Delhi District Court
Ms Nevi Enterprises (P) Ltd vs Sh Pradeep Sethi on 29 July, 2024
IN THE COURT OF SH. HARJYOT SINGH BHALLA
DISTRICT JUDGE-05, SOUTH DISTRICT,
SAKET COURTS, NEW DELHI
CS DJ 7017/16
M/S NEVI ENTERPRISES (P) LTD Vs. SH PRADEEP
SETHI & ORS.
CNR No. DLST01-000367-2010
M/s Nevi Enterprises (P) Ltd.,
A private Limited company duly regd.
Under the Companies Act and having it
Regd. Office at 187-A, New Jawahar Nagar,
Jalandhar City-144001 (Punjab) through
Mr. Sanjay Dhody, Authorized Signatory
............ PLAINTIFF
Vs.
1. Sh. Pradeep Sethi,
S/o late R. K. Sethi
R/o D-63, STC Apartments,
Aurbindo Marg,
Also at
S-214, Second Floor,
Panchshila Park,
New Delhi-110017
2. M/s A.W. Properties Pvt. Ltd.,
through its Director
Sh. Rajnish Wadhwan,
B-II/35, Lajpat Nagar-II,
New Delhi
3. Municipal Corporation of Delhi
(through its Commissioner of Delhi)
Town Hall, Delhi
.......... DEFENDANTS
Date of Institution : 03.06.2010
Arguments concluded : 01.04.2024
Date of judgment : 29.07.2024
CS DJ No. 7017/2016
&
CS DJ No. 7018/2016 Page 1 of 50
AND
CS DJ 7018/16
M/S SANGUINE ENTERPRISES (P) LTD. Vs. SH.
PRADEEP SETHI & ORS.
CNR No. DLST01-000368-2010
M/s Sanguine Enterprises (P) Ltd.,
A private Limited company duly regd.
Under the Companies Act and having it
Regd. Office at A-4/8, Mianwali Nagar,
Rohtak Road, New Delhi-110087 through
Mr. Sanjay Dhody, Director
............ PLAINTIFF
Vs.
1. Sh. Pradeep Sethi,
S/o late R. K. Sethi
R/o D-63, STC Apartments,
Aurbindo Marg,
Also at
S-214, Second Floor,
Panchshila Park,
New Delhi-110017
2. M/s A.W. Properties Pvt. Ltd.,
through its Director
Sh. Rajnish Wadhwan,
B-II/35, Lajpat Nagar-II,
New Delhi
3. Municipal Corporation of Delhi
(through its Commissioner of Delhi)
Town Hall, Delhi.
.......... DEFENDANTS
Date of Institution : 03.06.2010
Arguments concluded : 01.04.2024
Date of judgment : 29.07.2024
CS DJ No. 7017/2016
&
CS DJ No. 7018/2016 Page 2 of 50
JUDGMENT
1. Vide this judgment, I shall dispose of the above mentioned two suits filed for the relief of declaration, possession, permanent and mandatory injunction etc. The suits have been filed by two separate private limited companies who have purchased one half undivided portion each, of the ground floor of the suit property alongwith certain other rights. The pleadings are identical and the reliefs are identical and for the said reason both the suits were consolidated for the purposes of trial vide order dated 19.03.2013.
2. The brief facts, as culled out from the plaint of CSDJ 7017/2016 are being stated and the contents of the plaint in CS DJ 7018/2016 are not being reiterated for the sake of brevity.
1. That the plaintiff is a Private Limited Company incorporated under the Companies Act, 1956.
2. That Shri Sanjay Dhody has signed, verified and instituted this suit as the authorized signatory of the plaintiff being duly authorized vide resolution passed in the meeting of the Board of Directors of the plaintiff held on 18-03-2010 at the registered office of the plaintiff company.
3. That the plaintiff had purchased from defendant no.2, for a valid consideration of Rs. 15 lacs, the ½ (one half) undivided share of Entire Ground floor of built-up property bearing No. S-214, measuring 250 sq. mtrs situated at Panchshila Park, New Delhi- 110017 comprising of three bedrooms, one hall, one lobby, one kitchen, two bathrooms along with front lawn and passage towards CS DJ No. 7017/2016 & CS DJ No. 7018/2016 Page 3 of 50 150 sq. ft. Road and entire open space in the rear, entire back court yard, right to park Two Cars in front of the building, 100 sq. ft. space on Terrace of second floor for Servant Quarter or for any other use, right to install V-SAT/Antenna on the terrace of the building along with 20% undivided, indivisible and impartible ownership rights in the said plot of land with all rights, title and interest, easement, privileges and appurtenances thereto with all fittings, fixtures, connections, structure standing thereon, use of common staircase to access to terrace for Servant quarter or for any other purpose, right to use of common water tank, common jet pump, common driveway, entrances etc. of Freehold property bearing No. S-214, Panchshila Park, New Delhi. Sale Deed was duly registered with the Sub Registrar, V, New Delhi as document No.1095 entered in Addl. Book No.1 Vol. No. 3219 on pages 159 to 177 on 10-02- 2003.
4. That the remaining ½ (half) undivided share of the entire ground floor was sold by the defendant no.2 to M/s Sanguine Enterprises (P) Ltd., A-4/8, Mianwali Nagar, New Delhi-110087 vide Sale Deed executed by the defendant No.2 on 10-02-2003. (Plaintiff in Suit No.7018/16, being decided alongwith this suit).
5. Thus both the plaintiff and M/s Sanguine Enterprises (P) Ltd., New Delhi are the sole and absolute owners of the entire ground floor along with front lawn and passage towards 150 sq. ft. Road and entire open space in the rear, entire back courtyard, right to park two cars each in front of the building, 100 sq. ft. each space on terrace for servant quarter or for any other use, right to CS DJ No. 7017/2016 & CS DJ No. 7018/2016 Page 4 of 50 install V-SAT/Antenna each on the terrace of the building, along with 20% each undivided, indivisible and impartible ownership rights in the said plot of land measuring 250 sq. mtrs. bearing property No. S-214, situated at Panchshila Park, New Delhi.
6. That plaintiff and M/s Sanguine Enterprises (P) Ltd., New Delhi have jointly leased out the entire ground floor of the property to ING VYSYA BANK LTD., New Delhi immediately on its purchase.
7. That as per the recitals of the Sale Deed the built up property comprised of basement, ground floor, first floor and second floor. The owner of the each floor had a right in the land underneath, with the basement and ground floor owners having together 55% right in the land underneath, and subsequently first and second floor owners were given 22.25% (each) rights in the land underneath.
8. That thereafter, the defendant No.2 sold the first floor of the above said property to one Dr. Rajnish Bhagirath S/o Shri Manohar Lal Bhagirath on 28-02-2003 and the second floor to the defendant No.1 Mr. Pardeep Kumar Sethi on 03-05-2003.
9. That the defendant No.1 is the owner in occupation of the second floor of the property bearing No. S-214, Panchshila Park, New Delhi having purchased the same from defendant No.2 through Sale Deed dated 03- 05-2003. The defendant no.1 took the opportunity of absence of the plaintiff from the said premises and made attempt to take forcibly possession of the two space for servant room's on the terrace of the second CS DJ No. 7017/2016 & CS DJ No. 7018/2016 Page 5 of 50 floor, is disturbing the peaceful enjoyment of the ground floor and first floor and has also done unauthorized construction and has grabbed the 200 sq. ft. space for the servant quarter of the owners of the ground floor on the terrace of the second floor.
10. That the defendant No.2 is the builder of the property no. S-214, Panchshila Park, New Delhi who had sold the entire ground floor of the property to the plaintiff and M/s Sanguine Enterprises (P) Ltd., New Delhi and the second floor of the property to defendant No.1. The Sale Deed entered with the defendant No.1 by the defendant No.2 is transferring rights in favour of the defendant No.1 which had been earlier transferred and sold to the plaintiff and M/s Sanguine Enterprises (P) Ltd. The said act of the defendant No.2 is illegal and has caused loss to the plaintiff.
11. That as per covenants of the Sale Deeds the Vendees of the ground floor had been given space of 100 sq. ft. each on terrace of the second floor for servant quarter and or for any other use, right to install V- SAT/Antenna on the terrace, right to use of common water tank, common jet pump, common driveway, entrances etc. of the building. The Vendees- joint owners of the ground floor have unfettered right to access to the terrace of Second Floor use of 200 sq. ft. space for servant quarter or for any purpose installation of V-SAT/ Antenna, overhead Water Storage Tanks on the terrace of the said building and thus have the right to get it repaired and cleaned at all reasonable times.
12. That at the time when the property was occupied by the plaintiff, there were no three CS DJ No. 7017/2016 & CS DJ No. 7018/2016 Page 6 of 50 servant quarters and one common toilet on the terrace of the second floor. The defendant no.2 gave the possession of the space of 100 sq. ft. each to the plaintiff and M/s Sanguine Enterprises (P) Ltd. These were also three huge water tanks affixed on three different cemented platform, that were not at floor level, but at a level of approx. one feet height. Out of these three water tanks, one was affixed on the western side of the terrace and two one the eastern side of the terrace. The water tank on the western side used to supply Delhi Jal Board water to the kitchens on all floors of the building. And the two tanks on the eastern side were supplying water to the bathrooms and other areas of all the flats in the building.
13. That when the plaintiff took possession of the property so purchased, the width of the entire passage to the terrace on second floor was 3 ft. The defendant No.1 illegally demolished and reduced the width of the passage near its entrance to 1-1/2 ft. only. The said act of the defendant no.1 was also without the consent of the plaintiff as he has transgressed on the easement rights of the other occupants. Thus, it is very difficult now to carry anything through this passage, towards the servant quarter.
14. Further in order to construct the third floor on the terrace of second floor, the defendant No.1 shifted all the three common water tank from the terrace of the second floor to the terrace of the Mumty on the third floor and later on the terrace of the newly built up area of the third floor and also disconnected the supply of the water from all the water tanks supplying water simultaneously to all the floors including the ground floor.
CS DJ No. 7017/2016& CS DJ No. 7018/2016 Page 7 of 50
15. That the defendant no.1 illegally and unathorisedly constructed the third floor on the terrace of second floor leaving no space of 200 sq. ft. for use by the servants of the plaintiff and M/s Sanguine Enterprises (P) Ltd., New Delhi. The plaintiff had also made a police complaint on 16.04.2010 before the S.H.O. Malviya Nagar police station to the said extent and also approached the Deputy Commissioner, MCD, South Zone of defendant no.3 regarding the removal of unauthorized construction carried out by the defendant no.1.
16. That the plaintiff also approached the defendant no.1 on various occasions to give easy passage to the plaintiff to the second floor for use of the space of 200 sq. ft. for the servant quarter but received nothing except false assurances from him.
17. That as per the Sale Deeds of the plaintiff and M/s Sanguine Enterprises (P) Ltd. dated 10-02-2003 executed prior to the sale deed of the defendant No.1, the owners of the ground floor have been sold space of 100 sq.ft. each for servant quarter with common toilet on the terrace of the second floor along with common water tank and had been given the right to use the common staircase and common passage to access the terrace floor. As per the sale deed, the Vendor/defendant No.2 had left with no right, title or interest in the area which had been sold to the owners of the ground floor and the vacant possession of the property sold was given to the plaintiff.
18. That in view of Section 48 of the Transfer of Property Act, the clauses of the sale deed of the defendant No.1 which are CS DJ No. 7017/2016 & CS DJ No. 7018/2016 Page 8 of 50 transferring rights in his favour relating to the roof rights of second floor and the right of construction thereon are not binding upon the plaintiff and do not create any right in favour of the defendant No.1 and his rights if any, will be subject to the rights previously created in favour of the plaintiff.
19. That the cause of action for filing of the present suit is continuing as the sale deed executed in favour of the defendant No.1 is invalid to the extent it curtails the rights of the plaintiff acquired under the registered sale deed of 10-02-2003. The cause of action further arose in favour of the plaintiff and against the defendants when notice for seeking back the possession of the common space of the water tanks on the terrace of the second floor when the defendant shifted the three common water tanks from the terrace of the second floor illegally constructed third floor but the same has not been complied with so far. The cause of action is continuing as the defendant No.1 as and when meets the plaintiff he threatens the plaintiff that defendant No.1 will demolish the servant quarters and common toilet on the terrace of the second floor to amalgamate the said portion also in his illegally constructed flat on the third floor.
20. It is prayed that Hon'ble Court may kindly pleased to:
A. pass a decree for declaration in favour of the plaintiff and against the defendant No.2 to the effect that the sale deed executed in favour of the defendant No.1 by defendant No.2 on 03-05-2003 to the extent it transfers rights to the defendant No.1 (as detailed in the body of the plaint) which had already been transferred by the defendant No.2 in CS DJ No. 7017/2016 & CS DJ No. 7018/2016 Page 9 of 50 favour of the plaintiff vide sale deed dated 10-02-2003 with respect to the ground floor of the property bearing No. S-214, Panchshila Park, New Delhi-110017 is null and void;
B. pass a decree of permanent injunction in favour of the plaintiff and against the defendants, through his servant, representatives, agents etc. thereby restraining the defendant No.1 not to interfere into the peaceful possession and enjoyment of the plaintiff on the ground floor and space for servant quarter and common toilet on the terrace of the second floor and common water tanks of the property bearing No. S-214, Panchshila Park, New Delhi-110017, and restrain him for entering the plaintiffs premises on the ground floor either himself, or through his agent, servant, representative;
C. pass a decree for permanent injunction in favour of the plaintiff and against the defendant No.1, his servant, representative, agents etc. not to demolish the servant quarter on the terrace of the second floor and the common toilet further and hand over the space of 100 sq.ft. each for servant quarter on the terrace of the second floor as annexed in the annexed site plan;
D. pass a decree for permanent injunction in favour of the plaintiff and against the defendant No.1, thereby directing the defendant No.1, his servant, representative, agents etc. not interfere with the easements rights of the plaintiff, and to remove the garbage and stuff by which the passage leading to the servant quarter on the terrace of the second floor has been blocked by the defendant No.1 to allow free passage to the CS DJ No. 7017/2016 & CS DJ No. 7018/2016 Page 10 of 50 plaintiff and his representative, servant etc.;
E. pass a decree for mandatory injunction in favour of the plaintiff and against the defendant No.1 and defendant No. 3 heir servant, representative, agents etc. directing them to demolish the illegally constructed third floor on property bearing No. S- 214, Panchshila Park, New Delhi-110017;
F. pass a decree for possession in favour of the plaintiff and against the defendant No.1 to restore the possession of the common space for the common water tanks on terrace of the second floor and the two spaces of 100 sq.ft. each for servant quarter and common toilet the plaintiff is entitled to as per his Sale Deed;
G. pass a decree of mandatory injunction in favour of the plaintiff and against the defendant No.1 his servant, representative, agents etc. thereby directing the defendant No.1 to restore the original condition of the common water tanks and their supply of water.
H. pass any other or further order which this Hon'ble court deems fit and proper in the circumstances of the case may also be passed in favour of the plaintiff and against the defendants.
3. Summons were sent to defendants, which was duly served. Defendants have entered appearance and have filed their Written Statement on record. The defence taken by the defendants in the WS are as under:-
Written Statement on behalf of of Defendant no.1:-CS DJ No. 7017/2016
& CS DJ No. 7018/2016 Page 11 of 50
1. That the present suit is hopelessly barred by limitation. From the sale deed filed by the Plaintiff, it is clear that the Plaintiff had purchased half undivided share of ground floor along with its sister concern M/S. Sanguine Enterprises Pvt. Ltd. It had purchased undivided half share in the ground floor portion of the property No. S-214, Panchsheel Park, New Delhi vide sale deed dated 10.02.2003. The answering Defendant No.1 had purchased the second floor by way of sale deed dated 03.05.2003. The Plaintiff was very much aware of the contents of the sale deed of the second floor portion by Defendant No.2 to Defendant No.1. The Defendant never objected to the right of Defendant No.1 in the terrace portion as mentioned in the sale deed and the construction thereon, which was completed in the end of February, 2004. The suit has been filed after more than 7 years of execution of the sale deed dated 03.05.2003 in favour of Defendant No.1, whereby the Plaintiff has challenged the rights of the Defendant No.1 in accordance with the said sale deed. The suit is, therefore, liable to be dismissed with cost.
2. That bare perusal of suit shows that the contents of the suit are vague and does not disclose any cause of action.
3. That there are three servant quarters at the 2nd floor terrace, the answering Defendant is in exclusive possession of 2 servant quarters of 65 Sq. ft. each which were constructed by him in the year 2003, which has been claimed by the plaintiff in the plaint. The 3rd servant quarter is in possession of the 1st floor owner out of the remaining 2. The Defendant no.1 had constructed one servant quarter, which belongs to the Defendant no.1 CS DJ No. 7017/2016 & CS DJ No. 7018/2016 Page 12 of 50 and there is another servant quarter at 2nd floor terrace, which is claimed by the Plaintiff, however, the Plaintiff is not entitled to any relief of possession as the same has become time barred. As per the sale deed, which has been placed on record by the Plaintiff, the Plaintiff is not entitled to any common toilet etc. Without prejudice to above, it is stated that the Plaintiff is not entitled to 100 Sq. ft. space for servant quarter as the only one space for servant quarters was allotted to ground floor owners (Plaintiff and M/S. Sanguine enterprises (P) Ltd.). One quarter was allotted to first floor owner and one to second floor owner/Defendant No.1 herein. After construction of 3 servant quarters, one servant quarter was taken by the owner of first floor in the year 2003 itself. Remaining 2 servant quarters of 65 Sq. ft. each have been in possession of answering Defendant No.1. The Plaintiff by way of present suit after 7 years of the same cannot claim possession of the same as the same has become time barred.
4. It is submitted here that the Defendant No.1 is owner of entire 3rd floor portion above second floor Terrace portion as per his sale deed. It is also term of the sale deed that if the Defendant no.1 constructs 3rd floor on the second floor terrace, the common amenities including water tank etc. will be shifted to 3rd floor terrace. In the present case, the tanks were originally on the Mumty (3rd floor terrace level) of the second floor and same were shifted on the 3rd floor terrace and the water is supplied to all the floors from the said water tanks including to servant quarter. The Plaintiff has not been deprived of common amenities.CS DJ No. 7017/2016
& CS DJ No. 7018/2016 Page 13 of 50
5. That the Plaintiff has filed the present suit in order to harass and to get some easy money as the Govt. has allowed the construction of 3rd floor which was not so in the year 2003 when the sale deeds were executed in favour of the Plaintiff and answering Defendants.
6. That the answering Defendant is bonafide purchaser of the terrace of the 2 nd floor and terrace of the suit property and entitled for the construction on the same without any objection from any side. The answering Defendant had started the construction in December, 2003 on the terrace of 2nd floor of S-214, Panchsheel Park, New Delhi and has completed the same in February, 2004 and has applied for the regularization of the same to the M.C.D. also.
7. That the present suit is liable to be dismissed as the relief claimed in respect of mandatory injunction of demolishing the 3rd floor of the property, which was constructed and completed in the end of February, 2004 and more than 6½ years have passed and the Plaintiff kept sleeping for all six years and accordingly he is not entitled for the relief. The said relief is also time barred and without any cause of action.
8. That the present suit has been filed by the plaintiff on the behest of Dr. Rajneesh Bhagirath, who is owner of the first floor of S-214, Pancshil Park, New Delhi.
9. That the claim of the Plaintiff for space of 100 sq. ft. is ill founded as the same is not permissible as per Delhi Building bye- laws and development regulations of Master Plan of Delhi 2021.
CS DJ No. 7017/2016& CS DJ No. 7018/2016 Page 14 of 50
10. Hence, the alleged (not admitted by the Answering Defendant) clause of provision of 100 Sq. ft. for servant quarter in the sale deed of the Plaintiff is void ab initio and the same cannot be enforced in the eyes of law. In fact, all the 3 servant quarters are illegal/ unauthorized non-compoundable.
11. That the Plaintiff is not entitled to discretionary relief of injunction against the answering Defendant, as the Plaintiff has done various illegal construction in the basement as well as ground floor portion of the property in question. To the knowledge of the answering Defendant, the Plaintiff has done partition in the basement and has put shutters on the ground floor, which is against the building Bye Laws of MCD.
12. The Plaintiff has constructed various other unauthorised constructions including demolition of kitchen, bathrooms, bedrooms and has made hall on the ground floor, which is not permitted under the building bye-laws of the MCD. Due to various other illegal constructions on the ground floor and basement, MCD should be directed to inspect the ground floor along with basement belonging to the Plaintiff along with M/S. Sanguine Enterprises Pvt. Ltd. And demolish the same.
13. Reply on merits also filed by defendant no.1 stating contents the paragraphs are wrong and denied.
Written Statement on behalf of of Defendant no.2:
1. That the suit of the plaintiff is barred by the provisions of Limitation Act. It is submitted that the plaintiff had purchased the CS DJ No. 7017/2016 & CS DJ No. 7018/2016 Page 15 of 50 "half undivided share of ground floor"
alongwith its sister concern M/s. Sanguine Enterprises Pvt. Ltd. Vide Sale deed dated 10-2-2003. The suit has been filed after more than seven years of execution of the sale deed.
2. That there is only one ground floor portion and there are not two ground floor portions on the ground floor. It is submitted that at the time of purchasing the ground floor the plaintiff requested the answering defendant to execute two sale deeds to facilitate them as per their convenience in favour of M/s. Nevi Enterprise Pvt. Ltd., half undivided share of the ground floor portion and other half undivided portion was purchased by its sister concern namely M/s. Sanguine Enterprises Pvt. Ltd. As such, the answering defendant accepted the request of the plaintiff and executed two sale deeds in respect of ground floor portion only as half undivided share and in the sale deeds it is clearly stated that it is in respect of "half undivided share of ground floor". It is submitted that each floor is having and entitled for one servant quarter/space, as such, the plaintiff is also entitled for one servant quarter space on the terrace as they have purchased only ground floor. It is submitted that the plaintiff has wrongly claimed the servant quarters space in each sale deed, whereas the factual position is that they have purchased only ground floor, as such, entitled for one servant quarter space only.
3. That the plaintiff has filed the present suit with a view to cause utmost harassment to the answering defendant. If the plaintiff has any dispute it does not relate with the answering defendant and, as such, the CS DJ No. 7017/2016 & CS DJ No. 7018/2016 Page 16 of 50 answering defendant is neither the necessary party nor the proper party, hence, the answering defendant be deleted from the array of defendants as per the provisions of order 1 rule 10 CPC.
4. That the ground floor owner i.e. the plaintiff alongwith his sister concern M/s. Sanguine Enterprises Pvt. Ltd. was only entitled to 100 sq. ft. space on the terrace of the building as mentioned in the sale deed.
5. The plaintiff has not approached this Hon'ble court with clean hands, as such, not entitled for any relief claimed.
Written Statement on behalf of Defendant no.3/ MCD:-
1. That the suit of the Plaintiff is barred by the provisions of Sections 477/478 of the DMC Act for want of service of statutory notice upon the Answering Defendant and as such the suit as filed is not maintainable and is liable to be dismissed qua the Answering Defendant.
2. That even otherwise, the suit of the plaintiff is not maintainable, in view of the fact that as per the record, the construction from Basement to Second floor of the suit premises bearing No. S- 214, Panchsheel Park, New Delhi, has been regularized vide file No. 281/RZN/SZ/99 dated 26/08/1999. However, the owner / occupier of the suit premises has raised unauthorized construction in the shape of Third floor and the Same was booked under section 343/344 of the DMC Act, vide No. 196/UC/B-I/SZ/2009 dated 11/08/2009 and after complying with mandatory provisions as contained under the relevant provisions of the DMC Act, demolition orders were passed CS DJ No. 7017/2016 & CS DJ No. 7018/2016 Page 17 of 50 on 28/08/2009.
3. That, however, the owner/ occupier of the property had applied for regularization of Third floor vide his application which was received by the department on 03/11/2008. Copy of the said application is annexed herewith and marked as Annexure D-1. Accordingly, a letter dated 14/11/2008, was issued to the owner of the suit premises with reference to the application dated 03/11/2008, with certain directions. Copy of the same is annexed herewith and marked Annexure D-2/MCD. However, the owner did not comply with the directions, therefore, the application for regularization of Third floor, as submitted by the Respondent No. 1 was rejected on the ground that the policy of floor wise regularization has been kept in abeyance till the final decision is taken. And the respondent has been informed vide letter No. D/1521/AE(B) -III/SZ/2010 dated 03/12/2010. Copy of the same letter is annexed herewith and marked as Annexure D-3. It is, however submitted that in case all the co-owners come forward jointly for regularization in that case the application for regularization can be considered, provided, the owner / occupier removes the servant quarter from the Third floor, since the same are not compoundable as per the Building Bye-Laws and MPD-2021.
4. The suit of the plaintiff is without any cause of action in so far as it pertains to answering defendant /MCD and the same is not maintainable and is liable to be dismissed under Order 7 Rule 11 CPC.
4. On the pleadings of the parties, the following issues CS DJ No. 7017/2016 & CS DJ No. 7018/2016 Page 18 of 50 were framed by my Ld. Predecessor vide Order dated 19.03.2013:-
(a). Whether the Conveyance Deed in favour of the defendant no.1 or any part thereof is bad for the reason of the property/ rights conveyed thereunder having already been conveyed to the plaintiffs? OPP
(b). Whether the claim aforesaid of the plaintiffs is barred by time? OPD-1
(c) Whether the suit is not properly valued for the purposes of Court Fees and jurisdiction and if so, to what effect? OPD-1
(d) Whether the plaintiffs are entitled to an area of 100 sq. ft. or 200 sq. ft. of space on the trace? OPPr
(e) Relief.
5. In plaintiffs' evidence, plaintiffs' have examined only Sh. Sanjay Dhody (Authorized Signatory) as PW-1 and he exhibited the following documents:
1. Copy of fresh board resolution dated 15.03.2010 as Ex.PW1/1.
2. Certified true copy of Sale Deed dated 10.02.2013 (bearing page no. 101 to 121) as Ex.PW1/2 (OSR)
3. Certified true copy of Sale Deed dated 03.05.2003 (bearing no. 122 to 139) as Ex.PW-1/3,
4. Complaint to MCD South Zone dated 16.04.2010 as Ex.PW1/4,
5. Complaint to P.S. Malviya Nagar dated 16.04.2010 as Ex.PW1/5.
6. letter sent by the plaintiff to defendant as CS DJ No. 7017/2016 & CS DJ No. 7018/2016 Page 19 of 50 Ex.PW1/6.
7. The notice under Order 12 Rule 8 CPC dated 30.08.2016 as Ex.PW1/7 and
8. Postal receipts are as Ex.PW1/8 and Ex.PW1/9 and
9. Returned envelop as Ex.PW1/10.
6. PW-1 was cross-examined by Counsel for Defendant no.1, 2 and 3. Vide order dated 21.07.2018, PE was closed on behalf of plaintiff.
8. Thereafter, the defendant no.1 himself stepped into the witness box as DW-1. He tendered his evidence by way of affidavit Ex.DW1/A and relied on the following documents:
1. Bill dated 15.01.2004 of Monacco & Associates for chowkhat as Ex.DW1/1.
2. Copy of documents of tenancy with Sh.Manu Ananth as Ex.DW1/2
3. Original Lease Agreement dated 21.04.2005 between me and Sh. Rajiv Raj Gopal on behalf of M/s Castrol India as Ex.DW1/3
4. Letter dated 26.12.2005 sent by M/s Castrol India Ltd. As Ex.DW1/4
5. Letter dated 02.03.2006 & 16.02.2006 respectively issued by Castrol India Ltd. As Ex.DW1/5 and Ex.DW1/6
6. Copies of documents of tenance with Sh. Amitabh Singh in April 2006 as Ex.DW1/7
7. Copy of notice dated 03.05.2005 issued by MCD as Ex.DW1/8
8. Public notice issued by MCD in newspaper as Ex.DW1/9
9. Applications for regularization of third floor as Ex.DW1/10 (colly) CS DJ No. 7017/2016 & CS DJ No. 7018/2016 Page 20 of 50
10. Circulars issued by Additional Commissioner (Engineering) dated 19.01.2009 as Mark-A.
11. Original Lease Deed dated 21.06.2003 between myself and Sh. Nazeer Ahmad in respect of the third floor/ suit property as Ex.DW1/11
12. Statement of Bank Account of tenant namely M/s Clayful for the period 01.01.2003 to 31.01.2012
13. Quotation/ Letter dated 08.12.2003 issued by Babu Lal who constructed the third floor as Ex.DW1/13
14. Letter dated 14.02.2004 issued by Babu Lal as Ex.DW1/14 (Document Ex.DW1/1 to Ex.DW1/10, Ex.
DW1/13, Ex.DW1/14 and Mark-A are part of connected case bearing CS DJ No. 7018/16 titled as M/s Sanguine Enterprises (P) Ltd. Vs. Pradeep Sethi).
7. Sh. Ravi Kumar, Assistant Engineer (Bldg.), South Zone, MCD, Green Park, New Delhi stepped into the witness box as D3W-1. He tendered his evidence by way of affidavit Ex.D3W1/A and relied on the following documents:
1. Copy of application filed by owner/ occupier of the property for regularization of third floor as Ex.D3W1/1.
2. Letter dated 14.11.2008 issued to owner of the suit premises with certain directions Ex.D3W1/2.
3. Letter no. 1521/AE (B)-III/SZ/2010 dated 03.12.2010 as Ex.D3w1/3.
8. Sh. Babu Lal was examined as DW-2. He tendered CS DJ No. 7017/2016 & CS DJ No. 7018/2016 Page 21 of 50 his evidence by way of affidavit Ex.DW2/A and relied on the following documents:
1. Photocopy of quotation rate letter is marked as Mark-DW2/1 (original copy already exhibited Ex.DW1/13 in connected case bearing no. 7018/16 titled as Sanguine Enterprises (P) Ltd. Vs. Pradeep Sethi).
9. Sh. Surinder Singh was examined as DW-3. He tendered his evidence by way of affidavit Ex.DW3/A and relied on the following documents:
1. The copy of bill dated 15.01.2004 already exhibited as Ex.DW1/1.
10. Before appreciating the evidence, the following points based on the pleadings are being highlighted:
1. Each plaintiff (in both suits) has claimed that he is entitled to 100 Sq. Feet of space as Servant Quarter;
2. Neither plaintiff has given the dates when the Servant Quarter of the plaintiff was demolished or encroached upon;
3. Neither plaintiff has given the dates on which the defendant commenced or completed construction of the 3rd floor; and
4. Neither plaintiff has filed the site plan indicating the exact location of the 100 Sq. Feet of space, where the Servant Quarter existed or to the possession of which the plaintiff is entitled to.
11. As far as Issue No. (d) is concerned, the relevant portion of the sale deed describing the property under sale is quoted for easement of reference:-
And Whereas the VENDOR AND CS DJ No. 7017/2016 & CS DJ No. 7018/2016 Page 22 of 50
CONFIRMING PARTY for their bonafide needs and requirements, have agreed to sell, convey, transfer and assign to the Vendee and the Vendee has agreed to purchase the ½ (One-Half) undivided share of Entire Ground Floor of the abovesaid property, this ground floor consisting of three bedrooms, one hall, one lobby, one kitchen, two bathrooms alongwith front lawn and passage towards 150 Sq. Ft. Road and entire open space in the rear, entire back Courtyard, right to park Two Cars in front of the building, 100 Sq. Ft. space on Te:race for Servant Quarter or for any other use, right to install V-SAT/Antenna on the terrace of the building, alongwith 20% undivided, indivisible and impartible ownership rights in the said plot of land measuring 250 Sq. mtrs. bearing property No.S-214, situated at PANCHSHILA PARK, New Delhi with all rights, title and interest, easements, privileges and appurtenances thereto with all fittings, fixtures, connections, structure standing thereon, use of common staircase to access to terrace for Servant quarter or for any other purpose, right to use of common water tank, common jet pump, common driveway, entrances etc. (hereinafter collectively referred as the DEMISED PORTION of Free Hold property bearing No.S-214, PANCHSHILA. PARK, New Delhi, unto the VENDEE for a total consideration, of Rs. 15,00,000/- (Rupees Fifteen Lacs only) absolutely and for ever.
12. From the plain reading of the sale deed, it is evident that the sale was of "half undivided share" of "the entire ground floor" which was followed by the description of the ground floor and the rights attached thereto. The ground floor is described as one consisting of three bedrooms, one hall, one lobby, one CS DJ No. 7017/2016 & CS DJ No. 7018/2016 Page 23 of 50 kitchen, two bathrooms, along with front lawn and open space in the rear along with the passage towards the road, right to park two cars in front and 100 square feet space on the terrace for servant quarter or for any other use, right to install antenna, etc. Therefore, clearly reference to the front lawn, the back courtyard, right to park vehicles, 100 square feet of space has been mentioned as 'easements' or the mode to enjoy the common portions of the property and has to be construed along with the qualifying expression "half undivided share". The sale deed of M/s. Sanguine Enterprises Pvt. Ltd. may also referred to for ease of reference:-
And Whereas the VENDOR AND CONFIRMING PARTY for their bonafide needs and requirements, have agreed to sell, convey, transfer and assign to the Vendee and the Vendee has agreed to purchase the 1 (One-Half undivided share of Entire Ground Floor of the abovesaid property. this ground floor consisting of three bedrooms, one hall, one lobby, onc kitchen, two bathrooms alongwith front lawn and passage towards 150 Sq. Ft. Road and entire open space in the reai, entire back Courtyard, right to park Two Cars in front of the building, 100 Sq. Ft.
space on Terrace for Servant Quarter or for any other use, right to install V-SAT/Antenna on the terrace of the building, alongwith 20% undivided, indivisible and impartible ownership rights in the said plot of land measuring 250 Sq. mtrs. bearing property No.S-214, situated at PANCHSHILA PARK, New Delhi with all rights, title and interest, easements, privileges and appurtenances thereto with all fittings, fixtures, connections, structure standing thereon, use of common staircase to access to terrace for Servant CS DJ No. 7017/2016 & CS DJ No. 7018/2016 Page 24 of 50 quarter or for any other purpose, right to use of common water tank, common jet pump, common driveway, entrances etc. (hereinafter collectively referred as the DEMISED PORTION of Free Hold property bearing No.S-214, PANCHSHILA PARK, New Delhi, unto the VENDEE for a total consideration of Rs. 15,00,000/- (Rupees Fifteen Lacs only) absolutely and for ever.
13. One finds that the description of the property being sold is one and the same. Therefore, from the joint reading of both the sale deeds, it is clear that the entire ground floor comprised of the property described and along with it came the right to park two cars in the front and 100 square feet space on the terrace for servant quarter or for any other use. I am of the view that 100 square feet space was not being given separately to each of the plaintiffs but reference to the 100 square feet space on the terrace for servant quarter or for any other use, is a description of the right to enjoy a portion of the terrace in a particular manner i.e. 100 square feet space on the terrace could be used by the owner of the entire ground floor. This interpretation is fortified by the fact that in the entire sale deed, the 100 square feet area on the terrace is not identified. There is no site plan showing the location of this 100 square feet on the terrace either with the sale deed or with the plaint. Further at this stage, the evidence of the plaintiff on this aspect may be referred to. The plaintiff's witness PW-1 was cross examined as to the location of the alleged 100 Sq. Feet of space of each of the plaintiff, its depiction, site plan etc. The cross examination to the extent relevant is being quoted for ease of reference:
CS DJ No. 7017/2016& CS DJ No. 7018/2016 Page 25 of 50 Cross dated 19.07.2018 (pre-lunch):
The witness has been shown para 5 of his affidavit Ex. PW1/A and drawn the attention that where he has mentioned that "(xi) 100 sq. ft. Space each to the plaintiff and M/s Sanguine Enterprises (P) Ltd. On terrace of second floor for servant quarter or for any other use each". I have inferred the aforesaid version from the sale deed Ex.PW1/2.
Point C at page 19 of the sale deed Ex.PW1/2 has been shown to the witness and asked where the second floor has been mentioned in point C. It is correct that the word second floor terrace is not mentioned at point C. (Vol. Since at the time of sale deed the building was constructed only upto 2nd floor, obviously it meant the terrace above the second floor). I have not filed the sale deed pertaining to the basement of the building. I do not remember whether I have filed site plan alongwith the plaint. Alongwith the sale deed I was also given one approved map with the building. I do not remember whether I have filed the said approved site plan alongwith my suit. I do not want to see the court file for checking whether I have filed the site plan or not.
At this stage, one site plan filed by the plaint existing at page No.77, is put to the witness and asked if the same has been filed by him, to which witness submits that he does not remember, now the site plan is Mark D. Again said, I do not remember if the builder had given any site plan alongwith the sale deed.
I do not remember who has prepared the site plan Mark D. I do not remember who had prepared the site plan Mark D. Again, said, I do not remember, if I had called CS DJ No. 7017/2016 & CS DJ No. 7018/2016 Page 26 of 50 anyone in my property to prepare site plan. In fact, I do not remember anything about the site plan. I cannot tell as to where the space for servant quarter is shown in the site plan Mark-D. I do not remember whether on the date of execution of my sale deed, there existed any servant quarters on the terrace.
Q. Can you tell whether on the date of execution of sale deed and handing over the possession of the basement and ground floor to you, were you also handed over the possession of 100 sq. feet space on the terrace?
Ans. At the time of handing over possession of these two floors to me, the builder had told me that I can occupy 200 sq. feet of space on the terrace (towards the outer ring road).
Regarding my above deposition that the space of 200 sq. feet was alloted to me towards the outer ring road, the same has not been specified in my sale deed Ex.PW1/2. It is incorrect to suggest that I am deposing falsely with regard to existence and nonexistence of servant quarters on the terrace.
Attention of the witness has been drawn to para 10 point E of his affidavit wherein it is specifically stated that there were no construction on the terrace of the second floor. Witness submits that may be at the time of preparation of the affidavit I was remembering about the existence and nonexistence of servant quarter, but due to lapse of time I do not remember the same now. I do not remember whether at the time of filing of the suit, I was remembering about the existence and nonexistence of servant quarter. It is correct that I have filed the affidavit and plaint after reading and understanding the same and the same are correct to my knowledge.
CS DJ No. 7017/2016& CS DJ No. 7018/2016 Page 27 of 50 At this stage, witness is shown para 16 of his plaint, wherein it is stated that there were no three servant quarters and one common toilet on the terrace of the second floor. I do not remember why I have so stated in my plaint.
I do not remember as to who had constructed the servant quarter and on which date the construction had begun.
At this state, attention of the witness is again drawn at para nпо. 16 of the plaint, wherein it is specifically stated that "these were constructed by the defendant no.1 & 2 later on". I do not remember.
Q: I put it to you that vis-a-vis the existence and construction of servant quarters, you have made two contradictory statement affidavit and other made today. Which one is correct? one in the plaint and affidavit and other made today. Which one is correct?
A: I do not remember today as to why I had made such statements in my suit.
It is correct that I know the consequences of making two contradictory and false statements in the court.
Cross dated 19.07.2018 (post lunch):
The possession / floor was taken on the same date of execution of the sale deeds. I do not remember whether there existed any servant quarter or not at the time of taking possession of the floor.
I was not handed over possession of any servant quarter at the time of taking possession of the floors (ground floor/basement). We were told by the owner that we can occupy 200 sq ft of space on the terrace towards the outer ring road side. I do not remember as to when and by whom the CS DJ No. 7017/2016 & CS DJ No. 7018/2016 Page 28 of 50 servant quarters were constructed. I visit the suit property very rarely since it has been leased out.
Cross dated 21.07.2018:
Q. Are you aware that as per the two sale deeds executed by the builder in favour of plaintiffs, no right of common toilet was mentioned or given to the plaintiffs in both the cases?
A. The builder had told us that common facility mentioned in the sale deed includes the common toilet. The common facility in the building meant all the common uses, it can be availed of.
Q. Is it correct that builder had not given you in writing in the sale deed that you would have right to used the common toilet and/or servant quarter?
A. Common passages/common facilities which are available in the building can be used by us along with the other occupants.
Q. I put it to you that in letter undated sent on 15.04.2010, para 2 Ex. CW- 1/D1 you have stated that possession of the servant quarter and toilet on the terrace was given to the plaintiff by the builder, whereas in the affidavit by way of evidence in para 5, you have stated on oath that 100 sq feet space each to the plaintiff was given, which statement of both are true?
A. It is correctly stated in the affidavit by way of evidence that 100 Sq. feet space was given to each of the companies in total 200 sq feets on the terrace of the second floor. In the letter, we have written that the possession CS DJ No. 7017/2016 & CS DJ No. 7018/2016 Page 29 of 50 of the ground floor was given but orally told that servant quarter etc. would come in the common facility.
I suggest you that you are not answering the question correctly in para 2 of the letter Ex. CW-1/D1 you have stated the same as under:-
"That the addressee No.2 & 3 had delivered the peaceful vacant physical possession of the said demised portion along with possession of servant quarter and toilet on the terrace".
Q. Is the aforesaid statement in the letter is correct or not?
A. I do not remember.
Q. Is it correct that the one antenna was installed by the bank who is your tenant on the ground floor had already installed one antenna on the third floor terrace in the year 2005?
A. I do not remember.
Q. Are you aware about the installation of the antenna by the tenant in the year 2005? A. I do not know.
Q. Are your tenants on the ground floor getting water supply through water pipes and water tanks from the terrace of the third floor and previously from mumty since you purchased the said portion from the builder?
A. We had purchased the portion of the building which was constructed only upto second floor and as such since water tank was placed on the second floor terrace, the CS DJ No. 7017/2016 & CS DJ No. 7018/2016 Page 30 of 50 water supply would come from that level.
Q. I suggest to you that water tanks were never at the second floor terrace and since beginning the tanks were on the mumty of the second floor at third floor level?
A. My answer is the same as the previous answer.
Q. Is it correct and as stated earlier in your evidence you had never gone to the terrace to examine where your servant quarter space was and even other facilities?
A. Yes.
Q Does it mean that you had never seen the water tank on the second floor terrace as stated by you in the earlier answer?
A. I do not remember.
Q. Who told you that the water tanks were at second floor terrace when the sale deed was executed in favour of the plaintiffs as you had never gone to inspect the terrace floor after purchase of the property till 2009? A. I do not remember.
Q. Can you please inform where are the jet pump installed in the premises?
A. I am not aware.
Q. Is there any jet pump installed in the premises?
A. I am not aware.
Q. Was any area / space earmarked for servant quarter or mentioned in the sale deed CS DJ No. 7017/2016 & CS DJ No. 7018/2016 Page 31 of 50 on the terrace of the building of the plaintiffs?
A. The specific location for space for servant quarter is not mentioned in the sale deed but we were orally told to occupy 200 sq feet space on the terrace of the second floor towards the outer ring road side.
Q. Who told you orally and when about the same as mentioned by you in the previous answer?
A. I do not remember.
14. From the aforesaid cross-examination, it is evident that the plaintiff has lied to the Court about the existence of the servant quarter. The plaintiffs had never gone to the terrace to see the servant quarter and no identifiable area was handed over to the plaintiff on the terrace. Therefore, I have no difficulty in holding that only right to enjoy the 100 square feet space for servant quarter or for any other purpose was granted along with the sale of ground floor to the plaintiffs and enjoyment of this 100 square feet area was attached with the ownership of the ground floor. Therefore, the plaintiff in both the suits would be entitled to 50 square feet area each or 100 sq. feet collectively and no more. Issue No. (d) is decided accordingly.
Issue (a).
Whether the Conveyance Deed in favour of the defendant no.1 or any part thereof is bad for the reason of the property/ rights conveyed thereunder having already been conveyed to the plaintiffs?
CS DJ No. 7017/2016& CS DJ No. 7018/2016 Page 32 of 50
15. Now takes me to Issue No. (a). Again reference has to be made to the description of the property being sold in the sale deed of the plaintiffs and as I have already concluded the 100 square feet on the terrace for servant quarter or for any other use, does not specifies any definite area but is only conferment of a right to enjoy a portion of the terrace. From the evidence of the witness, already quoted herein-above, it is evident that the plaintiffs were never put in possession of any specific 100 square feet space on the terrace. No such portion has been identified by the plaintiff in the suit by filing any site plan as well, as there was no sale or transfer of any specific 100 square feet of area to the plaintiffs. It is for the same reason, the 100 square feet area space on the terrace is mentioned along with other common rights and easements and not the specific property which was being conveyed. Therefore, when the right to build on the second floor of the property was transferred to the defendant No. 1, he was put under an obligation to ensure that all common facilities and rights granted to the other owners of the building are shifted to the terrace of the floor so constructed. Relevant portion of the sale deed of defendant no.1 is quoted for ease of reference:-
AND WHEREAS the Confirming Party has now seized and possession and otherwise well and sufficiently entitled to all the entire SECOND FLOOR consisting of Three Bed Rooms, each with balcony with two attached Bathrooms alongwith their passage. One Drawings + dining Hall with two balconies, one Lobby with attached bathroom, One Kitchen, one Servant quarter measuring 65 Sq.ft. with common toilet in the terrace of Second Floor with one car parking inside the southern most gate (adjacent to the parking CS DJ No. 7017/2016 & CS DJ No. 7018/2016 Page 33 of 50 space for the first floor) in front of the building alongwith all roof right (except the space of two servant quarters with common toilet of the ground and first floor and space of water tanks) in, or the said free hold property bearing no. S-214 erected on a plot of land measuring 250 sq.mtrs. situated at Panchshila Park, New Delhi-110017 with all rights interests, privileges appurtenances whatsoever ......(illegible)...underneath the said property together with the right to use/ avail common entrance, passages, staircase ... (illegible).. provided in the building and ... (illegible) thereto i.e. use of common staircase to access to terrace tor servant quarter, maintenance of over head water tanks, right to use of main gate, right to use of common water tank, common jet pump etc. with all fittings, fixtures, connections, structures, standing thereon, with all rights in common driveway (gate immediate north of specified parking area) entrance, entire passage towards 150 sq. ft. Road, staircase etc. (hereinafter collectively referred to as the "SAID PORTION" of the said property).
...
4. That the Vendor and the Confirming party, do hereby grant to the vendee 22.5% undivided, indivisible do and impartiable ownership rights in the plot of land of the building No.S-214, measuring 250 sq.mtrs.
or there about, situated at Panchshila Park, New Delhi-110017, as also in common facilities such as entrance, passage, staircase, submersible pump etc. to hold/use the same jointly and in common with the other purchaser/s and owner/s of other flats/portions in the aforesaid building.
...
14. That in future if the Vendee will CS DJ No. 7017/2016 & CS DJ No. 7018/2016 Page 34 of 50 construct the Terrace of the second floor, he will construct the two servant quarter with common toilet of the ground and first floor owners and shall also shift the overhead water tanks to the next floor with his own cost and expenses. The other owners/occupants the building have no objection in making construction on the terrace of the second floor by the Vendee.
16. Whether or not servant quarter is permissible on the terrace of the third floor is inconsequential as from the evidence, it is evident that no servant quarter was in existence nor possession taken of by the plaintiffs at the time of purchasing the property and the description in the sale deed is clear and unequivocal that 100 square feet space could be used by the plaintiffs for servant quarter or for any other purpose. This expression has to be construed in accordance with law and what may be permitted, legally speaking. Sale deed did not declare the terrace to be common for all the owners of the existing structure and only specifically gave 100 square feet of space for enjoyment to the plaintiffs and therefore, it seems that the right to transfer the terrace was retained by the builder / defendant No. 2 when the sale deed was entered into with the plaintiffs.
17. At this juncture reference may be made to decision of the Hon'ble High Court of Delhi in Jotinder Sharma Vs. Seema Chowdhary & Anr., RSA 167/2015, decided on 14.08.2015, wherein it was observed:
12. The findings returned by the courts below - apart from being consistent, are premised on the evidence led by the parties and on the interpretation of the documents relied upon by the parties. Though the CS DJ No. 7017/2016 & CS DJ No. 7018/2016 Page 35 of 50 subsequent sale deed dated 29.06.1998 executed in favour of the predecessor in interest of the respondent/plaintiff would not govern or curtail the rights vested in the plaintiffs predecessor in interest by virtue of the sale deed dated 22.05.1998, the same can be looked into to bring out the contrast, and to better appreciate the rights vested in the predecessor in interest of the RSA 167/2015 Page 5 of 7 appellant, which have been acquired by the appellant by virtue of the sale deed dated 22.05.1998. The right vested in the appellant is in respect of, inter alia, one servant quarter under overhead water storage tank with common WC on the terrace floor. The use of the word "second floor terrace", in my view, is merely descriptive of the terrace, which existed when the sale deed was executed. Similarly, the right to "use only of small portion of rear terrace" only pertains to the right to user as a terrace, and not for the purpose of raising construction, which, if permitted would go beyond the right of user of a portion of the terrace floor and would get enlarged into a right of occupation, and a right to construct on the portion of the terrace floor.
In fact, the said right of use of a small portion of the rear terrace does not even attach it to the words "second floor". Therefore, whichever is the terrace floor, the appellant would have the right in one servant room under the overhead water storage tank with common WC, and the right of user only of small portion of rear terrace. The appellant cannot insist that his servant room under the overhead water storage tank with common WC should exist on the terrace of the second floor alone, and that it cannot be on the terrace above the third floor, or fourth floor, as the case may be, upon raising of further construction in accordance with law, by the person who has acquired the right of such construction on the terrace of the second floor, or third floor, as the case may be. Similarly, the right of use only of a smaller portion of the rear terrace would relate to whichever terrace comes into existence, upon raising of further construction in accordance with law. In any event, the right of use only of a smaller portion of rear terrace, as aforesaid, only pertains to use as a terrace, and not for purpose of occupying the same to the exclusion of others, or raising construction thereon.
CS DJ No. 7017/2016& CS DJ No. 7018/2016 Page 36 of 50 The aforesaid obervations fully cover the case before me in view of the evidence led and documents produced and accordingly the Issue No. (a) is decided against the plaintiffs and in favour of the defendants.
Issue No. (b).
hether the claim aforesaid of the plaintiffs is barred by time?
17. As far as issue of limitation is concerned i.e. issue No. (b) , it has to be seen that the present suit claims multiple reliefs. It has to be seen it any of the relief claimed in the plaint is barred by time or all of them or none of them. On the aspect of limitation, it has to be seen as to when the plaintiffs became entitled to seek declaration vis-a-viz the sale deed executed in favour of the defendant No.1, when the plaintiffs' cause of action was complete for suing for permanent injunction or mandatory injunction as prayed for. Since all reliefs pertain to enjoyment of peaceful possession of the servant quarter, its demolition, the unauthorized construction of third floor by the defendants and shifting of water tanks and common facilities, etc., reliefs are all interlinked. In my view, the cause of action for suing for these claims would have been complete when the defendant occupied the roof of the second floor and commenced construction of the same. On these aspects, such as when the construction was carried out and whether the witness had seen the construction being carried out, the cross examination of PW1, to the extent relevant, is being quoted for ease of reference:
Cross dated 19.08.2018:
I have never visited the suit property CS DJ No. 7017/2016 & CS DJ No. 7018/2016 Page 37 of 50 from 2003 to 2010. However, when the tenant told us that the defendant is not allowing them to access to the terrace then I visited the suit property. It is correct that I did not physically inspect the 200 sq ft on the terrace on the second floor from date of purchase till year 2010. I came to know about the construction of the third floor when I inspected the terrace in the year 2009. I do not know as to on which portion of the terrace, the tenants wanted to install their antena for which they were prohibited. We had given the right to use 200 sq ft space on the terrace and I am not aware whether the employees of the bank used to visit the terrace portion of the building or not. But I was informed by the tenant that in the year 2009 when the employee of the tenant bank went to install the antena on the terrace, they were not allowed by the defendant no.1. I do not remember the name of the employee of the bank who informed the same to me.
The antena was for better Internet connectivity as informed by the tenant and I have no personal knowledge as to the nature of antena sought to be installed. I had made a police complaint in writing in the year 2009/2010 regarding the obstruction by the defendant no.1 from installation of the antena. However, no action was taken by the police on my complaint. As per my knowledge V-Sat antena is for Internet connectivity.
Cross dated 21.07.2018:
Q. When which day and month you came to know that the defendant no.1 had raised an unathorised construction in the shape of third floor and illegally covering the space of 200 sq feet allotted to you?CS DJ No. 7017/2016
& CS DJ No. 7018/2016 Page 38 of 50 A. I do not remember but when my tenant complaint that they were not allowed to go to the terrace for antenna work and at that time I came to know, may be in the year 2009/2010.
Q. Are you aware that defendant no.1 had constructed the third floor and completed the same by January, 2004 / beginning of February and had given the said premises on rent?
A. I am not aware at that time hut only came to know in the year 2009 /2010.
...
Q. I put it to you that three servant quarters were constructed by defendant no.1 in the year 2003 along with a common toilet and at that time third floor was constructed and you have been well aware of the same since beginning?
A. It is incorrect.
Q. I suggest to you that three servant quarter and third floor was constructed with your consent, what do you have to say about this?
A. It is incorrect.
It is incorrect to say that I have filed it in the year 2010 upon asking of Dr. Rajneesh Bhaghirath. It is incorrect to suggest that I had never objected to the constructionof third floor and srevant quarter done in the year 2003 for seven years. (Vol. As already stated since the property was lease out I was not aware about construction).CS DJ No. 7017/2016
& CS DJ No. 7018/2016 Page 39 of 50
18. The witness was also cross examined on the claim that the defendant has reduced the passage to the terrace from 3 feet to 1.5 feet and the relevant portion is being quoted for ease of reference:
Q. Who told you that the width of passage of terrace was 3 feet and it has been used to 1½ feet?
A. When I visited the terrace in the year 2009-2010, I got to know of the same. My tenant had told me in the year 2009-2010 that it was the 3 feet passage and it was reduced to 1½ feet and that we can not access the tenant because the passage has been narrowed down. However, my tenant did not specify the year or date when they had narrowed down the passage. I do not have any pesonal knowledge about the same I got to know of the same only through the tenant. It is incorrect to suggest that the 3 feet passage was never reduced to 1/½ feet. It is correct that in year 2009-2010 when I visited the terrace with my tenant, no one had stopped me or created any objection. After 2009-2010 I had again visited the suit property in the year 2018 when the matter was listed before Ld. Mediation when he asked to visit the terrace and measure the area on the terrace. I inspected the terrace to see if I could occupy a space of 200 sq feet anywhere. But I could not find any such vacant space over there. I do not remember if there has been any measurement of stair case by me. It is wrong to suggest that defendant no.1 has exclusive right over the entire terrace.
19. As far as defendant no.1 is concerned, the defendant CS DJ No. 7017/2016 & CS DJ No. 7018/2016 Page 40 of 50 no.1 as DW-1, was directly questioned about the construction of the 3rd floor and his reply to the extent relevant is being quoted for ease of reference:
It is incorrect to suggest that when I purchased a suit property, the construction of third floor was not permissible. It is wrong to suggest that since the construction of third floor was not permissible, I was given notice by MCD to demolish the illegal construction on the third floor. It is incorrect to suggest after hearing my application for regularization of the third floor, the MCD passed the demolition order on 28.08.2009 and informed to me the same vide letter dated 03.12.2010. It is correct that I had constructed the third floor without prior sanction of the construction plan. (Vol. MCD had told me to carry on construction and that they would regularize the same thereafter).
20. Sh. Ravi Kumar, Assistant Engineer, Building, South Zone had appeared as witness on behalf of MCD. His cross examination by the plaintiff's counsel Sh. S.S. Saluja is interesting and quoted for ease of reference:
Q2 I put it to you when you had received information with regard to the unauthorized construction raised by Sh. Pradeep Sethi, in the year 2004, what do you have to say?
Ans. I am not aware. It is matter of record.
Q3- Who can pass the order of demolition? Whether he can withdraw the demolition order?
Ans. Assistant Engineer of the area can pass the order of demolition. The order of demolition can be official challenge.CS DJ No. 7017/2016
& CS DJ No. 7018/2016 Page 41 of 50 I am conversant with all the bylaws of the building.
Q4- If a building is regularized upto second floor, whether third floor can be raised?
Ans. It is subjected to various provisions and compliance of building bylaws and master plan.
Q5- When the demolition order was passed, these building bylaws and master plan before you?
Ans. The demolition order was not passed by me.
Q6 I suggest you that if the building regularized upto second floor, nothing can be constructed on the terrace?
Ans. I have already answered the same.
Q7- Are you aware regarding the construction of servant quarter on the terrace of the suit property.
Ans. I am not aware. It is a matter of record.
Q8- Whether the third floor raised on the subject property is authorized?
Ans. I was not posted here and it is a matter of record. Further added that as per my affidavit para 2 the suit premises has raised unauthorized construction in the shape of third floor and the same was booked under Section 343/344 of the DMC Act.
21. At this juncture, testimony of Babu Lal was CS DJ No. 7017/2016 & CS DJ No. 7018/2016 Page 42 of 50 produced as DW-2 by the plaintiff. He was produced as a contractor, who constructed the 3rd floor on the said floor. His examination-in-chief and cross examination to the extent relevant is reproduced for ease of reference:
Examination-in-chief:
That the deponent is a building contractor and the Third Floor of building No. S-214, Panchsheel Park, New Delhi was constructed by the deponent. I started the construction of the Third Floor of S-214 Panchsheel Park, New Delhi in November end/December 2003 and completed the Construction around at end of January 2004. Mr Pradeep Sethi had hired me for construction of the said floor and the same was constructed at the instance of Mr Pradeep Sethi. The Original Quotation rate letter is in possession of Sh. Pradeep Sethi and copy of the same is marked as DW2/1.
Cross examination:
I am doing the construction work as contractor since 1984. I had constructed on third floor at the instance of Sh. Pradeep Sehti and entered into an agreement also. Not aware where this agreement is at present. I had not seen any MCD approved plan while constructing the third floor. Mr. Pradeep Sethi also did not provide any MCD approved plan. I do not know any Mr. Rajneesh Wadhawan. I was not aware about legal requirement regarding construction of third floor at the area where suit premises. I completed the construction at third floor within two months i.e. only 700 sq. ft. I cannot admit or deny if the third floor constructed by me is illegal..CS DJ No. 7017/2016
& CS DJ No. 7018/2016 Page 43 of 50
22. Similarly, a Carpenter was examined as DW-3. His examination-in-chief and cross examination to the extent relevant is reproduced for ease of reference:
Examination-in-chief:
That the deponent is a contractor and interior designer. The deponent had done wooden work of doors, windows and Chaukhats etc at the Third Floor, which was freshly constructed at the property No. S- 214, Panchsheel Park, New Delhi. I, carried the job of the said wood work at the Third Floor of S-214 Panchsheel Park, New Delhi in January 2004. Mr Pradeep Sethi who he had engaged me for the said job work. I had raised the bill to Sh. Pradeep Sethi and is with Mr Pradeep Sethi Copy of the same is marked as DW3/1.
Cross examination:
I have been doing the carpentry work for the last 26- 27 years. On the third floor of S-214, Panchsheel park, New Delhi the entire woodwork was carried out by me at the instance/ order of Sh. Pradeep Sethi. I do not remember that any agreement was executed between me and Sh. Pradeep Sethi for this work. I did not know if or not the plan/ design of said floor passed by competent authority. Mr. Pradeep Sethi has not given me any approved plan for third floor. I do not know Mr. Rajneesh Wadhawan. It is incorrect to suggest that had carried illegal work.
23. From the plaintiff's evidence, it is clear that he has failed to give any exact information about when the construction began in the property. All he has claimed is that one day in the year 2009-10, his tenant informed him about non access to the CS DJ No. 7017/2016 & CS DJ No. 7018/2016 Page 44 of 50 terrace for antennae work and that's when he commenced making complaints. On the other hand, are the testimonies of the defendants' witnesses where the stand is clear that the construction started in November-December 2003 and was completed by the end of January 2004 in about 2-3 months. From the cross-examination, carried out by the plaintiff is concerned, of the witnesses of the defendants, on these aspects, it is evident that the plaintiff has accepted the testimony of DW-2 and DW-3 besides the testimony of DW-1 on the aspect that construction was carried out in the year 2004 and that it was completed within a period of 2 months and that the construction was carried out on only 700 Sq. Feet of area.
24. Therefore, the relief of declaration, of permanent and mandatory injunction are all barred by limitation as the suit has been filed almost seven years after the cause of action having arisen. Issue is decided accordingly.
Issue No. (c) Whether the suit is not properly valued for the purposes of Court Fees and juridiction and if so, to what effect?
25. As far as issue no. (c) is concerned, onus to prove the same was on the defendant but no evidence has been led by the defendant in this regard and the issue is accordingly decided against the defendant and in favour of the plaintiff. Issue No. (e) Relief:
26. Since the key issues have been decided against the plaintiff, the plaintiff is not entitled to any relief. However, it CS DJ No. 7017/2016 & CS DJ No. 7018/2016 Page 45 of 50 may be pertinent to note that the following additional aspects need to be appreciated.
27. Firstly, the competency of the witness/AR was probed during the cross examination and the relevant portion of the cross examination of PW-1 is quoted for ease of reference:
Cross dated 19.07.2018 (pre-lunch):
There are two directors in the plaintiff company M/s Nevi Enterprises (P) Ltd, the name of the directors are Neera Kapoor and Vikas Kapoor, as per my knowledge. I recognize the signature of Neera Kapoor and Vikas Kapoor. Ex.PW1/1 is bearing the signature of Director Vikas Kapoor. Ex.PW1/1, does not bear the signature of another director Ms. Neera Kapoor. The extracts of the meeting held on 15.03.2010 for passing the resolution Ex.PW1/1 has not been filed on the judicial record. I do not know whether any other person in the name of Mr. Kedar Nath Sharma and Mr. Anil Sharma are the directors of the plaintiff company. The Memorandum of Association has been shown to the witness and after going through the same, witness replied that he does not know anybody with the name of Mr. Kedar Nath Sharma and Mr. Anil Sharma. The Resolution has been sent to me by the plaintiff company and the same has not been passed in my presence nor has been signed in my presence.
Cross dated 19.07.2018 (post-lunch):
The two companies Nevi Enterprises and M/s Sanguine Enterprises have no concerned with each other. It is correct that I am deposing on behalf of both the companies. I am Director in M/s Sanguine Enterprises and I am representing on behalf CS DJ No. 7017/2016 & CS DJ No. 7018/2016 Page 46 of 50 of Nevi Enterprises. In M/s Nevi Enterprises, Mr. Vikas Kapoor and Ms. Neera Kapoor are directors, whereas in M/s Sanguine Enterprises, I myself and my wife Mrs. Shubhra Dhody are the Directors. I am not aware as to who is the shareholder of the company M/s Nevi Enterprises (P) Ltd.
Q: Have you filed both the suits M/s Nevi Enterprises and M/s Sanguine Enterprises?
A: Yes.
Q: Have you filed Memorandum and Article of association of both the plaintiffs in both the cases?
A: I do not remember.
As regards the case of M/s. Nevi Enterprises, the owners of half undivided share namely Mr. Vikas Kapoor and Mrs. Neera Kapoor had shown me the form 32 filed with the Ministry of Corporate Affairs.
Q: Have you placed on record form 32 of M/s Nevi Enterprises to show the shareholding and directorship on behalf of whom you filed this suit?
A: I do not remember.
I do not remember whether I had filed the original Minutes and Board Resolution of M/s Nevi Enterprises.
28. Therefore, as far as the CSDJ 7017/2016 is concerned, the same was neither filed nor the plaint signed and verified to a duly authorized signatory as the board resolution CS DJ No. 7017/2016 & CS DJ No. 7018/2016 Page 47 of 50 was not proved.
29. Further, the plaintiffs' witness was also questioned about unauthorized construction/change of user of the ground floor portion of the property by the plaintiffs and his reply to the extent relevant is quoted for ease of reference:
I am aware that the said premises falls in residential area and I had taken permission from MCD for change of user and had complied with all the directions of the MCD in this regard. I have not placed on record any document with regard to getting permission from MCD for change of use. (Vol. I have filed the present suit with regard to terrace rights only).
I do not remember whether the ground of said property was booked by MCD U/S 343 & 344 of DMC Act on 19.08.2003 because of removing dwelling unit and provided two shutters at ground floor and converted into commercial use & provided partition was in basement. I am not aware about the above-said changes in the said property. I have not visited the property before I purchased the same on 10.02.2003 and took the physical possession of the same.
I never visited the property till 2009- 2010. Relief which I am seeking from MCD that they should demolish the construction thereon that portion of the terrace i.e. 200 sq feet of area that belongs to me as per my sale deed.
I have gone through the prayer clause E of my plaint where I have not stated anything about demolition of 200 sq feet of area at the terrace. Rather in the said clause I have sought demolition of the entire third floor which has been illegally constructed. I am aware that demolition order has been passed by MCD with regard to construction CS DJ No. 7017/2016 & CS DJ No. 7018/2016 Page 48 of 50 on the third floor of the property. It is correct that dispute pertaining to that 200 sq feet area of the terrace with the defendant no.1 and defendant no.2 and not with defendant no.3. I am not aware that construction of servant quarter at the terrace of second floor or at the terrace of third floor are impermissible under Municipal Bye Laws MPD 2021. I am not aware as to in which year was the third floor constructed.
At this stage document Ex.PW-1/5 is shown to the witness and after showing the same the witness has confirmed that the relief sought for removal of third floor and against which MCD has already taken action by serving show cause notice and passing demolition order against defendant no.1. It is incorrect to suggest that I am deposing falsely.
For the said reason the plaintiff is not entitled to equitable relief against the unauthorized construction.
30. Next, the only relief left to be adjudicated upon is one of possession. Since I have already concluded that no specific area ever came in the occupation of the plaintiff, nor the plaintiff has proved or shown by site plan his entitlement to be in possession of any particular area, this court cannot grant any decree of possession. Further, since I have also concluded that the right to enjoy 100 sq. feet of area collectively by the plaintiffs' is not sale of any specific portion on the terrace, a decree of possession cannot be passed. Even if it was assumed that plaintiff had an undivided interest to the extent of 100 sq. feet the remedy would be partition and not possession. Lastly, from the evidence on record, I have not been able to conclude CS DJ No. 7017/2016 & CS DJ No. 7018/2016 Page 49 of 50 that the entire third floor has been constructed and no area remains unconstructed to the exclusion of the plaintiffs'. For that reason also the relief cannot be granted.
31. The suit is hereby dismissed.
32. Decree sheet be drawn accordingly. File be consigned to Record Room.
Pronounced in the open court Harjyot Digitally
by Harjyot
signed
Singh Bhalla
on 29.07.2024 Singh Date:
Bhalla 2024.07.29
18:03:27 +0530
HARJYOT SINGH BHALLA
DJ-05, SOUTH SAKET COURTS
NEW DELHI/ 29.07.2024
CS DJ No. 7017/2016
&
CS DJ No. 7018/2016 Page 50 of 50