Delhi District Court
Sh. Bimal Johar vs Shri Lalit Chand Jaitley on 27 April, 2012
IN THE COURT OF MS. KADAMBARI, CIVIL JUDGE-III (NORTH),
ROOM NO.231, TIS HAZARI COURTS, DELHI.
CS No.439/10
In the matter of :-
1. Sh. Bimal Johar,
S/O Sh. R.S. Johar,
R/O Y-89 (1st Floor Front Side)
Hauz Khas, New Delhi
2. Sh. D.K. Gupta,
S/O Sh. L.M. Gupta,
R/O B-129 Flat No. 6, Malviya Nagar,
New Delhi.
3. Mrs. Shruti Deo,
W/O Mr. Vinay Deo,
R/o Y-89 (Second Floor, Front side)
Hauz Khas, New Delhi.
...................Plaintiffs
Versus
Shri Lalit Chand Jaitley,
S/O Sh. Kishan Chand Jaitely,
R/O Y-89, (Ground Floor Front Side)
Hauz Khas, New Delhi.
................Defendant
Date of institution: 12.11.2003
Date of arguments: 24.01.2012
Date of judgment : 27.04.2012
JUDGMENT
1). Vide this judgment, I shall dispose of the present suit for Permanent Injunction filed by the plaintiffs against the defendant as well as counter claim filed by defendant against plaintiff.
1
2). As per the plaint the facts germane to the case are as below:-
(a) The plaintiffs are residents of Y-89, Hauz Khas, New Delhi and are the owners of the portions of the said property constructed pursuant to a collaboration of the said property and one Messrs. Paradise Home Builders and by virtue of separate sale deeds duly registered in favour of the plaintiffs by the said one Messrs. Paradise Home Builders, the plaintiff acquired portions and/ or parts of the building constructed on the said property bearing No. Y-89, Hauz Khas, New Delhi along with undivided share of land underneath.
(b) The plaintiff No. 1 is the absolute owner of the property bearing No. Y- 89, (1st Flooor, Front Side) Hauz Khas, New Delhi along with undivided share of land having covered area of approximately 1,000 sq. ft. The plaintiff No. 2 is the absolute owner of the property bearing No. Y-89, (2nd Floor, Rear side) Hauz Khas, New Delhi along with undivided share of land having covered area of approximately 1,000 Sq. ft. The plaintiff No. 3 is the absolute owner of the property bearing No. Y-89, (2nd Floor, Front side) Hauz Khas, New Delhi along with undivided share of land having covered area of approximately 1,000 sq. ft. The plaintiffs have signed and verified this Plaint, and are competent to institute the present suit against the Defendant.
(c) The defendant is also a resident of Ground floor, front, Y-89, Hauz Khas, New Delhi. The defendant along with his brother Sh. Vimal Chand Jaitely purchased plot of land measuring 300 sq. yds. bearing No. 89, 2 Block Y in the residential colony known as Hauz Khas Enclave situated at Village Kharera on Delhi-Qutab Road, New Delhi. The defendant, along with his brother Shri Vimal Chand Jaitely entered into a collaboration agreement dated 10th day of October, 1990, with one Messers.
Paradise Home Builders, for construction of a building on the said plot of land. The detailed terms and conditions of the collaboration were set out in the said collaboration agreement dated 10th day of October, 1990. The building which was agreed to be constructed pursuant to the said collaboration agreement was to consist of basement, ground floor, 1st and entire 2nd floor.
(c) In pursuant to the said collaboration agreement and upon the building plans being sanctioned by the concerned authorities, a residential building was constructed on the said plot of land and in terms of Clause 11 of the said collaboration agreement, the portions of the building were divided between the owners and the said building viz. Messrs. Paradise Home Builders. In terms of Clause 11 the Defendant was allotted ground floor (front) and front basement along with a servant quarter with WC, on terrace of 3rd floor, car parking water tank and other easements in the said building constructed on the said plot of land bearing No. 89, Block 'Y'. Hauz Khas, New Delhi. The said builder i.e. Messrs. Paradise Home Builders was in accordance with the said collaboration agreement allotted Ground Floor (Rear) and 1st Floor and Second Floor front along with Servants Quarters with WC on terrace of 3 3rd Floor, Car Parking, Water Tank and other easement along with undivided share of land.
(e) The said builder Messrs Paradise Home Builders thereafter sold by separate sale deeds portions of the property which had come to its share under the collaboration agreement, to the Plaintiffs some time in the year 1991. Since, the year 1991, the plaintiffs are in continuous use, occupation and possession of their respective areas and have been enjoying uninterrupted ingress and egress to the said property from the common areas providing entrance to the said building. The defendant has, however, recently commenced construction on the common areas and is in the process of raising of wall encroaching on the common areas and thereby interfering with the ingress and egress of the Plaintiffs to the said property.
(f) By way of present suit the Plaintiffs are seeking decree to restraint the defendant from raising any construction on the common areas of the building constructed on the said plot of land i.e. No. 89, Block 'Y' Hauz Khas, New Delhi as well as from constructing an entrance to the basement from the front side of the ground floor. Out of two entrances on the front side of the building, the Defendant is in the process of closing one entrance by raising a wall. The other entrance is being used by all the residents for parking their vehicles as in the said building no parking space has been provided. It is, inter alia the case of the plaintiffs that the defendant is raising wholly unauthorized and illegal 4 construction on the said plot of land i.e. No. 89, Block 'Y' Hauz Khas, New Delhi, with the intention of encroaching upon the common areas and interfering with the ingress and egress of the Plaintiffs to the said property.
(g) The construction being raised by the defendant on the common areas, is wholly illegal, unlawful and unauthorized. The Defendant, by raising a wall on the ground floor overing the common area is threatening to interfere with the ingress and and egress of the plaintiffs. It is stated that one of the gates providing entrance to the building is used by all the residents, including the Plaintiffs and the defendant has no right whatsoever, to lock the said gate and to construct any wall to encroach upon the common areas on the ground floor and construction activity was going on at the behest of the defendant on the ground floor, whereby the common areas are being encroached upon by the defendant. The defendant has no exclusive right to enjoy the common areas and /or to prevent the plaintiffs and other residents from enjoying the common areas.
(h) Defendant is further constructing a separate exclusive entrance from the common are on the front side of the ground floor to the basement. It is stated that an entrance to the basement is already provided from the side porton of the common area and by constructing another entrance to the basement from the common area, the Defendant is encroaching upon the common areas and interfering with 5 the ingress and egress of the plaintiffs.
(i) The plaintiffs requested and called upon the defendant to refrain from carrying out any construction on the common areas of the ground floor. The defendant however, has refused to stop the construction activity and is proceeding to raise construction on the common areas. In these circumstances, it is necessary and expedient that the defendant be restrained from carrying on any construction on the common areas of the building constructed on the said plot of land. In the event the defendant is not restrained from carrying on construction activity on the common areas and /or from raising a wall on the front side of the ground floor covering the common areas and/or from constructing an entrance to the basement from the common areas on the front side of the ground floor, irreparable loss and prejudice would caused to the plaintiffs inasmuch as the plaintiffs would no longer have and/or enjoy ingress and egress to the building.
(j) The cause of action for the first time arose on 16th November, 2003 when the defendant commenced illegal, unlawful and unauthorized construction activity on the ground floor of the said plot of land, i.e. No. 89, Block 'Y' Hauz Khas, New Delhi. The ause of action continues to arise and is till subsisting inasmuch as the defendant continues to raise illegal, unlawful and unauthorized construction and continues to interfere with the ingress and egress of the Plaintiffs to the said building constructed on the said plot of land. 6
3). The defendant was served with the summons for the settlement of issues and the defendants filed a written statement thereby objecting the suit being not maintainable because the plaintiffs have manipulate the facts and produced a false and fabricated story before this Hon'ble Court with a view to take the reliefs.
(a) Defendant further stated that there is no common area as alleged in the plaint and the area where the defendant has constructed/ renovated a wall is totally in exclusive use and possession of the defendant and the plaintiffs have no right, title and interest in the portion of the defendant and the suit has been falsely filed with a view ot harras the defendant and tresspass into the portion of the defendant.
(b) Defendant further submitted that Plaintiffs No. 1 and 3 have tresspassed and taken the unauthorized possession of the servant quarters belonging to the defendant on the terrace of third floor as well as the plaintiff No. 2 also created problems for the defendant as detail has been given in the counter claim.
(c) It is submitted that the sale deed of the property in question executed in favour of the defendant's borther Vimal Chand Jaitely on 14.01.1964 and later on a Release deed has been executed in favour of the defendant by his brother on 18.06.1966, photo copy of the sale deed and release deed have been filed for the perusal of. Later on a Collaboration agreement has been executed between the defendant and his brother and M/s Paradise Home Builders on 10th October 1990, 7 photocopy is also enclosed herewith for kind perusal of this Hon'ble Court. On page 4 it is clearly mentioned that Lalit Chand Jaitely /defendant is a owner of ground floor (front), front basement along with 2 servants quarter with WC on terrace on third floor, two car parking, water tank and other easements. The Portion clearly mentioned in the collaboration agreement and at the time of sale deed executed by the builder in the name of the plaintiffs it was clearly told to the plaintiffs it was clearly told to the plaintiffs that what portions they are going to purchase.
(d) Defendant submitted that on page 4 of the Collaboration Agreement it is clear that Lalit Chand Jailtely (defendant) was to be allotted constructed portion of ground floor (front). Front basement, along with 2 servant quarters with WC on terrace of 3rd floor, two car parking, water tank and other easements and the defendant is in occupation of the said portions mentioned in the agreement but later on the plaintiff No. 1 Bimal Johar and plaintiff No. 3 Mrs. Shruti Devi have taken the unauthorized and illegal possession on 2 servant quarters belonging to the defendant situated on 3rd floor more than one year back and still the servants of the above said plaintiffs are residing in the said two servant quarters illegally and unlawfully as unauthorized occupants and trespassers.
(e) Defendant further submitted that there was a common passage of about four feet which is in common use of the plaintiffs and 8 the defendant and the other portions of the ground floor (front) and the front basement as well as the space for two car parkings is in exclusive use of the defendant but some times the daughters of the plaintiff No. 1 namely Ms. Divya and Nandita, son-in-law Sh S.P. Ranjan and the plaintiff No. 1 as well as husband of the plaintiff No. 3 used to park their cars in the portion of the defendant and also tresspassed the portion of the defendant as well as parked their vehicles to block the gate of the gate of the defendant and ingress and egress of the defendant is totally blocked.
4). The plaintiff has filed replication to the written statement of the defendant wherein the content of the plaint reiterated and reaffirmed and allegation made in the written statement are categorically denied.
5). The defendant also filed Counter Claim in the suit stating that the brother of the counter claimant Sh. Vimal Chand Jaitely became the owner of the property in question vide sale deed dated 14.01.1964 by the DLF Housing and Construction Pvt. Ltd. A Release Deed was made between the counter claimant and his brother on 18.06.2004 and the counter claimant became joint owner of the property in question. A Collaboration Agreement was entered on 10.10.1990 between counter claimant his brother and M/S Paradise Home Builder and as per the Collaboration agreement, it is clearly mentioned that L.C. Jaitely is in possession of ground floor (front basement along with two servant quarter with WC on terrace of the 3rd floor with two car parking, water tank and other easement. After construction, the counter 9 claimant taking the possession of his mentioned portion but the defendants have created problems for counter claimant and try to encroach and trespass his portion, which is in exclusive an actual possession at the counter claimant.
6). It is further submitted that many complaints and application have been given from time to time to the various authority by the Counter Claimant against the defendant and copies of this application are placed on record.
7). It is also submitted that more than one servant quarter situated on the terrace of the 3rd floor and in one servant quarter defendant No. 1 has taken unauthorized possession and in another servant quarter defendant No. 3 servant is residing. In this regard number of meeting were held between the parties but defendant No. 1 & 3 have not vacated the servant quarter of the counter claimant. It is also submitted that defendant No. 1 & 3 have no right title and interest in the servant quarter belonging to the counter claimant. It is further submitted that the defendant No. 2 also parking the cycle in the portion marked A, B, C & D shown in red colour of the site plan, which is in exclusive possession of the counter claimant. It is also submitted that number of times defendants have been threatening the counter claimant to vacate the premises and to take money from them. The defendants have creating problems for the plaintiff from time to time and wants to grab the portion of counter claimant.
8). It is submitted that hence a cause of action arose in favour of counter claimant and against the defendant and same is still continuing. It is prayed that the decree of mandatory injunction be passed in favour of counter 10 claimant and against the defendant, thereby directed the defendants / plaintiff to vacate the portion i.e. servant quarter on the 3rd floor as shown in the red colour in the site plan. It is also prayed that a decree of permanent injunction in favour of counter claimant and against defendant No. 2 be passed thereby restraining the defendant from parking the site plan portion shown in red colour in the site plan and marked as A, B, C & D. It is also prayed that the decree of permanent injunction be also passed in favour of counter claimant and against defendants be passed thereby restraining the defendants not to interfere and tresspass the portion shown in red colour and marked E, F, G & H in the site plan.
9). Plaintiff filed their reply to the counter claim and submitted that the same is not maintainable being false frivolous and concocted.
(a) It is also submitted that since the year 1991, the plaintiffs in the suit are in continuous use occupation and possession of their respective area and have been enjoying uninterrupted ingress and egress to their respective flat from the common area providing entrance to the said building. It is further submitted that the counter claimant has without any right title or interest commence construction in the common area in total violation of the sanctioned building plan and has interfere with the right of the plaintiffs in the suit to use the common area of the building. It is further stated that plaintiff No. 1 and 3 (defendants in counter claim) have been in use occupation in possession of servant quarter since 1991 and 1996 respectively by virtue of agreement to sell /sale 11 deed respectively dt. 21.09.1992 and 02.05.1996 executed in their favour by Paradise Builder, Mr. Ranjit Tripathi. It is further stated that the defendant No. 1 of the counter claim has got possession of the servant quarter pursuant to the agreement to sell dt. 21.09.1991 executed in favour by Paradise Builder as Attorney of the said agreement clearly stipulated that servant quarter No. 2 is in the share of purchaser/defendant No. 1 of Counter Claim. Similarly defendant No. 3 of Counter claim has taken possession of the servant quarter by virtue of sale deed dt. 02.05.1996. It is further submitted that the counter claim had never objected to the fact that the servant quarter was in possession of defendant No. 1 & 3 but now as an after thought and counter blast to the suit of plaintiff he has filed the present counter claim for claiming rights on the servant quarter.
(b) It is further submitted that the counter claim filed by the defendant /plaintiff is highly mis-conceive and untenable and devoid of any merits and counter blast of the suit filed by the plaintiff, whereby a prayer is made to restrained the defendant from carrying out unlawful construction in the common area of the building and removed the illegal construction carried out by the defendant. It is also pleaded that the counter claim is bad in law for mis-joinder of the necessary parties. The counter claimant seeks to enforce the agreement in which the plaintiffs were not party and there is no privity of contract.
(c) The plaintiff /defendant have admitted the contents of para 2 of 12 counter claim in so far it relates to the collaboration agreement but have specifically denied that the plaintiff /counter claimant is in possession of the servant quarter. It is stated that defendant No. 1 has got possession of the servant quarter pursuant to the agreement dt. 21.09.1991, similarly defendant No. 3 has got possession of servant quarter by virtue of sale deed dt. 02.05.1996.
(d) It is specifically denied that defendants in the Counter Claim have ever created problems for the counter claimant and try to encroach and tresspass the portion of the counter claimant as alleged. It is also denied that defendant No. 1 & 3 of Counter Claim have taken unauthorized possession of the servant quarter. He also denied that the defendants have tresspass in the area of car parking belonging to the plaintiff as alleged. It is further submitted that the space being claimed by the plaintiff as car parking is in fact common area into which the main gate of the suit premises open. It is also submitted that the counter claim does not disclose any cause of action and the counter claim filed is frivolous vexatious in nature. It is also stated that no proper court fee have been paid on the counter claim and the counter claimant in the disguise of mandatory injunction prayed for the relief possession but has not paid the proper court fee as required by the law.
(f) It is prayed that the counter claimant is not entitled for any relief and the counter claim is liable to be dismissed with cost.
10). Replication to WS of counter claim also filed & the counter claimant 13 denied the averment of WS filed in respect of counter claim & reiterated their claim.
11). Following issues are framed vide order dated 27.05.2005 passed by Ld. Predecessor of this Court:--
(i) Whether the plaintiff is entitled for a decree of permanent injunction? OPP.
(ii) Whether the plaintiff is entitled for a decree of mandatory injunction?OPP.
(iii) Whether the defendant has valued his counter claim properly for the purpose of court fees? OPD.
(iv) Whether the counter claim is bad for mis-joinder of parties? OPP.
(v) Whether the defendant is entitled for relief claimed in his counter claim?OPD.
(vi) Relief. 12). Three witness were examined on behalf of plaintiffs. PW-1 is Bimal
Johar, who relied on document Ex.PW1/1 to Ex.PW1/3. The witness admitted that he had occupied the flat in December 1991. The witness admitted that on page No 2 of the Agreement to Sale, there is mention of ownership of Sh. V. C. Jaitely and Sh. K.C. Jaitely. The witness also admitted that the said document has been signed in his presence in the builder office. He denied the suggestion that there is no description of the servant quarter in it. The witness also admitted that the said Agreement to Sale is neither registered nor notarized document. The witness further deposed that at the time of agreement to sale he had visited the suit property and the same was under
construction including the portion which he intend to purchase was also under 14 construction at the time of entering the Agreement to Sale. The witness also admitted that there was a collaboration agreement. He also stated that the flat he has purchased is of approximately 1,000 ft. and the servant quarter is not part of his flat. The same is situated on the terrace of the second floor, which is stated to be in his possession and owner ship. The witness also deposed that the defendant has no servant quarter in the suit property. The witness admitted to written a document Ex.PW1/D-1 and the other document Ex.PW1/D-2 & Ex.PW1/D-3 were received by him. It is also deposed that the defendant was claiming servant quarter, which was occupied by some other person and the two servant quarter which are possessed by the witness himself, Mrs. Shruti Deo and Mrs. Manjula Devi. The witness also admitted that many meetings were taken place with regard to the servant quarter. He also admitted that defendant is in occupation of ground floor and basement (front). He also admitted that there is a staircase of the defendant's portion to go inside the ground floor. The witness also admitted that the entrance of the basement is from the common staircase and the width of the common staircase is 4 ft. The witness could not confirm the width of the passage.
However, he stated that length of the passage from the main entrance to the staircase is approximately 25 to 30 ft. The witness further deposed that all the occupants of the building parked their vehicle by the road side. He also admitted that there are three parts of the main gate and also admitted that the small gate is in the front of the defendant's house. But also voluntarily stated that same is used by every occupants. The witness further admitted 15 that one door of the another gate is in front of the defendant's basement and the another door is of 4 ft. passage. The witness also admitted that they have been using only the gate of 4 ft. passage. However, earlier they were using both the portions.
13). It is pertinent to mention here that earlier in the cross examination the witness deposed that the door in front of the defendant's portion has been used by all the occupants, whereas in the later part of the cross examination he denied the same and stated that they have been using the other gate which open into the 4 ft. passage.
14). The witness deposed that the area shown in Ex.PW1/3 in red colour as A, B, C & D is a common portion and no vehicle can be parked in this portion. The witness gave assumption that the portion from E & F shown in the site plant must be measuring 10 to 12 feet approximately. He also deposed that the defendant had constructed a staircase in portion A, B, C & D. The witness also deposed that there are two basement in the property in question and the rear basement marked X has two entrance and also having three ventilation I, J & K in the portion of the defendant's basement marked X. The witness also deposed that Mr. Deo has constructed a room on second floor after occupying the premises, however, no other person has constructed any portion of the property in question. The witness also deposed that there is no terrace on the third floor. The witness also deposed that the servant quarter shown in Ex.PW2/D-2 in red colour are existing, Ex.PW3/D-4 is collaboration agreement. The witness also admitted that Mark Z has two entrances but one of them 16 recently constructed against which the present suit has been filed. It is also admitted that in front parking there is entrance of defendant. The witness declined the suggestion that the parking area was never a common area and the servant quarter was not given to the witness by the builder. The witness could not confirm whether Sh. K.C. Jaitely was never been the owner of the suit premises. The witness also declined the suggestion that defendant is raising construction is in own costs.
15). PW-2 Sh. B.K. Gupta, the witness relied on Ex.PW2/1& 2 and the witness stated that he do not reside in the suit property and his daughter named Anita Gupta is residing in suit property. However, he deposed that sale deed of the suit property is in his name. He further deposed that sale deed consist of 2nd floor (rear) and 3rd floor (rear). He also deposed that no agreement between the parties except the sale deed and he also admitted that his daughter named Anita Gupta is residing in suit property since the beginning when the sale deed was executed. The witness also confirmed to know about the dispute of plaintiff and defendant as he regularly visit his daughter. He also admitted that from going on 2nd floor and 3rd floor through common staircase is the only way. He also admitted that in the said sale deed there is no mention of servant quarter. He also admitted to have visited the suit property at the time of purchase. He also deposed that at that point of time there was no construction on the terrace of the 3rd floor. He denied that there are two servant quarters belonging to defendant on the terrace of the 3rd floor. He denied that the width of the passage and stair case are equal in 17 measurement. He also denied the suggestion that common areas are not mentioned in the sale deed Ex.PW2/1. The witness also deposed that he never parked his car in the building compound and that from the entrance of the small gate there are staircase of the defendant which adjacent to common water tank. He also admitted that there is a basement which is in the possession of defendant and he also deposed that the entrance to the basement is from the side of common staircase. The witness denied that portion shown 'Y' 'Z' in the document Ex.PW2/2 is at the egress and ingress of the defendant. The witness denied that there is any parking of defendant in front of portion shown 'Y' 'Z' and main gate in document Ex.PW2/2. The witness also admitted that there are two gates one is small gate and the other is bigger gate and the vehicle of the occupants of the building are parked outside of the gate on the road. The witness also denied that from the entrance in his portion is from point 'M'. He also deposed that his grand son used to park his bicycle near the entrance of the staircase. He also stated to have no knowledge regarding the complaint of police station made by the defendant due to obstruction by the bicycle. It is also deposed that Wall Mark 'Y' 'Z' in portion Mark 'X' exclusively is in possession of defendant as shown in document Ex.PW2/2. The witness also confirmed that there is no staircase in the portion shown as 'Y' 'Z'. However, he stated that he never visited inside the portion Mark 'X' in Ex.PW2/2. The witness denied the suggestion that portion between the parking gate and building line shown 'Y' 'N' is in the exclusive possession of the defendant. The witness could not confirm 18 whether defendant has two servant quarter in the suit property. the defendant denied the suggestion that there is no parking of the defendant at mark G H I J in the site plan exhibited PW2/D-2. He also admitted that small gate is locked by the defendant and the entry of the occupant of the building is from the bigger gate. He also stated that one leave of the bigger gate permanently closed and one is open. The witness also denied the suggestion that the construction in question made by the defendant in his portion.
16). PW-3 Mrs. Shruti Devi, she relied on Ex.PW3/1 to PW3/4. The witness deposed that at the time of purchase the property, she visited at the site and the sale deed filed before the Court is of 2nd floor with terrace side. The witness stated that sale deed dated 28.05.1992 Ex.PW3/1 does not bear her signature neither she confirm where the same was executed. She deposed that she got in possession in 1996 and the property contains two rooms one drawing room one kitchen, one balcony, terrace along with servant quarter. She also admitted that sale deed of the 3rd floor terrace is not in her name. She also stated that at the time of purchase there was no 3rd floor terrace in the site. She admitted that there is only one stair case to come and go to the 2nd floor. The witness could not confirm the exact measurement from staircase to main gate. She also could not tell the area purchased by her in the sale deed. She also stated that there is no mention of servant quarter in sale deed, which is Ex.PW3/2 and PW3/3. The witness also stated that she has no idea regarding the car parking in the above stated two sale deeds in her name. She further deposed that there was no construction on 3rd floor, when 19 she got possession of the second floor. She denied the suggestion that there are no servant quarter belonged to defendant. However, she later said that there is no terrace of 3rd floor. The witness admitted that there was collaboration agreement dt. 10.10.1990 with M/s Paradise Home Builder. The witness also deposed that there is space of 4 car parking in front of the house outside the gate, inside the gate, there is also space of parking of four cars. She also admitted that the wall of the water tank and the defendant house is adjacent and there is also a staircase, which is in exclusive use of the defendant. She also admitted that the way to the basement goes through common stair case. The witness could not tell whether the measurement of the width of the staircase is forfeit or not. She also admitted that presently main gate is now closed and they were using side passage for ingress and egress to the property. She stated to have a dispute with defendant for last two years but the witness is not aware whether the defendant has lodged a complaint against her in the year 1997. She denied that there is no 3rd floor in the property. The witness also admitted that there was dispute of common area for which the meeting was conducted several time by the occupants and she also admitted Ex.PW3/D1 and Ex.PW3/D2. She also stated that there is dispute with regard to the servant quarter as well and the servant quarter which is on 2nd floor share by PW2 and Smt. Manjula Devi. The witness is not aware whether the sale deed in her favour contained any clause for common area on the ground floor or for car parking. The witness denied the suggestion that they were using the same path, which they were using at the time of the 20 occupation of the premises. She also admitted that vehicle of the defendant's are parked in front of the gate. She also stated that there is space of about 10
-12 ft. between the main gate and the gate of the defendant. She also admitted that their way to their flat does not go from the construction portion as shown in photographs Ex.PW3/D3. She also stated that there are two servants quarter on the terrace of the 2nd floor and none of the servant quarter belong to the defendant. However, she could not confirm that there is any mention of servant quarter in the sale deed or not. The witness denied the suggestion that the police complaint was made by defendant with regard to the forcible possession of the servant quarter. She also denied the suggestion that 3rd floor servant quarter belongs to defendant. She also admitted Ex.PW3/D4. She also denied the suggestion that there is no common area and there are two different area for coming and going into the premises.
17). Plaintiff relied upon the following documents.
i. Copy of Agreement to sell dt. 21.09.1991 as Ex.PW1/1 and the Sale Deed dt. 24.12.1991 as Ex.PW1/2.
ii. Site plan shown the building constructed on the said plot as
Ex.PW1/3
iii. Site plan shown illegal construction in red colour raised by
defendant as Marked A.
iv. Collaboration Agreement as Ex.PW3/D-4
v. Sale Deed for Rs.9,000/- as Ex.PW2/1.
vi. Sale deed for Rs.3,75,000/- dt. 02.05.1996 as Ex.PW3/2 & PW3/3.
vii. Site plan as Ex.PW2/2.
viii. Sale deed dt. 28.05.1992 as Ex.PW3/1.
ix. Sale deed dt. 02.05.1996 as Ex.PW3/4.
21
18). Only one witness examined on behalf of the defendant. DW-1 Sh. Lalit Chand Jaitely, placed reliance of Ex.DW1/1 to Ex.DW1/14. The witness admitted that plot bearing No. Y -89, Hauz Khas was registered in the name of his brother Sh. V.C. Jaitely but the same was purchased by both of them. He denied the suggestion that his name was not in the sale deed. However, after confronting and verifying the record the witness changes his stand and stated that his name is not reflected in the sale deed executed by DLF Society. He further deposed that he became co-owner of the above said property when his brother executed lease deed in his favour qua 50% share in the plot. He also admitted that till 10.10.1990 there was no structure build up in the aforementioned plot. He denied the suggestion that he had taken any money from the paradise builders for constructing the flats in the suit property. The witness changes his statement and stated that whatever has been taken is mentioned in the collaboration agreement dt. 10.10.1990 Ex.PW3/D4. He also stated that his brother sold out his entire share as per collaboration agreement and the sale deed to the respective buyers. The witness stated that the building was constructed in his supervision with the builder and the terrace of the 2nd floor is different from the terrace of the 3rd floor. Only two servant quarter along with WC were constructed on the terrace on 3rd floor. At the time when the building was constructed only two servant quarter, which were constructed on his share were build and they both belong to him. It is further stated that the possession of these two servant quarters was with the 22 defendant till the year 1999, some how in 1999, plaintiff No. 1 & 3 broke open the locks and took possession of the servant quarters. It is also deposed that in the year 2001 he made a complaint against the plaintiff regarding their forcible occupation of the servant quarter. However, it is stated that no notice to the plaintiff for the vacation of servant quarter was given by the defendant.
16. It is also submitted that in various meeting took place between the parties, the plaintiffs admitted to vacate the premises and the vacation of servant quarters. The witness further deposed that in page four para 11 of the Collaboration Agreement his right over the servant quarters has been explained. It is also deposed that no where in the documents of the plaintiff, they have right over the servant quarters. The witness also deposed that the agreement with the plaintiff with regard to the purchase of their portion was entered into by the builder and the plaintiff and he was not the party to the agreement. However, he claims to know the terms of the agreement. He further deposed that there were four servant quarters in the building two were on the 2nd floor of the premises and the others on the 3rd floor. Defendant also claimed that plaintiffs constructed their portion after taking the possession of the premises and they have taken the servant quarter into their premises.
19). Answering the Court Question the witness deposed that it is wrong to suggest that the builder has sold any servant quarter to Ranjeet Ram Tripathi on the roof of the 2nd floor and if he had ever sold any such thing it is illegal. The witness could not confirm whether plaintiff No. 3 has purchased the flat as 23 well as the servant quarter from Ranjit Ram Tripathi in the year 1996. The witness also denied the suggestion that plaintiff No. 1 is in possession of adjoining servant quarter constructed by the builder along with the servant roof allotted to Ranjit Ram Tripathi constructed on roof of the 2nd floor since 1991. He also stated that the builder has not constructed any servant quarter on the 3rd floor i.e on the roof of the second floor for himself and such as the selling of any servant quarter on the 3rd floor to any body does not arise. The witness admitted to sold out the rest of the portion of the terrace of the 3rd floor to Mr. Ranjit Tripathi and rear portion was allotted to his brother who also sold it later. Besides two servant quarters belong to the defendant. The witness admitted that at the time of Collaboration Agreement being signed, the building was not erected but the working plans were attached with the collaboration agreement and submitted to MCD for sanction. As per the collaboration agreement the front portion of the roof of the second floor was in the share of builder. After leaving the constructed portion of two servant quarter on 3rd floor. The witness denied the suggestion that rear portion of the roof of the 2nd floor false in his brother shares exclusively. However, he admits that there is construction of two rooms on the roof of the second floor in the rear side, which falls under the share his brother. He also stated that plaintiff No. 2 has constructed illegal rooms but he could not tell the date of construction, though he claimed to lodge report in respect of the same. The witness claims that in the cross examination held on 13.09.2005 that he was the first occupier in the building in question after construction, 24 though, he could not remember the date. He denied the suggestion that till 06.07.1992 he has not taken possession of the basement front in ground floor front, parking, servant quarter on the terrace on the 3rd floor, water tank and other easement. He also stated that in order to settle accounts with the builder the builder gave him certain letter. Though the physical possession of the premises had already been taken by him from the builder. Witness denied the suggestion that the builder gave property bearing No. 26/18, East Patel Nagar, New Delhi towards consideration for entries into collaboration agreement dt. 10.10.1990. The witness admitted that letter Ex.DW1/P -1 was returned to him by the builder in respect of booking of shop in Patel Nagar. The witness could not confirm as to on what rate he had booked the shop when being asked. The witness also deposed that the said shop is not in his possession and there is no dispute in respect of that shop. The witness also could not confirm whether any receipt of the said booking of the shop was taken from the builder or not. He also deposed that he made a police complaint against the builder and the owner, who have taken illegal possession of that shop and he further stated that copy of the said plaint is with him. The witness also could not confirm, whether the said shop which was booked with the Paradise Builder was completed by the year 1992. He also could not confirm the exact date, month or even year, when he took the possession of this shop. The witness also could not tell that what was the value of the shop and how much he paid as booking amount, though he claims to have the copies of document in his possession. The witness denied that 25 DW1/P-2/1 is not genuine photographs of disputed site. He also could not confirm Ex.PW3/D3 earlier the photograph. However, later he admits the same and stated that Ex.PW3/D3 is correct and showing three gates and there are no other gates in the property in question except which are shown in the photographs and they exist since very beginning when the building was constructed. However, he admits that shuttering which is shown in this photographs was installed about the month before filing of the suit but the witness declined the suggestion that the gate appearing at point A is a new construction. He stated that wall was being replastered but the structure existed earlier also. The witness also deposed that he is approaching basement from the front as well as rear of the suit property and similarly the back basement has also two approaches. He further stated that the back portion of the basement is in the possession of one Ms. Manjula. He also admitted that rear basement was allotted to his brother and the rear terrace above the 2nd floor roof was in the joint ownership of him and his brother. The witness could not tell whether his brother has sold his entire share in the building but he admits to being the owner of basement front in ground floor. The witness denied the suggestion that he is not the owner of two servant quarter on a 3rd floor. He also stated that he did not ask for the possession of the Car parking and servant quarter from the builder since they were in his possession at that time.
20). Defendant relied upon the following documents:-
i. Photocopy of declaration status as on 31st December 1997 as 26 Ex.DW1/1 ii. Copy of order U/S 176 of the DMC Act as Ex.DW1/10 iii. Photocopy of police complaint dt. 11.12.2004 as Ex.DW1/12 and dt. 12.12.2004 as Ex.DW1/13 iv. Copy of site plan as Ex.PW2/D2 v. Release Deed dt. 18.06.1966 as Ex.DW1/2.
vi. Sale deed dt. 14.01.1964 as Ex.DW1/1
vii. Collaboration agreement dt. 10/10/1990 as Ex.DW1/3
viii. Copy of site plan as Ex.DW1/4.
ix. letter dt. 06.07.1992 as Ex.D1/P1.
x. Copy of Police complaint dt. 20.12.2003 as Ex.DW1/5 and dt.
17.11.2003 as Ex.DW1/6 and dt. 25.11.2003 as Ex.DW1/8 xi. Copy of complaint made to MCD dt. 05.12.2003 as Ex.DW1/7 and dt. 18.09.2003 as Ex.DW1/9 xii. Copy of Agenda Points as Ex.PW3/D1 and minutes of the meeting as Ex.PW3/D2 and objection raised by defendant on dt. 14.03.2002 as Ex. PW1/D2 & PW1/D3.
xiii. Copy of letter dt. 03.12.2001 as Ex. PW1/D1 and dt. 1012.2000 as Ex.DW1/14.
21). I have heard arguments addressed by Ld. Counsels and perused the record carefully.
22). Now issue -wise findings are as under:-
ISSUE NO.1 Whether the plaintiff is entitled for a decree of permanent injunction? OPP.
23) The onus to prove this issue is on the plaintiff. PW-1 in his cross examination deposed on oath that there are three parte of the main gate & he 27 also stated that one small gate is in the front of the defendant's house, which is used by all the occupants of the buildings. The witness specifically stated to use the gate of 4 feet passage & the other portion is not utilized by them, but for some time we were using both the portions & also confirms that portion A,B,C, D as shown in Ex.PW1/3 is common portion. He further deposed in cross examination that defendant has constructed a staircase in the portion A, B, C & D and the portion G & H a wall & not a passage. it is also deposed that Mark 'Z' has two entrance, & one of them is constructed recently against which the suit has been filed. The witness has specifically identifying the common area shown in the site plan A, B, C & D and stated that defendant has constructed a staircase in this common portion. He also admitted that in front of parking there is entrance & defendant & denied the suggestion that parking area was not a common area.
24). PW-2 also confirms that the common area has been mentioned in their sale deed Ex.PW2/1 & he also confirms that the entrance of the building is through the small gate, which also leads to stairways, the witness also denied that there is any parking of defendant in front portion shown 'Y' 'Z' & there main gate is Ex.PW2/2. It is pertinent to mention that in the cross examination of PW-2 there is no specific suggestion as to the alleged illegal construction done by the Counsel for the defendant despite there being specific averment in the Chief of witness, & hence the presumption could be raised that as the statement remain unrebutted. It is not required to proved by the plaintiff.
Moreover, Ex.PW3/D-3, which is one of the digital photograph placed on record 28 also clearly shows that unauthorized fresh construction on the common area of building existed & interfering in the ingress & egress of the building.
25) It is evident from the above discussion that defendant has raised illegal construction in the common area, there is no mention of expressly in the sale deed of defendant or other or in collaboration agreement that portion appurtenant to the entrance of the basement or in the front of gate as shown in the site plan as E,F, G, H, J, I, is the exclusive area of defendant only, and same is not a common area. From the lay out of the building and by the site plan of the property in question it is difficult to presum that the area meant for egress & ingress of the property or any portion appurtenant there to would not be a common area and the Court is of the opinion that the construction raised on the point A, B, C, D and E,F, G, H, I, J, are unlawful and not accordance with law. Hence, issue is decided in favour of plaintiff and against the defendant. ISSUE NO. 2
Whether the plaintiff is entitled for a decree of mandatory injunction?OPP.
26). The onus to prove this case is on the plaintiff. From the discussion in the last issue it is evident that defendant have encroached the common area & raised unlawful construction there in, the common areas of the building from points E,F, G,H, J, I, & obstructed the common area from raising a newly constructed wall & gate at the common area. Collaboration agreement which Ex.DW1/3 provide for the common area of the building. DW1 in his cross examination also clearly admits that shuttering which is shown in the photograph taken on 23.11.2003 is installed about a month back. Clearly 29 dening the suggestion that gate appearing at point 'A' is new construction. Stating further that wall being replastered but the structure was existing earlier also. This statement of the witness is beyond the belief that entire building was fully constructed with fixture but this gate & adjust wall were left un-plastered by the builders. It is to be pertinent to notice that this gate at point 'A' is in the front portion of the suit property. It is time & again mentioned by the defendant in his testimony that there are separate entrance provided to the basement in his portion and there is no need or requirement to make a new entrance of the basement, but only with the intention to creat impediments in the enjoyment of plaintiff of their common area. The defendant had installed a new gate & structure which also obstructed the entrance of the building.
27). PW-3 in her cross examination also deposed that main gate is closed & she even stated that the plaintiff are not using the earlier entrance of the building which they were using at the time of occupation of the building /their respective flats.
28). Defendant has taken plea of renovation of their part, but in his cross examination DW-1 even admits that the shuttering which is shown in the other digital photographs was installed about the month before filing of the suit. However, he denied that the gate appearing at point 'A' is a new construction. The Court has no hesitation in holding that as per the admission of the defendant /DW-1 as well as the cross examination of PW3 proves that point 'A' shown in the Ex.PW3/D-3 is a new construction even defendant himself 30 admitted the shuttering to be new & same is in the contravention to the sale deed and building by laws as per sanctioned site plan of the building & the construction to the entrance to the basement from the front side of the ground floor, thereby locking an entrance. Defendant has encroached upon the common area of the front side of the ground floor & created impediment in the enjoyment of common area and ingress & egress of the suit property for the plaintiff. Accordingly, issue is decided in favour of the plaintiff and aginast the defendant.
ISSUE NO. 3
Whether the defendant has valued his counter claim properly for the purpose of court fees? OPD.
29). The onus to prove this issue was on the defendant in their WS to the counter claim the plaintiff have made specific averment that counter claimant has not paid the proper Court Fee as required by law & in the Counter claim the defendant has prayed in guise a relief for mandatory injunction the relief of possession, but has not paid the proper Court Fee, where as the defendant in the Counter Claim has prayed for two reliefs, one of the mandatory injunction and other is of permanent injunction.
30). In relief of mandatory injunction, it is prayed that defendants (in the Counter Claim) be directed to vacate the servant quarters on the third floor of terrace & along with W.C. shown in the red portion of the site plan. However, no evidence is lead by the plaintiff to prove the issue, but still Court Fee is a matter which the Court ought to see before deciding the suit. It is clear from 31 the averment made in the Counter claim that Counter Claimant is seeking vacant possession of the servant quarter at the terrace of the third floor & just by molding the analogy of the relief same can not be converted into mandatory injunction in the place of relief of possession. The Counter claimant ought to have paid Court Fee on the advelorum value of the property instead of disguising the relief into the form of mandatory injunction. However, even in a suit by licenser against licence for mandatory injunction for delivery of possession is maintainable if brought without undue delay and on payment of advelorum Court Fee. Defendant seeks the relief of possession in the form of mandatory injunction being the owner of the servant quarter but still according to the provision of the Court fee Act, Section 7 (V), the Court Fee payable on the possession houses, building, garden etc. is determined on the market rate of the value of the property barred certain exception.
31). Court is of the view that the Counter claimant has not valued the counter claim properly for the purpose of Court Fee and relief sought, hence, the counter claim is not maintainable and liable to be dismissed. ISSUE NO. 4 & 5
Whether the counter claim is bad for mis-joinder of parties? OPP.
& Whether the defendant is entitled for relief claimed in his counter claim?OPD.
32). However, onus to prove these issues is on the plaintiffs & defendant but as the discussion in the previous issues, it is settled that the Counter Claim of the Counter Claimant is not maintainable as the same has 32 not be properly valued for the purpose of Court Fee and the same is liable to be dismissed, hence, the Court is of the opinion that there is no need for giving findings on issues No. 4 & 5.
RELIEF.
33). For the foregoing reasons the present suit of the plaintiffs is decreed & Counter Claim of the defendant is dismissed.
34). The defendant is directed to remove / demolish the construction newly constructed gate and wall made on the common area shown as A, B, C, D and E,F,G,H,J,I, in the site plan Ex.PW2/D-2 and to remove the rubble of the construction from the site from their own expenses and to unlock the gate in the front side of the building and not to interfere with ingress and egress of the plaintiffs to the said building constructed on plot No. 89, Block Y, Hauz Khas, New Delhi.
Decree sheet be prepared. File be consigned to record room.
Announced in Open Court . (Kadambari)
today i.e.27.04.2012 at 4 p.m CJ/NORTH/DELHI/27.04.2012
33