Delhi District Court
Sh. Vinod Kumar Chhabra vs Smt. Meera Verma on 17 May, 2019
VINOD KUMAR CHHABRA V. MEERA VERMA & ANR.
IN THE COURT OF MS. TYAGITA SINGH
SENIOR CIVIL JUDGE-CUM-RENT CONTROLLER (SOUTH)
SAKET COURTS COMPLEX, NEW DELHI
RCA SCJ 12/18
CNR No. DLST03-001453-2018
IN THE MATTER OF:
SH. VINOD KUMAR CHHABRA
S/O SH. WAL CHAND CHHABRA
R/O 897/8, MEHRAULI,
NEW DELHI-110030.
....APPELLANT
VERSUS
1. SMT. MEERA VERMA
W/O SH. SATISH VERMA
R/O FLAT NO. S-1, UPPER GROUND FLOOR
MUSKAN APARTMENTS, 886, WARD NO.8,
MEHRAULI, NEW DELHI-110030.
2. SH. SATISH VERMA
S/O LATE SH. PRAHLAD SINGH
R/O FLAT NO. S-1, UPPER GROUND FLOOR
MUSKAN APARTMENTS, 886, WARD NO.8,
MEHRAULI, NEW DELHI-110030.
....RESPONDENTS
DATE OF INSTITUTION : 15.09.2018
DATE OF RESERVING : 29.04.2019
DATE OF PRONOUNCEMENT : 17.05.2019
JUDGMENT
1. Vide this judgment, I shall decide Regular Civil Appeal RCA SCJ 12/18 Page 1 of 12 VINOD KUMAR CHHABRA V. MEERA VERMA & ANR.
under Order 41 Rule 1 read with Section 96 of Code of Civil Procedure (hereinafter referred to as 'CPC') filed by the appellant Sh. Vinod Kumar Chhabra against respondents Smt. Meera Verma and Sh. Satish Verma.
2. In this appeal, the appellant has prayed to allow the appeal and set aside the impugned order dated 30.07.2018 passed by Ms. Neha Priya, Ld. Civil Judge, South District, Saket Court, New Delhi in Suit No. 84144/16.
3. The appellant was defendant in the civil suit and respondents were the plaintiffs. The respondents had filed civil suit against the appellant, in which they stated that they are husband and wife and they have purchased Flat No. S-1, Upper Ground Floor in Muskan Apartments, bearing No. 886, Ward No.8, Mehrauli (henceforth referred to as 'suit property') from defendant/appellant vide registered Sale Deed dated 17.07.2011 and the rectification of the Sale Deed dated 11.05.2012 was also duly registered with Sub-Registrar Office.
4. The main dispute between the appellant and respondents is that respondents No.1 and 2 (plaintiffs in the main suit) alleged that after the sale of various flats in the suit property to various persons, defendant No.1 (appellant herein) was trying to take over the foricble possession of the entire ground floor in the Muskan Apartment despite the fact that initially it was agreed RCA SCJ 12/18 Page 2 of 12 VINOD KUMAR CHHABRA V. MEERA VERMA & ANR.
that the entire ground floor is to be used as parking area for the common use and enjoyment of all the residents of the building as parking space. The plaintiffs in the civil suit alleged that suit property i.e. entire ground floor of the building is common property of all the residents and defendant No.1 had no right to take forcible possession of the ground floor and to try to sell the ground floor to defendant No.2 Sh. Dharam Singh.
5. The plaintiffs in the civil suit had prayed for relief of permanent injunction and declaration, for declaring the entire ground floor as common area and for restraining the defendants No.1 and 2 from interfering in the peaceful possession of the plaintiffs and other residents in the entire ground floor of the suit property and from raising any unauthorized construction at the ground floor of suit property.
6. The stand of appellant/defendant No.1 in written statement before the Ld. Trial Court was that he had sold only one flat to the plaintiffs, having covered area of 50.25 sq. yards but the entire area of the building is 110.25 sq. yards, therefore, plaintiffs have no right to restrain defendant No.1 from transferring interest in the remaining portion of 60 sq. yards at the ground floor, which he had already sold by way of GPA, Agreement to Sell, Affidavit, Will, Possession Letter, Receipt, all dated 22.01.2015 to defendant No.2. The following issues were framed by the Ld. Trial Court vide order dated 20.07.2016:
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"Issue no.1 Whether the plaintiff is entitled to relief of permanent injunction against defendant no. 1 and 2 restraining them from taking over the forcible possession of the suit property or creating any third party interest as prayed for? OPP Issue no.2 Whether the plaintiff is entitled to relief of permanent injunction against defendant no. 1 and 2 restraining them from making any unauthorized construction in the suit property as prayed for? OPP Issue no.3 Whether the plaintiff is entitled to relief of declaration as prayed for? OPP Issue no.4 Whether the present suit is not maintainable for want of cause of action? OPD 1 and 2 Issue no.5 Whether plaintiff no. 2 has no locus standi to file the present suit? OPD 1 and 2 Issue no.6 Whether the present suit is barred by law of limitation? OPD 1 and 2 Issue no.7 Whether the present suit is not maintainable in its present form as consequential relief has not been sought as suit for declaration is not maintainable? OPD 1 and 2 Issue No.8 Whether the suit has not been valued properly and court fees filed is insufficient? OPD 1 and 2 Issue no.9 Relief."RCA SCJ 12/18 Page 4 of 12
VINOD KUMAR CHHABRA V. MEERA VERMA & ANR.
7. Plaintiff No.1 Smt. Meera Verma examined herself as PW-1 in the Ld. Trial Court and exhibited on record the original Sale Deed dated 27.06.2011 (Ex.PW1/1) and Rectification Deed dated 10.05.2012 (Ex.PW1/2) alongwith site plan (Ex.PW1/3).
7.1 PW-3 Sh. Narender Kumar, Record Keeper, Sub-Registrar V, Kalkaji, New Delhi was summoned with record of Sale Deed and Rectification Deed. Both the documents Ex.PW1/1 and Ex.PW1/2 were found correct as per the original record.
8. After closure of plaintiff's evidence, defendant (appellant herein) failed to produce any defence evidence, due to which Ld. Trial Court had heard final arguments and decided the case finally in favour of plaintiff. As per para no.33 of the impugned judgment dated 30.07.2017, following reliefs were granted in favour of plaintiff:
"(a) a decree of permanent injunction is passed in favour of the plaintiffs and against defendant no. 1 and 2, and defendant no. 1 and 2 are hereby restrained from taking over the forcible possession of any portion of the Suit Property i.e. entire ground floor in the Muskan Apartment, property bearing no. 886 in Ward No.8, in Khasra No. 1151/3 min. situated in abadi of Laldora of Village Mehrauli, Tehsil Hauz Khas, New Delhi-110030 (as shown in red in site plan Ex.RCA SCJ 12/18 Page 5 of 12
VINOD KUMAR CHHABRA V. MEERA VERMA & ANR.
PW1/3), and also from selling, disposing or creating any third party interest in any portion of the Suit Property;
(b) a decree of permanent injunction is passed in favour of the plaintiffs, and against defendant no. 1 and 2, and defendant no. 1 and 2 are hereby restrained from making any unauthorized construction/structural changes in any portion of the Suit Property i.e. entire ground floor in the Muskan Apartment, property bearing no. 886 in Ward No.8, in Khasra No. 1151/3 min. situated in abadi of Laldora of Village Mehrauli, Tehsil Hauz Khas, New Delhi-110030 (as shown in red in site plan Ex. PW1/3), and from interfering with the peaceful possession of the plaintiffs in the aforesaid Suit Property.
(c) a decree of declaration is passed in favour of the plaintiffs, and against defendant no. 1 and 2, and it is hereby declared that defendant no. 1 and 2 have no right, title or interest in any portion of the Suit Property i.e. entire ground floor in the Muskan Apartment, property bearing no. 886 in Ward No. 8, in Khasra No. 1151/3 min. situated in abadi of Laldora of Village Mehrauli, Tehsil Hauz Khas, New Delhi-110030 (as shown in red in site plan Ex. PW1/3)."
9. In the present case, the appellant, who was defendant No.1 RCA SCJ 12/18 Page 6 of 12 VINOD KUMAR CHHABRA V. MEERA VERMA & ANR.
in the civil suit, has challenged the judgment and decree dated 30.07.2018 on following grounds:
a) That Ld. Trial Court failed to appreciate that the Sale Deed and Rectification Deed in favour of respondent No.1 does not give her any right, title or interest in the entire ground floor of the suit property.
b) That Ld. Trial Court has failed to appreciate that the portion of suit property measuring about 60 sq. yards on the ground floor is constructed one and cannot be used for common parking rights.
c) That the Ld. Trial Court failed to appreciate that relief of declaration has not been properly valued and proper court fees has not been filed by the plaintiff.
d) That Ld. Trial Court has failed to appreciate that no other resident has claimed common parking in respect of 60 sq. yards of land on ground floor except the respondents.
10. Other grounds mentioned in the appeal need not be stated herein as they are mere repetition of the abovesaid grounds.
11. The application under Order 41 Rule 5 CPC for stay was also filed by the appellant with appeal but it was never pressed and was never decided.
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12. Reply was not filed by the respondents but Ld. counsel for respondents addressed oral arguments on appeal.
13. Final arguments on behalf of both the parties were heard on last date of hearing and case was fixed for judgment for today.
14. Ld. counsel for appellant argued that the respondents have no right in the entire ground floor which is measuring about 110.25 sq. yards, as the flat sold to them covers area of only 50 sq. yards. On the other hand, Ld. counsel for respondents argued that plaintiffs as well as other residents of entire building have right of common parking at the ground floor and appellant has no right to construct any structure at the ground floor and judgment has been rightly passed by the Ld. Trial Court on the basis of evidence led by the plaintiffs in Trial Court.
15. The main bone of contention in this case is that whether respondents and other residents of the building have common rights of use and enjoyment of the ground floor as parking area or whether the appellant has any right, title or interest in the portion measuring 60 sq. yards in the ground floor of the building and whether he is entitled to alienate his rights to any third party in respect of said portion. In this regard, the entire Trial Court Record has been perused.
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16. Perusal of copy of Sale Deed dated 27.06.2011 (Ex.PW1/1) executed between appellant Sh. Vinod Kumar Chhabra and respondent No.1 Smt. Meera Verma alongwith Rectification Deed dated 10.05.2012 (Ex.PW1/2) executed between the appellant and respondent No.1 in respect of upper ground floor measuring 50 sq. yards consisting of one bed room set, reveals that it is clearly mentioned in the Sale Deed as well as Rectification Deed that the purchaser had undivided, indivisible and impartible ownership rights in the land underneath, with all common facilities like staircase, common passage, common entrance, common terrace, common water tank and septic tank on ground floor, common scooter/bike parking on the ground floor, and other services and facilities provided in the building of property bearing No. 886, in Ward No.8, measuring 110.25 sq. yards, in Khasra No. 1151/3 min., situated in abadi of Lal Dora of Village Mehrauli, Tehsil Hauz Khas, New Delhi.
17. It is nowhere mentioned in the Sale Deed as well as in the Rectification Deed that the respondent No.1 can claim rights of common use and enjoyment of the parking on the ground floor only to the extent of land measuring 50 sq. yards underneath her flat and not in respect of the entire land of the building measuring 110.25 sq. yards.
18. It is pertinent to mention herein that appellant had failed to lead any defence evidence in Trial Court, to prove that any RCA SCJ 12/18 Page 9 of 12 VINOD KUMAR CHHABRA V. MEERA VERMA & ANR.
portion of the ground floor was specifically kept for any other purpose except for common use of the residents as parking space, or to show that the appellant had at the time of sale of flats to various residents, kept any portion of ground floor exclusively for himself, which he could later use for construction of any structure, or for selling it further to any third party.
19. It is pertinent to quote para Nos. 18 and 19 of the judgment of Ld. Trial Court in respect of this fact:
"18. As per para 1 of the rectification deed Ex.PW1/2, unit no. S1 on upper ground floor measuring 50 sq. yards along with proportionate undivided, indivisble and impartible ownership rights in the land underneath had been given to the plaintiff. Besides, all common facilities like staircase, common passage, common entrance, common terrace, common water tank and septic tank on ground floor, common scooter/bike parking on the ground floor and other services and facilities in the building were provided to the plaintiff.
19. Collectively these were regarded as "demised portion" of property bearing No. 886 measuring 110.25 sq. yards. There is no differentiation in this description that only 50.25 sq. yards of the ground floor contain the common facilities, and that rights over only 50.25 sq. yards had been given to the RCA SCJ 12/18 Page 10 of 12 VINOD KUMAR CHHABRA V. MEERA VERMA & ANR.
plaintiff. Thus, from a bare reading of the actual description of the property, common facilities on the entire ground floor were given to the plaintiff along with proportionate ownership right in the land underneath. The reference to 50.25 sq. yards is with respect to proportionate land ownership and not common facilities on ground floor."
20. Ld. Trial Court has stated in para No.22 of the judgment that no evidence of any oral agreement or statement shall be admitted, as between the parties to an instrument, for the purposes of contradicting varying, adding to or substracting on its term as per provisions of Section 91 and 92 of the Indian Evidence Act. It is very important to note herein that the appellant was defendant No.1 in the civil suit, and he had not even led any oral evidence in Trial court regarding any subsequent oral agreement between parties, permitting appellant to use any portion of ground floor for his personal purpose. Therefore, the suit was rightly decided in favour of respondents/plaintiffs on the basis of evidence on record.
21. It is pertinent to mention herein that grounds of appeal raised by the appellant in respect of court fees, etc. have duly been addressed by the Ld. Trial Court in its decision upon issue No.8 which has rightly been decided in favour of respondents (plaintiffs therein). No interference in decision upon issue No.8 is RCA SCJ 12/18 Page 11 of 12 VINOD KUMAR CHHABRA V. MEERA VERMA & ANR.
required.
22. In view of above stated discussion, it is clear that there is no merit in the appeal. Therefore, no ground for interference in the judgment dated 30.07.2018 is made out. The appeal stands dismissed being devoid of merits and the judgment of Trial Court dated 30.07.2018 is upheld.
23. No order as to costs. Decree sheet be prepared accordingly.
24. Trial Court Record be returned back to Ld. Trial Court/Successor Court with copy of this judgment, for consignment as per rules.
25. Appeal file be consigned to record room after due compliance.
(Announced in the open (Tyagita Singh) Court on 17.05.2019) SCJ-Cum-RC (South), Saket Courts, New Delhi RCA SCJ 12/18 Page 12 of 12