Delhi District Court
Iqbal Singh vs Vasdev on 28 August, 2023
IN THE COURT OF SH. BALWINDER SINGH, SCJ-cum-RC
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI
CS No. : 97148/16
SH. IQBAL SINGH
S/o Shri Munshi Ram
R/o H.No. 411, Kashmiri Bagh,
Kishan Ganj
Delhi-110007. ....Plaintiff
Versus
1.Sh. Vasdev S/o Sh. Kabir Dass R/o 111-D, AP Block, Pitampura, Delhi.
(Deceased & proceedings against him already abated vide Order dated 22.02.2010).
2. Sh. Jitender Tomar S/o Shri Charan Singh R/o 411, Kashmiri Bagh, Kishan Ganj, Delhi.
3. Smt. Indu Tomar W/o Sh/ Jitender Tomar R/o 411, Kashmiri Bagh, Kishan Ganj, Delhi.
...Defendant
DATE OF INSTITUTION : 30.03.2006
DATE OF RESERVING THE JUDGMENT : 15.04.2023
DATE OF DECISION : 28.08.2023
CS No. : 97148/16 Iqbal Singh Vs. Vasdev & Anr. Page no. 1 of 16
SUIT FOR DECLARATION AND PERMANENT INJUNCTION
1. Vide this judgment, I shall dispose off the present suit filed by the plaintiff seeking a decree for declaration and permanent injunction.
2. In brief, the suit of the plaintiff is that the plaintiff along with his family members was residing as a tenant in one room of the property bearing no. 411, Kashmiri Bagh, Kishan Ganj, Delhi (herein after referred to as "suit property") which consisted of 11 rooms, a Gallery, open space and two common latrines and one common bathroom/electric meter space owned by Sh. Vasdev/the defendant no. 1 by virtue of registered sale deed dated 18.4.1957. There were total eight families who were residing as tenants in the different portions of the above said property.
In the month of February, 2002, the defendant no.1 decided to sell off the tenanted portions of the above said property to the respective tenants who were under the possession of different portions. Accordingly, one room measuring 8.6 x 7.6 and verandah measuring 4 x 9 along with two common latrines & bathroom and gallery was purchased by the plaintiff vide registered sale deed dated 30.05.2002. The portion purchased by the plaintiff is shown as 'green' in the site plan and the common space i.e. two common latrines, bathroom/electric space and common gallery is shown as 'red'. Similarly, other portions of the suit property were also sold to the other occupants/tenants along with the rights to use the common latrine and bathroom and other common space. The defendant no.2 also purchased three rooms marked 'A', 'B' and 'C' CS No. : 97148/16 Iqbal Singh Vs. Vasdev & Anr. Page no. 2 of 16 in the site plan and shown in 'yellow' colour. Further, an undertaking/affidavit dated 21.05.2002, was also executed by defendant no.1 clearly mentioning that the two common latrines and bathroom cum electric meter space and open terrace on it shall remain for common use and no individual has the right to use the same for his exclusive use and the open space shall remain open for all the six families in the eight rooms except for Jitender Tomar and Gulshan Kumar whose rooms were situated on the road side. Further, while selling one of the rooms to the tenant namely Smt. Kamla Devi, the defendant no.1 also obtained an affidavit/undertaking dated 16.02.2002, wherein, she undertook/sworn that there are two common latrines and one common bathroom and electric space measuring 4.3 x 4.6 respectively on the ground floor which is being used by her along with other tenants and the terrace on the meter room in open space shall remain open and no construction shall be raised by her and the same shall be used by all the six families residing in eight rooms. Likewise, undertakings were also obtained from the other buyers of the different portions of the said property.
However, the case of the plaintiff is that on 02.11.2005, at about 8:30 am, the defendant no.3 obstructed Sh. Vinod i.e. son of the plaintiff to use the common bathroom and on his objection, started abusing in filthy language and also alleged that she has purchased the same along with her husband, defendant no.2 and no other occupant of the suit property has any right to use the same. At the said time, son of the plaintiff was taking bath inside the bathroom. However, he was pulled out by defendant no.3, who started beating him with an iron rod.
CS No. : 97148/16 Iqbal Singh Vs. Vasdev & Anr. Page no. 3 of 16 On hearing the noise, the wife of the plaintiff came out from her room and tried to save her son, however, the defendant no. 2 and 3 both started beating the wife of the plaintiff as well due to which his wife and son, both sustained injuries and the matter was reported to the police. The police, however, did not take any action against the defendants as they were acting under their influence.
Hence, by the present suit the plaintiff is seeking a decree of declaration that it may be declared in favour of the plaintiff and against the defendants that the plaintiff and his family members have every right and interest over the common bathroom cum electric space, latrines and common gallery and the defendant no.2 and his family members are not entitled to exclusive right, title or interest over the the same. Further, a prayer for grant of decree of permanent injunction is also made so as to permanently restrain the defendants from obstructing or interfering the plaintiff and his family members from the use of the above said common bathroom cum electric space, latrine and common gallery.
3. Opposing the suit of the plaintiff, WS were also filed on behalf of the defendant no. 2 and 3. In their WS without disputing the execution of the sale deed dated 30.05.2002, by the defendant no.1 in favour of the plaintiff as well as the purchase of the three rooms marked as 'A', 'B' and 'C' in the site plan, it is averred on behalf of the defendants that the defendant no.1 executed the sale deed dated 16.02.2002, in favour of the defendant no.2 in respect of a room on the ground floor which is facing the main road on the Eastern side. Similarly, one room with one verandan, latrine and bathroom vide sale deed dated CS No. : 97148/16 Iqbal Singh Vs. Vasdev & Anr. Page no. 4 of 16 21.05.2002, was sold to Mahabir Prasad Sharma and one room and verandah along with latrine and bathroom was also sold to one Smt.Kamla w/o Late Sh. Dayanand vide sale deed dated 15.02.2002 and both the said properties were lateron purchased by defendant no. 2 and 3 from the said Mahabir Prasad Sharma and Smt. Kamla vide sale deed dated 01.08.2003 and 28.10.2003 and as such both of them have become the absolute owners of the said properties as well as the two latrines and bathrooms. It is also averred that by the said sale deeds executed by defendant no.1 in favour of Smt. Kamla and Sh. Mahabir Prasad Sharma, the latrines and bathrooms were already sold by defendant no.1, though, the other occupants (including the plaintiff) were allowed to use the same and the said permission was only a form of license which also already stands revoked on the execution of the said sale deeds and the further execution of the sale deed in favour of the defendant no.2 and 3 by the said Smt. Kamla and Sh. Mahabir Prasad Sharma. It is also stated that since the other occupants were only given a license to use the bathroom and the latrine, they have no right to claim any right, title or interest over the same and by virtue of the sale deed dated 01.08.2003 and 28.10.2003, the defendant no.1 and 2 have become the absolute and exclusive owners of the alleged common latrines and bathroom. The defendants further pleads that moreover by virtue of sale deed dated 25.10.2005, executed by defendant no.1 in their favour, the alleged common bathroom even otherwise have became the absolute and exclusive property of the defendants. Further, the suit of the plaintiff is also opposed on the ground that all the owners/purchasers of the different portions of the property CS No. : 97148/16 Iqbal Singh Vs. Vasdev & Anr. Page no. 5 of 16 have not been joined as a party to the present suit and no relief is claimed with respect to the sale deed dated 25.10.2005, which provides absolute and exclusive ownership of the defendants over the alleged common bathroom. It is also averred that the plaintiff has already vacated the portion under his possession and he is presently residing at Karawal Nagar and subsequent to the sales of different portions, all the respective purchasers have already made provisions of bathroom in their respective portions and none of the occupants use the alleged bathroom. It is also pleaded that infact the alleged bathroom has no provision for any drainage, taps and water and also does not have any door. All the purchasers have also already shifted the electricity meters to their respective portions and the alleged bathroom though described as bathroom is not at all a bathroom and cannot be used for the said purpose. It is also stated that the plaintiff has also already made arrangements for bathing within the property purchased by him and the present suit has been filed by the plaintiff only owing to the fact that he did not shift his electricity meter from the alleged bathroom cum electricity space already purchased by the defendants despite their requests and an undertaking dated 02.11.2005, executed by the plaintiff in presence of mediators whereby he undertook to remove his electricity meter by 31.03.2006. With respect to the undertakings stated to be given by defendant no.1 and Smt. Kamla, it is stated the said undertakings were given prior to the execution of sale deed in favour of the defendants and do not tantamount to conferring any right on any of the purchasers including the plaintiff over the disputed portion/alleged common bathroom and latrine. The CS No. : 97148/16 Iqbal Singh Vs. Vasdev & Anr. Page no. 6 of 16 other averments of the plaintiff regarding the incident of 02.11.2023 have also been denied by the defendants.
4. No WS was filed on behalf of the defendant no.1 and the suit against him already stands abated vide order dated 22.02.2010.
5. On completion of pleadings of both the parties and admission & denial of documents, the following issues were settled between the parties for the purpose of trial :-
i) Whether the plaintiff has no right, title or interest over the common bathrooms, common latrine, common electric meter space and common galary as claimed by the plaintiff ? OPD3
ii) Whether license of the plaintiff to use common latrine and common bathroom has been revoked by the sale of the defendant no. 1 in favour of the defendant no. 3 ? OPD3
iii) Whether the plaintiff is entitled for the relief of permanent injunction as prayed for ? OPD
iv) Whether the plaintiff is entitled for the relief of mandatory injunction as prayed for ? OPD
v) Relief.
(Since the issue no. iii and iv are based on the relief prayed for by the plaintiff, the burden to prove the same lies upon the plaintiff. As CS No. : 97148/16 Iqbal Singh Vs. Vasdev & Anr. Page no. 7 of 16 such, the placing of burden to prove these issues on the defendants appears to be a typographical mistake.)
6. Thereafter, the parties were called to lead their evidence.
7. During plaintiff's evidence, plaintiff has examined three witnesses. PW-1 is the plaintiff himself, who appeared in the witness box as PW-1 and tendered his evidence by way of affidavit Ex.P-1 bearing his signatures at point A and B. PW-1 has relied upon the following documents:-
i) Ex.PW-1/1 site plan. ii) Ex.PW-1/2 GPA dated 14.02.2002, executed by defendant no.1 in favour of the plaintiff. iii) Ex.PW-1/3 Sale deed dated 21.05.2002, executed by defendant no.1 in favour of the plaintiff. iv) Ex.PW-1/4 Affidavit/Undertaking dated 16.02.2002 of Smt. Kamla Devi. v) Ex.PW-1/5 Affidavit/Undertaking dated 21.05.2002 of defendant no.1. vi) Ex.PW-1/6 to Ex.PW-1/19 are ten photographs of the premises and
the copies of Electricity Bills dated 13.07.2002, 07.03.03, 13.08.04 and 08.06.2005 respectively.
8. PW-2 is Rajiv Kumar son of the plaintiff and PW-3 is Shri Harish Chand, another tenant/purchaser of three other rooms of the property in question. Both PW-2 and PW-3 filed their affidavit by way of evidence Ex. P-2 and Ex. P-3 respectively. All the witnesses were also duly cross-
CS No. : 97148/16 Iqbal Singh Vs. Vasdev & Anr. Page no. 8 of 16 examined by Ld. Counsel for defendants.
9. During DE, defendant no.3 also appeared in the witness box as D3W1 and tendered her evidence by way of affidavit Ex.D3W1/A. She has also placed reliance upon the following documents:-
i) Ex.D3W1/1 is the sale deed dated 15.02.2002, executed by defendant no.1 in favour of Smt. Kamla, in respect of verandah and one room adjacent thereto situated at the property in question along with latrine and bathroom.
ii) Ex.D3W1/2 is the sale deed dated 16.02.2002, executed by defendant no.1 in favour of defendant no.2.
iii) Ex.D3W1/3 is the sale deed dated 21.05.2002, executed by defendant no.1 in favour of Sh. Mahabir Prasad Sharma in respect of one room with verandah adjacent thereto situated at the property in question along with latrine and bathroom.
iv) Ex.D3W1/4 is the sale deed dated 01.08.2003, executed by Shri Mahabir Prasad Sharma in favour of defendant no. 2 and 3, in respect of one room with verandah adjacent thereto situated at the property in question along with latrine and bathroom.
v) Ex.D3W1/5 is the sale deed dated 28.10.2003, executed by Smt. Kamla in favour of defendant no. 3, in respect of one room with verandah adjacent thereto situated at the property in question along with latrine and bathroom.
vi) Ex.D3W1/6 is the sale deed dated 25.10.2005, executed by defendant no.1 in favour of defendant no. 3, in respect of one bathroom on the ground floor with roof rights, area measuring into 4 x 6 approx.
CS No. : 97148/16 Iqbal Singh Vs. Vasdev & Anr. Page no. 9 of 16 being part of the property bearing no.411, Kashmiri Bagh, Kishan Kanj, Delhi - 110007.
Defendant no.3 was also duly cross-examined by Ld. Counsel for plaintiff at length. Thereafter, final arguments were heard from both sides.
10. I have already heard Ld. Counsels for both the sides and have also gone through the judicial record very carefully.
11. The issue-wise findings are as under:-
12. Issue No.1 & 2i) Whether the plaintiff has no right, title or interest over the common bathrooms, common latrine, common electric meter space and common galary as claimed by the plaintiff ? OPD3
ii) Whether license of the plaintiff to use common latrine and common bathroom has been revoked by the sale of the defendant no. 1 in favour of the defendant no. 3 ? OPD3 Both these issues are taken-up together for disposal as they are inter-related and the burden to prove the same also lies upon the defendants.
As is seen from the pleadings of the parties, case of the plaintiff is that the admitted owner of the property bearing no. 411, Kashmiri Bagh, Kishan Ganj, Delhi i.e. defendant no.1 sold off one room CS No. : 97148/16 Iqbal Singh Vs. Vasdev & Anr. Page no. 10 of 16 with verandah to the plaintiff vide sale deed dated 30.05.2002 Ex. PW1/3 along with the right to use common latrine & bathroom and gallery. Further, three rooms of the same property were also purchased by the defendant no. 2 and 3 vide sale deed dated 16.02.2002 executed by the defendant no.1 and sale deed dated 01.08.2003 and 28.10.2003 executed by Sh. Mahabir Prasad Sharma and Smt. Kamla who had earlier purchased the same from the defendant no.1. However, as per the case of the plaintiff, in all the sale deeds executed by defendant no.1, the common latrines, bathroom cum space for electricity meters and the terrace thereof situated at the property in question were kept/remained open for common use of all the occupants/six families residing in the eight rooms sold by the defendant no.1 and as such the defendants no. 2 and 3 have no right to claim exclusive right or title over the same or to claim the same as their absolute and exclusive property so as to obstruct and interfere in the common use thereof by the plaintiff and his family members.
On the other hand, without disputing any of the sale deeds referred to above, the claim of the defendants is that by virtue of sale deed dated 01.08.2003 and 28.10.2003 Ex.D3W1/4 and Ex.D3W1/5 executed by Sh. Mahabir Prasad Sharma and Smt. Kamla in favour of the defendants in respect of two rooms and verandah along with latrine and bathroom, the defendants have already become the sole and absolute owner of the disputed portion along with the two rooms and verandah purchased from Sh. Mahabir Prasad Sharma and Smt. Kamla respectively. Further, the exclusive right and title of the defendants over the alleged CS No. : 97148/16 Iqbal Singh Vs. Vasdev & Anr. Page no. 11 of 16 bathroom in question also stands duly established vide document Ex.D3W1/6 i.e. sale deed dated 25.10.2005 executed by defendant no.1 in favour of the defendant no.3. It is also argued on behalf of the defendants that since the alleged permitted common user of the disputed portion even otherwise cannot confer any right or title in favour of the plaintiff and other occupants of the property, or, restrict the ownership right of the defendant no.1 who was the admitted owner of the entire property to exercise such right over his own property and to sell off the disputed portion/alleged common bathroom/latrine/space for electricity meters, there is no merit in the claim of the plaintiff and he is not entitled to any declaration over the disputed portion more particularly when he has no legal right over the same. It is further argued that moreover the contradictory statement made by PW-1 and PW-2 with respect to the correct position of alleged bathroom during their cross-examination, as where PW-1 deposed that there is no door of the alleged bathroom, a contradictory statement was made by his son PW-2 that the bathroom has a door, also proves that presently there is no bathroom in existence at the disputed portion and the same further establishes that the said portion is not so being used by the plaintiff or any other occupants for bathroom purpose. It is further submitted that the defendants have also sufficiently proved that all the respective purchasers have already made sufficient provisions of bathroom/latrine etc. in their respective premises and the said fact is also not disputed by the plaintiff as he also admitted during his cross-examination that all the tenants/owners have already made their arrangement regarding bathrooms in their portions. Hence, it is argued CS No. : 97148/16 Iqbal Singh Vs. Vasdev & Anr. Page no. 12 of 16 that the sale deed relied upon by the defendants as well as the admitted position of the non-user of the disputed portion by any of the occupants as bathroom clearly establishes that the disputed portion is the absolute and exclusive property of the defendants, they have successfully discharged their burden to prove both the issues in hand.
As it is seen the parties are not at any dispute with respect to the execution of any of the sale deeds either executed in favour of the plaintiff or in favour of the defendants. The only dispute between the parties is with respect to their claim over the alleged two common latrines, bathroom cum electricity space and gallery, as where the plaintiff is asserting that the said disputed portion has always remained open for common use by all the occupants and was also so agreed to be remained for common use by the original owner as well as the respective buyers at the time of sale-purchase of the different portions of the said property, on the other hand, the defendants are claiming their exclusive right and title over the said disputed portion on the basis of sale deed Ex.D3W1/4 to Ex.D3W1/6 executed by defendant no.1 and the previous purchaser of the respective portions.
At this stage, it is relevant to note that though the defendants have claimed their absolute and exclusive right over the disputed portion of the property in question which is alleged to be two common latrines/bathroom cum electricity space by the plaintiff, however, it is not disputed that at the time of the execution of the sale deed Ex.D3W1/1 dated 15.02.2002 and Ex.D3W1/3 dated 21.05.2002, a common passage, latrine measuring 4 x 3 each and bathroom cum electricity meter room CS No. : 97148/16 Iqbal Singh Vs. Vasdev & Anr. Page no. 13 of 16 measuring 4 x 6 on the ground floor were existing at the suit property. Further, the fact that the above said common passage, two latrines and bathroom cum electricity meter room were so used in common is also not disputed as the fact was also herself admitted by the defendant during her cross-examination dated 26.08.2017 where she admitted that at the time of execution of the sale deed Ex.D3W1/1 and Ex.D3W1/2 both defendant no.2 and 3 had the knowledge that the bathroom and latrine situated in premises in question has been for common use of all the occupants, though, a plea was raised that at the time of further sale vide sale deed Ex.D3W1/4 dated 01.08.2003 the said latrine and bathroom were not in common use by the occupants of the premises. However, the said plea of the defendants is also without any merits as the very contents of sale deed dated 01.08.2023 Ex.D3W1/4 reveals that there was a common portion shown in 'yellow' colour consisting of two latrines and bathroom and para 8 of the said sale deed clearly provides that the said portion shall remain open for common use with other people. Similar is the position of the sale deed dated 28.10.2003 Ex.D3W1/5 which also states the existence of two common latrines and one bathroom at the site which was to be remained open for common use with other occupants of the property as per the very sale deed. It is also relevant to note here that even the undertaking is given by the original owner i.e. defendant no.1 and Smt. Kamla Ex.PW-1/4 and Ex. PW-1/5 have also not been disputed by the defendants though a contention was raised that the said undertakings does not confer any right in favour of the other purchasers/occupants including the plaintiff over the property in question CS No. : 97148/16 Iqbal Singh Vs. Vasdev & Anr. Page no. 14 of 16 and were executed prior to the sale deed by Sh. Mahabir Prasad, Smt. Kamla and defendant no.1 in favour of the defendants which contention is per se without any substance and liable to be discarded. Thus, the contents of the sale deed Ex.D3W1/4 and Ex.D3W1/5 relied upon by the defendants per se falsify their claim of exclusive right and title over the disputed portion/two common latrines and bathroom cum electricity meter space.
As far as the sale deed dated 25.10.2005 Ex.D3W1/6 is concerned since the said sale deed was executed in breach of the terms of the previous sale by defendant no.1, the same cannot take affect so as to take away the rights which have already vested in the previous purchasers on the basis of the sale deed exhibited by the same defendant no.1 in their favour (including the plaintiff) i.e. to use the dispute portions/two common latrines and bathroom cum electricity meter space in common with all the occupants.
In view of the aforesaid findings, both the issues in hand stands decided against the defendants and in favour of the plaintiffs.
13. Issue no. 3 & 4
iii) Whether the plaintiff is entitled for the relief of permanent injunction as prayed for ? OPP
iv) Whether the plaintiff is entitled for the relief of mandatory injunction as prayed for ? OPP CS No. : 97148/16 Iqbal Singh Vs. Vasdev & Anr. Page no. 15 of 16 In view of the decision arrived on issue no.1 and 2, both the issues in hand stands decided in favour of the plaintiff and against the defendants.
14. Relief: In view of the findings arrived on above said issues, the suit of the plaintiff stands decreed. Accordingly, a decree of declaration is passed in favour of the plaintiff and against the defendants and it is hereby declared that the two common latrines and the bathroom cum electricity meter space situated at the property no. 411, Kashmiri Bagh, Kishan Ganj, as shown in 'red colour' in the site plan filed by the plaintiff is a space for common use including the plaintiff and the defendants have no exclusive right, title or interest over the same. The plaintiff is also held entitled to a decree of permanent injunction and accordingly the defendants are hereby permanently restrained from obstructing and interfering the plaintiff and his family members in the use of the above said two common latrines cum bathroom cum electricity meter space.
15. The suit of the plaintiff accordingly stands decreed. A decree sheet be prepared separately. The plaintiff is also held entitled to the cost of the suit.
16. Copy of judgment be given dasti free of cost to both the sides on their request. File be consigned to record room as per rules.
Digitally signed
BALWINDER by BALWINDER
SINGH
SINGH Date: 2023.08.28
17:35:25 +1200
Announced in the open Court (Balwinder Singh)
on this 28th day of August, 2023 SCJ-cum-RC (Central)
Tis Hazari Courts, Delhi.
CS No. : 97148/16 Iqbal Singh Vs. Vasdev & Anr. Page no. 16 of 16