Delhi District Court
Sunita Gupta vs Virender Kumar Gupta on 2 January, 2014
IN THE COURT OF SH. ACHAL TYAGI, CIVIL JUDGE:
EAST, KARKARDOOMA COURTS, DELHI
Suit no. : 391/00/10
Unique case ID no: 02402 C0347852003
Surender Kumar Gupta (deceased through LRs)
1.Sunita Gupta w/o Late Sh. Surender Kumar Gupta
2.Anurag Gupta s/o Late Sh. Surender Kumar Gupta
3.Parag Gupta s/o Late Sh. Surender Kumar Gupta All r/o 10, first floor, Dayanand Vihar, Delhi110092. ......... Plaintiff Versus Virender Kumar Gupta s/o Sh. Ghyan Chander Gupta r/o 10, ground floor, Dayanand Vihar, Delhi110092. ........ Defendant Date of Institution of suit : 24.10.2000 Date of reserving the judgment : 16.12.2013 Date of pronouncement of judgment : 02.01.2014 Suit no. 391/00/10 Page no. 1 of 17 Judgment in suit for permanent injunction and declaration:
1. Vide this judgment, I shall dispose off the present suit filed by the plaintiff against the defendant.
2. Brief facts of the case relevant for adjudication of present dispute are as follows. It has been stated that the plaintiff is the real brother of the defendant the plaintiff and the defendant are joint owners of the property bearing no.10, Daya Nand Vihar, Delhi110092 (hereinafter referred to as suit property). It has been stated that the plaintiff is in possession of basement and first floor of the suit property whereas the defendant is in possession of the ground floor of the suit property. It has been stated that on 23.01.2000 both the parties agreed for a settlement for partition and a settlement deed was also executed between the parties on 07.02.2000. It has been stated that the agreed terms and conditions were not incorporated in the said partition deed. It has been stated that the said partition deed is null and void as it conveys the rights which were not in existence at the time of execution of the partition deed as the property was having construction up to the basement, ground floor and first floor only. It has also been stated that the construction of the ground floor which is in possession Suit no. 391/00/10 Page no. 2 of 17 of the defendant has been done by using column technique of construction. It has been stated that the columns used in the construction of the ground floor are very important and is the base for wall of the building including the first floor of the property and any tampering with these columns would demolish the entire first floor construction of the property. It has been stated that on 08.09.2000 the defendant attempted to remove the columns from the ground floor however the defendant could not succeed due to the intervention of local police. That on 02.10.2000 the defendant again tried to remove the columns and due to that some portion of the the bathroom of the plaintiff fell down and damage was caused to the portion of the property of the plaintiff. That on 02.10.2000 plaintiff made a complaint before SHO PS Anand Vihar on which the defendant submitted that he shall not do anything to dismantle the columns of the suit property. That on 20.10.2000 at about 9 am defendant again attempted to remove the column with the help of 67 labourers but due to intervention of some respectables of the area the defendant could not succeed.
3. The plaintiff has accordingly filed the present suit for permanent injunction restraining the defendant from Suit no. 391/00/10 Page no. 3 of 17 removing/tampering with the columns at the ground floor of the suit property. The plaintiff has also prayed for decree of declaration declaring the partition deed 07.02.2000 as null and void.
4. The defendant has filed his WS and has taken the preliminary objection that suit of plaintiff is without any cause of action. It has been stated that plaintiff has suppressed the material facts from the court and therefore the suit is liable to be dismissed u/o 7 Rule 11 CPC. It has been stated that the suit is bad for nonjoinder of necessary parties. It has been stated that father and mother of the defendant and plaintiff are necessary parties as they are the witnesses of the family settlement between the parties. It has been stated that plaintiff had signed the family settlement and he cannot retract from the terms of the said settlement. It has also been stated that plaintiff was given the possession of basement of the suit property on the basis of settlement deed and after securing his right he cannot say that the said family settlement be declared as null and void. It has been stated that the reliefs claimed by the plaintiff in his plaint are barred by law of estoppel and by Section 41(h) of Specific Relief Act. It has also been stated that the defendant has never altered or removed the columns at the ground floor of the suit property at any point of time. It Suit no. 391/00/10 Page no. 4 of 17 has also been stated that the plaintiff has contravened the lease deed of DDA by doing unauthorised construction which is not permissible under the byelaws of the MCD.
5. While replying on merits, it is averred by the defendant that the defendant was running a shop in the garage of the premises of stationery and was having ½ portion of the basement. It has been stated that after the family settlement the defendant along with his family shifted to Hargovind Enclave for residential purpose and continued to occupy the garage as well as ½ portion of the basement.
That the plaintiff compelled the defendant to remove his stationery from the basement as the plaintiff took forcible possession of the front room of the ground floor and later on gave the possession of the ground floor in exchange of the basement which was in possession of the defendant. It has also been stated that the plaintiff along with his wife and two sons physically assaulted the wife of the defendant and his son in front of witnesses. It has been stated that plaintiff has forced the defendant to act upon the partition deed by removing articles of the defendant from the basement as well as from the garage. It has been stated that once the defendant has acted upon the said family settlement the plaintiff now cannot get the partition deed declared as Suit no. 391/00/10 Page no. 5 of 17 null and void. It has been stated that the alleged family settlement was duly executed and registered and the plaintiff now cannot rewind the clock.
6. The defendant has further stated that the plaintiff has not done any construction on the first floor of the suit property and therefore the defendant cannot do any construction on the second floor of the suit property. It has been stated that it was mutually agreed between the parties that the plaintiff shall construct the entire floor of the suit property within six months and thereafter the defendant would do construction on the second floor of the suit property. It has been stated that plaintiff has not done any construction on the first floor of the suit property and now the plaintiff is trying to nullify the family settlement. The defendant has also stated that he has not touched the columns at all but for promotion of his business he removed the walls and has replaced them with iron guarders which has further strengthened the building. It has been stated that the plaintiff has nowhere explained as to how removal walls has endangered life and safety of the plaintiff. It has been stated that the the defendant is doing the work on the the ground floor along with his servants and is aware that any unwanted incident would also put the life and safety of the Suit no. 391/00/10 Page no. 6 of 17 defendant in danger. The defendant has denied the other averments made in the plaint and has prayed for the dismissal of the present suit
7. The plaintiff has filed the replication and has denied the averments as made in the WS while reiterating the contents as given in the plaint. After hearing the parties and perusing the record, the following issues were framed on 26.04.2006:
1) Whether the plaintiff is entitled for decree of declaration as prayed for in the plaint? OPP
2) Whether the plaintiff is entitled to decree of permanent injunction as prayed for in the plaint? OPP
3) Relief.
8. The matter then proceeded for plaintiff's evidence. The plaintiff to substantiate its claim examined himself as PW1. PW1 tendered his evidence as Ex. P1. PW1 was duly cross examined by the counsel for the defendant and discharged. Vide separate statement of the counsel for plaintiff PE stood closed on 02.03.2009. Thereafter the matter proceeded for DE.
9. The defendant examined himself as DW1. DW1 tendered his evidence affidavit as Ex. DW1/A. DW1 relied upon Ex.DW1/1 which Suit no. 391/00/10 Page no. 7 of 17 is the site plan of the suit property. DW1 was duly cross examined by counsel for plaintiff and discharged. Vide separate statement of Ld. counsel for defendant, defence evidence stood closed on 20.09.13. Thereafter the matter proceeded for final arguments.
10. I have heard the final arguments on behalf of both the parties and carefully perused the record and my issuewise findings are as follows.
11. Issue no. 1:
Whether the plaintiff is entitled for decree of declaration as prayed for in the plaint? OPP The onus to prove this issue rests on the plaintiff. The plaintiff in the present suit has prayed for a decree of declaration that the partition deed dated 07.02.2000 be declared as null and void. It is pertinent to note that the document dated 07.02.2000 is a family settlement which was executed between the plaintiff and the defendant in the presence of witnesses. It is also important to note that the said family settlement is a registered document. The plaintiff has stated that the family settlement deed dated 07.02.2000 does not Suit no. 391/00/10 Page no. 8 of 17 incorporate the actual terms of the settlement agreed between the parties on 23.01.2000. It has also been stated that the said settlement deed is null and void as the same conveys the rights in the property which were not in existence at the time of execution of the partition deed.
12. I shall now discuss in detail the objections taken by the plaintiff. The plaintiff has taken the plea that the partition deed dated 07.02.2000 does not incorporate the actual terms of settlement which was arrived at between the parties. It is pertinent to note that the plaintiff has not filed on record any document which shows the terms and conditions that were agreed upon between the parties. I may also mention the plaintiff in his cross examination has stated that the family settlement dated 23.01.2000 has not been filed on record by the plaintiff. It has also been recorded in the cross examination of the plaintiff that neither certified copy nor any photocopy of the family settlement deed dated 23.01.2000 has been filed on record by the plaintiff. In such circumstances it is difficult to assume as to what were the actual terms of settlement that were agreed upon between the parties on 23.01.2000. I may mention here that the plaintiff in his plaint has nowhere mentioned the terms that were agreed upon Suit no. 391/00/10 Page no. 9 of 17 between the parties on 23.01.2000. It is surprising that despite taking the specific objection in the plaint that the terms of settlement dated 23.01.2000 were not incorporated in the partition deed dated 07.02.2000 the plaintiff has not thought it relevant to file on record the terms of the said alleged settlement dated 23.01.2000.
13. It is also relevant to note that the plaintiff in his cross examination has stated that he was under the pressure to enter into the said family settlement dated 23.01.2000. The said averment of the plaintiff makes it evident that the plaintiff had signed and executed the partition deed dated 23.01.2000 knowingly. The plaintiff however in his evidence has not been able to bring anything on record to show that the plaintiff was under any pressure from his family to execute the family settlement deed. It is relevant to note that the documents executed by a party can be challenged on the ground of it having been executed under the coercion as per the Indian Contract Act however there are no averments in this regard in the plaint filed by the plaintiff. I may also mention that the plaintiff has nowhere mentioned in his plaint that the plaintiff was forced to sign the family settlement or that the plaintiff signed the partition deed under any misrepresentation or mistake. In such circumstances I am of the view that the plaintiff has Suit no. 391/00/10 Page no. 10 of 17 not been able to plead any ground on the basis of which registered settlement deed dated 07.02.2000 can be declared as null and void. I may also mention that the plaintiff has not examined any other witness besides himself to substantiate his averments. It is relevant to note that there were a number of persons in whose presence the family settlement was arrived at between the parties. The plaintiff however has neither examined his father nor his mother or any other witness in this regard. The plaintiff has also not examined the said Nagar Mal Gupta who had participated in the said family settlement. The plaintiff in his cross examination has also admitted that after the execution of the partition deed dated 07.02.2000 the defendant had vacated the room on the first floor and the basement. It is important to note that the defendant has already stated that he had vacated the first floor and basement of the suit property as per the terms of the partition deed. In such circumstances the admission of the plaintiff in this regard is a very relevant fact in the present case and it shows that the family settlement dated 07.02.2000 has been acted upon by the parties.
14. I may reiterate that the plaintiff has not been able to bring anything on record to show that the partition deed was executed between the parties by putting the plaintiff under any pressure , Suit no. 391/00/10 Page no. 11 of 17 coercion or misrepresentation. The plaintiff has not examined any witness to substantiate the averment that the plaintiff was under any pressure, coercion or misrepresentation to sign on the partition deed executed between the parties on 07.02.2000. It is also important to note that the plaintiff in his evidence affidavit Ex.P1 has made some improvisation on the averments of his plaint. Plaintiff in para no. 5 of his evidence affidavit has stated that the defendant has got prepared the partition deed with malafide intention and the signatures of the plaintiff were obtained on the same without giving him any chance of reading the same and the plaintiff had signed the said partition deed believing the defendant. It is also important to note that the plaintiff in para no. 6 and 7 of his plaint has stated certain facts which were never raised by the plaintiff earlier in his plaint. It is pertinent to note that in para no. 6 of evidence affidavit of plaintiff he has sated that certain conditions were not incorporated in the agreement dated 07.02.2000 and which formed part of settlement deed dated 23.01.2000. It has also been stated by the plaintiff that the plaintiff immediately made complaint to his father Sh. G.C.Gupta and to the defendant and that a family meeting also took place between the father of the plaintiff and one P.N.Kapoor where it was agreed that the additional terms shall be incorporated in the partition deed dated 07.2.2000. It is also surprising Suit no. 391/00/10 Page no. 12 of 17 that none of these persons have been examined as witnesses by the plaintiff in his evidencet. I may also mention that the plaintiff has not examined his father and his mother who could have thrown light on the said averments regarding the family settlement dated 23.01.2000 and partition deed dated 07.02.2000 which took place between the parties. In such circumstances I am of the view that the plaintiff has not been able to discharge the burden put on him.
15. I shall now come to the second objection taken by the plaintiff. The plaintiff has stated that the partition deed dated 07.02.2000 is null and void and it conveys the rights in the properties which were not in existence at the time when the partition deed was executed. It is pertinent to note that as per partition deed dated 07.02.2000 executed between the parties the plaintiff was made the sole and exclusive owner of the entire basement and first floor and third floor portion of the suit property with the right to construct up to the last story and the defendant was made the sole and exclusive owner of the entire ground floor and second floor portion of the suit property along with the rights of common stairs. It has also been stipulated in the partition deed that each party shall have the right to make any type of alteration or construction in his common portion without any loss and damage to Suit no. 391/00/10 Page no. 13 of 17 the other parties. The terms of the partition deed also make it evident that the intention of the parties was that the first floor of the suit property shall be owned by the plaintiff and the second floor shall be owned by the defendant. The fact that the first floor and second floor of the suit property were not fully constructed at the time when the partition deed was prepared does not imply that the said partition deed is null and void. It is important to note that the suit property has been divided as per the existing structure and the rights have been given to both the parties to carry out further construction in the suit property up to 3rd floor. In such circumstances I am of the view that the it cannot be said that the partition deed executed between the parties is null and void on the ground that the first and second floor of the suit property were not in existence at the time when the partition took place between the parties. In such facts and circumstances of the case I am of the view that the plaintiff has not been able to prove any ground for the declaration of the partition deed dated 07.02.2000 as null and void.
This issue is accordingly decided in favour of the defendant and against the plaintiff.
Suit no. 391/00/10 Page no. 14 of 17 16. Issue no. 2:
Whether the plaintiff is entitled to decree of permanent injunction as prayed for in the plaint? OPP The onus to prove this issue rests on the plaintiff. The plaintiff in the present case has prayed for injunction restraining the defendant from removing the columns at the ground floor of the suit property. It is pertinent to note that the defendant in his WS has stated that the he has never removed the columns at the ground floor of the suit property as he is himself aware that the defendant would also suffer injury in case any damage is caused to the suit property. The plaintiff has not been able to bring anything on record to show that the defendant has tampered or tried to remove the columns at the ground floor of the suit property. In this regard it is important to mention that a local commissioner was appointed by this court who had submitted his report on 29.11.2000. Ld.Local Commissioner has stated in his report that at the time of inspection no construction had been carried out by the defendant in the suit property. It has also been stated in the said report that during inspection the defendant had admitted that he had removed some walls from the ground floor of the suit property. It has been stated in the report that no major cracks have been found on the first floor i.e. roof of the Suit no. 391/00/10 Page no. 15 of 17 ground floor of the suit property. Certain photograph have also been filed on record by the Ld. Local Commissioner in this regard. It is important to note that in the present case the plaintiff has not led any evidence of any architect or by way of filing any expert report that the removal of the walls from the ground floor of the suit property can lead to falling/demolishing of the first floor of the suit property. It is important to note that onus in this case is on the plaintiff to prove that the defendant has carried out the construction on the ground floor of the suit property which would lead to falling/demolishing of the entire building. The plaintiff however has not led any evidence in this regard. I may mention here that in the partition deed executed between the parties rights have been given to the parties to make any type of alteration or additional construction in their own portion without any loss and damage to the portion of the other party and no party has any right to raise objection to the same. In such circumstances the plaintiff cannot restrain the defendant from carrying out any construction in his property unless other party proves that the said alteration or construction would cause harm to the portion of the plaintiff in the suit property. Since the plaintiff has not been able to show that the construction/alteration of the defendant has caused any harm to the property of the plaintiff accordingly the defendant cannot be restrained Suit no. 391/00/10 Page no. 16 of 17 from carrying out construction on his property.
This issue is accordingly decided in favour of the defendant and against the plaintiff.
17. Relief :
In the light of aforementioned facts and circumstances of the case, I hold that the plaintiff has not been able to prove his case against the defendant. Accordingly the suit of the plaintiff is disposed of as dismissed. Let the decree sheet be prepared accordingly. File be consigned to Record Room after necessary compliance.
Announced in the open (ACHAL TYAGI)
Court on 02.01.2014 Civil Judge/East/KKD
KKD Courts, Delhi
Suit no. 391/00/10 Page no. 17 of 17