale deed dated 30.04.1984 and that the defendant approached the plaintiff through representative and applied for second floor with car parking and servant quarter vide application for allotment dated CS No. 50625/16 (Sushil Anuj Tyagi) Bhatia Apartments Pvt Ltd. JSCCcumASCJcumGuardian Judge Vs. South East, Saket Courts:New Delhi Aruna Gulaya 27.10.2018 Page no. 21 of 27 11.05.1985 Ex.PW1/3. Vide allotment letter dated 11.05.1985 Ex.PW1/4, the plaintiff allotted the second floor along with car parking and servants quarter to the defendant. Thereafter, the plaintiff vide registered sale deed dated 23.04.1986 Ex.PW1/5, sold the ¼th undivided share in the aforesaid property along with the second floor, improvised servant quarter on the terrace and car parking to the defendant. The relevant extract of the sale deed EX.PW1/5 is as follows:
"That in consideration of a sum of Rs. 2,90,000/ (rupees two lakhs and ninety thousands only), the vendors do hereby transfer onto the vendee the onefourth undivided share in the said plot of land no. S254, Greater Kailash II, New Delhi along with second floor comprising of three bedrooms, three bathrooms, drawing cum dining, one kitchen, central open courtyard, back balconies and improvised servant quarter on the terrace along with car parking with the above said flat (marked red in the plan annexed to this deed). That the vendors hereby transfer, convey ad sell absolutely and said portion along with all its rights, titles, interests, assessments, privileges, appurtenances thereto unto the vendee absolutely and to hold the said property hereby conveyed to the vendee absolutely and foreever without any objection either on behalf of the vendors or any person claiming through the vendors. That the vacant physical possession of the said portion hereby conveyed and transfer to the vendee who now becomes the sole owner of the said portion."
CS No. 50625/16 (Sushil Anuj Tyagi)
Bhatia Apartments Pvt Ltd. JSCCcumASCJcumGuardian Judge
Vs. South East, Saket Courts:New Delhi
Aruna Gulaya 27.10.2018
Page no. 22 of 27
24. It is clear from the sale deed that the plaintiff has sold the second floor along with car parking and improvised servant quarter on terrace for consideration to the defendant. It is not mentioned in the sale deed that the improvised servant quarter is given to the defendant as amenity. It is clear from the application for allotment Ex.PW1/3 that the defendant has applied for second floor with car parking and servant quarter and the same was allotted vide allotment letter Ex.PW1/4 and subsequently vide registered sale deed Ex.PW1/5 in favour of the defendant. Nothing from the sale deed or allotment letter, it transpires that the alleged improvised servant quarter was given only as an amenity. The common amenities were mentioned to be the lights in staircases etc in the sale deed and not the improvised servant quarter.
25. Though in para 18 of the allotment letter Ex.PW1/4, the plaintiff has retained the right of terrace and the right to raise further floors and construction but no such stipulations were made in the sale deed Ex.PW1/5 which was the final contract between the parties. Even if it is assumed that plaintiff has not sold the terrace to anyone and the plaintiff CS No. 50625/16 (Sushil Anuj Tyagi) Bhatia Apartments Pvt Ltd. JSCCcumASCJcumGuardian Judge Vs. South East, Saket Courts:New Delhi Aruna Gulaya 27.10.2018 Page no. 23 of 27 has retained the right upon the terrace, but the plaintiff has not proved whether he is left with any stake in the impugned land underneath. If the plaintiff has sold the entire stake in the impugned land to the respective floor owners, the only right retained by the plaintiff is with respect to the terrace but in absence of any stake in land, the plaintiff does not have right to raise further construction upon the terrace as it would lead to disturbance of ownership rights of the floor owners upon the land underneath. The plaintiff has not proved on record that he is left with any stake on the land underneath and that he has not sold the entire stake or interest qua the impugned property. The other floor owners are not made the party to the present suit and thus this part has remained not proved that whether plaintiff is the owner of any part of the land underneath the impugned building. The other floor owners of the impugned building are definitely proper parties to the present suit, if they are not necessary party in strict sense.
26. This court is of the view that the plaintiff has not been able to prove his stake in the land underneath the impugned building and the only right CS No. 50625/16 (Sushil Anuj Tyagi) Bhatia Apartments Pvt Ltd. JSCCcumASCJcumGuardian Judge Vs. South East, Saket Courts:New Delhi Aruna Gulaya 27.10.2018 Page no. 24 of 27 that the plaintiff retains is the ownership of the terrace. Without having any rights in the land underneath, the plaintiff has no right to raise further construction upon the terrace of the impugned building.
27. Further, the plaintiff has alleged that he is stopped by the defendant to raise construction over the terrace of the impugned building but the plaintiff has filed the present suit without any sanctioned building plan from the concerned authorities. It is not the case of the plaintiff that he has obtained the necessary sanction/permission from the concerned authorities to raise construction over the impugned building and he is stopped by the defendant from raising construction. The present suit being for injunction which is an equitable relief, the plaintiff is ought to come to the court with equity. Without obtaining any permission from the concerned authority for the construction, the present suit appears to be premature. If it is the contention of the plaintiff that NOC of the defendant is required for the sanction then the concerned authority should have been made party to the present suit and necessary relief ought to have been sought against the concerned authority also.
CS No. 50625/16 (Sushil Anuj Tyagi)
Bhatia Apartments Pvt Ltd. JSCCcumASCJcumGuardian Judge
Vs. South East, Saket Courts:New Delhi
Aruna Gulaya 27.10.2018
Page no. 25 of 27
28. In this background, this court is of the view that prima facie case does not lie in favour of the plaintiff.
29. Now coming to the limb of balance of convenience, if the mischief of plaintiff is pitted against that of the defendant, then it would reveal that the inconvenience caused to the defendant if the injunction is granted, would be much more than the inconvenience caused to the plaintiff if the injunction is not granted. The reason for this is obvious that the impugned building was admitted constructed in the year 1986. The plaintiff after selling the floors has remained indifferent to the suit property. It is only after the change of the policy, if any, that the plaintiff has become concerned of the suit property. Considering the age of building, aftermaths of construction and long standing servant quarter of the defendant on terrace, it is apparent the inconvenience to the defendant would outreach that of plaintiff.
30. The concept of irreparable injury is inconsequential to discuss as the other two parameters for granting injunction are against the plaintiff.
CS No. 50625/16 (Sushil Anuj Tyagi)
Bhatia Apartments Pvt Ltd. JSCCcumASCJcumGuardian Judge
Vs. South East, Saket Courts:New Delhi
Aruna Gulaya 27.10.2018
Page no. 26 of 27
31. The judgment in the case titled as Major Saumitra Sarkar (Retd.) vs. Ms. Shikha Chakraborty & Ors, CS (OS) no. 25/2016 dated 17.05.2016 relied upon by the counsel for the plaintiff has been set aside in appeal overruled by the Division Bench of the Hon'ble High Court of Delhi on 04.09.2018 in FAO (OS) 178/2016. Thus, of no benefit to the plaintiff.
32. For the reasons illustrated above, these issues no. 3 & 4 are decided against the plaintiff.
Issue no.5: Whether the plaintiff is entitled to the cost of the suit? OPP
33. Since the main relief is not granted in favour of the plaintiff, there is no reason to grant cost to the plaintiff. The issue is also decided against the plaintiff.
RELIEF
34. On the basis of conclusions on the foregoing issues, the suit filed by the plaintiff against the defendant is hereby dismissed.
CS No. 50625/16 (Sushil Anuj Tyagi)
Bhatia Apartments Pvt Ltd. JSCCcumASCJcumGuardian Judge
Vs. South East, Saket Courts:New Delhi
Aruna Gulaya 27.10.2018
Page no. 27 of 27
35. Decree sheet be prepared accordingly.
36. No order as to costs.
37. File be consigned to Record Room, after due compliance.
Announced in the open (Sushil Anuj Tyagi)
Court today i.e. 27.10.2018 JSCCcumASCJcumGJ
South East, Saket Courts
27.10.2018 (r)
CS No. 50625/16 (Sushil Anuj Tyagi)
Bhatia Apartments Pvt Ltd. JSCCcumASCJcumGuardian Judge
Vs. South East, Saket Courts:New Delhi
Aruna Gulaya 27.10.2018