Delhi District Court
Vandana Manchanda vs Avesh Bhatnagar on 5 December, 2018
IN THE COURT OF MS VANDANA JAIN
ADDITIONAL DISTRICT JUDGE-07 (SE)
SAKET COURTS NEW DELHI
CS No. 6605/16
]MORE THAN FIVE YEARS OLD]
In the matter of:
Vandana Manchanda
C-49, Nizamuddin East,
New Delhi.
...........Plaintiff
VERSUS
1. Avesh Bhatnagar
R/o G-2, Maharani Bagh,
New Delhi
Also at
Ground Floor, 137,
Sunder Nagar, New Delhi.
2. Dinesh Bhatnagar
R/o Second Floor, 137,
Sunder Nagar, New Delhi.
3. Vipin Bhatnagar
R/o Second Floor, 137,
Sunder Nagar, New Delhi.
......... Defendants
Date of Institution : 01.05.2012
Date of reserving : 26.11.2018
Date of Judgment : 05.12.2018
JUDGMENT
Vandana Manchanda Vs Avesh Bhatnagar & ORS Page 1 of 33
1. Present suit for permanent and mandatory injunction has been filed by plaintiff.
2. Plaintiff is the owner of the entire first floor of 137, Sunder Nagar, New Delhi alongwith two car parking space in the drive way, one servant quarter and a toilet in the first floor of the annexe block, with superstructure standing thereon, water and electric connections therein including the proportionate, undivided, indivisible, and impartible 1/4th share of ownership rights, lien and interest in the land bearing no. 137, Sunder Nagar, New Delhi alongwith the easements and appurtenances. It is further stated that by way of virtue of sale deed dated 15.01.2010, executed by erstwhile owner Mr. C.A Sundaram in favour of the plaintiff, the plaintiff purchased the suit property which included easementary and appurtenancy rights including right of way from the rear entrance and use of rear portion, stairway and terrace as well as the use of essential and common facilities like placing electricity generators, water tanks, television antenna etc.
3. It is further averred that defendant no. 1 is residing at the ground floor of the suit property. Defendant no. 2 is residing on the Vandana Manchanda Vs Avesh Bhatnagar & ORS Page 2 of 33 second floor of the suit property. Defendant no. 3 has given his power of attorney to deal with the land in question to defendant no.
2.
4. It is further stated that sometime in July, 1997, the defendants and Mr. Deepak Bhatnagar entered into an agreement with one Mrs Harmeet Kaur for building office/storage space in the basement and three flats on the ground floor, first floor and second floor of the suit property. The said defendants and Mr. Deepak Bhatnagar also gave a general power of attorney to Mrs. Harmeet Kaur and she constructed the entire property alongwith servant quarter and garage.
5. It is further stated that on or about 30.01.2001, the erstwhile owner of the property Sh. C.A. Sundaram, entered into four sale deeds with the defendants and with Mr Deepak Bhatnagar through their power of attorney holder Mrs. Harmeet Kaur for purchase of the entire first floor alongwith two car parking spaces in the drive way, one servant quarter and a toilet in the first floor of the annexe block with superstructure standing therein alongwith the proportionate, right, title lien and interest in the land bearing no. Vandana Manchanda Vs Avesh Bhatnagar & ORS Page 3 of 33 137, Sunder Nagar, New Delhi including easements and appurtenances.
6. The said easements and appurtenances include right of way from the rear enterance and use of rear portion, stairway and terrace for easementary rights including right of way and using it for essential and common facilities like placing electricity generators, water tanks, television antenna etc.
7. The said sale deeds were rectified by a conveyance dated 01.08.2001. By the said rectification deed, vendor and the confirming vendor had sold, conveyance and transfer all the rights in the entire first floor with the superstructure standing therein alongwith proportionate, undivided, indivisible 1/16 th share of ownership rights in the land beneath the entire parcel of land at 137, Sunder Nagar, New Delhi including easements and appurtenances, whatsoever, pertaining to the said share in that portion and apart from that stairs, passage, jet pump, over head water tanks and other common areas and services in the property shall remain common for all the occupants of the building with a proportionate equal share vesting with the vendee. Vandana Manchanda Vs Avesh Bhatnagar & ORS Page 4 of 33
8. It is further submitted that vide sale deed dated 15.01.2010, the erstwhile owner of the property i.e. Mr. C.A. Sundaram sold the suit property to the plaintiff. It is further stated that due to illegal interference by the defendants in the suit property, the erstwhile owner had filed a suit bearing no. CS (OS) 686 of 2005 before Hon'ble High Court of Delhi seeking mandatory injunction, restraining the defendants from carrying out construction in the premises of the suit property and further restraining them from interfering with the rights of the owner to use any common area and/or ingress and egress to the same and the Hon'ble High Court vide order dated 18.05.2005 restrained the defendant from raising any fresh construction otherwise in accordance with sanction plan and also restrained them from preventing either the owner of his servants and gents from ingress and egress to the terrace and other common areas of the said property.
9. Plaintiff also filed an application under Order XXII Rule 10 CPC for her substitution after purchasing the suit property, however, the suit was dismissed in default due to miscommunication between the counsel and the plaintiff. The Vandana Manchanda Vs Avesh Bhatnagar & ORS Page 5 of 33 application for restoration was moved which was pending at the time of filing of the suit, however, same has been dismissed as submitted by parties.
10. It is further stated that in accordance with his rights, Mr. C.A. Sundaram has placed a generator on the terrace of annexe building, however, on 16.04.2012 it was discovered that defendants have removed the generator belonging to the plaintiff from the terrace. It was found dismantled and broken and lying at the back of the said premises. After enquiry, it came to the knowledge of the plaintiff that defendants had broken the same on the very next date after CS (OS) 686 of 2005 was dismissed by Hon'ble High Court of Delhi and also forcibly locked the entrance to the annexe building and refused the plaintiff or her agents ingress and egress in the common area of the suit property and legal notice was issued to place the generator back, however, of no avail and hence this suit for decree of permanent injunction restraining defendants from interfering with the right of the plaintiff to use the suit property comprising the first floor of the main building and the annexe block and her 1/4 th undivided share of Vandana Manchanda Vs Avesh Bhatnagar & ORS Page 6 of 33 ownership rights in the entire land surrounding the superstructure including right to common areas, terrace, annexe terrace, stairs, passage, jet pump, over head water tanks, right of way from the rear entrance and use of rear portion, stairway and terrace for easementary rights and their use for essential and common facilities like placing electricity generators, water tanks, television antenna etc and ingress and egress to the same by virtue of sale deed dated 15.01.2010 and relief of mandatory injunction directing the defendants, their servants, agents or anybody claiming thourgh them or otherwise to assemble the dismantled generator and place it back on the terrace with full electrical connections in proper working order to the satisfaction of the plaintiff and/or replace the old generator with a new one.
11. Written statement was filed by defendants stating that suit has been filed without any merits and plaintiff became the owner of the only first floor alongwith two car parkings in driveway, one servant quarter and toilet in the first floor of the annexe block, with superstructure standing therein, water and electric connections therein of the property bearing no. 137, Sunder Nagar, New Delhi Vandana Manchanda Vs Avesh Bhatnagar & ORS Page 7 of 33 measuring 870 Sq Yds together with proportionate, undivided, indivisible and impartible 1/4th share of ownership rights in the land underneath. It is further stated that suit is barred by Section 41 (i) & (j) of the Specific Relief Act.
12. It is further stated that the father of the defendants namely Sh Rajender Swaroop Bhatnagar was the owner of the property bearing no. 137, Sunder Nagar, New Delhi (hereinafter referred to as suit property) and he passed away on 10.01.1997 leaving behind defendants and another son Deepak Bhatnagar as the legal heirs. Upon the death of the father certain dispute arose between the sons which were settled by memorandum of family settlement dated 09.02.1997 and the property was mutated in the joint name of defendants and Deepak Bhatnagar. Some more dispute arose between defendants and Deepak Bhatnagar and another settlement was arrived at 07.04.1999 which was recorded in the memorandum of family settlement on 27.07.1999 and was acted upon in terms of the said family settlement. The suit property was redeveloped by demolishing the said construction and construction of the new building thereon. The manner in which the Vandana Manchanda Vs Avesh Bhatnagar & ORS Page 8 of 33 property was to be divided as under :
Sr. Share of the suit premises Name
No
.
1 Basement with 375 Sq Ft of Vipin
backyard Bhatnagar
2. Ground floor with front lawn
and backyard with two car
parking in the driveway and Avesh
one servant quarter on the Bhatnagar
same floor (annexe building)
3. First Floor with two car
parking in the driveway and Deepak
one servant quarter on the Bhatnagar
same floor (annexe building)
4. Second floor with full terrace
rights with two car parking
in the driveway and one Dinesh
servant quarter on the same Bhatnagar
floor (annexe building)
13. In order to give effect to the said family understanding and to divide and partition their shares, defendants and Deepak Bhatnagar entered into negotiations with the builder namely Mrs. Harmeet Kaur for redeveloping the suit property. At the same time, Deepak Bhatnagar one of the brother of the defendants opted not to hold his share in the suit premises and thus it was mutually agreed between them that Deepak Bhatnagar shall sell his share Vandana Manchanda Vs Avesh Bhatnagar & ORS Page 9 of 33 in the property to the builder for a consideration of Rs. 25,00,000/-. Defendants and Deepak Bhatnagar entered into a collaboration agreement dated 27.07.1999 with the builder, Mrs Harmeet Kaur which was duly registered. Deepak Bhatnagar agreed to accept the sum of Rs. 25,00,000/-. Defendants and Deepak Bhatnagar also undertook to get sale deed, agreement to sell, GPA, will, etc registered in the name of the builder or her nominee buyer in respect of the builder's allocation under the collaboration agreement i.e. entire first floor of the suit premises with two car parkings in the driveway, one servant quarter and toilet on the first floor (annexe block). Plaintiffs and Deepak Bhatnagar vide power of attorney dated 16.07.1999 constituted the said builder as their attorney to negotiate, agree to sell or dispose of by way of sale or leased the entire first floor of the suit premises alongwith proportionate undivided, indivisible rights, title, liens and interest in the land beneath the said property (erstwhile share of Deepak Bhatnagar) and to get the entire first floor of the suit premises converted from leasehold to freehold. Defendants and Deepak Bhatnagar got the property converted from leasehold to freehold Vandana Manchanda Vs Avesh Bhatnagar & ORS Page 10 of 33 vide a conveyance deed dated 19.12.2000 which was duly registered with the Sub Registrar and the builder completed the construction of the building in the year 2000 and handed over possession of the respective portion of the owner's allocation to the plaintiffs and they came in possession of their respective shares in the property and the builder also came into the possession of the share of the Deepak Bhatnagar. In the year 2001, builder approached the defendants and informed that she had entered into agreement to sell the builder's allocation of the suit premises to one Mr. C.A. Sundaram and called upon the defendants to execute the necessary documents for transferring the title of the builder's allocated area in favour of Mr. C.A. Sundaram in terms of the collaboration agreement.
14. By way of four separate sale deeds, each dated 30.01.2001, were executed in favour of Mr. C.A. Sundram by all four brothers wherein builder signed as the confirming vendor. All four brothers sold their 1/4th undivided share in the first floor, two car parking places in the driveway, one servant quarter and toilet on the first floor of the annexe block with super structure standing therein, Vandana Manchanda Vs Avesh Bhatnagar & ORS Page 11 of 33 water and electric connections therein of the suit premises together with proportionate, undivided, indivisible and impartible 1/16th of ownership in the land underneath.
15. As per sale deeds, the stairs, passage, jet pump, over head water tanks and other common areas and services in the property were to remain common for all occupants for the building with a proportionate equal share vesting with the vendee, however, it was clarified in the sale deeds that vendee and his family members/occupants of the first floor shall be allowed to visit the top terrace for the limited purpose of installation, general checking and maintenance of T.V. antenna and over head water tanks only.
16. The possession of the said portion was handed over to Mr. C.A. Sundaram and at that time collaboration agreement and power of attorney came to an end. Thereafter, certain disputes arose between the defendants and Mr. C.A. Sundaram in respect of the suit property and he has filed suit for permanent and mandatory injunction against plaintiffs herein in the year 2005 before Hon'ble High Court of Delhi bearing CS (OS) 686 of 2005 and defendants had also filed a counter claim for permanent Vandana Manchanda Vs Avesh Bhatnagar & ORS Page 12 of 33 injunction against Mr. C.A. Sundaram. During the pendency of the said proceedings on 16.01.2010, Mr. C.A. Sundaram sold his portion of the suit property to the plaintiff Vandana Manchanda for a sale consideration of Rs. 12,50,00,000/- vide registered sale deed dated 16.01.2010 on the same terms as were mentioned in sale deed in favour of Mr. C.A. Sundaram. Plaintiff herein filed an application prior for substitution in that suit. Mr. C.A. Sundaram had already stopped prosecuting the suit for injunction and, therefore, vide order dated 09.04.2012 suit was dismissed in default and application of defendant was also dismissed. Defendants herein also withdrew their counter claim in view of dismissal of that suit, however, plaintiff and her husband started threatening the plaintiffs that they will forcibly occupy the portion of the suit premises which is under occupation of the defendants. It is further stated that defendants have let out the portion of the suit premises and they did not stay there.
17. On 18.04.2012, when defendant no. 2 had gone to visit his portion of the premises, staff of the defendant threatened him to forcefully occupy the terrace which is under exclusive ownership of Vandana Manchanda Vs Avesh Bhatnagar & ORS Page 13 of 33 plaintiff no. 2. It is stated that matter was reported to the police, SHO, PS Nizamuddin. It is stated that plaintiff does not any right, title or interest in the front lawn, backyard and terrace of the suit premises, all of which under the exclusive ownership and possession of the defendants.
18. Replication to the same filed by plaintiff and she denied all the averments mentioned in the written statement and reiterated the contents of the plaint.
19. Thereafter, following issues were framed on 17.05.2017 as under:-
1. Whether the plaintiff is entitled to a decree of permanent injunction in favour of the plaintiff and against the defendants thereby restraining the defendants from interfering with the right of the plaintiff to use the common areas comprising of entire land surrounding the superstructure and the terrace of property described as 137, Sunder Nagar, New Delhi ? OPP. 2 Whether the plaintiff is entitled to a decree of mandatory injunction directing the defendants to assemble the dismantle generator and to place it back to the terrace with full electrical Vandana Manchanda Vs Avesh Bhatnagar & ORS Page 14 of 33 connection in proper working order or in the alternative to replace the old generator with the new one ? OPP.
3. Whether the present suit is without any cause of action ?
OPP.
4. Whether the plaintiff has no right, title or interest in the driveway, rear courtyard, front lawn and terrace of building constructed on house no. 137, Sunder Nagar, New Delhi ? OPP.
5. Whether the suit is barred in terms of Section 41 (I) & (j) of the Specific Relief Act ? OPP.
6. Whether the right to use the common area including the terrace are rights as an easement in favour of the plaintiff under the provisions of the Indian Easement Act, 1882 ? OPP.
7. Relief.
20. Thereafter, matter was listed for plaintiff's evidence. Plaintiff examined herself and closed PE.
21. Thereafter, matter was listed for DE. Defendants examined Dinesh Bhatnagar and Avesh Bhatnagar and closed DE.
22. Thereafter, matter was listed for final arguments. Vandana Manchanda Vs Avesh Bhatnagar & ORS Page 15 of 33
23. I have heard the arguments and have perused the record carefully.
24. Ld counsel for plaintiff has argued that plaintiff has derived title from her predecessor in interest i.e. Mr. C.A. Sundaram who had got the conveyance deed dated 30.01.2001 alongwith rectification deed dated 01.08.2001 whereby the proportionate 1/4th share of the ownership right in the entire parcel of land no. 137, Sunder Nagar, New Delhi were given to Mr. C.A. Sundaram. It is further argued that her predecessor in interest had put a generator on the terrace. When she purchased property from Mr. C.A. Sundaram, it was comprising of all fittings therein including generator. It is further argued that defendants started interfering in peaceful possession of the property by Mr. C.A. Sundaram and he filed suit before Hon'ble High Court of Delhi wherein an exparte order was passed restraining the defendants from raising any construction and further direction to give access to the terrace. It is further argued that plaintiff also moved an application for impleadment her in that suit, however, due to miscommunication that suit was dismissed in default. It is further stated that order is Vandana Manchanda Vs Avesh Bhatnagar & ORS Page 16 of 33 still prevailing against plaintiffs and, therefore, suit of the plaintiff be decreed.
25. Ld counsel for defendants has argued that a separate suit for permanent injunction has been filed by defendants who are all the three brothers and one more Sh. Deepak Bhatnagar as 4 th brother and they had entered into collaboration agreement with builder Mrs. Harpreet Kaur for reconstruction of their property no. 137, Sunder Nagar, New Delhi. It is further argued that one of the brother Sh Deepak Bhatnagar did not want to retain his portion of the suit property and that was allocated to the builder as given in the collaboration agreement. It is further argued that this collaboration agreement was passed on the basis of a memorandum of settlement arrived at in between the family members whereby the portion of each of the brothers was fixed. It is further argued that portion which came into the share of Sh Deepak Bhatnagar was the entire first floor with two car parkings in driveway, one servant quarter and toilet on the first floor on the annexe block. It is further argued that this builder allocation was finally purchased by one Mr. C.A. Sundaram in January, 2001 and Vandana Manchanda Vs Avesh Bhatnagar & ORS Page 17 of 33 it was subsequently sold to plaintiff herein by Mr. C.A. Sundaram. Ld counsel for defendants further argued that in view of the explicit division of the share of Deepak Bhatnagar in the memorandum of settlement and thereafter termed as builder's allocation in the collaboration agreement and similarly in the sale deed of Mr. C.A. Sundaram, therefore, plaintiff cannot claim a right over the land underneath the entire suit property and the terrace for which the plaintiff has filed this suit. It is further argued that in the collaboration agreement as well as in the subsequent sale deed executed in favour of Mr. C.A. Sundaram, the common portions to be used by all the occupants were specifically mentioned. It is also argued that plaintiff is seeking proportionate right in the terrace which is under the ownership of Dinesh Bhatnagar who is plaintiff no. 2 in the present case. It is argued that plaintiff has taken a stand that a power of attorney has been executed in favour of builder Mrs. Harmeet Kaur and she in pursuance of their authorization had executed rectification deed in favour of Sh. C.A. Sundaram in August, 2001 clarifying that proportionate share of the entire parcel of land bearing no. 137, Sunder Nagar, New Delhi Vandana Manchanda Vs Avesh Bhatnagar & ORS Page 18 of 33 was to vest with Mr. C.A. Sundaram, apart from first floor, two car parkings in driveway, one servant quarter and toilet in the first floor of annexe block. It is argued that rectification deed did not bear the signature of any of the defendants and has been executed without consent of the defendants or their brother Deepak Bhatnagar and, therefore, suit be dismissed.
26. In rebuttal, Ld counsel for plaintiff has argued that this memorandum of settlement on which defendants are relying upon is unregistered document and cannot be read.
27. I shall deal with issues one by one.
28. Issue No. 3 Whether the suit of the plaintiff is without any cause of action ? OPD.
29. Before deciding this issue, let us discuss what is 'cause of action'?
"A cause of action is a bundle of facts which are required to be proved for obtaining relief and for the said purpose, the material facts are required to be stated but not the evidence except in certain cases where the pleadings relied on are in regard to misrepresentation, fraud, willful default, undue influence or of the same nature. So long as the plaint disclosed some cause of action which required determination by the court, mere fact that in the Vandana Manchanda Vs Avesh Bhatnagar & ORS Page 19 of 33 opinion of the Judge the plaintiff may not succeed cannot be a ground for rejection of the plaint; Mayar (H.K.) Ltd Vs Owners & Parties, Vessel M.V. Fortune Express AIR 2006 SC 1828."
30. Plaintiff has alleged that she had a right in the disputed portion by virtue of sale deed and rectification deed. She was given opportunity to lead evidence. Therefore, it cannot be said that present suit has been filed without disclosing cause of action. This issue is decided against the defendant and in favour of the plaintiff.
31. Issue No. 1, 2 and 4 are taken up together being inter- related.
32. Issue No. 1. Whether the plaintiff is entitled to a decree of permanent injunction in favour of the plaintiff and against the defendants thereby restraining the defendants from interfering with the right of the plaintiff to use the common areas comprising of entire land surrounding the superstructure and the terrace of property described as 137, Sunder Nagar, New Delhi?
33. Issue No. 2 Whether the plaintiff is entitled to a decree of mandatory injunction directing the defendants to assemble the dismantle generator and to place it back to the terrace Vandana Manchanda Vs Avesh Bhatnagar & ORS Page 20 of 33 with full electrical connection in proper working order or in the alternative to replace the old generator with the new one ?
34. Issue No. 4. Whether the plaintiff has no right, title or interest in the driveway, rear courtyard, front lawn and terrace of building constructed on house no. 137, Sunder Nagar, New Delhi ?
35. Perusal of record reveals that collaboration agreement executed between all the four brothers namely Avesh Bhatnagar, Dinesh Bhatnagar, Vipin Bhatnagar (defendants herein) and Deepak Bhatnagar and builder Mrs. Harmeet Kaur is an admitted document between the parties. By way of this document, all the four brothers agreed to handover the possession of the suit property for its reconstruction to the builder Mrs Harmeet Kaur. She was also given right of construction as well as sale of first floor (builder's allocation) in the said collaboration agreement.
36. In clause 6 of the said collaboration agreement, it is also mentioned that upon completion of building and handing over owner's allocations of the build up area mentioned below and builder will be deemed owner of builder's allocation with Vandana Manchanda Vs Avesh Bhatnagar & ORS Page 21 of 33 proportionate leasehold land rights as specified below. The builder's allocation and owner's allocation is clearly mentioned in the collaboration agreement which is provided herein as under for the sake of convenience:-
BUILDER'S ALLOCATION Entire first floor, of the said proposed building bearing no. 137, Sunder Nagar, New Delhi with two car parking in the driveway, one servant quarter and toilet on first floor (annexe block).
OWNER'S ALLOCATION Owners shall have the entire basement floor, entire ground floor, entire second floor with all terrace rights above the same, of the said proposed building bearing no. 137, Sunder Nagar, New Delhi with four car parkings in the driveway with two servant quarters and toilets (annexe block) on their respective floor.
37. Though, the individual shares among all the three brothers who are defendants in the present case were not defined, however, the builder's allocation was specifically defined. It is Vandana Manchanda Vs Avesh Bhatnagar & ORS Page 22 of 33 worthwhile to note here that there is no dispute between the four brothers with respect to division of property among themselves. This collaboration agreement is mentioned in all the four sale deeds dated 30.01.2001 executed by all four brothers where builder was a confirming vendor in favour of Mr. C.A. Sundaram, predecessor in interest of Ms Vandana Manchanda. The internal page no. 4 of last paragraph finds mention of this collaboration agreement. Therefore, this collaboration agreement is an admitted document between the parties. Here by way of these four sale deeds, entire first floor with two car parkings in the driveway, one servant quarter and toilet on first floor of the annexe block, with superstructure standing therein, water and electric connections therein of the said property bearing no. 137, Sunder Nagar, New Delhi measuring 870 Sq Yds together with proportionate, undivided, indivisible and impartible 1/4 th share of ownership rights in the land underneath. It is pertinent to mention here that all the four sale deeds were signed by builder, however, brothers became witnesses there. The said sale deeds are Ex PW1/4 to Ex PW1/7.
38. In addition to the collaboration agreement, a power of Vandana Manchanda Vs Avesh Bhatnagar & ORS Page 23 of 33 attorney was also executed by all four brothers in favour of builder Mrs Harmeet Kaur giving her right to (1) re-construct the property and to represent owners before local authority for construction (2) for registration in the Sub-Registrar's office to get supplementary deeds of proportionate shares (3) to construct the respective floors after requisite sanction (4) to apply for completion certificate and other material incidental thereto. (5) With respect to first floor, it was stated that to get first floor converted from leasehold to freehold before DDA and to obtain conveyance deed from the said department (6) to negotiate or agree to sell or dispose of by way of sale or lease the entire first floor of 137, Sunder Nagar, New Delhi or any part thereof, built or unbuilt alongwith proportionate undivided, indivisible, rights, titles, liens and interests in the land beneath the said property on such terms which attorney may deem fit and proper in her sole discretion and for the said purpose to enter into any agreement, settlement, bargain or exchange with any person or persons in respect of the said first floor of the said property bearing no. 137, Sunder Nagar, New Delhi alongwith proportionate undivided, indivisible rights, titles, liens and interests Vandana Manchanda Vs Avesh Bhatnagar & ORS Page 24 of 33 in the land beneath the said property and execute all deeds and assurances necessary to complete such transactions, mortgage or exchange as the case may be.
39. Para no. 8 of the said power of attorney is very important which is also provided herein as under:-
"To execute proper deeds and conveying all rights, interests, liens, and titles in the proportionate undivided, indivisible land beneath the said property and the said entire first floor of 137, Sunder Nagar, New Delhi in favour of the intended purchaser(s) and to submit the same for registration in the office of the proper registering authority and to admit the execution thereof and receipt of the consideration before the Sub-Registrar, Delhi/New Delhi or any other registering authority."
40. In the collaboration agreement as well as in the power of attorney, the share of builder is very clearly mentioned i.e. the entire first floor built or unbuilt alongwith 1/4 th proportionate, undivided, indivisible right and interest in the land beneath the property. In none of these documents, it is mentioned that proportionate undivided, right was in respect of the entire parcel of Vandana Manchanda Vs Avesh Bhatnagar & ORS Page 25 of 33 land at property bearing no. 137, Sunder Nagar, New Delhi. This portion given above was sold to Mr. C.A. Sundaram vide sale deeds Ex PW1/4 to Ex PW1/7 and Mr. C.A. Sundaram later on sold the same property to Vandana Manchanda. It is interesting to note here that the sale deed executed in favour of Vandana Manchanda also finds mention of the property as mentioned in collaboration agreement or sale deed of Mr. C.A. Sundaram and there is no whisper of any rectification deed dated 01.08.2001 in the sale deed dated 15.01.2010 in favour of Vandana Manchanda.
41. The defence of the counsel for Vandana Manchanda is that all the four brothers had written a letter which is undated to Sh. C.A. Sundaram which finds mention of power of attorney discussed above dated 27.07.1999 with respect to sale of property comprising of entire first floor with two car parking in driveway, one servant quarter and toilet on first floor on annexe block alongwith 1/4th undivided, right, title, lien and interest in the entire parcel of land at 137, Sunder Nagar, New Delhi. Ld counsel for Vandana Manchanda has argued that by virtue of this document, builder had got right to execute the rectification deed in favour of Mr. C.A. Vandana Manchanda Vs Avesh Bhatnagar & ORS Page 26 of 33 Sundaram by which 1/4th undivided right in the entire parcel of land was given to Sh. C.A. Sundaram. This letter was put to PW-1 Dinesh Bhatnagar who admitted having written this letter, however, it was clarified by PW-1 that this letter was written before selling the property to Mr. C.A. Sundaram. PW-2 Avesh Bhatnagar did not identify the letter but admitted that one such letter was written before selling the property to Mr. C.A. Sundaram. The statement of witnesses were not shaken at all in respect of this letter through cross examination. Since this letter is undated, defendant Vandana Manchanda was having a primary duty to prove as to when this letter was sent by defendants to Mr. C.A. Sundaram, however, no evidence has been led on this point. This letter was allegedly sent by all four brothers to Mr. C.A. Sundaram when the talks of selling this property to Mr. C.A. Sundaram were going on and, therefore, it is clear that sale deeds Ex PW1/4 to Ex PW1/7 were executed after sending this letter to Mr. C.A. Sundaram. The perusal of sale deeds Ex PW1/4 to Ex PW1/7 in favour of Mr. C.A. Sundaram categorically shows that subject matter of the property is only 1/4 th proportionate share in the "land underneath" and not in the "entire Vandana Manchanda Vs Avesh Bhatnagar & ORS Page 27 of 33 parcel of land." Interestingly, rectification deed has been signed only by builder Harmeet Kaur and not by all four brothers. Though, it is alleged that all the four brothers were having knowledge of rectification deed, however, no evidence in this regard has been led and it is completely denied by Dinesh Bhatnagar and Avesh Bhatnagar who had appeared as witnesses on behalf of all the defendants. It is also worthwhile to mention here that in the four sale deeds executed in favour of Mr. C.A. Sundaram, all the four brothers have signed as witness whereas builder has signed as a confirming vendor but none of these brothers were signatory to rectification deed.
42. Further in collaboration agreement and power of attorney, common service areas were well defined and it was clarified that lift, staircase, water and sewage tank, overhead tanks, TV antenna, water connection etch shall be common areas. The owner's allocation though did not provide for individual share of each of the brothers which is claimed to have been divided by way of unregistered memorandum of settlement, however, it is contained therein that owner shall have the entire basement floor, Vandana Manchanda Vs Avesh Bhatnagar & ORS Page 28 of 33 ground floor, entire second floor with all terrace rights with four car parking, one servant quarter and toilet of their respective portions but except for accessing the terrace for specified purposes, no right was given in the terrace to the builder and eventually to Mr. C.A. Sundaram and then to Ms Vandana Manchanda. No evidence has been led as to how predecessor in interest of Ms Vandana Manchanda i.e. Mr. C.A. Sundaram had any right in the terrace. It is specifically mentioned in para no. 13 of sale deeds Ex PW1/4 to Ex PW1/7 that the vendee i.e. C.A. Sundaram and his family members, all occupants of first floor shall be allowed to visit top terrace for installation, general checking and maintenance of TV Antenna and overhead water tanks. This clause clearly clarified that predecessor in interest of Ms Vandana Manchanda had only the right to access the terrace for limited purposes. Therefore, no question of having any right, title or interest in the terrace arises. The claim of the plaintiff that her predecessor in interest had right in the entire first floor alongwith 1/4th undivided right in the entire parcel of land is completely wrong and misconceived. Ld counsel for plaintiff had argued that collaboration agreement is based upon Vandana Manchanda Vs Avesh Bhatnagar & ORS Page 29 of 33 and memorandum of settlement which is unregistered and cannot be taken into account, however, it is a matter of fact that all the four brothers are at consensus ad-idem and there is no dispute inter-se them. In any case, even if this memorandum of settlement is not considered, the defence of the defendants is otherwise proved. The present suit is only for injunctions and, therefore, there cannot be any explicit finding with respect to rectification deed, though it was necessary to discuss all the facts and circumstances as discussed above so as to decide the case fairly.
43. Dinesh Bhatnagar & Avesh Bhatnagar had entered into witness box and had categorically stated that Dinesh Bhatnagar is in the ownership of the terrace and he had specifically permitted Mr. C.A. Sundaram to put his generator on the terrace as relations between them were cordial. It is also stated during the cross examination that there was no generator after he left the premises. Though, this averment have been disputed by Vandana Manchanda and it has been argued that defendants had dismantled and thrown away the generator after CS (OS) 686 of 2005 was dismissed, however, nothing of such sort could be Vandana Manchanda Vs Avesh Bhatnagar & ORS Page 30 of 33 proved. Plaintiff entered into the witness box but could not prove anything in respect of her claim. Plaintiff had the chance to call the builder or her predecessor in interest in the witness box to prove her case but she opted not to do so. She withheld the best evidence from the court. From the evidence of parties, it could be inferred that generator was put by predecessor in interest of the plaintiff with the permission of the owner and not as a matter of right having title of proportionate portion of the terrace. The another argument with respect to exparte injunction CS (OS) 686 of 2005 is completely misconceived as suit was dismissed in default and any order passed therein could not have any effect thereafter. Hence, these issues are decided against the plaintiff and in favour of the defendants.
44. Whether the right to use the common area including the terrace are rights as an easement in favour of the plaintiff under the provisions of the Indian Easement Act, 1882 ? OPP.
45. Since clause 8 & 13 of the sale deeds Ex PW1/4 to Ex PW1/7 clearly shows that right was given to the occupant of the first floor to use the common areas for the specific purpose, Vandana Manchanda Vs Avesh Bhatnagar & ORS Page 31 of 33 therefore, question of arguing about her rights of easement does not arise. Ld counsel for plaintiff has relied upon judgment Ayyaswami Gounder Vs. Munnuswamy Gounder AIR 1984 SC 1789.
46. This judgment is not applicable to the case in hand as sale deed already provides for giving access to the terrace and common areas for the specified purpose as already discussed in the preceding issues whereas by way of present suit plaintiff is claiming right, title or interest in the terrace though she has not filed suit for declaration in this regard. A simplicitor suit for permanent and mandatory injunction has been filed allowing plaintiff to put generator on terrace claiming right and title in the proportionate portion of the terrace. The said intention of the plaintiff cannot be termed as right to use the common area as an easementary right. She had already been given access to use the common area for the purpose of easementary right and it cannot be said that her easementary rights are being infringed in any manner. This issue is decided against plaintiff and in favour of the defendants.
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47. Issue No. 5. Whether the suit is barred in terms of Section 41 (I) & (j) of the Specific Relief Act ? OPD.
48. No argument has been address on this issue. Hence, this issue is dismissed as not pressed.
49. Relief.
In view of the findings on issue nos. 1, 2 & 4, suit of the plaintiff is dismissed.
Decree sheet be prepared accordingly. File be consigned to Record Room after due compliance. Digitally signed by VANDANA VANDANA JAIN JAIN Date: 2018.12.06 16:06:15 +0530 Announced in the open ( VANDANA JAIN) court on 05.12.2018 Additional District Judge-07/SE Saket Courts, New Delhi.
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