Delhi High Court
Aneil Kumar Bhalla And Anr. vs B.R. Gambhir And Ors. on 5 September, 2006
Author: Pradeep Nandrajog
Bench: Pradeep Nandrajog
JUDGMENT Pradeep Nandrajog, J.
1. Having heard learned Counsel for the parties and having considered the pleadings of the parties I am of the opinion that the case does not require any evidence nor issues need be framed. Matter can be disposed of in view of the admitted facts and admitted documents.
2. I am conscious of the fact that where parties are at variance on questions of law and facts, issues have to be struck. Parties have to be given a right to lead evidence and thereafter argue their respective cases. But with docket explosion, I feel that it is the duty of every court to nip a frivolous litigation and read pleadings of the parties, not pedantically but purposively. Where a stand of a party is negated from a document filed by the party, the said document can be read against the party, denying it the right to plead a fact contrary to the document. Of course, a party has a right to explain its past conduct as also a document attributed to the party.
3. The document which I intend to use against the defendants, contains admissions of the defendants, which learned Counsel for the defendants has not been able to explain at the hearing today. For record, I may note that in the defendants pleadings, said document has not been explained. Further, the said document has been filed by the defendants and is therefore a relied upon document by the defendants.
4. First defendant was the perpetual lessee of land bearing municipal No. 45, Uday Park, New Delhi. Defendant No. 2 is the son of defendant No. 1. First defendant entered into a collaboration agreement with defendant No. 3 on 17.9.1992 as per which defendant No. 3 had to construct a building on the plot. Between defendant No. 1 and defendant No. 3 it was agreed that the second floor flat with a mezzanine floor would be the exclusive property of the builder. Defendant No. 1 executed the usual documents executed in Delhi in such kind of transactions, namely, collaboration agreement, will and a general power of attorney.
5. Plaintiffs purchased a flat on the second floor from defendant No. 3.
6. Defendants No. 1 and 2 had problems. Probably, they thought that they were the owners of the land and could therefore do whatever they like.
7. They forgot that they were not the owners of the complete super- structure.
8. Now, to have access to the second floor, plaintiffs had to enter upon the property at the ground level from the main gate, walk down the common open area leading to the stair case. Further, water tanks servicing water supply to the entire building including the second floor were constructed at the roof above the second floor. But, water supply being at a low pressure, under ground storage tanks wherefrom water is boosted to the top floor stand erected/constructed at the ground floor on the rear set back, position whereof is disclosed in the site plan annexed as Annexure P-1 to the plaint. Further, a booster pump has been installed to boost the water to the overhead water tanks has been constructed. The site plan is an admitted document. It shows separate under ground water tanks for the three floors i.e. a separate under ground water tank for the second floor.
9. Defendants No. 1 and 2 started obstructing access to the rear set back where under ground water tank and booster pump servicing the second floor stand constructed/installed as also prevented access to the roof above the second floor.
10. Bringing the aforesaid facts to the notice of this Court, present suit was filed praying as under:
a. Pass a decree for declaration against the defendants declaring that the plaintiff are the lawful owner and user of the common portions attached thereto i.e. common portion/passage for approach, use of common services i.e. Booster pump, overhead Tank, Staircase etc. of the property bearing No. 45, Udai Park, New Delhi as per the term of agreement.
b. Pass a decree permanent injunction restraining the defendants, their agents, representatives, legal heirs, assigns, agents, or any other person acting on their behalf from interfering the peaceful use and enjoyment of the plaintiffs or creating any hurdle and hindrance in the suit property in whole in any manner, whatsoever;
c. Direct the defendants to remove/demolish the unauthorized and illegal locks and gate constructed on the common usage suit property;
11. defense taken is that defendant No. 1 had entered into an agreement with one Sanjay Sharma to construct the first and second floor. Construction was to be raised as per sanctioned plan. Second floor was to belong to Sanjay Sharma. That in order to gain illegal profit, Sanjay Sharma raised unauthorized construction on the second floor by covering nearly 1000 sq.ft. area beyond the permissible limits. Since ground floor was not strong enough, defendant No. 1 objected to what Sanjay Sharma did. Defendant No. 1 revoked the general power of attorney and authorisation in favor of Sanjay Sharma. It is stated that plaintiffs could not acquire any right to the second floor.
12. Why I am disposing of the suit may now be clarified.
13. In para 5 of the preliminary objections contained in the written statement, defendant No. 1 has referred to a suit filed by him against the plaintiff and a compromise effected in the said suit.
14. Defendant No. 1 has filed the certified copy of the application under Order 23 Rule 3 CPC filed in the said suit which he had instituted against plaintiff No. 1.
15. The said compromise application disposed of suit No. 255/2001 filed by first defendant against plaintiff No. 1 in the court of the Civil Judge, Delhi.
16. The compromise application reads as under:
1. That the plaintiff has filed the present suit for declaration, mandatory and permanent injunction against the defendant. The defendant is contesting the suit and has filed the written statement and now fixed for 09.01.2002.
2. That during the course of the proceedings, both the parties have resolved their differences and consequently the plaintiff does not wish to proceed further with the present suit and wish the same be decreed in terms of the compromise reached between the parties.
3. That it has now been agreed that the right of use of a servant quarter located on the roof of the second floor will be with the consent of the plaintiff, and on such terms only as may be mutually acceptable to both the parties.
4. That in the event that the defendant sells/leases the second floor flat, the occupant thereafter can use the servant quarter on such terms as may be acceptable to the plaintiff herein.
5. That it has been agreed between the defendant and the plaintiff that the defendant will pay to the plaintiff a sum of Rs. 40,000/- (Rs. Forty Thousand only) towards his 1/3rd share of cost of conversion of the said property from leasehold to freehold. It is agreed that the above amount of Rs. 40,000/- is inclusive of all expenses and the defendant will have no further pecuniary liability towards conversion of the said property from leasehold to freehold.
PRAYER:
In the facts and circumstances mentioned above, it is most respectfully prayed that:
a) the suit may be decreed in terms of the compromise and terms and conditions as mentioned herein above.
b) pass any such order as this Hon'ble Court may deem just and fit in the interest of justice.
17. Compromise shows that the first defendant accepted ownership of the plaintiffs, evidenced by the fact that present plaintiffs paid Rs. 40,000/- to defendant No. 1 towards their one-third share of costs towards conversion of the lease hold tenure to free hold tenure in respect of the land. Evidenced by para 5, first defendant accepted that the plaintiffs could sell the second floor. This shows that defendant No. 1 accepted ownership of the plaintiffs.
18. In view of the compromise effected in the aforesaid suit, defendant No. 1 is estopped from questioning the ownership of the plaintiffs. The issue of ownership has to be decided in favor of the plaintiffs and against the defendants on the principle of issue estopple or on the principle of estopple by admission in a court proceedings.
19. If that be so, plaintiffs cannot be denied a right to the common amenities and access to the ground floor portion where under ground water tanks exist, wherefrom water is boosted to the second floor overhead water tank.
20. The location of the under ground water tanks are shown in the site plan, Annexure P-1, annexed to the plaint. The same is towards the rear of the plot i.e. the rear set-back abutting the service lane.
21. Defendants No. 1 and 2 have obstructed access to the common space by putting a gate and placing a lock thereon at the place marked 'G' in the site plan.
22. Defendants No. 1 and 2 cannot prohibit the plaintiffs from putting a booster pump to boost water from the underground water tank to the overhead water tanks.
23. Similarly, access through the main gate leading from the front set- back to the stair landing wherefrom a staircase leads to the second floor cannot be obstructed. Further, access to the roof of the second floor where overhead water tanks are kept and where TV antenna has to be installed by the plaintiffs cannot be obstructed.
24. As per the Indian Easement Act,1882 even otherwise plaintiffs would have an easementary right to access the under ground water tank on the ground floor as also the roof above the second floor assuming defendant No. 1 to be the dominant owner. Defendant No. 1 cannot violate Section 22 of the Indian Easement Act,1882. Needless to state, as defined, an easement is a right which the owner or occupier of immovable property possesses for beneficial enjoyment of that property. It is not pleaded by defendants 1 and 2 that plaintiffs can have access to the under ground water tank on the ground floor or to the overhead water tank above the roof of the second floor through any other means or through any other place, other than what is claimed by the plaintiffs.
25. I accordingly decree the suit declaring plaintiffs as the lawful owners of the second floor of property No. 45, Uday Park, New Delhi. I declare that the plaintiffs have a joint right with other co-owners of the other parts of the building to use the common portions i.e. the rear set-back where underground water tanks stand constructed as also the front set-back from the main gate of the building till the place of stair case landing as also the common stair case and the roof above the second floor.
26. I pass a decree of injunction in favor of the plaintiffs and against defendants No. 1 and 2 restraining them from interfering with the right of the plaintiffs to peacefully use and enjoy the second floor of property No. 45, Uday Park, New Delhi.
27. I issue a mandatory injunction against defendants No. 1 and 2 directing them to remove the gate installed at the place marked 'G' in the site plan, Annexure P-1 to the plaint, within one week from today and prohibit them in future to cause any obstruction in plaintiffs accessing the rear set-back.
28. Plaintiffs would be entitled to costs in their favor to be paid by defendants No. 1 and 2.