Delhi District Court
Sanjay Goel vs Rashmi Goel on 24 January, 2026
IN THE COURT OF MS. SHILPI M JAIN: DISTRICT JUDGE-05,
SOUTH WEST DISTRICT, DWARKA COURTS, NEW DELHI
RCA CIVIL DJ ADJ/92/2023
DLSW010082792023
IN THE MATTER OF:
1. Sh. Sanjay Goel
S/o Sh. Satya Pal Goel,
R/o H. No. C-46, Yadav Nagar,
Samaypur, Delhi-110042.
2. Sh. J.P. Garg,
S/o Sh. B.L. Garg,
R/o H. No. 294, Gali No. 3,
Aggarwal Colony,
Bahadurgarh, Haryana .............APPELLANTS
Versus
1. Smt. Rashmi Goel
W/o Sh.Rohtash Goel,
R/o Plot No. A/92, First Floor,
Gali No. 27, Near Shoe Market,
Arya Samaj Road, Uttam Nagar,
New Delhi-110059.
2. Smt. Madhu Verma
W/o Sh. Sanjeev Verma,
RCA No. 92/23 Sanjay Goel & Anr. vs. Rashmi Goel & Ors. Pg. no. 1 of 25
Digitally signed
SHILPI byJAINSHILPI M
M JAIN Date: 2026.01.24
16:02:22 +0530
R/o Plot No. A/92, Third Floor,
Gali No. 27, Near Shoe Market,
Arya Samaj Road, Uttam Nagar,
New Delhi-110059.
3. Sh. Kimti Lal
S/o Sh. Kundan Lal,
R/o Plot No. A/92, Second Floor,
Gali No. 27, Near Shoe Market,
Arya Samaj Road, Uttam Nagar,
New Delhi-110059. ...............RESPONDENTS
Date of Institution : 22.08.2023
Arguments concluded on : 18.12.2025
Date of decision : 24.01.2026
INDEX
FACTUAL BACKGROUND ...................4
ISSUES BEFORE TRIAL COURT ...................5
TRIAL COURT ORDER .......................6
SUBMISSIONS OF THE PARTIES ...................8
ANALYSIS AND FINDINGS .................14
CONCLUSION ..................24
ORDER
1. Being aggrieved vide order dated 08.06.2023 passed by Ld. SCJ-cum-ARC-cum-CCJ, District Courts, New Delhi in RCA No. 92/23 Sanjay Goel & Anr. vs. Rashmi Goel & Ors. Pg. no. 2 of 25 Digitally signed SHILPI byJAINSHILPI M M JAIN Date: 2026.01.24 16:02:23 +0530 CS No.199/17, whereby the suit for permanent and mandatory injunction was decreed, present appeal preferred by appellants/defendants (hereinafter referred as 'impugned order'). In said suit, plaintiffs/respondents sought following reliefs:
(a) Pass a Decree of Mandatory Injunction in favour of the plaintiff and against the defendants, their associates, agents, assignees, executors, administrators thereby directing them to remove the vehicle from the common parking area on ground floor of the suit property which is causing hindrance in ingress and outgress of the plaintiffs which clearly shown at POINT A in Red colour in the attached Site Plan;
(b) It is further prayed that the defendant be directed to remove/demolish the illegal temporary godown/shop on the ground floor of the suit property from the common car parking area which is clearly shown at POINT 'B' AND `C' in Red Colour in the attached Site Plan;
(c) Pass a decree of Permanent Injunction in favour of the plaintiff and against the defendants thereby directing to the defendants, their successors, assignees, nominees or any other person not create hindrance/obstruction in the ingress and outgress passage of the above said flat holders/plaintiffs in the suit property;
(d) It is further prayed that the defendants, their nominees, assignees, executors, administrators or any other person on behalf of the defendants from selling, alienating, disposing or creating third party interest in the temporary godown/shop which is clearly shown at POINT 'B' & 'C' in red colour of the attached site plan;
RCA No. 92/23 Sanjay Goel & Anr. vs. Rashmi Goel & Ors. Pg. no. 3 of 25 Digitally signed SHILPI byJAINSHILPI M M JAIN Date: 2026.01.24 16:02:20 +0530
(e) Award the cost of the litigations in favour of the plaintiff and against the defendants;
(f) Pass any other relief which this Hon'ble Court may deem fit and proper in favour of the plaintiffs and against the defendants, in the interest of justice.
FACTUAL BACKGROUND :
2. Briefly stated plaintiff no. 1 purchased the first floor, plaintiff no. 2 the third floor with roof rights, and plaintiff no. 3 the third floor of property No. WZ-92, Plot No. 60-A, near Arya Samaj Road, Uttam Nagar, New Delhi-110059. It is further submitted that defendants retained the upper ground floor (rented out) and assured plaintiffs during purchase that the ground floor godown/shop was temporary and would be removed once all flat holders resided; the sale deed specifies ground floor for common car parking only. It is further submitted that defendants illegally parked vehicles in the common parking and constructed the temporary godown/shop.
3. It is further submitted that in December 2016, an unknown car (later linked to defendants' relatives) was parked; after plaintiffs called police (100), defendants assured removal but later refused, threatened/abused plaintiffs, and arrived with 30-40 goondas threatening to kill. It is further submitted that plaintiffs filed a written complaint on 01.01.2017 (DD No. 53A), but no action was taken; hence, this suit.
RCA No. 92/23 Sanjay Goel & Anr. vs. Rashmi Goel & Ors. Pg. no. 4 of 25 Digitally signed SHILPI byJAINSHILPI M M JAIN Date: 2026.01.24 16:02:22 +0530
4. In his written statement, defendants/appellants submits that the sale deed shows no hindrance to the common passage for the parking area. It is further averred that the defendants own the ground floor godown/shop, essential for their livelihood, and were informed of this at purchase. It is further averred that plaintiffs' parking of vehicles, including two- wheelers, created hindrance to defendants' ingress and egress, not defendants' parking. It is further averred that defendants, as co- owners of a floor, have full right to park their vehicles.
5. It is further averred that the parking area measures space for four small cars as per the sale deed, but plaintiffs also park two-wheelers there. It is further averred that the plaintiffs' mentioned godown/shop predates the suit property construction, with plot ownership documents in defendants' name. It is submitted that the suit is liable to be dismissed, as plaintiffs have not come with clean hands. Defendants deny other averments and pray for dismissal.
ISSUES BEFORE LD. TRIAL COURT :
6. Vide order dt. 05.08.2017, following issues were framed by Ld. Trial Court:
i. Whether the plaintiff is entitled to a decree of mandatory injunction in favour of plaintiff and against the defendants as prayed for in clause 'A'? OPP ii. Whether the plaintiff is entitled to a decree of permanent injunction as prayed for in clause 'B' of the prayer clause?
OPP
iii. Relief.
RCA No. 92/23 Sanjay Goel & Anr. vs. Rashmi Goel & Ors. Pg. no. 5 of 25
Digitally signed
SHILPI byJAINSHILPI M
M JAIN Date: 2026.01.24
16:02:21 +0530
LD. TRIAL COURT ORDER :
7. Vide order dated 08.06.2023, Ld. Trial Court decreed the suit in favor of plaintiffs/respondents with following observations:-
" Issue no.(i) & (ii) 9.2 The plaintiffs have sought the relief of mandatory injunction against defendants whereby the defendants etc. were directed to remove the vehicle from the common parking area on the ground floor of the suit property which is causing hindrance in ingress and outgress of the plaintiffs as shown in Ex. PW-1/B. 9.3 It is admitted fact that the registered sale deed of the property does mentioned about the parking rights of the parties, as per the deed each occupant/owner of the flat has been given parking space for one small car. It is also admitted by the defendant no.2 that there is an office/go- down space built at the ground floor which he had not mentioned in his WS. It is further admitted by the DW-1 in his cross-examination that in addition to the parking space, there is an office space on the ground floor in the suit property and about the same there is no mentioned in the registered sale deed of the plaintiffs which was executed by the defendant/DW-1 himself in favour of plaintiff. The case of the plaintiff is that defendant has encroached upon illegally in the promised parking space. The testimony on record of the DW-1 made it crystal clear that he had deliberately not disclosed about the existence of the office space in the parking area which was so designated and mentioned in the sale deed of the parties.
9.4 Plaintiffs are required nothing more to prove in this aspect, the deliberate omission on the part of the defendant to mention the existence of office in parking area itself shows, there was an encroachment by the defendants in the parking space, wich has caused RCA No. 92/23 Sanjay Goel & Anr. vs. Rashmi Goel & Ors. Pg. no. 6 of 25 Digitally signed SHILPI byJAINSHILPI M M JAIN Date: 2026.01.24 16:02:21 +0530 hindrance in the free access of the parking space of the vehicle of the parties and the vehicle which does not belongs to the parties to the suit, ought not to have parked in the parking area of the suit property.
9.5 As far as the existence of illegal temporary godown shop in the parking area is concern, it proved that defendants had illegally encroached upon the parking area of the suit property which reflected in point 'B' and 'C' of the site plan Ex. PW-1/B. In the testimony of plaintiffs it come on record that defendant had given them assurance to remove it from the parking space, but clearly he had no intention of keeping his words despite various complaints made to local police Mark 'A' to 'C', rather he had deliberately not disclosed that it in pleadings which shows the malafiedy intention of defendant. Later on this go-down became the bone of contention among the parties to the suit.
9.6 Needless to say that the relief of permanent injunction was also sought by the plaintiffs to restrain the defendants from creating/hindrance/obstruction in ingress and outgress and parking of vehicles of the flat occupant in the suit property. The relief which relates to the further alienating or creating third party interest that is well within the ambit of permanent injunction of the go-down is concern. The court is of the opinion that it would be in the interest of justice that the shutter of the outer opening of the shop/go-down be removed and let, a permanent wall with bricks and cement would be raised in its place and only demolish the internal wall of the shop which his encroached upon the parking as per site plan Ex. PW-1/B and creating hurdle in the ingress and outgress and parking of the vehicle of the parties to preserve the structural integrity of the building. Furthermore MCD is not a party in the case. In this case, either the defendant comply the order of the court in 60 days upon receiving the copy of the judgment or in the event of non compliance, plaintiff may take proper legal recourse.
RCA No. 92/23 Sanjay Goel & Anr. vs. Rashmi Goel & Ors. Pg. no. 7 of 25 Digitally signed SHILPI byJAINSHILPI M M JAIN Date: 2026.01.24 16:02:20 +0530 9.7 Accordingly, both the issues are decided. CONCLUSION/RELIEF
10. In view of discussions above, the suit of plaintiff is hereby decreed and decree of mandatory and permanent injunction is passed in favour of plaintiffs and against the defendants. [The defendants are directed to demolish/remove the shutter of the shop/go-down (as shown red in the site plan Ex. PW-1/B) and let a permanent wall with bricks and cement be raised it its place.] The defendants and his assignees, employees, agents, servants, relatives, representatives etc. are restrained to create hindrance of a small car parking in common parking area plaintiff/occupants and defendants are also directed to not park any other vehicle/car in the commons space parking which does not belongs to him/her. No order as to costs. Decree-sheet be prepared accordingly. After preparation of decree-sheet, file be consigned to record room after due compliance."
(emphasis is mine) SUBMISSIONS OF THE PARTIES :
8. The appellants submit that the entire foundation of the respondents' case is misconceived because the registered sale deeds executed in favour of the plaintiffs/respondents do not contain any recital or covenant declaring the entire ground floor of the building as an exclusive or demarcated "common car parking area" available only for parking purposes. Instead, each sale deed clearly and expressly conveys to the purchaser (i) a 1/4th proportionate undivided share (UDS) in the entire land underneath the building (as duly recorded on the stamp paper and registered document), and (ii) a specific, limited right to park one small car in the ground floor portion of the property. This language, according to the appellants, creates a co-ownership RCA No. 92/23 Sanjay Goel & Anr. vs. Rashmi Goel & Ors. Pg. no. 8 of 25 Digitally signed SHILPI byJAINSHILPI M M JAIN Date: 2026.01.24 16:02:21 +0530 interest in the land as a whole without carving out any physically demarcated or exclusive common parking zone over the entire ground floor area. They argue that such proportionate undivided share entitles each flat owner only to reasonable enjoyment of the land in proportion to their share, subject always to the existing built-up structures and layout of the building.
9. The appellants strongly contend that the godown/shop/office structure existing on part of the ground floor (shown as Points 'B' and 'C' in the site plan) was constructed prior to the sale of any of the upper floors to the respondents and has existed since the inception of the building or at least since the initial construction phase. They assert that this structure was clearly visible and known to the prospective buyers during the negotiation and finalisation of the sale transactions. In fact, they plead that the sale negotiations for at least some of the flats were conducted while the parties were physically present inside the said office/godown space itself, thereby eliminating any possibility of concealment or misrepresentation regarding its existence. The appellants maintain that no contemporaneous document, sanctioned plan, or clause in the sale deed prohibits retention of this pre-existing structure, nor was any oral assurance given that it would be removed upon sale of all flats.
10. A central plank of the appellants' argument is that the existing godown/shop does not materially interfere with or defeat the limited parking right granted under the sale deeds.
RCA No. 92/23 Sanjay Goel & Anr. vs. Rashmi Goel & Ors. Pg. no. 9 of 25 Digitally signed SHILPI byJAINSHILPI M M JAIN Date: 2026.01.24 16:02:24 +0530 They submit that even after accounting for the area occupied by the structure, sufficient space remains on the ground floor to comfortably accommodate at least three small cars (one for each of the three respondent flat owners). They emphasise that the respondents have never been deprived of their contractual entitlement to park one small car each, and any alleged difficulty in parking arises either from the respondents' own additional use of the space (such as parking two-wheelers) or from their failure to utilise the available area reasonably. The appellants therefore argue that there is no actionable hindrance, obstruction, or encroachment upon the rights actually conferred by the registered documents.
11. The appellants assail the impugned judgment of the Trial Court as suffering from several legal and factual errors. It is contend that the Ld. Trial Court wrongly interpreted the sale deeds as designating the entire ground floor exclusively for common parking, ignored the pre-existing nature of the structure, and placed undue emphasis on the so-called "admissions" regarding non-mention of the godown in the sale deeds without appreciating the full context that the structure predated the sales and was openly visible. It is further submitted that the operative portion of the decree i.e. directing removal of only the shutter and construction of a permanent brick-cement wall in its place is internally inconsistent with the Trial Court's own findings of illegal encroachment and is disproportionate to the actual grievance, if any. Finally, the appellants pray that the appeal be RCA No. 92/23 Sanjay Goel & Anr. vs. Rashmi Goel & Ors. Pg. no. 10 of 25 Digitally signed SHILPI byJAINSHILPI M M JAIN Date: 2026.01.24 16:02:23 +0530 allowed, the suit be dismissed, and the impugned decree be set aside in toto.
12. Per contra, Ld. counsel for the respondents submitted that, notwithstanding the precise wording of the sale deeds, the grant of a proportionate undivided share in the underlying land coupled with an express right to park one small car necessarily implies and carries with it a corresponding right to reasonable, unobstructed, and effective use of the ground floor area for the purpose of parking. They argue that this parking right is not a mere licence or privilege but an easementary and appurtenant right attached to the ownership of the flats, without which the enjoyment of the purchased property would be materially diminished. They further plead that at the time of purchase, the appellants (as vendors and builders) orally represented and assured the buyers that any temporary structure/godown existing on the ground floor was of a provisional nature and would be removed once all flats were sold and occupied by the respective owners, thereby allowing the ground floor to function fully as a common parking facility for all flat owners.
13. The respondents vehemently assert that the continued retention and use of the godown/shop structure constitutes an illegal and unauthorised encroachment upon the area that was intended and represented to be available for parking purposes. They rely heavily on the admissions elicited during RCA No. 92/23 Sanjay Goel & Anr. vs. Rashmi Goel & Ors. Pg. no. 11 of 25 Digitally signed SHILPI byJAINSHILPI M M JAIN Date: 2026.01.24 16:02:21 +0530 cross-examination of DW-1 (appellant no.1) and DW-2, wherein both admitted (i) the existence of the office/godown within the ground floor parking zone, and (ii) that this fact was deliberately not disclosed or mentioned in the registered sale deeds which they themselves executed in favour of the respondents. According to the respondents, this deliberate omission amounts to suppression of a material fact, demonstrates mala fide intention, and vitiates the bona fides of the entire transaction. They submit that such non-disclosure, when coupled with the subsequent refusal to remove the structure, clearly establishes a breach of the implied contractual understanding and the respondents' legitimate expectation of unobstructed parking access.
14. The respondents invoke settled legal principles governing multi-storey residential buildings to buttress their case. They place strong reliance on the judgment of the Hon'ble Supreme Court in Nahalchand Laloochand Pvt. Ltd. v. Panchali Co-operative Housing Society Ltd. (2010), wherein it was held that parking spaces (whether open, stilt, or ground-level) in multi-storeyed buildings form an integral part of the common areas and facilities, and the builder/promoter has no right to encroach upon, convert, or retain exclusive control over such spaces after selling flats with parking entitlements. They argue that analogous principles apply in Delhi even in the absence of express invocation of the Delhi Apartment Ownership Act, 1986, and that Section 3(j) of the said Act (defining common areas to include parking spaces) reflects the broader public policy of RCA No. 92/23 Sanjay Goel & Anr. vs. Rashmi Goel & Ors. Pg. no. 12 of 25 Digitally signed SHILPI byJAINSHILPI M M JAIN Date: 2026.01.24 16:02:23 +0530 protecting undivided interests and preventing unilateral appropriation of shared amenities by any single owner or the original builder.
15. The respondents further submit that documentary and oral evidence on record including the site plan (Ex. PW-1/B), contemporaneous photographs showing physical obstruction, police complaints, DD entries, and consistent testimonies of PW-1, PW-2, and PW-3 conclusively prove that the godown/shop and unauthorised parking of vehicles (including those belonging to relatives or third parties) have caused actual hindrance to ingress, egress, and effective utilisation of the parking right. They contend that the suit was filed within limitation as the actionable cause of first arose only in December 2016 upon clear refusal and threats by the appellants, and in any event, the daily obstruction created by the encroachment constitutes a continuing wrong. They also reject objections of misjoinder or non-joinder, asserting that the tenant inducted by the appellants is neither a necessary nor proper party and remains bound by the doctrine of lis pendens.
16. While supporting the merits of the impugned judgment, the respondents concede that the operative direction in the Trial Court decree (removal of shutter and construction of a permanent wall) is inadequate and inconsistent with both the pleaded case and the findings recorded. They therefore pray that this Appellate Court exercise its wide powers under Order XLI RCA No. 92/23 Sanjay Goel & Anr. vs. Rashmi Goel & Ors. Pg. no. 13 of 25 Digitally signed SHILPI byJAINSHILPI M M JAIN Date: 2026.01.24 16:02:22 +0530 Rule 33 CPC to modify the decree by directing complete demolition and removal of the illegal godown/shop structure from the ground floor, so as to fully restore the encroached portion to its intended character as usable parking space for all flat owners, thereby doing complete justice between the parties.
ANALYSIS AND FINDINGS :
17. This Court has perused the entire Trial Court record, impugned judgment, pleadings, evidence, and detailed submissions. The core dispute revolves around the interpretation of the registered sale deeds executed in favor of the plaintiffs/respondents, the nature and extent of the parking rights conferred therein, the legality of the appellants/defendants' retention and use of the ground floor godown/shop structure (marked as Points 'B' and 'C' in the site plan Ex. PW-1/B), and whether such retention constitutes an actionable encroachment or hindrance to the respondents' ingress, egress, and parking entitlements. Ancillary issues include the admissibility and weight of oral assurances, the implications of non-disclosure in the sale deeds, the applicability of relevant legal principles governing multi-storey buildings, and the appropriateness of the relief granted by the Ld. Trial Court.
18. This Court now address these seriatim, guided by the principles of equity, contractual interpretation under the Indian Contract Act, 1872, property rights under the Transfer of Property Act, 1882, and pertinent judicial precedents.
RCA No. 92/23 Sanjay Goel & Anr. vs. Rashmi Goel & Ors. Pg. no. 14 of 25 Digitally signed SHILPI byJAINSHILPI M M JAIN Date: 2026.01.24 16:02:22 +0530 INTERPRETATION OF THE SALE DEEDS AND NATURE OF PARKING RIGHTS
19. The registered sale deeds, which form the bedrock of the transaction, merit close scrutiny. Each deed conveys to the purchaser: (i) an undivided 1/4th proportionate share (UDS) in the entire plot of land measuring approximately 100 sq. yards underlying the building at Property No. WZ-92, Plot No. 60-A, Uttam Nagar, New Delhi-110059; and (ii) a specific right to park one small car on the ground floor portion of the property. Notably, the deeds do not expressly designate the "entire ground floor" as an exclusive "common car parking area" nor prohibit the existence or retention of any built-up structure thereon. The appellants contend that this language creates a mere co- ownership interest in the land as a whole, subject to existing structures, and limits the parking right to a reasonable, non- exclusive use without mandating demolition of pre-existing elements.
20. At this juncture, it is imperative to reproduced parameters of valuation mentioned in one of the sale deed i.e. Ex.PW1/A :
Parameters given as under as per the Notification No.F.2(12)/Fin.(F.1)/Part File/Vol.1(ii)/3548 dated 18-07-2007 of Lt. Governor of NCT of Delhi.
1. Category of Locality F
2. Area 83.61 sq. mtr.
RCA No. 92/23 Sanjay Goel & Anr. vs. Rashmi Goel & Ors. Pg. no. 15 of 25 Digitally signed SHILPI byJAINSHILPI M M JAIN Date: 2026.01.24 16:02:23 +0530
3. Covered Area 334.44 sq. mtr.
4. Plinth area for sale (one floor) 83.61 sq. mtr., first floor without roof rights Proportionate plinth area for sale 83.61/334.44=1/4 Proportionate area of land 83.61 X 1/4=20.91 sq. mtr.
5. Use factor 1 (residential)
6. Structure Type Pucca
7. Structure Type Factor (STF) 1.0
8. Year of construction 2012
9. Age Factor 1.0
10. Minimum Rate of Land Rs.47,200/- per sq. mtr.
11. Cost of construction Rs. 6,850/- per sq. mtr.
12. Number of floors Four floors COMPUTATION SN Component Value
1. Minimum cost of land 47,200 x 20.91 x 1 =(minimum value of land rate per sq. =9,86,952/- mtr.) x proportionate area x use factor
2. Minimum cost of construction 6,850 x 83.61 x 1 =(cost of construction) x Plinth area =5,72,728.5 x (age factor) x (STF)
3. Minimum Value (1+2) Rs.15,59,680.5
4. Stamp duty for woman @ 4% of (3) Rs.62,387.22 RCA No. 92/23 Sanjay Goel & Anr. vs. Rashmi Goel & Ors. Pg. no. 16 of 25 Digitally signed SHILPI byJAINSHILPI M M JAIN Date: 2026.01.24 16:02:21 +0530
21. Bare perusal of above calculation reveals that covered area is taken as 334.44 Sq. Mtr. which is further divided to 83.661 Sq. Mtr. i.e. 1/4th of 334.44 Sq. Mtr. Thus, it clearly means that each floor owner is having exclusive right on 83.61 Sq. Mtr. covered area and 20.91 Sq. Mtr. of proportionate from the land. As such, said calculation cannot be said to have included area of godown/shop.
22. Hence, this Court finds the appellants' interpretation overly narrow and incompatible with the holistic reading of the deeds. Under Section 95 of the Bharatiya Sakshya Adhiniyam, 20231, extrinsic evidence of oral agreements is inadmissible to contradict the terms of a registered document, but it may be admitted to explain ambiguities or prove contemporaneous conduct. Here, the grant of UDS in the land, coupled with an express parking right, inherently implies an easementary interest under Section 4 of the Easements Act, 18822, appurtenant to the flats sold. Such a right is not illusory rather it carries an obligation on the vendor (appellants herein) to ensure its effective enjoyment without material obstruction. 1 5. Facts which are the occasion, cause or effect, immediate or otherwise, of relevant facts, or facts in issue, or which constitute the state of things under which they happened, or which afforded an opportunity for their occurrence or transaction, are relevant.
24. Easement defined An easement is a right which the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done, in or upon, or in respect of, certain other land not his own. Dominant and servient heritages and owners. The land for the beneficial enjoyment of which the right exists is called the dominant heritage, and the owner or occupier thereof the dominant owner; the land on which the liability is imposed is called the servient heritage, and the owner or occupier thereof the servient owner. Explanation. In the first and second clauses of this section, the expression land includes also things permanently attached to the earth; the expression beneficial enjoyment includes also possible convenience, remote advantage and even a mere amenity; and the expression to do something includes removal and appropriation by the dominant owner, for the beneficial enjoyment of the dominant heritage, of any part of the soil of the servient heritage or anything growing or subsisting thereon.
RCA No. 92/23 Sanjay Goel & Anr. vs. Rashmi Goel & Ors. Pg. no. 17 of 25 Digitally signed SHILPI byJAINSHILPI M M JAIN Date: 2026.01.24 16:02:22 +0530
23. Hon'ble Supreme Court in Nahalchand Laloochand Pvt. Ltd. v. Panchali Co-operative Housing Society Ltd.3, held that in multi-storey buildings, parking spaces whether stilt, open, or ground-level constitute "common areas and facilities" that cannot be unilaterally appropriated by the builder post-sale. It was held that:
"38. It was argued that under MOFA it is for the promoter to prescribe and define at the outset the `common areas' and unless it is so done by the promoter, the parking area cannot be termed as part of `common areas'. We are quite unable to accept this submission. Can a promoter take common passage/lobbies or say stair case or RG area out of purview of `common areas and facilities' by not prescribing or defining the same in the `common areas'? If the answer to this question is in negative, which it has to be, this argument must fail. It was also submitted that by treating open/stilt parking space as part of `common areas', every flat purchaser will have to bear proportionate cost for the same although he may not be interested in such parking space at all. We do not think such consideration is relevant for the consideration of term `common areas and facilities' in MOFA. It is not necessary that all flat purchasers must actually use `common areas and facilities' in its entirety. The relevant test is whether such part of the building is normally in common use. Then it was submitted that if a parking space is sold to a flat purchaser, it is to the exclusion of other flat purchasers and, therefore, logically also it cannot be part of `common areas'. This submission is founded on assumption that parking space (open/covered) is a `garage' and sellable along with the flat. We have, however, held in our discussion above that open to the sky parking area or stilted portion usable as parking space is not `garage' within the meaning of Section 2(a-1) and, therefore, not sellable independently as a flat or along with a flat. As a matter of fact, insofar 3 (2010) 9 SCC 536 RCA No. 92/23 Sanjay Goel & Anr. vs. Rashmi Goel & Ors. Pg. no. 18 of 25 Digitally signed SHILPI byJAINSHILPI M M JAIN Date: 2026.01.24 16:02:24 +0530 as the promoter is concerned, he is not put to any prejudice financially by treating open parking space/stilt parking space as part of `common areas' since he is entitled to charge price for the common areas and facilities from each flat purchaser in proportion to the carpet area of the flat. MOFA mandates the promoter to describe `common areas and facilities' in the advertisement as well as the `agreement' with the flat purchaser and the promoter is also required to indicate the price of the flat including the proportionate price of the `common areas and facilities'. If a promoter does not fully disclose the common areas and facilities he does so at his own peril. Stilt parking spaces would not cease to be part of common areas and facilities merely because the promoter has not described the same as such in the advertisement and agreement with the flat purchaser. Although there is some merit in the contention of the appellant that High Court erred in placing reliance on the two aspects--namely, that the area of stilt parking space is not included in the FSI and such area is not assessable to the corporation taxes - in reaching the conclusion that stilt parking space is part of `common areas' but in our view even if these two aspects are excluded, in what we have discussed above stilt parking space/open parking space of a building regulated by MOFA is nothing but a part of `common areas' and, accordingly, we answer question no. (iii) in the affirmative.
Re: question no. (iv) - what are the rights of a promoter vis-`-vis society in respect of stilt parking spaces?
39. We have now come to the last question namely-- what are the rights of a promoter vis-`-vis society (of flat purchasers) in respect of stilt parking space/s. It was argued that the right of the promoter to dispose of the stilt parking space is a matter falling within the domain of the promoter's contractual, legal and fundamental right and such right is not affected. This argument is founded on the premise, firstly, that stilt parking space is a `flat' by itself within the meaning of Section 2(a-1) and in the alternative that it is not part of `common areas'. But we have already held that `stilt parking space' is not covered by the term `garage' much less a `flat' and that it RCA No. 92/23 Sanjay Goel & Anr. vs. Rashmi Goel & Ors. Pg. no. 19 of 25 Digitally signed SHILPI byJAINSHILPI M M JAIN Date: 2026.01.24 16:02:23 +0530 is part of `common areas'. As a necessary corollary to the answers given by us to question nos. (i) to (iii), it must be held that stilt parking space/s being part of `common areas' of the building developed by the promoter, the only right that the promoter has, is to charge the cost thereof in proportion to the carpet area of the flat from each flat purchaser. Such stilt parking space being neither `flat' under Section 2(a-1) nor `garage' within the meaning of that provision is not sellable at all."
(emphasis is mine)
24. Even though the Delhi Apartment Ownership Act, 1986 (DAOA) is not formally invoked, Section 3(j) 4 thereof defines "common areas" to include parking spaces, reflecting a public policy against encroachment on shared amenities. This principle applies analogously here, as the building is a collaborative multi-floor structure with shared land interests.
25. The appellants' reliance on the absence of an explicit "common parking" clause is misplaced. The deeds' stipulation of "parking space for one small car" presupposes availability of sufficient unobstructed ground floor area to actualize this right for all owners (including the appellants themselves on the upper ground floor). If the godown/shop occupies a portion that renders 4 3 (j)"common areas and facilities", in relation to a multi-storeyed building, means--
(i)the land on which such building is located and all easements, rights and appurtenances belonging to the land and the building;
(ii)the foundations, columns, girders, beams, supports, main walls, roofs, halls, corridors, lobbies, stairs, stairways, fire-escapes and entrances and exits of the building;
(iii)the basements, cellars, yards, gardens, parking areas, shopping centers, schools and storage spaces;
(iv)the premises for the lodging of janitors or persons employed for the management of the property;
(v)installations of central services, such as, power, light, gas, hot and cold water, heating, refrigeration, air conditioning, incinerating and sewerage;
(vi)the elevators, tanks, pumps, motors, fans, compressors, ducts and in general all apparatus and installations existing for common use;
(vii)such other community and commercial facilities as may be prescribed; and
(viii)all other parts of the property necessary or convenient to its existence, maintenance and safety, or normally in common use;
RCA No. 92/23 Sanjay Goel & Anr. vs. Rashmi Goel & Ors. Pg. no. 20 of 25 Digitally signed SHILPI byJAINSHILPI M M JAIN Date: 2026.01.24 16:02:21 +0530 parking cumbersome or inequitable, it defeats the contractual intent.
26. Evidence on record, including the site plan (Ex. PW-1/B) and photographs (Ex. PW-1/C to E), depicts the structure as protruding into the central ground floor area, potentially reducing maneuverability for vehicles. The appellants' claim of sufficient residual space for "at least three small cars" is unsubstantiated by measurements. Conversely, PW-1's testimony quantifies the encroachment as hindering ingress/egress, corroborated by police complaints.
PRE-EXISTING NATURE OF THE GODOWN/SHOP AND ALLEGED VISIBILITY/KNOWLEDGE
27. The appellants assert that the godown/shop predates the flat sales, was visibly present during negotiations (with some discussions allegedly occurring inside it), and thus could not be concealed. They deny any oral assurance of removal. The respondents counter that the structure was represented as "temporary" and to be dismantled post-occupation of all flats.
28. Trial Court notes that the appellants' plot ownership documents (Ex. DW-1/A) confirm their initial ownership, but no sanctioned building plan or completion certificate is produced to prove the godown's legality under MCD bylaws. In considered opinion of this Court as well even if, the structure's pre-existence is admitted, its visibility does not ipso facto validate perpetual RCA No. 92/23 Sanjay Goel & Anr. vs. Rashmi Goel & Ors. Pg. no. 21 of 25 Digitally signed SHILPI byJAINSHILPI M M JAIN Date: 2026.01.24 16:02:20 +0530 retention if it conflicts with conveyed rights. Crucially, DW-1 admitted in cross-examination that the godown/office exists within the ground floor "parking zone" and was deliberately omitted from the sale deeds he executed. DW-2 echoed this non- disclosure. Such omission, under Section 17 of the Contract Act, 18725, constitutes fraud by suppression of material facts, especially when the vendor is the builder with superior knowledge.
29. So far as other objections with respect to limitation and non-joinder of parties are concerned, this Court does not find any merit, as ongoing obstruction is a continuing wrong under Section 22 of the Limitation Act, 19636. Further, doctrine of lis pendens7 shall be applicable for tenant as well.
517. 'Fraud' defined.--
'Fraud' means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent', with intent to deceive another party thereto or his agent, or to induce him to enter into the contract:
--(1) the suggestion, as a fact, of that which is not true, by one who does not believe it to be true; (2)the active concealment of a fact by one having knowledge or belief of the fact; (3)a promise made without any intention of performing it; (4)any other act fitted to deceive;
(5)any such act or omission as the law specially declares to be fraudulent.
Explanation.--Mere silence as to facts likely to affect the willingness of a person to enter into a contract is not fraud, unless the circumstances of the case are such that, regard being had to them, it is the duty of the person keeping silence to speaks, or unless his silence, is, in itself, equivalent to speech.
622. Continuing breaches and torts.--
In the case of a continuing breach of contract or in the case of a continuing tort, a fresh period of limitation begins to run at every moment of the time during which the breach or the tort, as the case may be, continues.
7 52. Transfer of property pending suit relating thereto.-- During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceedings which is not collusive and in which any right to immoveable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose.
Explanation.--For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force.
RCA No. 92/23 Sanjay Goel & Anr. vs. Rashmi Goel & Ors. Pg. no. 22 of 25 Digitally signed SHILPI byJAINSHILPI M M JAIN Date: 2026.01.24 16:02:23 +0530 SCOPE OF MODIFICATION IN IMPUGNED JUDGMENT:
30. In considered opinion of this Court, the Trial Court's direction to remove only the shutter and construct a permanent wall is inconsistent with its own findings for illegal encroachment and the plaintiffs' prayers for complete removal/demolition. It partially defeats the purpose of restoring the area fully to common parking. This amounts to an inadvertent error in the operative portion.
31. Under Order XLI Rule 33 CPC8, the appellate Court has power to pass any decree/order that ought to have been passed or make further orders necessary for complete justice, even without cross-objections, provided it does not prejudice a party or introduce entirely new relief. Hence, modifying the decree to direct complete demolition/removal of the godown/shop instead of partial measure aligns with the pleadings, evidence, findings, and law, without causing prejudice to the appellants beyond what the law mandates.
32. No perversity, misreading of evidence, or jurisdictional error is found in the Trial Court's findings on
8 33. Power of Court of Appeal.
The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees:
Provided that the Appellate Court shall not make any order under section 35A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to made such order.
RCA No. 92/23 Sanjay Goel & Anr. vs. Rashmi Goel & Ors. Pg. no. 23 of 25 Digitally signed SHILPI byJAINSHILPI M M JAIN Date: 2026.01.24 16:02:23 +0530 merits. The appeal fails on merits, but the decree requires modification for complete justice.
CONCLUSION
33. The appeal is dismissed on merits. The impugned judgment and decree dated 08.06.2023 is upheld, subject to the following modification in para 10 under Order XLI Rule 33 CPC:
"10. In view of discussions above, the suit of plaintiff is hereby decreed and decree of mandatory and permanent injunction is passed in favour of plaintiffs and against the defendants. The defendants/appellants are directed to completely demolish/remove the illegal godown/shop/ temporary structure as shown in site plan Ex.PW-1/B (more specifically, Wall at two sides and Shutter at one side) on the ground floor, and restore it as common parking area within 60 days from date of this judgment.
The defendants and his assignees, employees, agents, servants, relatives, representatives etc. are restrained to create hindrance of a small car parking in common parking area plaintiff/occupants and defendants are also directed to not park any other vehicle/car in the commons space parking which does not belongs to him/her. No order as to costs. Decree-sheet be prepared accordingly. After preparation of decree-sheet, file be consigned to record room after due compliance."
RCA No. 92/23 Sanjay Goel & Anr. vs. Rashmi Goel & Ors. Pg. no. 24 of 25 Digitally signed SHILPI byJAINSHILPI M M JAIN Date: 2026.01.24 16:02:22 +0530
34. In case of non-compliance, the plaintiffs/respondents shall be at liberty to seek enforcement through due process of law, including execution proceedings.
35. Decree sheet be prepared accordingly. File be consigned to record room after compliance.
36. TCR be sent back with copy of this order.
Announced in open court on 24.01.2026 (SHILPI M JAIN) District Judge-05, South West District Dwarka Courts, New Delhi RCA No. 92/23 Sanjay Goel & Anr. vs. Rashmi Goel & Ors. Pg. no. 25 of 25 Digitally signed SHILPI byJAINSHILPI M M JAIN Date: 2026.01.24 16:02:20 +0530