Delhi District Court
Shri Kapil Chawla vs M/S. S.R. Constructions on 3 June, 2022
IN THE COURT OF SH. DIVYAM LILA: CIVIL JUDGE01: SOUTH WEST DISTRICT: DWARKA COURT: NEW DELHI CS SCJ NO. 916/21 CNR NO. DLSW030017842021 IN THE MATTER OF : 1.
SHRI KAPIL CHAWLA.
S/o. Sh. Subhash Chandra Chawla R/o. TF02, Third floor, Property No. D1/34A, Palam Extension, New Delhi110077.
2. SMT. SHALU CHAWLA W/o. Sh.Kapil Chawla R/o. TF02, Third Floor, Property No. D1/34A, Palam Extension, New Delhi110077. ............... Plaintiffs Versus M/s. S.R. Constructions Through its Proprietor / partners
1. Smt. Saroj Gupta W/o. Shri Suresh Kumar Gupta, R/o. E1097, Upper Ground Floor, Palam Extension, Near Sector7, Dwarka, New Delhi110045.
Digitally signed DIVYAM by DIVYAM LILA
LILA Date: 2022.06.03
16:35:48 +0530
Civil Suit No 916/21
Kapil Chawla and anr. vs. M/s. S.R. Constructions and ors. Judgment dated 03.06.2022 Page no. 1 of 23
2. Smt. Rashmi Gupta W/o. Shri Jagdish Gupta R/o. 49, Akash Ganga Apartments, Plot No.17, Sector6, Dwarka, New Delhi110075.
3. Shri Rajeev Goel S/o. Smt. Saroj Gupta R/o. E1097, Upper Ground floor, Palam Extension Near Sector7, Dwarka, New Delhi110045. ................ Defendants Date of filing : 10.09.2021 Date of Institution : 13.09.2021 Date of pronouncing judgment : 03.06.2022.
JUDGMENT ON PERMANENT INJUNCTION SUIT.
ORDER ON THE DECISION OF THE PRELIMINARY ISSUE.
1. The present order has arisen out of the matter being listed for the arguments on the issue no.4 being treated as preliminary issue and same being decided. Succinctly put, the plaintiff has filed the present suit for permanent injunction against the defendants and their agents not to interfere in the peaceful possession of the plaintiff in the suit property being the Civil Suit No 916/21 Kapil Chawla and anr. vs. M/s. S.R. Constructions and ors. Judgment dated 03.06.2022 Page no. 2 of 23 basement in the property bearing no. D1/34A, Palam Kunj, Palam Extension, Dwarka, Delhi110075 and not to construct/ eliminate over the suit property or to handover the same for commercial purpose.
2. Brief of the plaint: The plaintiff has in his plaint averred that the defendants no. 1 and 2 are the partners of the M/s SR constructions has transferred the property in the name of the plaintiff. It is further averred in the plaint that the defendants have transferred along with it the proportionate, undivided, indivisible and impartial ownership in the underneath land measuring 125 sq. yds/ 104 sq. mts. with one small car parking on stilt floor out of the Khasra no. 29/18/2, 19/1, 19/2 and 20/2 situated in Palam Village through registered sale deed dated 06.01.2016 in office of subregistrar IX, Kapashera. It is further averred in the plaint that the defendants had surrendered the property appurtenant (Common Passage, staircase, lift, basement, etc.) and since then the plaintiff is enjoying the possession on the property.
3. It is further averred that the entire property has 10 apartments and all the legal occupants are using the common space, i.e basement, stilt parking and roof, etc. that there is one tank of 20,000 lts water is built up in the basement. That the plaintiff is paying the electricity bill of the common and covered area by Civil Suit No 916/21 Kapil Chawla and anr. vs. M/s. S.R. Constructions and ors. Judgment dated 03.06.2022 Page no. 3 of 23 dividing it equally amongst the other occupants and paid by Sh. Sharad Singhal. However, the electricity bill still comes in the name of the defendants; as the same has not been changed to avoid discrepancies. The plaintiff has then averred that the defendant no.3 had threatened the plaintiff to remove all the stuff lying in the basement, so as to let out to other person for using it for commercial purpose. The basement itself is the suit property, and the it doesn't have specific water and electricity meter and the wired connection from stilt parking is utilised. The plaintiff has further averred that the both doors to the basement is locked by legal occupants, and it is lying in the office onl which is the parking area and the same is not utilised by the defendants ever. Hence, filed the present suit for the permanent injunction against the defendants.
4. Defence raised by the defendants:
a. Defendant has submitted that the building bearing No. D 1/34A, Palam Kunj, Palam Extension, Dwarka, Delhi 110075 is comprising of basement, stilt floor/ parking and residential floors above the building. b. The defendant had sold the concern floor to the plaintiff through the sale deed on record. However, the said sale deed was with respect to conveyance of common rights only with respect to passage, staircase, lift leading from Civil Suit No 916/21 Kapil Chawla and anr. vs. M/s. S.R. Constructions and ors. Judgment dated 03.06.2022 Page no. 4 of 23 ground floor to top floor of the building and therefore, the basement has never been conveyed.
c. It is settled of position of law that anything capable being sold, transferred and conveyed for consideration cannot be presumed to be available of free for common use. That no right to use the basement of the said building of either sold or given to any of the purchaser / plaintiff or any one else.
d. The physical possession of the basement of this property has been always under the lock and key by the defendants .
e. That on 29.8.2021 when defendant no.3 had visited the said property. He found plaintiff in conspiracy with others had broken open the locks by the defendants and had criminally trespass into the suit property and committed theft of articles laying there in. The locks of the defendants were found missing and the basement was being misused as gym.
f. The defendants were using the basement as godown for storage purposes and do not intend to use it for commercial purposes.
g. The water tank that was built under the stilt parking area in space of 10X10 feet have no connection, access, and Civil Suit No 916/21 Kapil Chawla and anr. vs. M/s. S.R. Constructions and ors. Judgment dated 03.06.2022 Page no. 5 of 23 opening from the basement. The water tank is covered upto stilt parking and has a lid there itself and opening therein only. In any which case, there is a separate 1000 liter water tank for each flat on roof.
5. Issues Framed:
1) Whether the plaintiff is entitled to a decree of permanent injunction in favour of plaintiff with respect to restrainment in disturbing peaceful possession of plaintiff in the basement of the property and restrainment of construction therein? ..OPP.
2) Whether the plaintiff is in possession of the suit property i.e. basement at the time of filing of the suit? .......OPP.
3) Whether the plaintiff is entitled to the possession of the suit property i.e. basement of the property on the strength of the sale deed as common area for their exclusive utility? ......OPP.
4) Whether the suit is in the present form maintainable as a simplicitor injunction on the strength of sale deed relied upon by the plaintiff? ...OPD.
5) Relief.
6. The said Issue no. 4 was treated as Preliminary issue and both the parties led arguments on the same:
7. Arguments of plaintiff: a. That the petitioners have filed the present petition by virtue of title documents, registered sale deeds, which are admitted by the defendants and thus each and every part of the same will read as part of petition.
Civil Suit No 916/21Kapil Chawla and anr. vs. M/s. S.R. Constructions and ors. Judgment dated 03.06.2022 Page no. 6 of 23 b. That there is no specific meter electricity meter has been installed for the basement, and meter on stilt parking is supplying the same in basement and bill is paid by the plaintiffs.
c. Therefore, it is always admitted by the defendants that the basement have been sold out as a part of the common space of the petitioner.
d. The apprehension of dispossession by the defendants, has led to filing of injunction suit.
e. That the defendants till now didn't produce any title documents before this court as how the defendants have become the true owner of the property i.e. basement; in contrary, the plaintiffs have proved ownership on basis of sale documents, electricity bill and the possession. f. That the basement has no entry or exit point other than the common space and the common space itself is now owned by the plaintiffs through sale deed. g. The Sec 116 E of DMC Act is also relevant here. 116E.
Provides that the annual value of any covered space of building in any ward shall be the amount arrived at by multiplying the total area of such covered space of building by the final base unit area value of such covered space and the relevant factors, as referred to in clause Civil Suit No 916/21 Kapil Chawla and anr. vs. M/s. S.R. Constructions and ors. Judgment dated 03.06.2022 Page no. 7 of 23
(b) of subsection (2) of section 116A. Explanation under this section provides that 'covered space' in relation to a building, shall mean the total floor area in all the floor thereof, including the thickness of walls, and shall include the space of covered verandah and courtyard, gangway, garage, common service area, staircase, and balcony including any area projected beyond the plot boundary and such other space as may be prescribed.
Whereby the Section 14 of The Delhi Municipal Corporation (Property Taxes) ByeLaws, 2004. Other spaces to be included in covered space in relation to building. In addition to the covered spaces specified in the Explanation to subsection (1) of section 116 E, the covered space in relation to a building shall also include basements, mezzanine floors, barsatis and stilts meant for parking and TV/Telecom towers and hoardings erected on the surface or top or any other open space of a building.
Explanation.In case of buildings with common areas/services shared by more than one owner/occupant, it shall be divided proportionately according to the covered area enjoyed by the owner/occupier......."
Civil Suit No 916/21Kapil Chawla and anr. vs. M/s. S.R. Constructions and ors. Judgment dated 03.06.2022 Page no. 8 of 23 Hence, the basement is covered in the covered space. h. The ld. counsel for plaintiff has further submitted that as per the sale deed in favour of plaintiff the said common facilities were sold and conveyed to her, and in the common facilities the lift, the stilt parking and basement were sold to her by the defendants. It was further submitted by the plaintiffs that the defendants have conveyed her undivided share in the land underneath of the whole property as it shows from the sale deed recitals.
i. That the ld. counsel for plaintiff further submits that the common facilities are utilized by the legal occupants of the property and the basements also forms the part of the same.
j. There are no arguments on the Delhi Apartments Ownership Act raised during the oral arguments or the written submissions of the plaintiff this time. k. The plaintiff has relied upon the judgment of Maria Margarida Sequeria Fernandes and Ors. vs. Erasmo Jack De Sequeria through LRs 2012 AIR SC 1727. In para no. 80 has been relied upon by the plaintiff and which states simply that "it is settled principal of law that no one can take law in his own hands. Even Civil Suit No 916/21 Kapil Chawla and anr. vs. M/s. S.R. Constructions and ors. Judgment dated 03.06.2022 Page no. 9 of 23 trespasser in settled possession cannot be dispossessed without recourse of law". Plaintiff has also relied upon the judgment of Anathula Sudhakar Vs. P. Buchi Reddy. On para 11.1 and which states that " the suit for injunction simplicitor will lay where the plaintiff is in lawful or peaceful possession of property and such interference by the defendant. A person has right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner." The judgment of Rame Gowda (D) by LRS vs. M. Varadappa Naidu (D) by LRs passed by Apex Court is also relied upon by the plaintiff for the above contention.
l. The counsel for plaintiffs has argued that in the present matter the sale deed are erroneous and from the clause 15 of the sale deed concern, she has mentioned that if the sale deed is erroneous and the vendee can get the same rectified from the vendor and thus she has submitted that vendor / defendant has purposefully and deliberately avoided the conveyance of the 'basement' in the sale deeds and they have failed to rectify the same. Hence, the plaintiff is the actual owner of the basement and thus Civil Suit No 916/21 Kapil Chawla and anr. vs. M/s. S.R. Constructions and ors. Judgment dated 03.06.2022 Page no. 10 of 23 she is not required to seek declaration. She has relied upon the one judgment namely Karthiyayani Amma vs. Govindan on 6 February 1980 of Hon'ble Kerala High Court (AIR 1980 Ker 224).
8. Arguments of defendants:
a. The counsel for defendants on the other hand has argued that if the issue no. 4 is decided in his favour and then automatically issue no.1,2 and 3 will fall down and collapsed and in any which case the issue no.3 ,2 1 are the intertwined and thus as soon as issue no.4 is decided the court may pass the judgment on the issue no.1,2 and 3 and adjudicate the suit finally. In any case the issue no.2 may be decided against the defendants as the defendants have admitted in their WS at para no.13 of parawise reply that the plaintiff is in the possession, albeit as a trespasser of the property and illegally. b. He has relied upon three judgments namely Maria Margarida Sequeria Fernandes and ors. vs. Erasmo Jack De Sequeria (Dead) through LRS. 2012 Legal Eagle (SC) 157, Padhiyar Prahladji Chenaji (deceased) through LRS vs. Maniben Jagmalbhai (Deceased) Through LRS and Ors. Civil appeal no. 1382 of 2022 and Anathula Sudhakar vs. P. Buchi Reddy (Dead) by Civil Suit No 916/21 Kapil Chawla and anr. vs. M/s. S.R. Constructions and ors. Judgment dated 03.06.2022 Page no. 11 of 23 LRS & ors. 2008 Legal Eagle (SC) 464.
c. The counsel for defendant further argued that this court may disposed off the present suit by deciding all the issues which does not require leading of evidence at all as everything is admitted on the record and the question remains with respect to law only and the maintainability of the suit only and nothing else. He submitted that the plaintiff is relying upon sale deed and same is admitted by the defendant, it is admitted that the transaction actually occurred between the parties and there is nothing else that requires the pleading of evidence.
d. He further submitted that the defendant has in fact admitted that the plaintiff has entered into the possession of the suit property/ basement and thus that issue no.2 also requires no further evidence to prove the same as it admitted fact.
e. He further submitted, that with respect to issue no.3, the plaintiff is to prove that the basement was in fact conveyed to the plaintiff by the defendant through the sale deed and since on the plain reading of the sale deed, it is evident that no basement was conveyed and there is a expressed bar under Section 91 and 92 of Evidence Civil Suit No 916/21 Kapil Chawla and anr. vs. M/s. S.R. Constructions and ors. Judgment dated 03.06.2022 Page no. 12 of 23 Act to lead any oral evidence in contrary to the written agreement. He further submitted that it is not the case of the plaintiff that which allows leading of oral evidence under section 92 and neither there is a pleading, in fact the case of the plaintiff is that they are the owner on the strength of sale deed; hence, even on issue no.3, the evidence is not required to be led.
f. He further submitted that issue no. 1 is based upon the issue no.2 and 3 and they shall fail if underlying issues fail.
g. He further pointed out that the plaintiff has blatantly stated falsely in the plaint that the sale deed provides the basement for the conveyance; whereas the sale deed nowhere mentions the basement in the recital for the conveyance. He further pointed in the sale deed that the part of property and land underneath so conveyed is only up till the ground floor as stated clearly. h. He further pointed out that the water tank is of dimensions 10 X 10 and the same is embedded in the earth which has opening only on the ground floor. Although the same encapsulated in the basement, but the same has no kind of access from the basement. i. The electricity meter to common areas is still in the name Civil Suit No 916/21 Kapil Chawla and anr. vs. M/s. S.R. Constructions and ors. Judgment dated 03.06.2022 Page no. 13 of 23 of the defendants.
j. He further argued that the conveyance of the basement cannot be presumed and assumed simply without there being specific recital for conveyance of the same.
9. Conclusion:I have heard the arguments and submissions from both the parties at length. The arguments were with respect to maintainability of the present suit as a simpliciter suit of Injunction on the basis of strength of sale deed relied upon by the plaintiff. That is to say, whether the suit would be maintainable, without seeking substantive relief of declaration of the title into the ownership of the basement.
10.The arguments with respect to the Apartment act are not raised, however, to recapitulate the view, on the careful perusal of the the Delhi apartment owners act,1986, In terms of section 13 of the Act the deed of apartment inter alia must contain a description of the common area and facilities and the percentage of undivided interest appertaining to the apartment in the common areas and facilities and it shall also contain description of limited common areas and facilities. If Section 3(j)(ii) is read with section 13(1)(vi) it leaves no doubt that common areas and facilities as defined in section 3(j) do not become the common areas automatically in all cases otherwise, section 13 (1) (6) would not have asked for mentioning of Civil Suit No 916/21 Kapil Chawla and anr. vs. M/s. S.R. Constructions and ors. Judgment dated 03.06.2022 Page no. 14 of 23 description of common areas and facilities in the Deed of Apartment. So, in the present case, to say that the basement is a common area in view of section 3 is not sustainable unless it is specifically described by the promoter or builder as common areas and facilities in the deed of apartment. In the present case, it is averred by either of the parties that there is no Deed of Apartment. It is also not in dispute that the sale deed in respect of the respective apartment have not been executed by the builder and promoters. In the present case, there is admitted sale deed in record which is executed by defendant in favour of the plaintiff which mentions in the recitals where by the "property is conveyed along with the proportionate undivided, indivisible and imparting ownership rights in the underneath land, with all the rights, tile fittings and fixtures, with separate electricity and water meter/ connection and sewer connection in running condition, with common passage and staircase and lift, leading from ground floor to Top floor in conveyed"
"15. That portions like staircase, passage, lift, entrance/ gates, etc. of the building shall remain common for use of all occupants." Hence, the argument on the application of the said act in the present case is not tenable.
11.The judgment relied upon by the plaintiff on one hand is with respect to settled possession of the trespasser(Maria Margarida Civil Suit No 916/21 Kapil Chawla and anr. vs. M/s. S.R. Constructions and ors. Judgment dated 03.06.2022 Page no. 15 of 23 supra) and on other hand the plaintiff is relying upon the judgment where it says that right to protect possession is available against everyone except the true owner. ( Anathula Supra). Both these judgments imply that the plaintiff is taking diagonally opposite legal stand for purpose of this suit, i.e. on one hand the plaintiff claims himself to be the trespasser into the suit property and on the other hand claims himself to be the true owner of the property. In any which case, the whole plaint is based upon the sale deed of the plaintiff and him, claiming himself/ herself to be true owner/ legal owner of the property. There is not a single iota of pleadings in the suit which says that the plaintiff is the trespasser and as a trespasser they are in the settled possession and they are seeking injunction on the basis of the same. In fact, the plaintiff is seeking protection of possession on the basis of their title. Hence, these judgments do not go for rescue of the plaintiff, being the stand of the plaintiff itself being unclear. Whether or not the title has an overcast of cloud by the defendants will be discussed in the following parts.
12.The plaintiff has further relied upon the admitted sale deed that the basement has been conveyed to the plaintiff and thus it is in ownership of the plaintiff. Admittedly, the claim of the plaintiff on to the basement arises out of the sale deed, the sale deed that Civil Suit No 916/21 Kapil Chawla and anr. vs. M/s. S.R. Constructions and ors. Judgment dated 03.06.2022 Page no. 16 of 23 is admittedly executed between the plaintiff and defendant. The claim on the 'Basement' arises out of the contention of the plaintiff that the said basement has been conveyed to the plaintiff by the defendant and the same is included in the covered areas. The argument made by the plaintiff is that the Sec 14 of DMC Taxation byelaws conveys that the basement is included in the covered areas; such argument of the plaintiff is highly tenable as that the said provision in DMC act and the corresponding provision in the byelaws are with respect to the taxation of the building areas and they do not convey or deem to convey any percentage of rights to anyone, as area coverage and deemed to be covered for purpose of tax calculation cannot be deemed to be conveying the rights to the plaintiff in any manner.
13.Further, the ld. counsel for plaintiff had vehemently argued that the said sale deed on which the plaintiff is relying upon is faulty and does not convey the real transaction, as the word 'Basement' has been omitted inadvertently and as per the clause 15 of the sale deed concern, she has mentioned that if the sale deed is erroneous and the vendee can get the same rectified from the vendor. Thus she has submitted that the vendor / defendant has purposefully and deliberately avoided the conveyance of the 'basement' in the sale deeds and they have Civil Suit No 916/21 Kapil Chawla and anr. vs. M/s. S.R. Constructions and ors. Judgment dated 03.06.2022 Page no. 17 of 23 failed to rectify the same. The said argument of the plaintiff goes against her own contention that the suit is maintainable without seeking declaration as this implies that there is inherent and apparent defect in the title of the plaintiff in the suit property. The present suit is not filed by the plaintiff for rectification of the sale deed nor it has been averred in the plaint that any legal notice for rectification of error has been issued to the defendants. If the argument of the plaintiff is taken as it is, then that would squarely imply that the presence of the word 'basement' in the sale deed and the conveyance of the same is compulsory.
14.In any which case, in the present set of facts, the plaintiff is claiming ownership on the basis of sale deed, whereby the said 'Basement' has not been conveyed to the plaintiff in the written sale deed; the said title or ownership of the plaintiff is denied by the defendants. I find strength in the arguments of the counsel for defendants that the property which is capable of being transferred cannot be simply assumed to have been transferred without formal conveyance and after completion of due formalities. In any which case, the plaintiff has not pleaded any grounds whatsoever for the purpose of leading any evidence under Section 91 and 92 of the Evidence Act for showing that basement has been conveyed, as there is specific Civil Suit No 916/21 Kapil Chawla and anr. vs. M/s. S.R. Constructions and ors. Judgment dated 03.06.2022 Page no. 18 of 23 bar under the Section 91 of the Evidence Act for leading any oral evidence against the documents which is required to be compulsory registered. The said title / ownership of the plaintiff is disputed by the defendant, from whom the plaintiff purports to have purchased the basement. The judgment of Anathula Sudhakar (supra) is very clear and it has laid down:
"11. The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well settled. We may refer to them briefly.
11.1) Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner.
11.2) Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the Civil Suit No 916/21 Kapil Chawla and anr. vs. M/s. S.R. Constructions and ors. Judgment dated 03.06.2022 Page no. 19 of 23 relief of injunction simpliciter, without claiming the relief of possession.
11.3) Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction."
In the said judgment itself, it is explained that what does the title in dispute means "12. We may however clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to plaintiff's title raises a cloud on the title of plaintiff to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the Civil Suit No 916/21 Kapil Chawla and anr. vs. M/s. S.R. Constructions and ors. Judgment dated 03.06.2022 Page no. 20 of 23 plaintiff's title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient." In the present set of facts, the original title of the defendant is admitted by the plaintiff and that is why plaintiff avers that the said 'basement/ suit property' has been purchased by the plaintiff. There is apparent defect in the sale deed of the plaintiff with respect to ownership and conveyance of the basement in their favour. The title of the plaintiff is disputed by the defendant who is admittedly the previous owner of the suit property, and defendant is not some stranger, or the trespasser. Thus, there is apparent cloud over the title of the plaintiff and the factual matrix is covered under the guidelines of above judgment.
15.The plaintiff has sought the interim protection against the defendants on the strength of sale deed and also on the basis of possession. In the arguments as well as in the averments, the plaintiff has not clearly stated how they come under possession of the said basement. There is certain whisper in the plaint that the defendants trespassed into the basement in the third week of August 2021 and there is then mention that the defendants threatened that they would come back with associates. There is mention on which all defendants trespassed, in what manner did Civil Suit No 916/21 Kapil Chawla and anr. vs. M/s. S.R. Constructions and ors. Judgment dated 03.06.2022 Page no. 21 of 23 they trespass and when and how did they get their possession back from the defendants. Whereas the defendants have admitted and submitted in their written statement that the basement always remained in the lock and key of the defendants no. and 2 and used for storage. It is further submitted in the written statement that on 29/08/2021 the defendant no.3 found on visiting the suit property that the plaintiff along with other occupants had broke open the lock put by defendant no. 1 and 2 and they have criminally trespassed into the basement of property and committed theft. He further stated that the defendants filed a police complaint with respect to the same on 28/10/2021. Therefore, even though the possession of the plaintiff is admitted albeit as a trespasser, the plaintiff has not claimed themselves as the trespasser in settled possession, but rather as lawful owner.
16.Hence, after having considered the pleadings in detail, arguments at length, record at length, I am of the considered view that the issue no.4 is decided in favour of the defendants and against the plaintiff and I hold that the present suit is not maintainable as injunction simplicitor. The plaintiff is required to seek declaration of the title of the suit property in its favour. Since the issue no.4 is decided in favour of defendants and suit is decided to be not Civil Suit No 916/21 Kapil Chawla and anr. vs. M/s. S.R. Constructions and ors. Judgment dated 03.06.2022 Page no. 22 of 23 maintainable, the issue no.1,2 and 3 are not decided.
17.Since the suit is dismissed, it goes without saying that interim order in the suit is also vacated straightaway.
18.Decree sheet be prepared accordingly.
19.File be consigned to Record Room after compliance with due formalities.
ANNOUNCED IN THE OPEN Digitally signed
by DIVYAM
DIVYAM LILA
COURT ON 03.06.2022 LILA Date:
2022.06.03
16:35:58 +0530
(DIVYAM LILA)
CIVIL JUDGE01(SW)/DWARKA COURTS
NEW DELHI
Civil Suit No 916/21
Kapil Chawla and anr. vs. M/s. S.R. Constructions and ors. Judgment dated 03.06.2022 Page no. 23 of 23