Delhi District Court
New Manglapuri Residents Welfare ... vs Sh. Raj Kumar on 30 July, 2022
In the Court of Ms. Gurmohina Kaur: Additional District Judge
(South District) Saket Courts Complex, New Delhi
CS No.: 5570/16
In the matter of :-
New Manglapuri Residents Welfare Association
Through its President
121-123, New Manglapuri
Mandi Road, Govind Sadan Marg
New Delhi-110030 .......Plaintiff
Versus
1. Sh. Raj Kumar
S/o Sh. Ghan Shyam Dass
Flat no. 11, 4th Floor,
121-123, New Manglapuri
Mandi Road, New Delhi
2. Mrs. Shashi Khullar
R/o Khullar Farms
Sultanpur, Tehsil Meharuli
New Delhi-110030
3. Mrs. Mohini Behal
R/o Flat no. 6, 2nd Floor
121-123, New Manglapuri
Mandi Road, New Delhi
Also at
425/3, Industrial Area A
Ludhiana, Punjab ......Defendants
Date of institution : 26.04.2011
Date of decision : 30.07.2022
CS/5570/2016 Page 1 of 32
SUIT FOR DECLARATION, PERMANENT &
MANDATORY INJUNCTION
JUDGMENT
1. The facts as epitomized in the plaint are that the Plaintiff is a society registered under the Societies Registration Act 1860. The members of the society are all owners/ occupiers of flats in the multistorey building built on Plot bearing no. 121-123, New Manglapuri, Mandi Road, New Delhi. It is stated that the said building is a four storey building and consists of (a) 16 flats above ground floor level and each floor having four flats; (b) 16 servant quarters and two extra quarters, one for generator and other for guard on the ground floor of building; (c) a covered car parking area at the ground floor where all residents park their cars; (d) a drive way from Mandi Road till the covered parking area at the ground floor; and (e) common roof/terrace being used for providing water supply, rain water drainage system and installation of TV antennas by all the residents and also as an emergency exit in case of fire or any other emergency situation. It is averred that the Defendants are promoters/ builders of the building and reside in the following manner (a) Defendant no. 1 is owner/ occupier of Flat no. 11 at 4 th floor;(b) Defendant no. 2 is owner/ occupier of Khullar Farm which is just adjoining the back portion of building; and (c) Defendant no. 3 is owner/ occupier of Flat no. 6 at 2nd Floor of building.
1.1. It is further averred that on 25.03.2011, the husband and son of Defendant no. 3 met office bearers of the Plaintiff Society i.e. President and Treasurer and gave proposal for installing a gate under their lock and key on the staircase which is leading to the entry point of roof/ terrace. Accordingly, a meeting was convened on 31.03.2011 by the Plaintiff Society where the aforesaid proposal was discussed and it was unanimously decided not to CS/5570/2016 Page 2 of 32 allow Defendant no. 3 to install gate at the staircase as it would affect the right of enjoyment of roof/terrace of the property and it would also affect free access to roof/ terrace which was required for smooth running of essential services installed there and would change the status of roof/ terrace from common area to individual property of Defendant no. 3. It is stated that the aforesaid decision was conveyed to Defendant no. 3 vide letter dated 01.04.2011 by the Plaintiff Society.
1.2. It is further stated that on 04.04.2011, the Plaintiff Society received a legal notice dated 02.04.2011 from counsel of Defendant no. 3 thereby concocting a false story pertaining to the installation of gate and its theft. The said legal notice was duly replied vide reply dated 07.04.2011 as no gate had been installed in the staircase and the residents always had free access to it since the building was built. It is stated that on 08.04.2011, some unknown persons came in the building alongwith the husband and son of Defendant no. 3 with ready-built gates and quickly started erecting it in the staircase leading to roof/terrace with the sole intention of grabbing the portion of roof/ terrace for exclusive use. It is stated that Defendant no.1 was present at the scene when the said gates were installed. It is stated that one of the residents had called PCR, despite that the gates were installed. On the next day, the Plaintiff Society informed the SHO of local police station. It is further stated that the installation of gates had emboldened the Defendant no. 1 & 3 so much that they started threatening the residents that their cars would not be allowed to be parked and that servant rooms given with the flats would be taken back. The Plaintiff Society wrote a letter to both Defendant no. 1 and 3 to refrain from such activities/ threats and had marked a copy of the letter to the SHO of local police station. It is stated that the Defendants have intention to undertake unauthorized construction on roof/ terrace and the Defendants have even encroached on the common water tank and CS/5570/2016 Page 3 of 32 pipelines of many flats have been barred by them by placing gates on the terrace.
1.3. It is further stated that a letter dated 03.12.2010 was written to all Defendants asking them to give certificate from the approved Architect pertaining to the structural safety of the building but they did not respond. It is stated that Defendants had kept some persons who have started staying in the illegal construction made by them at the roof/terrace and also kept a person, who is staying in those two rooms which were meant for generator and guard for the building. It is further stated that Defendant no. 2 and husband of Defendant no. 3 have been impleaded in a matter titled Mrs. Kiran Mehra & Ors vs. Sunil Khosla & Ors in suit no. 144/5 by some owners/ residents of the Building which was pending before Tis Hazari Courts.
On these grounds, the Plaintiff is claiming a declaration that the roof/terrace of the building is common to all residents and for permanent and mandatory injunction against the Defendants thereby restraining them from taking control of common roof/terrace and barring ingress and egress of residents and for restraining the Defendants from carrying out construction on the terrace. It is also prayed that Defendants be restrained from interfering with the lawful car parking area of residents and for restraining the Defendants from dispossessing the residents from servant quarters. Hence, this suit.
2. Upon service of summons, the Defendants appeared and filed written statement. Defendant no. 1 and 2 filed a joint written statement taking preliminary objections to the effect that all the allegations made in the plaint are false as it has been confirmed by the report of Local Commissioner that there is clear access from staircase to water tank and the car parking and CS/5570/2016 Page 4 of 32 servant rooms were also not affected. It is stated that the present suit has been filed to grab the property/ part of the spaces under ownership and possession of the Defendants since construction of the flats in question in the year 1992. It is stated that Plaintiff/ RWA came in existence in the year 2008 only and the RWA could not extend the rights of members/purchasers of flats beyond the clauses of Sale Deed of respective flats. It is submitted that the RWA was indulging to grab the properties of Defendants who had built the flats on their own land and had sold the specific rights in the flats to the purchasers to the extent of flat only, without giving any right on the ground floor, basement and terrace and the RWA could not claim any right on the ground floor/basement and terrace. It is stated that the terrace has been sold by Defendant no. 2 to Sh. Satprakash Yadav on 20.04.1996 and Sh. Satprakash Yadav was in possession of 1/3 terrace shown in red color in the deed of partition dated 18.04.1996 executed between the Defendant No. 1 and 3. It is stated that the Defendants had absolute rights even to discontinue the parking on the ground floor and the right in servant quarter of parking space were never to be given to any member of the Planitiff's society and hence, parking space could not be allotted to the member of the Plaintiff's as none of the flat owners had paid any consideration for parking space on ground floor. It is stated that the Defendants were the owner of the respective lands being plots number 121, 122 and 123 in Village Sultanpur (Manglapuri), Tehsil Mehrauli, New Delhi and had agreed by virture of agreement dated 17.07.1999 to pool their respective lands for the purpose of developing and constructing the multi storey flats thereon in accordance with the approval of the concerned authority and after completion of such construction the same were to be sold to individual buyers. It is stated that it was decided to bring the development agreement to a close by executing the partition deed that was executed on 18.04.1996 and in the said partition deed it was confirmed that out of the total of 16 flats, each Defendants was to get 5 flats each and CS/5570/2016 Page 5 of 32 one flat was to be shared in common. It is stated that in the recitals, it has been specifically mentioned that the possession has been given to all the three owners of the land under pool except the terrace and basement right of the said property and all the parties had amicably decided the partition of the terrace and basement, with each getting a portion of terrace measuring 1600 square feet approximately and a portion of basement measuring 1126 square feet approximately. It is stated that the report of the Local Commissioner confirms the said possession leaving behind the common area of water tanks and adjoining area leading to staircase, with free access to members of the RWA including the Defendants, who are also flat owners. It is submitted that as per the partition deed the Defendant No. 1 & 3 had right to enjoy peaceful possession over the terrace and basement of the said property and Sh. Satprakash was in possession of 1/3 portion of the terrace that was in the share of Defendant No. 2. It is submitted that enough space by way of passage was left on the terrace to provide access to water tanks. It is submitted that in the sale deed of individual buyers no portion of terrace/basement was included so as to give the purchaser any right to claim a share in the terrace or to claim that the terrace constituted a common area for the benefit of all occupants. It is further submitted that the Plaintiff had not filed even a single sale deed to support their case. It is further stated that the Defendants had never sold any rights in the terrace of the said property to any individual buyer except Defendant no 2 who has transferred the right in terrace to Sh. Satprakash Yadav. It is stated that the development agreement was executed in 1996 and, therefore, prior to the partition, the defendants had been in joint possession of the terrace and post partition, the individual portion of the partitioned terrace was given. It is stated that defendant no. 1 and Sh. Satprakash on behalf of defendant no. 2 had made construction covering the whole partitioned area of terrace except the water tank and the adjoining area leading to staircase. It is stated that no disputes were ever CS/5570/2016 Page 6 of 32 raised by any of the occupiers/subsequent purchasers of flat in the suit property and the defendant no. 3 in order to protect a property on the terrace and to ensure privacy qua the said property installed the two iron gates. It is submitted that the roofs and basement were divided in three shares and defendant no. 1 and 3 were in possession of their respective shares till date except the common area of tank which was separate from the roof and terrace, that was divided between the promoters/builders, owners of the land on which the flats were constructed and sold without extending any rights on the roof of the terrace to the members of the plaintiff society. It is further stated that the right of the members to use of the common area adjoined to water tank area and adjoining the space leading to staircase was continuing till date without any hindrance. It is stated that the area of common use on rooftop in front of the staircase is accessible to all residents without any hindrance for 24 hours. It is prayed that the suit be dismissed.
3. Written statement has also been filed on behalf of defendant no. 3 who has stated that by virtue of an agreement executed by the defendants on 17.07.1992, the defendants had mutually agreed to join together and hold their respective lands for the purpose of development and constructions of a multi-stories flats, in accordance with approved plans, to be sold to individual flats buyers. It is stated that consequent to the development agreement, constructions were carried out on the three plots on which basement, ground floor, first, second and third floors were constructed and 16 flats were constructed of which 5 belonged to each defendants and one flat remaining common. It is stated that at no time there was any intention of including terrace in the common area or as part of the flats allotted by the defendants. It is stated that upon construction of flats, a partition deed was executed on 18.04.1996 and in its recital, it was mentioned that possession had been given except terrace rights of the said property. It is submitted that CS/5570/2016 Page 7 of 32 as per the terms of partition deed, the defendant no 3 got a portion of the terrace which she enjoyed to the exclusion of other defendants and the parties to the partition deed had a right to enjoy peaceful possession over the said portion of the terrace/basement without any interference. It is stated that the sale deed executed by the defendants with individual buyers were for respective flats without fittings, fixtures and without floorings, wood work and with only white wash with proportionate undivided, indivisible and imparatible ownership right of the land underneath and no terrace and basement rights were included in the sale deed so as to give the purchaser any right to claim a share in the terrace or to claim that the terrace constituted a common area for the benefit of all occupants. It is stated that the status regarding the possession continued as of today to the exclusion of others qua her portion of the suit property. It is further stated that the defendant no. 3 in order to protect her property on the terrace and for her privacy installed two iron gates which are under the lock and key of hers' at all times and the same was necessary as the defendant no. 3 was residing in Ludhiana for all practical purposes, though she was still the owner of flat no. 6 on the second floor of the suit premises. It is further stated in the written statement that on February, 2011, information had been received that the office bearers and the members of the plaintiff had forcibly broken and removed the gates from the terrace which amounts to theft and misappropriation of gates including criminal trespass. It is stated that the defendant sent a legal notice to the plaintiff through her counsel dated 02.04.2011 and in a meeting was held between the son and husband of defendant no.3 and the plaintiff, the plaintiff admitted theft of gates and trespass and sought four days time to rectify the same. It is stated that a reply dated 07.04.2011 was received by the plaintiff denying all the contents of legal notice and on 08.04.2011, the son of the plaintiff filed a complaint with SHO PS Fatehpur Beri, New Delhi which was registered vide DD no. 38B. It is stated further that on 08.04.2011, the CS/5570/2016 Page 8 of 32 answering Defendant reinstalled four gates on the terrace to protect her one- third portion of the terrace and not on the other two-third portion of the terrace. It is stated further that on 25.04.2011, a reminder was sent to SHO requesting for registration of an FIR and on behest of police, the matter was sought to be settled. It is stated that the suit was not maintainable in terms of the provision of Specific Relief Act, 1963 and there is no right which existed in favour of the plaintiff in relation to the roof/terrace on the basis of which the plaintiff sought relief. It is prayed that the suit be dismissed.
4. Replication has been filed on behalf of plaintiff to the Written Statement of defendant no.1 and 2 wherein it has been stated that the defendant after two years had stated before the Court that the terrace has been sold to Sh. Satprakash Yadav on 20.04.1996 and no documents have been submitted to prove the statement. It is stated that the defendant no. 1 has constructed a hall, Sh. Satprakash Yadav on behalf of defendant no. 2 has constructed a flat, and defendant no. 3 has constructed a boundary wall on the terrace of the building. It is stated that the defendants had violated the provisions of Delhi Apartment Ownership Act, 1986 wherein provisions creating interest of apartment owners in common areas/common facilities have to be protected by the Court as envisaged by the Legislature. It is stated that this Act defined common areas and facilities and as such spells out various things which are covered within the definition of common areas and facilities. It is further stated the partition deed dated 18.04.1996 was neither stamped nor registered and defendants have intentionally mentioned the silt areas as basement in all title documents so as to claim ownership on this area. It is further stated that at the time of purchase, separate letters were given to flat purchasers who demanded proof of servant room which stated that a servant room along with car park have been allotted along with the flats. Other grounds raised on the objection had been denied in the CS/5570/2016 Page 9 of 32 replication.
5. Similarly, replication has been filed to the written statement of defendant no.3 wherein it has been stated that the construction of the building was completed in 1996 after the enforcement of Delhi Apartment Ownership Act, 1986 and for more than 15 years, the residents of the building enjoyed hindrance free approach to terrace. Similar points have been reiterated by the plaintiff in their replication and the objections raised by Defendant No. 3 have been denied.
6. On completion of pleading the following issues were framed by the Hon'ble High Court of Delhi vide order dated 28.11.2013:
1. Whether the plaintiff has any share, right, title or interest in the full terrace of the suit property? (OPP)
2. Whether the construction of a flat/boundary wall carried out by the defendants on the terrace is illegal and if so, its effect? (OPP)
3. whether the filing of the present suit is duly authorised by the plaintiff society? (OPD3)
4. Relief?
7. In support of the case, the plaintiff examined the following witnesses:-
7.1 PW1-Tilak Raj Walia who tendered his evidence by way of affidavit as PW1/A. During his cross-examination by counsel for the defendant no. 1, he denied the suggestion that the plaintiff was not a registered society and added that it was a registered in 1991. He further admitted in his affidavit that he had not exhibited any documents but added that the same were on record. He stated that the Resolution for filing of the CS/5570/2016 Page 10 of 32 suit was passed by the society. He further stated that the plaint bears the signatures of the president of the plaintiff namely Anju Diwan and denied the suggestion that Anju Diwan did not have any authority to sign the plaint on behalf of society. He further admitted that no Resolution in favour of the President authorising her to sign the plaint had been filed. He further stated that he has not exhibited any sale deed in his affidavit and further denied the suggestion that in none of the sale deeds, society had been given any right qua terrace, parking area and servant quarter. He admitted that as per the sale deed, only the area of quarter had been sold. He stated that he could not produce any sale deed which mentioned that the terrace had been sold and added that it was a common area and therefore there is no sale which stated that the terrace rights had not been sold. He denied the suggestion that two-
third portion of terrace of defendant no. 2 was build up since 1995. He stated that Mr. Satprakash was a member of the plaintiff as he had purchased another flat at the 4 th floor. He further stated that no legal notice has been served upon defendant no.2 prior to filing of the present suit. He stated that he did not know if MCD has issued any notice to defendant no. 1 & 2 for any unauthorised construction and further stated that they had not obtained any information from MCD as to whether the construction raised by defendant no. 1 & 2 was unauthorised. He stated that he could not tell the age of construction on the terrace but added voluntarily that there was no construction till 2005, when he had purchased the flat. He denied the suggestion that the covered parking area was owned by the plaintiff.
During his further cross-examination on 11.08.2015 by counsel for defendant no. 3, he stated that no election had taken place of the plaintiff society since its inception in 2008. He stated that Ms. Anju Diwan was the present President of the plaintiff and was replaced as President after the death of her husband with the consent of Executive Members. He further stated that the gates installed by defendant no. 3 at terrace did not exist in 2005 when he CS/5570/2016 Page 11 of 32 purchased a flat in the society. He denied the suggestion that the meeting of office bearers dated 25.03.2011, it was decided that the gates already installed by defendant no. 3 will be removed and added that no such gates were installed on 25.03.2011. He denied the suggestions that iron gates had not been installed by defendant no.3 prior to 08.04.2011.
7.2 PW2 Vijay Kumar Gill tendered his evidence by way of affidavit as Ex. PW2/A. He relied upon the following documents:
1. Copy of registration certificate Ex. PW2/1 (OSR).
2. Copy of letter dated 01.04.2011 Ex. PW2/2 (OSR).
3. Legal Notice dated 07.04.2011 alongwith postal receipts Ex. PW2/3 (OSR).
4. Copy of Police complaint filed by the society on 09.04.2011 Ex. PW2/4 (OSR).
5. Copy of letter dated 15.04.2011 Ex. PW2/5 (OSR).
During his cross-examination by ld. Counsel for defendant no. 1 he stated that he could not tell if any sale deed was on record, which was executed in favour of any of the member of society. He further stated that he could not tell whether any document that had been filed on record which showed him as a treasurer of the society. He stated that he could not tell whether any document signed by him was on record showing him as a treasurer or member of the said society. He also stated during his cross- examination, whether any document of resolution to file on present suit has been filed on record before this Court. He admitted that document Ex. PW2/1 and Ex. PW2/2 do not bear his signature. He further admitted that Ex. PW2/3 which is a legal notice was neither on record nor he had brought the same before the Court and he further admitted that Ex.PW-2/4 and Ex.PW-2/5 did not bear his signatures. He further admitted that the building was built in 1995 and he did not remember whether in the year 1995, 2/3rd portion of the CS/5570/2016 Page 12 of 32 terrace was covered being part of the Defendant No. 2 & 3. He further stated that he could not tell whether the unbuilt portion belong to Defendant No. 3.
During his cross-examination conducted on 30.08.2017 by Ld. Counsel for Defendant No. 3, he admitted that the Plaintiff society had their own bylaws and on being confronted with the judicial file, he stated that the same were not on record. He stated that there was an election in the Plaintiff society in the year 2013, when he was elected as the treasurer of the Society and added he could not say whether any record regarding the election was available on record. He stated that as per the bylaws, the tenure of the elected was one year. He stated that in the subsequent election also he was elected as Treasurer of the Plaintiff society. During his cross-examination conducted on 13.08.2018 by Ld. Counsel for defendant No. 3, he stated that he had not brought the original certificate of registration of the Plaintiff society and he had no documentary evidence to prove his contention that the disputed roof was the common property of all residents of the society. He stated that Defendant No. 3 had installed two iron gates after he made complaint to the police authorities. He stated that he had no knowledge whether the son of Defendant No. 3 had lodged the complaint against the office bearers of the Plaintiff society for removing the gates on the terrace. He admitted that Defendant No. 1 & 2 had already raised construction on the respective portion of their roof prior to filing of this suit and no complaint was made with the police authorities or MCD against the construction raised by Defendant No. 1 & 2 on their respective portion of roof. He stated that he did not remember when Anju Dewan was elected as a President of the Plaintiff Society. He stated that he had purchased flat No. 4 in the building in question in 2005-2007. He denied the suggestion that he had willingly not producing the visitor's register in order to hide the fact that the earlier gates fixed by Defendant No. 3 were removed by the office bearers of the society and taken out from the building in a tempo which was entered in the register CS/5570/2016 Page 13 of 32 in the year 2010-2011. He admitted that the disputed roof was exclusively in possession of Defendant No. 3.
7.3. PW-3 Attam Parkash Popli, he tendered his evidence by way of affidavit as Ex.PW-3/A and he relied upon the copy of sale deed dated 28.01.2008 ExPW-3/1 (OSR).
During his cross-examination conducted on 13.08.2018 he stated that he had not brought the original certificate of registration of the Plaintiff society and added that he was elected as the Executive Member through the election by the residents of Plaintiff society. During his cross-examination conducted on 06.09.2018, he stated that he was not sure as to whether Ms. Anju Dewan was elected as President of the Plaintiff Society by or an election or otherwise and added that no election of Plaintiff society was conducted after 2008. He stated that his evidence affidavit had been filed by him at the instance of Mr. T.R Walia, who was the secretary of the Plaintiff society. He stated that he had purchased Flat No. 9 in the year 2009 from one Mr. Sikka, who had purchased the same from Defendant No. 3. He admitted that all the prior sale deeds in original were handed over to him by Mr. Sikka at the time of executing the sale deed in his favour in 2008. He stated that he was not sure that the servant quarter, covered parking and terrace portion were not sold by the builder either to him or to the previous owners of the Flat No. 9. He stated that he has not brought the original sale deed filed along with the affidavit. He stated that he was not present at the meeting of office bearers of Plaintiff society on 25.03.2011. He stated that he had no document to show that the Plaintiff society had taken a decision in the meeting held on 31.03.2011 not to permit the Defendant No. 3 to fix a gate on the terrace in question. He stated that he was not personally present on 08.04.2011, when Defendant No. 3 installed the gates on his terrace. He further stated during his cross-examination that the gate on terrace in question have always CS/5570/2016 Page 14 of 32 remained closed and admitted that Defendant No. 1 & 2 had already raised construction on their respective portion on the terrace. He denied the suggestion that entire covered parking space was owned by Defendant No. 3 and was not sold to any buyer.
8. Thereafter, plaintiff evidence was closed and the matter was fixed for defence evidence.
9. Defendant no.1 Raj Kumar examined himself as DW1 and tender his evidence by way of affidavit as D1W1/A. He relied upon the following documents namely: 1. SPA duly executed by defendant no.2 in favor of defendant no.1 as ExD1W1/1 and report of Local Commissioner appointed by the Hon'ble High Court as Ex.D1W1/2. On 14.08.2019 he produced the memorandum of partition deed dated 18.04.1996 along with site plan of partition Ex.D1W1/3 (colly) (OSR) and detailed site plan of ground floor as Ex. D1W1/3A.
During this cross examination conducted on 24.10.2019 by Counsel for the plaintiff he admitted that there was vacant hall at 1/3rd portion of the terrace and added that there was a flat without partition. He stated that he had not obtained any permission from any authority before constructing the hall/flat with partition walls and added that it was not required because the property fell in lal dora of village Sultanpur and the MCD by laws were not applicable. He stated that he had no knowledge as to mode of sale by which Mrs. Shashi Kulhad sold her 1/3rd share in the terrace. He stated that he was a Vice President of RWA when the suit was filed and he was not aware as to whether RWA was ever declared defunct or not.
CS/5570/2016 Page 15 of 329.1. During his cross examination conducted on 03.02.2020, he admitted that the electricity connection of the servant quarter was connected to electricity connection of respective flats and added that the same was illegally connected. He stated that he had not got his 1/3rd area stated in his name as per the terms of partition. He denied the suggestion that he was deposing falsely.
9.2 DW-3: Sh. Neil Behal, who tender his evidence by way of affidavit as DW3/A and relied upon the following documents, namely:
1. Notarized copy of GPA dated 11.02.2011, Ex.DW3/1 (OSR).
2. Copy of agreement dated 17.06.1992, Mark A.
3. Sale deed dated 07.07.1994, DW3/2. (OSR)
4. Partition deed along with site plan, Ex.DW3/3. (colly)(OSR)
5. Legal notice Ex.DW3/4.
6. Copy of complaint to SHO, PS, Fatehpur Beri, Ex.DW3/5.
7. Copy in and out register, Mark B.
8. Report of Local Commissioner Ex. DW1/6.
9. Copy of reminder letter dated 25.04.2011, Mark C.
10. Copy of reply already exhibited Ex. PW2/3.
During his cross examination by counsel for the plaintiff, he admitted that his mother's own flat was in the suit property. He stated that below the flats there was parking area along with 16 servant quarters and in his possession, he only had one servant quarter. He stated the above the flats on the 4th floor, 1/3rd portion was lying vacant which was in his possession and remaining 2.3rd portion was occupied and constructed by defendant no. 1 and 2. He stated that he did not remember whether the 1/3rd portion of the terrace has been mutated in his name or in favor of his mother. He stated that there was a basement in the suit property which was the parking area. He stated that above the basement there was first floor but added that there was ground floor and first floor. He denied that he was deposing falsely.
CS/5570/2016 Page 16 of 3210. On completion of defence evidence, final arguments were heard on behalf of all the parties.
11. The Ld. Counsel for the plaintiff has argued that the plaintiff is a Registered Society under Societies Registration Act 1860 and the building was a four storey building consisting of 16 flats above ground floor level, 16 servant quarters with two extra quarters, one for the purpose of generator room and other being used as guard room, a covered parking area at the ground floor where all the residence park their car, a drive way, a common terrace which is used for providing water supply, rain water drainage system and installation of T.v. antenna by all residents and also an emergency exit in case of fire or any other emergency situation. It was argued that the defendants were involved in unauthorized construction over the roof/terrace which the society has objected at several instances and Defendants have encroached upon the common area water tanks, pipe lines and dish antennas of the flats by placing iron gates at entry points. The plaintiff further seeks declaration that the roof and terrace be declared common area for all the residents and also seek a decree of permanent injunction restraining the defendants from taking over control on roof, terrace and undertaking any illegal construction on roof/terrace. The plaintiff further seeks a decree of mandatory injunction seeking directions to the defendant to demolish any illegal constructions undertaken by the defendants.
12. It has been argued on behalf of counsel for defendants including defendant no.3 that the defendants are the promoters of the building as well as owners of one of the flats each. It is submitted that the roof/terrace is not the common area but the independent property of the defendants. It is argued that the defendants had mutually agreed to pool in their respective lands for the purpose of developing multi-storey flats with the understanding that after CS/5570/2016 Page 17 of 32 the construction of such flats, the same would be sold to individual flat buyers and the building consisting of basement ground, 1 st , 2nd and 3rd floor, having total 16 flats was constructed, out of which five flats were given in share of each defendant and one flat was kept common to all the three defendants. It is submitted that thereafter a partition deed dated 18.04.1996 was executed between the parties wherein in its recitals it was clearly mentioned that except the terrace rights, possession of flats was given and this partition deed primarily divided the terrace rights and basement areas to each defendant. It has been argued that the individual buyers were never sold any terrace of basement portion and the claim of the plaintiff was therefore baseless. It is further argued that the plaint has also not disclosed how the suit was filed without any authorization or without following any regulation or bye-laws.
13. Arguments heard. Record perused. Considered.
14. Issues wise finding are as under:
1. Whether the plaintiff has any share rights and interest in the full terrace of the suit property? OPP 14.1 The onus to prove this issue was on the plaintiff. It has been argued on behalf of the plaintiff that the terrace was a common area by virtue of the Delhi Apartment Ownership Act 1986, wherein as per Clause 3(j) roof is defined within the meaning of common area of building. It is further the case of the plaintiff that there was no requirement nor any necessity to mention the roof/terrace to be a common area of building. It is further the case of the plaintiff that there was no requirement of necessity to specifically enlist the terrace to be a common area in the recital of the sale deed of the individual buyers and the residents of the building had a right to enjoy the CS/5570/2016 Page 18 of 32 area of roof/terrace as a common area. It has further been argued that the partition deed, Ex. DW1/3 relied upon by the defendant in support of the case is neither stamped nor properly registered and therefore the same was inadmissible in evidence.
14.2 Per contra, it is the case of the defendants that the terrace was never envisaged to be a common area for use amongst the individual buyers/flat owners or residents of the building and the terrace and the basement of the building was partitioned by the defendants amongst themselves as per the partition deed dated 18.04.1996 Ex. DW1/3. In this context, it is relevant to reproduce the extract of the said deed dated 18.04.1996 executed amongst the three defendants Ex.DW1/3 as during course of arguments much attention has been drawn to the said documents.
"That all the parties have amicably through bilateral negotiations have decided to partition the basement and terrace of said property carved in portions, with common passage, entrance, stairs, commons walls and pillars (all commons, walls and pillars are marked black as detailed in the site plan annexed herewith) and the respective parties are fully entitled to use them for their construction and any other common facilities and amenities provided in the said building in such a way that none of the parties may be a looser.
The portion of terrace of said property measuring 1600 sq.ft. Approx (more clearly shown in green color in the Site Plan A) and the portion of the basement measuring 1126 approx. As per drawing enclose, has fallen to the share on the first party, without the inclusion of the second party and the third party.
The portion of terrace of the said property measuring 1600 sq/ft appro. (more clearly shown in yellow color in site plan B) and the portion of the basement measuring 1126 approx as per drawing enclose has fallen to the share on the second party, without the inclusion of the first party and third party.
The portion of terrace of the said property measuring 1600 sq/ft appro. (more clearly shown in red color in site plan C) and the portion of the basement measuring 1126 approx as per drawing enclose has fallen to CS/5570/2016 Page 19 of 32 the share on the third party, without the inclusion of the first party and second party.
That in future all the parties shall enjoy their peaceful possession over the said portion of the said basement area and the terrace of the said property fallen to the respective shares and shall be entitled to remodeling the existing construction, if any, according to their choice and demands, without any interference from their counter parts".
14.3 A careful perusal of above partition deed Ex. DW1/3 further reflects that the 16 flats in the subject building which had been built on the three plots pooled in by three defendants herein, were also divided in such a manner that 5 flats came into the share of each defendant and one flat was shared as common amongst the three defendants. The relevant extract is reiterated below:
"iii) ..... Thus, in the manner aforesaid the parties to this deed are the absolute joint-owners of the property bearing Plot nos. 121, 122, 123, total admeasuring 600 squares yard, comprised in Khasra no. 230 Min (0-12), situated in Extended Abadi Lal Dora of Village Sultanpur, Tehsil Hauz Khas, abadi Known as "New Manglapuri", New Delhi, hereinafter referred to aqs "THE SAID PROPERTY".
After purchase of the aforesaid Property all the parties to this Deed, entered into an agreement dated 17th June, 1992, for the construction of a Building over the aforesaid property, consisting of Basement, ground floor, first floor, second floor and third floor, with their own funds and resources. After the completion of the building the newly constructed flats have been divided equally the parties as under;
Out of total 16 flats 5 flats as detailed below to each party and one common flat;
1) Mr. Raj Kumar; Flat no. 2, 11, 12, 13 and 14 = 5 2) Mrs. Mohini Behal; Flat no. 6, 7, 8, 10 2 Flats) = 5 3) Mrs. Shashi Khullar; Flat no. 1, 3, 5, 9 (2 Flats) = 5 4) Common Flat no. 4,
Vacant possession of the flats have been given to the parties, except the terrace rights of the said property."
Admittedly, these flats were further sold to individual buyers by defendants respectively, as per the share of flats received by them. Therefore, the individual buyers cannot at this stage, question the validity of the CS/5570/2016 Page 20 of 32 partition deed Ex.DW1/3 as this the very said document by Defendants agreed to divide the flats constructed and this was done before the sale of flats to the individual buyers/ flat owners. Further, after the sale of the individual flats by the Defendant herein, the individual purchaser received right, title and interest in their respective flats was primarily based on this agreement. Apart from this, it is also pertinent to mention that though the present suit has been filed on behalf of the Plaintiff society, none of the individual buyers except PW3 namely Attam Prakash Popply has proved his sale deed during trial. In fact, perusal of the memo of parties reflects that the present suit has not been filed by the individual flat buyers/residents of the building but on behalf of the Resident Welfare Associations (RWA) of the subject building. No authority letter or Attorney in favour of the RWA (Plaintiff herein) has been proved or placed on record during trial. Furthermore, no other resident or individual flat buyer has stepped into witness box during trial depose and prove the sale deeds of any of the individual flat buyers and what had been transferred to them qua the same. Even if it is assumed that the plaintiff society which is the Resident Welfare Association has the authority to espouse the case of individual flat buyers, perusal of the only sale deed on record, Ex.PW-3/3, reflects that the terrace was not sold to PW-3 or presumably to any other flat buyers by the Defendants herein. The recitals of the sale deed are implicit and anything which is inferred beyond what is written would be contrary to the provisions of Section 91 and 92 of the Indian Evidence Act. The relevant provisions of Section 91 and 92 of the Indian Evidence Act are reproduced as under: -
91. Evidence of terms of contracts, grants and other dispositions of property reduced to form of documents.--
When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no CS/5570/2016 Page 21 of 32 evidence1 shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained.-- When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence2 shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained." Exception 1.--When a public officer is required by law to be appointed in writing, and when it is shown that any particular person has acted as such officer, the writing by which he is appointed need not be proved. Exception 2.-- Wills 2[admitted to probate in 3[India]] may be proved by the probate. Explanation 1.--This section applies equally to cases in which the contracts, grants or dispositions of property referred to are contained in one document, and to cases in which they are contained in more documents than one. Explanation. 2.--Where there are more originals than one, one original only need be proved. Explanation 3.--The statement, in any document whatever, of a fact other than the facts referred to in this section, shall not preclude the admission of oral evidence as to the same fact.
(a)If a contract be contained in several letters, all the letters in which it is contained must be proved.(b)If a contract is contained in a bill of exchange, the bill of exchange must be proved.(c)If a bill of exchange is drawn in a set of three, one only need be proved.(d) A contracts, in writing, with B, for the delivery of indigo upon certain terms. The contract mentions the fact that B had paid A the price of other indigo contracted for verbally on another occasion. Oral evidence is offered that no payment was made for the other indigo.
The evidence is admissible.(e) A gives B receipt for money paid by B. Oral evidence is offered of the payment. The evidence is admissible.
92. Exclusion of evidence of oral agreement.--When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the CS/5570/2016 Page 22 of 32 form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms: Proviso (1).--Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, 1[want or failure] of consideration, or mistake in fact or law: (1).--Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, 3[want or failure] of consideration, or mistake in fact or law\:" Proviso (2).--The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved. In considering whether or not this proviso applies, the Court shall have regard to the degree of formality of the document: Proviso (3).--The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved: Proviso (4).--The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents: Proviso (5).--Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description, may be proved: Provided that the annexing of such incident would not be repugnant to, or inconsistent with, the express terms of the contract: Proviso (6).--Any fact may be proved which shows in what manner the language of a document is related to existing facts. Illustrations 14.4 Accordingly, the sale of flat to individual buyer along with other amenities cannot be read beyond what has been specifically and categorically entailed in the recitals of the sale deed, more specifically that of Ex.PW-3/3.
CS/5570/2016 Page 23 of 32For the sake of brevity, it is necessary to reiterate the relevant recital/Clause of Sale Deed in favor of PW-3 namely Atam Prakash Popply, the same is reproduced as under:-
"And whereas the Vendor have agreed to sell, transfer and convey his rights, interests, liens and titles in the One Flat Private No. 9 on Third Floor, measuring approx. 2430 sq. feet, consisting of four bedrooms with attach toilets, kitchen, balcony in the front with toilet drawing cum dining hall, a servant quarter at the ground level, open parking space at ground level, alongwith undivided proportionate, indivisible & impartible ownership rights in the land underneath with all fittings, fixtures, connection, structure standing thereon and all common facilities like staircase, common passage, (hereinafter called the demised portion) of the said property unto the Vendee, for a total consideration of Rs. 30,00,000/- (Rupees Thirty Lacs Only) and the Vendee has agreed to purchase the said demised portion from the Vendor for the said consideration amount of Rs. 30,00,000/- (Rupees Thirty Lacs Only) on the following terms and conditions."
14.5 In this context, reliance is placed on the judgment of Mahinder Kehar Vs. Skyland Builders in CS(OS) No. 175/2019 wherein it has been held by the Hon'ble High Court of Delhi "that the spirit and purpose of enacting Section 91 and 92 of the Indian Evidence Act 1872 is to render the written contract, grant or other dispossession the sole repository of the terms content therein and to permit a party to plead contrary to this terms of sale deed to which he is a party would be to put premium of this honesty'.
14.6 Furthermore, perusal of cross examination of PW1 namely Tilak Raj Walia further reflects that he has admitted that as per the sale deed only the area of quarter had been sold and he could not produce any sale deed which mentioned that the terrace rights has also been sold to the individual flat buyers. Further PW2 namely Vijay Kumar Gill also stated during the cross examination that he had no documentary evidence to prove his CS/5570/2016 Page 24 of 32 contention that the disputed roof was the common property of all residents and he further admitted that Defendant no. 1 and 2 had already raised construction on their respective portions of the roof prior to the filing of the present suit. Therefore, in view of the aforesaid facts and observations, the plaintiff society cannot claim any right or title or interest in the full terrace of the building.
14.7 With respect to the contention that the terrace would fall within the common area as per section 3(j) of the Delhi Apartment Act reliance is placed on the judgment of Dhruba Das Gupta and Ors Vs. Surjendu Shekhar Ghosh and Ors. FAO no. 456/2010 and CM no. 22352/2010 2011 SCC Online Del 2999 wherein it has been held that:-
"coming to the question as to whether the plaintiffs has established or not a prima facie case in its favor, this court finds that the plaintiff is claiming its ownership rights in the terrace in question on the basis of the provisions of Delhi Apartment Ownership Act 1986. Section 3(j) of the said Act defines "common areas and facilities" and sub-clause (ii) therefore covers the "roofs" also within the definition of commons areas. It is contended that Section 4 of the Act lays down that every person who becomes entitled to the ownership and possession of the apartment under Section 4(1) or (2) of the Act is entitled to such percentage of such undivided interest in the "common areas and facilities" as may be specified in the Deed of Apartment. Sub-clause 4(4) of Section 4 further says that such percentage of undivided interest of each apartment owner in the common areas and facilities shall have a permanent character and shall not be altered without the written consent of all the apartment owners. It is asserted that the plaintiff who is an owner of one of the apartments in their building in question is vested with undivided interest in the roof in question on which proposed tower is coming the defendants on the other hand content that although Section 3(j) of the Act covers the "roofs" also within the definition of "common areas and facilities". In relation to a multi-storeyed building Sub- clause (3) to Section 4 of the Act categorically says that an apartment owner is entitled to only such percentage of undivided interest in commons areas and facilities as may CS/5570/2016 Page 25 of 32 be specified in the Deed of Apartment. It is submitted that the act does not envisaged any automatic interest in favor of a flat owner in a common area for the reason that in every building there are numerous common areas like roofs, halls, corridors, lobbies, stairway, etc which may or may not be made available to every apartment owner. The promoter/owner of building may keep some of the areas for his own use or may plan equitable distribution and division of commons areas between different occupants. Every apartment, therefore, owner cannot claim and undivided interest in every part of common area in a building. It is argued that in a multi-storeyed building the promoter or builder of the building may provide different common areas to different segments of apartment owners so that they may use those areas without interference from others. If it is not done and everybody is allowed to claim interest in every part of common areas in the building multifarious problems and disputes may arise between the flat owners themselves and for this reason Section 4 of the Act specifically says that a person who becomes entitled to the ownership and possession of an apartment in terms of sub-section (1) or sub-section (2) of Section 4 shall be entitled to undivided interest in only those common areas and facilities which may be specified in the Deed of Apartment in his favor. It is also submitted that in a multi-storeyed building, which is not fully constructed or in which the builder or promoters expects the chances of further constructions on the terrace or any open area, he may specifically reserve his ownership rights over such area so that in case he gets permission from the concerned authorities he may raise further constructions as per the building byelaws. It is pointed out that Section 4(3) of the Act does not confer any automatic right in favor of all the apartment owners in respect of all the common areas defined in Section 3 (j) of the Act and as such one has to look to the agreement between the parties to find out as to in which common area or facility an apartment owner has undivided interest.
After considering the submission made by Ld. Counsel for the parties and examining the provisions of the Delhi ownership of Apartments Act, this court is of the considered view that the act certainly creates valuable rights in respect of the "common areas and facilities" in multi-storeyed buildings in favor of the apartment owners so that they may enjoy their portions comfortably but these rights are controlled by and are subject to the provision of Section 4 (3) of the Act which entitles the promoter or builder of a multi-storeyed building to specify common CS/5570/2016 Page 26 of 32 areas which he wishes to transfer to the flat owners. It entitles him to earmark different common areas and facilities for different occupants in the building so that different group of the flat owners in different parts of the building may enjoy separate "common areas and facilities"
without interference from other occupants of the building. This can be done by promoter/builder of the building by incorporating appropriate clauses regarding commons areas in the deeds of apartments executed in favor of the purchasers of the flat in terms of Section 4(3) of the Act. Had the legislature intended not to permit the promoter or a builder of a building to earmark or apportion such areas Section 4(3) of the Act would have simply stated that every person who becomes entitled to the exclusive ownership and possession of an apartment under sub-section (1) or sub-section(2) of section 4 of the Act shall become entitle to undivided interests in all the commons areas and facilities in the building and there was no need to use the words "As may be specified in the Deed of Apartment". A purchaser of the apartment may opt out of the deal in case he finds that common areas and facilities required by him are not being provided to him by the promoters. Ld. Counsel for the defendants rightly contends that the roof in question still remains exclusively with defendant no.1 in as much as clause 11(A) of the agreement between the parties specifically provide that the promoters shall continue to have a right to make additions or put up additional structure etc. as may be permitted by the local authorities on the terrace of the complex and the terrace and parapet walls shall continue to be the property of the promoter who shall be entitled to use the same for any purpose whatsoever".
Therefore, in view of the aforesaid judgment and on the basis of facts discussed above, it cannot be said that the terrace was envisaged to be a common area of the subject building except easementary rights which exist in law.
14.8 It is pertinent to mention that the issues in Civil Trial are decided on the basis of balance of probability and not on the basis of the proof beyond reasonable doubts as in the case of criminal trial. It would be relevant CS/5570/2016 Page 27 of 32 to quote from the celebrated judgment of Hon'ble Supreme Court in N.G Dastane, Dr. Vs. S. Dastane 1975 AIR (SC)1534 in which the Hon'ble Supreme Court had delineated regarding this in para no. 24 and 25 of the judgment which is quoted below:-
"24. The normal rule which governs civil proceedings is that a fact can be said to be established if it is proved by a preponderance of probabilities. This is for the reason that under the Evidence Act, Section 3, a fact is said to be proved when the court either believes it to exists or considers its existence so, probable that a prudent man ought, under the circumstances of particular case, to act upon the supposition that it exists. The belief regarding the existence of a fact may thus be founded on a balance of probabilities. A prudent man faced with conflicting probabilities concerning a fact situation will act on the supposition that the fact exists, if on weighing the various probabilities he finds that the preponderance is in favour of the existence of the particular fact".
14.9 In the present case, the Plaintiff society has not placed on record Sale Deeds of individual buyers/ flat owners except that of PW-3 or nor have they placed on record any document to show that the terrace of the building was to be accessed by the Residents/individual buyers as a common area within the meaning and definition of Section 3 (j) of the Delhi Apartments Ownership Act. No evidence has been lead during trial to show that the terrace was being used as common area prior to the filing of the present suit as the deposition of the Plaintiff witnesses reflects that the as per the Sale deeds no terrace was sold that there was no documentary proof to content that the disputed roof was a common property of all residents of the society. Accordingly, in the considered opinion of this Court, the Plaintiff society have no right title or interest on the full terrace of the building except easementary rights which exists in Law. This issue is accordingly, decided against the Plaintiff.
CS/5570/2016 Page 28 of 3215. Issue No. 2.
Whether the construction of a flat/boundary wall carried out by the defendants on the terrace is illegal and if so, its effect? (OPP) The onus to prove this issue was on the Plaintiff. It is the case of the Plaintiff the Defendants have admitted in Para 5 of the written statement that Defendant No. 1 had constructed a hall, Sh. Satprakash on behalf of Defendant No. 2 had constructed a flat and Defendant No. 3 had constructed a boundary wall on the terrace. It is argued that the Defendant No. 1 did not get any approval from the concerned authorities for making additional constructions and therefore the Defendants were indulging in illegal constructions, which was harmful for the building and the residents.
15.1 Per contra, it is the case of the Defendants that the Plaintiff has been unable to prove its case and no evidence had been led by them in this regard.
15.2 It is not a disputed fact that the Defendants herein had carried out constructions on their respective portion of the terrace on which they are claiming their ownership as per the Partition Deed Ex. DW1/3. However, during the entire trial no evidence has been lead on behalf of the Plaintiff of any expert or any documentary evidence to show that the purported constructions so being carried out was determintal to the structure of the building or its inhabitants. Nothing has been placed n record during trial that the Defendants have received any official communications from any concerned authorities claiming to be illegal nor have any specific evidence being led by the Plaintiff society to aver that the Defendants could not carry out any further construction in the building. It has also admittedly come on record that the Plaintiff were aware of the construction being carried out by the Defendants on the terrace and apart from issuing of legal notice dated CS/5570/2016 Page 29 of 32 03.12.2010 and 07.02.2011 which have not been proved during trial by any of the Plaintiff evidence, no other oral or documentary evidence had been lead by the Plaintiff in this regard.
15.3. It is a trite position of law that the case of the Plaintiff has to stand on his own legs and not on the legs of others. He has to prove his own case by adducing oral or documentary evidence and proving the same. Reliance is placed on the judgment of Harish Mansukhani Vs. Ashok Jain 2009 II(AD)(Del) 30 in this regard.
15.4 The Plaintiff has failed to discharge the onus put on it and has not lead any documentary or oral evidence in support of his assertions, accordingly, this issue is decided against the Plaintiff.
16. Issue No. 3.
3. whether the filing of the present suit is duly authorised by the plaintiff society? (OPD3) The onus to prove this issue was on the Defendant No. 3. It has been argued that the present suit has not been filed by the duly authorized person on behalf of the Plaintiff society and that it has been no where pleaded as to who has signed, verified and instituted the Plaint and in what capacity. It is further argued that the present suit has been filed by Anju Dewan, who is the President of RWA but she has not examined herself as witness nor proved herself to be the President of the Plaintiff Society during trial.
16.1. The Plaintiff on the other hand has argued that the present suit has been filed by the Residents Welfare society, which is a duly registered CS/5570/2016 Page 30 of 32 society under the Society Registration Act, 1860 and is duly authorized to file the present suit.
16.2 At this juncture, it is relevant to reproduced section 6 of the Societies Registration act, which is read as follow: -
6. Suits by and against societies.--Every society registered under this Act may sue or be sued in the name of the president, chairman, or principal secretary, or trustees, as shall be determined by the rules and regulations of the society and, in default of such determination, in the name of such person as shall be appointed by the governing body for the occasion: Provided that it shall be competent for any person having a claim, or demand against the society, to sue the president or chairman, or principal secretary or the trustees thereof, if on application to the governing body some other officer or person be not nominated to be the defendant.
16.3 Careful reading of the same, reflects that every society registered may sue in the name of the President, Chairman, principal, Secretary or Trustees as shall be determined by the Rules. At this stage, perusal of the suit reflects that it has been stated that the Plaintiff was a society registered under the Societies Registration Act, 1860 and the Members of the Society were owners/occupiers of the flats in multi-storey building built in plot no.
121/123, New Manglapuri, Mandi road, New Delhi. Furthermore, the Plaint has been signed by Ms. Anju Dewan as a Plaintiff. The affidavit accompanying the Plaints states Ms. Anju Dewan to be the President of the Plaintiff society. Admittedly, there is no avernment in the entire plaint reflecting or showcasing as to how Ms. Anju Dewan was duly authorized as per the Rules and Regulations of the Society to sue on behalf of the Plaintiff society. Furthermore, no bylaws or any rules and regulations have been put- forth or proved during trial by the Plaintiffs to show that all the members of the society had authorized her to file the present suit. In fact, as discussed in CS/5570/2016 Page 31 of 32 preceding paragraphs, none of the individual buyer/residents are a party to the present suit. It also requires mentioning that as per the deposition of the Plaintiff witness PW1, it has come on record that Ms. Anju Dewan became the President of the society on the demise of her Late husband with the consent of the executive member, however, no such minutes of meeting or document pertaining to the election of the members of the RWA has been proved during trial. It is also not been proved as to in what capacity did Ms. Anju Diwan sign and verify the present plaint when no authority or document in her favour has been proved during trial by any of the witnesses. Furthermore, PW-2 who had claimed to be Treasure of the society has also not placed on record any document so to his Election and his authority. In the absence of the any such rule and regulations or documents or any document in support thereof, the Plaintiff Society has failed to show that the present suit has been filed by the duly authorized person on or behalf of the Plaintiff society.
Accordingly, the Defendant No. 3 has been able to discharge the burden so put on him and this issue is decided in favour of Defendant No. 3.
Relief.
17. In view of above discussion, the Plaintiff has failed to prove their avernments and case beyond reasonable doubts and are not entitled to any of the reliefs as claimed by way of the present suit. The suit of the Plaintiff is dismissed. Decree-sheet be prepared accordingly. No order as to cost. File be consigned to record room.
Announced in the Open Court on 30.07.2022 (Gurmohina Kaur) Additional District Judge South District: Saket Courts New Delhi CS/5570/2016 Page 32 of 32