Delhi District Court
L.A. Murthy vs Seema Mohan on 20 August, 2016
L.A. MURTHY V. SEEMA MOHAN
IN THE COURT OF MS. SURYA MALIK GROVER
SENIOR CIVIL JUDGE-CUM-RENT CONTROLLER (SOUTH)
SAKET COURTS COMPLEX, NEW DELHI
MCA SCJ 5711/16
IN THE MATTER OF:
L.A. MURTHY
SON OF LATE SHRI A.R. LAKSHMANAN
RESIDENT OF K-8, FIRST FLOOR,
SOUTH EXTENSION, PART-I,
NEW DELHI-110049. ....APPELLANT
VERSUS
SEEMA MOHAN
WIFE OF SHRI RAJIV MOHAN
RESIDENT OF SECOND FLOOR,
K-8, SOUTH EXTENSION, PART-I,
NEW DELHI-110049. ....RESPONDENT
DATE OF INSTITUTION : 15.02.2011
DATE OF RESERVING JUDGMENT : 17.08.2016
DATE OF DECISION : 20.08.2016
JUDGMENT
1. By virtue of this order, appeal against order dated 16.12.2010 passed by Ld. Civil Judge allowing the interim application of the respondent/plaintiff under Order 39 Rule 1 &2 CPC is being disposed of.
2. Before embarking upon the grounds of appeal, the relevant MCA SCJ 5711/16 Page 1 of 19 L.A. MURTHY V. SEEMA MOHAN facts of the case are discussed as under:
PLAINTIFF'S VERSION 2.1 It is the case of the respondent/plaintiff that she is the owner of the second floor of property bearing number K-8, South Extension Part-I, New Delhi-110049 (henceforth referred to as 'the suit plot'), which consists of ground floor, first floor and second floor, which was developed in pursuance of a collaboration agreement dated 21.12.1998 entered into between predecessors-
in-interest of the parties to the present dispute. The parents of the respondent/plaintiff are stated to be residing in the said floor presently. It is alleged that the parties in the present suit have proportionate rights in the suit property. However, the appellant/defendant allegedly harassed the parents of the respondent/plaintiff and stopped them from parking their car in the common passage on the ground floor and further, locked the main gate of the common passage with his personal lock and on various occasions misbehaved with them.
2.2 It is stated that on 24.09.2009, the appellant/defendant obstructed the free ingress and egress of her parents to their residence on the second floor from the common passage and on 07.10.2009, the former engaged labour for construction of toilet/bathroom in the common passage, just near the area where the electricity meter has been installed. The respondent/plaintiff is MCA SCJ 5711/16 Page 2 of 19 L.A. MURTHY V. SEEMA MOHAN aggrieved that she, her servants, agents, relatives or her parents are in occupation and possession of the suit property and have every right, title and interest to make good use of the common passage being one of the residents of the building, which is being hindered/ obstructed. Hence, the present suit has been filed along with the accompanying application under Order 39 Rule 1&2 praying for interim relief till the final disposal of the case on merits.
DEFENDANT'S VERSION 3.1 In the written statement filed, the appellant/defendant has raised preliminary objections that by way of the present suit, the respondent/plaintiff is claiming a right of parking in the northern side set back area facing J Block Road (henceforth referred to as 'the disputed area') in the guise of the instant suit for permanent injunction.
3.2 Further, the present suit is not maintainable in the present form as the plaintiff has in effect filed a suit for declaration of his rights over the disputed area. The appellant/defendant contends that the suit is bad for non-joinder of necessary parties as parents of the owner/plaintiff/respondent who are actually residing in the suit premises and have personal knowledge of the facts have not been joined as parties.
3.3 Further, owner of second floor i.e. respondent/plaintiff has MCA SCJ 5711/16 Page 3 of 19 L.A. MURTHY V. SEEMA MOHAN tried to equate "the proportionate free hold rights in land underneath the structure" with "right of usage" of the disputed area. The appellant/defendant has stated that the erstwhile vendors/owners have clearly divided usage of all three setbacks, common places, etc. by elaboration in their respective sale deeds and now the rights are enjoyed and possessed by different floor owners for value paid by them. Last but not the least, the appellant/defendant is not the absolute owner of first floor of the suit and his wife is 50% owner of the same, and instant suit is bad for mis-joinder of parties.
GROUNDS OF APPEAL
4. The appellant/defendant has challenged the order on interim application dated 16.12.2010 passed by the Ld. Civil Judge broadly on the following grounds:
(a) Ld. Trial Court has failed to appreciate that the northern side set back facing J Block has been specifically conveyed by the previous owner to the appellant/defendant and therefore, the respondent/plaintiff has no common rights to use the same while, the sale deed conveying ownership rights to the respondent/plaintiff does not convey any specific rights in the land beneath the suit plot. Hence, plaintiff/ respondent has no right to use the disputed area except using its side entrance for access.
Hence, the impugned order militates against recitals in the MCA SCJ 5711/16 Page 4 of 19 L.A. MURTHY V. SEEMA MOHAN respective title deeds as held by the parties.
(b) The suit is not maintainable in the present form, as in the garb of the present injunction suit, plaintiff is seeking declaration over his rights in the northern set back area as well as possession thereof.
(c) Ld. Trial Court has virtually decreed the suit by passing interim orders akin to the final relief sought by the plaintiff;
(d) Respondent/plaintiff is not residing personally on the second floor of the suit plot and parents of the respondent/plaintiff, who are actually residing on the second floor have not been impleaded as parties and therefore, the respondent/plaintiff has no locus standi to file the present suit;
(e) The suit is bad for mis-joinder of parties as Smt. Vijayalakshmi Agoramurthy, wife of the appellant/defendant who is having 50% ownership rights in the ground floor of the suit plot has not been arrayed as a party.
5. In rebuttal, Ld. counsel for the respondent/plaintiff has vehemently argued that all the pleas raised by the appellant/defendant are frivolous & misconceived and impugned order suffers from no error or perversity whatsoever.
MCA SCJ 5711/16 Page 5 of 19L.A. MURTHY V. SEEMA MOHAN
6. It is pertinent that an application under Order 41 Rule 27 CPC was moved by the respondent/plaintiff for permission to lead additional evidence, in order to bring rectification deed dated 16.05.2011 on record, which was dismissed. The parties challenged the said order wherein by the consent of the parties, the rectification deed was allowed to be taken on record for the purpose of arguments and both the parties were given opportunity to raise all such arguments in accordance with law with respect to the rectification deed as well as other arguments for the decision of the appeal.
7. I have given careful consideration to the submissions advanced by Sh. Shaju Francis, Ld. counsel for the appellant/plaintiff and Sh. Rajesh Aggarwal, Ld. counsel for the respondent/plaintiff in light of the judicial record and the case law filed by the respective parties.
8. Before deciding the appeal, it would be necessary to decide the contentions raised with regard to taking the Rectification Deed dated 16.05. 2011 i.e. whether the same can be taken on Record and if yes, its effect upon the case ?
8.1 Ld. counsel for the appellant/defendant has argued that there is no provision for filing of additional documents during pendency of an appeal against an order. Further, such a document cannot be introduced at this stage, as it would amount MCA SCJ 5711/16 Page 6 of 19 L.A. MURTHY V. SEEMA MOHAN to filling up the lacunae/deficiencies in the case. Further, rectification can only be done by instituting a suit by the seeker against the former executor. Moreover, rectification does not have any retrospective effect and therefore rectified sale deed dated 16.05.2011 cannot be read for any purpose and needs to be completely ignored.
8.2 I am afraid I am not convinced with the arguments of the Ld. counsel for the appellant/defendant. As per Rule 2 of XLIII CPC, rules of Order XLI shall also apply to appeals from orders. In other words, application under Order XLI Rule 27 CPC can be moved for taking additional evidence on record even during appeal against an interlocutory order.
8.3 In the instant case, by virtue of the rectification deed dated 16.05.2011, sale deed dated 03.04.2003 has been rectified as under:
"1. The Vendor doth hereby sell, transfer, assign and convey the property, being entire second floor of the Said Building, bearing No-8, Block-K, situated at South Extension, Part-1, New Delhi, hereinafter called the Said Property, together with the proportionate free hold right in the entire land of the Said Plot, to the Vendee with all its rights, titles, claims, interests, options, easements, privileges and appurtenances thereto including all electric, water, sewage and sanitary fittings, also together with the right to occupy and use one servant room with common bathroom on the terrace of MCA SCJ 5711/16 Page 7 of 19 L.A. MURTHY V. SEEMA MOHAN the Said Building for an aggregate and agreed consideration of Rs.30,00,000/- (Rupees Thirty Lakhs only)"
8.4 Rectification deed in question came into existence on 16.05.2011 i.e. after passing of orders by the Ld. Trial Court. Further, the said document only rectifies a mistake with regard to proportionate rights in the land and both the parties derive their rights, title and interest from the collaboration, which gives proportionate rights to the parties in the suit plot. Section 26 and 31 of Specific Relief Act uses the word 'may' meaning thereby that a suit is required to be filed for rectification, only if the parties to the deed find that the other is not willing to rectify it. However, in case there is mutual mistake in a contract, the parties can rectify the same on their own and such a rectification deed can be read for all purposes.
8.5 Further, in view of Section 47 of the Registration Act, a registered document operates from the time from which it would have commenced to operate if no registration thereof had been required and not from the time of its registration. Hence, the sale deed dated 03.04.2003 can be deemed to be rectified from the date of its execution and not from registration of rectification deed i.e.16.05.2011.
MCA SCJ 5711/16 Page 8 of 19L.A. MURTHY V. SEEMA MOHAN 8.6 Hence, as the original sale deed dated 02.03.2006 by virtue of which plaintiff/respondent acquired ownership rights in the second floor of the suit plot stood rectified retrospectively, the plaintiff/respondent has a strong prima facie case having acquired proportionate rights in free hold land comprising the suit plot.
9. Coming to the grounds of appeal, my serialwise findings are as under :
A. Re :Title deeds placed on record do not reflect a valid legal title with regard to the northern side setback facing J block road in favour of the respondent/plaintiff 9.1 In order to adjudicate the legal rights of the parties with respect to the disputed area, it is necessary to carefully scrutinize the entire chain of documents by virtue of which the plaintiff/ respondent and defendant/appellant have acquired rights in their respective portions of the suit plot.
a) At the outset, a collaboration agreement dated 21.12.1998, was entered into between Sh. J.R. Bhatia (owner) and M/S. Ahluwalia Contracts (India) Ltd. i.e. developer, wherein the developer agreed to develop the suit plot. Clause 9 (a) and 9 MCA SCJ 5711/16 Page 9 of 19 L.A. MURTHY V. SEEMA MOHAN
(b) provides as under:
"9 (a) The Developer shall develop the Project Property by constructing thereon a building consisting of basement (as permissible), ground floor, first floor and second floor in accordance with the sanctioned building plans.
9 (b) As a consideration for the Developer agreeing to develop and construct the building under this agreement, more fully described hereinafter, the Developer shall be entitled to entire second floor of the Said Building along with proportionate free hold rights in the land comprising the Project Property. The balance portions of the constructions i.e. basement, ground floor and first floor and terrace on second floor in the said building shall be owned and retained and possess by the Owner."
b) Further, Sh. J.R. Bhatia executed a registered power of attorney dated 01.04.1999 in favour of M/S. Ahluwalia Contracts (India ) Ltd., wherein following rights were given to the developer :
"15. To negotiate for the terms of sale of the entire second floor (to be developed) along with proportionate rights in the free hold land comprising the Said Property, ...........
16. To sign and execute a sale deed for transfer of the entire second floor (to be developed) along with proportionate rights in the freehold land comprising the Said MCA SCJ 5711/16 Page 10 of 19 L.A. MURTHY V. SEEMA MOHAN Property, ......"
c) Consequently, M/S. Ahluwalia Contracts (India) Ltd., executed a sale deed dated 03.04.2003 in favour of the plaintiff/respondent, inter alia selling the second floor of the suit plot as under:
"The Vendor doth hereby sell, transfer, assign and convey the property, being entire second floor of the said building bearing No.8, Block-K, situated at South Extension Part-I, New Delhi, hereinafter called the Said Property, together with free hold rights in the land underneath in proportion to the entire area of the second floor of the Said Building to the Vendee with all its rights, titles, claims, interests, options, easements, privileges and appurtenances thereto including all electric, water, sewages and sanitary fittings, also together with right to occupy and use on e servant room with common bathroom on the terrace of the Said Building for an aggregate and agreed consideration of Rs.30,00,000/- (Rupees Thirty Lacs only)."
d) The owner of the suit plot Sh. J.R. Bhatia on the other hand transferred the entire first floor and the entire terrace floor along with northern side setback vide sale deed dated 24.06.2005, the relevant recitals of which are reproduced as under:
"And whereas the Vendor for his bonafide needs and requirements has agreed to sell Undivided Half Share in Entire First Floor and Entire Northern-side Set Back facing 'J' Block Road (to the extent that it is provided in the Collaboration Agreement dated 21.12.1998) MCA SCJ 5711/16 Page 11 of 19 L.A. MURTHY V. SEEMA MOHAN ............... alongwith proportionate undivided, indivisible and impartible ownership rights in the land ....
3. That the entire Northern-side Set Back facing 'J' Block Road is the property of the Vendee (to the extent that it is provided in the Collaboration Agreement dated 21.12.1998) but the owners/occupants of the Second Floor shall have right of ingress and egress through the same."
e) Thereafter, vide two separate sale deeds dated 12.09.2006, the aforesaid buyers transferred their respective portions of the suit plot in favour of M/s Batra Fincap Limited, wherein it was mentioned on Page 13 as under:
"That the Vendee shall have exclusive ownership rights over the Entire Northern Side Set Back facing 'J' Block Road, to the extent of 1/2 undivided share, however, the owners/occupants of the Second Floor shall have right of ingress and egress through the same"
f) Finally, by virtue of registered sale deed dated 30.10.2006, the defendant/appellant became owner thereof wherein relying upon previous chain of documents, it was held that the vendee shall have exclusive ownership rights over the entire Norther side setback, and owners of second floor shall only have right of ingress and egress through the same.
9.2 On careful perusal of chain of documents by virtue of which appellant/defendant and respondent/plaintiff acquired MCA SCJ 5711/16 Page 12 of 19 L.A. MURTHY V. SEEMA MOHAN the suit property, my findings are summarized as under:
(a) On execution of the Collaboration Agreement and Registered General Power of Attorney, M/s Ahluwalia Contracts (Developer) and Sh. J.R. Bhatia (owner) possessed proportionate rights over the freehold land comprising the said property and the latter ceased to have exclusive ownership of land underneath the suit plot, including the setbacks and the common areas.
(b) Even though there was nothing provided in the collaboration agreement dated 21.12.1998 in respect of northern side setback or any another setback area, in the sale deed dated 24.06.2005, the owner of his own added the words "entire northern side setback to the extent provided in the Collaboration Agreement". As nothing was mentioned in the collaboration agreement with regard to the demarcation of any exclusive right in any portion or any setbacks in the suit plot, the document dated 24.06.2005 appears to be ex-facie illegal and contrary to the collaboration agreement.
(c) In the subsequent sale deed dated 12.09.2006, words "to the extent that it is provided in the collaboration agreement dated 21.12.1998" were also omitted, as a result of which the said words did not find mention even in the sale deed dated 30.10.2006, by virtue of which the appellant/defendant and his MCA SCJ 5711/16 Page 13 of 19 L.A. MURTHY V. SEEMA MOHAN wife acquired rights in the suit plot. Surprisingly, the sale deed dated 30.10.2006 has a map annexed to it, which was never annexed with the previous chain of documents.
(d) Needless to say, title of the appellant/defendant was defective as far as transfer of exclusive rights in the northern side setback were concerned, as no person can get a better title than the previous owner. In the instant case, the owner was not having any exclusive rights in the land comprising the project property and therefore, was not competent to transfer the same to the purchaser.
(e) Moreover, in case the setback areas were transferred to the appellant/defendant, the parties would have disproportionate rights in the land under the constructed area which would be violative of the collaboration agreement, which was the backbone of the transaction.
9.3 In view of my aforesaid observations, assuming for the sake of arguments that rectification deed is not taken on record, even then the case of the plaintiff appears to be prima facie stronger, as the appellant/defendant has been unable to show any direct or indirect claim or any exclusive right in respect of the disputed area, moreso, as the ownership documents filed by the appellant/defendant were found to be prima facie defective to the extent of devolution of exclusive ownership MCA SCJ 5711/16 Page 14 of 19 L.A. MURTHY V. SEEMA MOHAN of northern side setback area opposite to the J Block market.
B. Re : Suit not Maintainable in the present Form 9.4 It is argued that the instant suit is not maintainable unless Sale deed 30.10.2006, by virtue of which defendant has acquired ownership rights in the first floor in the suit plot is declared as null and void and cancelled. Further, relief of possession of northern set back area has been sought under the veil of injunction orders.
9.5 At the outset, the plaintiff has never conceded that the disputed area was in possession of the respondent/defendant and in such circumstances, relief of possession is not warranted. Further, as discussed in detail in Re :A, no decree of declaration is required to be passed before granting relief of injunction as the said sale deed is void ab initio, as the defendant could not have acquired better title than the previous purchaser.
9.6 I rely upon the judgment "Thota Ganga Laxmi Vs. Govt. of A.P." (2010) 15 SCC 207, Para 4of which reads as under:-
"4. In our opinion there was no need for the appellants to approach the civil court as the said cancellation deed dated 4-8-2005 as well as registration of the same, was wholly void and non est and can be ignored altogether...... Alternatively, this judgment is per incuriam as it does not consider the judgments in (2002) 9 SCC 28, (2006) 5 SCC 353.MCA SCJ 5711/16 Page 15 of 19
L.A. MURTHY V. SEEMA MOHAN Again, in a recent judgment dated 25.8.2015 in Satya Pal Anand Vs. State of M.P. & Ors. Vs. State of M.P. & Ors. - (2015) 9 Scale 297, Hon'ble Supreme Court inPara 51, noted as under :
51.......Merely because the cancellation of the void extinguishment deed with regard to the plot of land and the subsequent sale deed executed... has not been sought by the Appellant by approaching the civil court, it does not disentitle him for seeking relief with regard to the said plot of land..."
C. Re : Interim Relief Akin to Final Relief 9.7 As regards whether the trial court has virtually decreed the suit by passing interim orders, I am of the view that interim orders have been granted in order to protect the right of the plaintiff to use the northern side setback area till the time the final suit is disposed of. Directions have been passed to the effect that the defendant/appellant shall not block, obstruct or put lock upon the gate or interfere in the use of common passage of the plaintiff or her family members on the ground floor of the suit plot in any manner and shall not carry out any construction or alteration in the disputed area. Directions as passed are not of such a nature passing of which would tantamount to virtually decreeing the suit or cause undue hardship to the appellant/defendant. Hence, the ground appears to be bereft of any merits.
D. Re : Non-joinder of Parents of Plaintiff/Respondent MCA SCJ 5711/16 Page 16 of 19 L.A. MURTHY V. SEEMA MOHAN 9.8 As regards the argument of non- impleadment of parents of the respondent /plaintiff the affected parties residing in the suit plot, it appears that the respondent/plaintiff has filed the suit on the grounds that she is the owner of the suit property and her parents are residing therein, who are being obstructed by the appellant/defendant from using the northern side setback areas for access to their property.
9.9 To my mind, the parents of the respondent/plaintiff are in possession of the second floor of the suit plot as family members/ agents of the respondent/plaintiff and even though the respondent/plaintiff personally is not facing any obstruction in the use of the passage, any obstruction to them in use of disputed area shall be deemed to be an obstruction to the respondent/plaintiff herself. Hence, the argument is bereft of any merits.
E. Re: Non-joinder of wife of the appellant/defendant, co- owner of the first floor of suit plot 9.10 It has been argued that the suit suffers from non-joinder of necessary parties as wife of the appellant/defendant is 50% owner of the first floor and the suit is bad for non-joinder of necessary party. There is no force in his argument as there is not a whisper in the entire plaint against the wife of the appellant/defendant that she has interfered in the passage of the respondent/plaintiff to her MCA SCJ 5711/16 Page 17 of 19 L.A. MURTHY V. SEEMA MOHAN portion or performed any other act or omission on account of which the cause of action has accrued.
10. Further, as access to common facilities as well as unhindered ingress/egress to property are crucial rights to enjoy the purchased portion of the suit plot, irreparable loss which cannot be compensated in terms of money shall be caused to the respondent/plaintiff if appellant/defendant is not restrained from obstructing her or if any construction is carried out in the suit plot. Moreover, great hardship/ inconvenience shall be caused to the plaintiff if her right to passage from the disputed area is obstructed or any construction is done thereupon while appellant/ defendant shall suffer far less inconvenience in sharing the said passage. Accordingly, balance of convenience also lies in favour of the respondent/plaintiff and against the plaintiff.
11. In view of the aforesaid discussion, I am satisfied that all the ingredients for granting stay in the instant application seeking interim injunction are made out and application under Order 39 Rule 1&2 CPC is allowed thereby restraining the defendant/respondent, his sons, servants, agents and employees, not to block, obstruct or to put lock upon the gate and interfere in the possession of the plaintiff and her family members from the use of common passage on the ground floor of the suit plot i.e. K-8, South Extension Part 1, New MCA SCJ 5711/16 Page 18 of 19 L.A. MURTHY V. SEEMA MOHAN Delhi as shown in the site plan in any manner and further restraining the defendant from carrying out any construction or alteration in the disputed portion in the suit plot till the disposal of the suit on merits.
12. Accordingly, the present appeal against the order dated 16.12.2010 stands dismissed. Interim order dated 15.02.2011 stands vacated automatically.
13. Nothing stated above shall tantamount to an expression on merits of the case.
14. TCR be sent back with copy of this order for reference.
15. Appeal file be consigned to record room.
(Announced in the open (Surya Malik Grover) Court on 20.08.2016) SCJ-Cum-RC (South), Saket Courts, New Delhi MCA SCJ 5711/16 Page 19 of 19