Delhi District Court
Mr. Lais John & Ors. vs . Mr. Ashok Kumar Khattar & Anr. on 14 September, 2020
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Mr. Lais John & Ors. Vs. Mr. Ashok Kumar Khattar & Anr.
CS SCJ 83329/16
IN THE COURT OF MS. BHARTI GARG, CIVIL JUDGE-01 (SOUTH)
SAKET COURT, NEW DELHI
Civil Suit No :- 83329/16
CNR No. :- DLST03-000391-2015
Date of Institution : 20.01.2015
Date of Decision : 14.09.2020
(1) Mr. Lais John
S/o Sh. M J John
R/o 2nd Floor, 886/1-C
Ward No. 8, Mehrauli
New Delhi-110030
(2) Mr. Saji Joseph
S/o Late Sh. K P Joseph
R/o 1st Floor, 886/1-C
Ward No. 8, Mehrauli
New Delhi-110030
(3) Mrs. Soumya Lais
W/o Mr. Lais John
(Through SPA- Mr. Lais John)
R/o 2nd Floor, 886/1-C
Ward No. 8, Mehrauli
New Delhi-110030
(4) Mrs. Leena Kurian
W/o Mr. Sunny Thomas
(Through SPA-Mr. Sunny Thomas)
CS no. 83329/16
(Bharti Garg)
CJ-01/(South) Saket Court/New Delhi
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Mr. Lais John & Ors. Vs. Mr. Ashok Kumar Khattar & Anr.
CS SCJ 83329/16
R/o 3rd Floor, 886/1-C
Ward No. 8, Mehrauli
New Delhi-110030
(5) Mr. Umesh Kumar Singh
S/o Sh. Baban Singh
(Through SPA- Mr. Lais John)
R/o U.G. Floor, 886/1-C
Ward No. 8, Mehrauli
New Delhi-110030
(6) Mrs. Poonam Singh
W/o Mr. Umesh Kumar Singh
(Through SPA- Mr. Lais John)
R/o U.G. Floor, 886/1-C
Ward No. 8, Mehrauli
New Delhi-110030 .........Plaintiffs
Versus
(1) Mr. Ashok Kumar Khattar
S/o Sh. Bola Ram Khattar
R/o 893, Ward No. 8, Mehrauli
New Delhi-110030
(2) Mr. Rajesh Mehta
S/o Sh. L R Mehta
R/o 248/1, Ward No. 6
Mehrauli
New Delhi-110030 .........Defendants
SUIT FOR POSSESSION, MANDATORY INJUCNTION, PERPETUAL
INJUNCTION AND DAMAGES
CS no. 83329/16
(Bharti Garg)
CJ-01/(South) Saket Court/New Delhi
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Mr. Lais John & Ors. Vs. Mr. Ashok Kumar Khattar & Anr.
CS SCJ 83329/16
JUDGMENT:-
1. This is the suit for recovery of possession, damages, mandatory injunction and permanent injunction in respect of the basement of property bearing plot no. 886/1-C, Ward no.8, situated in abadi of Lal Dora of village Mehrauli, Tehsil Hauz Khas, New Delhi (hereinafter, basement referred to as 'Suit Property' and the entire property referred to as 'Building').
2. Briefly, it is averred in the plaint that plaintiff no.1 is the special power of attorney of plaintiff nos.3, 5 & 6 and Sh. Sunny Thomas is the special power of attorney of plaintiff no.4 with regard to the filing of present suit. It is averred that defendant no.1 had purchased the entire property bearing plot no. 886/1-C, Ward no.8, situated in abadi of Lal Dora of village Mehrauli, Tehsil Hauz Khas, New Delhi from Sh. Sanjay Mehta through a registered sale deed dated 17.04.2008. Thereafter, defendant no.1 sold the different floors of the aforesaid Building along with its appurtenant (basement etc), proportionate undivided portion of the land underneath and car parking at the ground floor, to plaintiffs through different transactions by valid registered sale deeds. The upper ground floor of the Building was sold by defendant no.1 to Smt. Babita vide registered sale deed dated 22.12.2008, who further sold it to plaintiff nos.5 & 6 vide registered sale deed dated 09.11.2009. The first floor of the Building was sold by defendant no.1 to plaintiff no.2 vide registered sale deed dated 27.01.2009. Defendant no.1 had also executed a GPA in respect of second floor and third floor in favor of Mrs. Pushpa Rani on 23.04.2008. The second floor was sold by defendant no.1 through his POA Mrs. Pushpa Rani to Mr. Sushil Kumar Aggarwal vide registered sale deed dated 17.07.2009, from whom the plaintiff nos.1 & 3 purchased the second floor vide registered sale deed dated CS no. 83329/16 (Bharti Garg) CJ-01/(South) Saket Court/New Delhi -4- Mr. Lais John & Ors. Vs. Mr. Ashok Kumar Khattar & Anr.
CS SCJ 83329/1627.09.2011. The third floor was sold by defendant no.1 through his POA Mrs. Pushpa Rani to plaintiff no.4 vide registered sale deed dated 27.03.2012.
3. It is stated that there is a basement, i.e. the Suit Property, which is a part of the common area of the Building and has been enjoyed by the plaintiffs jointly and used for maintaining and keeping the water and septic tanks. However, since the third week of May 2014, defendant no.2 has trespassed into the Suit Property and is claiming ownership rights therein. On 21.05.2014, he confronted Sh. Sunny Thomas, the husband of plaintiff no.4, and asked him to remove the water tanks, sewer collection tanks and other storage items such as old chairs, tables, etc. lying in the Suit Property. Upon objection by the plaintiffs, defendant no.2 threatened them with dire consequences and said that he had been deputed by defendant no.1 and would come back with his associates. On 28.05.2014, he again came and threatened the plaintiffs to vacate the Suit Property. It is further averred that defendant no.2 even trespassed into the ground floor parking area on 02.06.2014 and illegally got a new electricity connection installed with the help of BSES employees, and again attempted to manhandle the husband of plaintiff no.4. However, later on the electricity meter was removed by BSES. A police complaint was also lodged on 10.06.2014 against defendants.
4. It is further asserted that on 02.07.2014, both the defendants again came along with 8-10 people and trespassed into the building. They started shouting and abusing the plaintiffs and thereafter, broke the gate of the Suit Property, removed the water tanks and storage materials lying therein and took its possession forcibly. Various police complaints were lodged with respect to this incident, but all in vain. Instead of registering the FIR against the defendants, the police filed a CS no. 83329/16 (Bharti Garg) CJ-01/(South) Saket Court/New Delhi -5- Mr. Lais John & Ors. Vs. Mr. Ashok Kumar Khattar & Anr.
CS SCJ 83329/16false case for breach of peace against the plaintiffs and sent it to the Court of Special Executive Magistrate, South. The Court disposed off the matter vide order dated 12.11.2014 by holding that the matter requires a civil trial.
5. Again, defendant no.1 tried to physically assault and kill the husband of plaintiff no.4 against which another police complaint was filed on 01.08.2014, but no action has been taken by the police till date. The defendants have also started dumping their water tanks, PVC pipes and other sanitary wares in the Suit Property without any right or authority. They have damaged the water pipeline in the Suit Property. They have also removed three water storage tanks and are further carrying out construction activities therein. It is urged that the defendant no.1 has been left with no right in the Suit Property as all the rights in the Building along with common facilities have been transferred to the plaintiffs vide various sale deeds and hence, the acts of defendants are illegal. Therefore, the suit has been filed for recovery of possession of the Suit Property, for mandatory injunction to direct the defendants to remove their materials like PVC pipes, empty water storage tanks and other sanitary fittings from the Suit Property, for perpetual injunction to restrain them from entering the Suit Property, from demolishing the fittings thereof and carrying out construction work, and further to restrain them from creating any third party interest and, lastly for damages.
6. In their joint written statement, the defendants have taken the preliminary objection that insufficient court fee has been paid and the suit has not been valued adequately for the relief of possession as the value of Suit Property is more than Rs. 20 lacs, and that the suit is not maintainable without seeking the relief of declaration. On merits, it CS no. 83329/16 (Bharti Garg) CJ-01/(South) Saket Court/New Delhi -6- Mr. Lais John & Ors. Vs. Mr. Ashok Kumar Khattar & Anr.
CS SCJ 83329/16is admitted that the plaintiffs are the owners of various floors of the Building as mentioned in the plaint, nonetheless, it is denied that any rights in the basement, i.e. the Suit Property were ever sold by defendant no.1 to anyone including the plaintiffs, rather, only the flats were sold as is clear from the terms of respective sale deeds. It is averred that defendant no.1 is still the owner of the Suit Property as well as the roof since he is the owner of the entire Building except the ground floor and other floors sold to plaintiffs. It is submitted that the ground floor is common to all. Further, the Suit Property is in possession of defendant no.2 with the permission of defendant no.1 from the date of construction thereof. The materials of defendants have been stored in the Suit Property for a long time now. It is also denied that any water tank or sewer tank is in the Suit Property. It is stated that there is only one sewer collection tank bound by strong walls whose outlet is on the ground floor. Further, the water supply motors are kept at the ground floor only. In this manner, the possession of plaintiffs in the Suit Property is also denied. It is contended that the plaintiffs had illegally locked the gate of the Suit Property after which the police was called and the gate was got opened. All other averments of the plaint are denied as being false and concocted. Hence, it has been prayed that the suit be dismissed with costs.
7. In pursuance of the joint written statement of defendants, replication was filed on behalf of plaintiffs, in which the averments of plaint have been reiterated, the allegations of written statement have been denied and it has been additionally pleaded that the suit is valued correctly since the Suit Property forms part of 'common area and facilities' under The Delhi Apartment Ownership Act, 1986 and it is not possible to estimate the money-value of the subject matter in the case as CS no. 83329/16 (Bharti Garg) CJ-01/(South) Saket Court/New Delhi -7- Mr. Lais John & Ors. Vs. Mr. Ashok Kumar Khattar & Anr.
CS SCJ 83329/16no separate consideration was paid regarding the same. It is further submitted that WS has only been signed by defendant no.1 and not defendant no.2, hence, the same cannot be considered as a reply by defendant no.2.
8. On the basis of the pleadings of the parties, following issues were framed vide order dated 05.08.15 by the Ld. Predecessor of this court:-
Issue no.1 Whether the plaintiffs are entitled to the relief of possession of the basement as prayed for? OPP Issue no.2 Whether the plaintiffs are entitled to permanent injunction restraining the defendants from entering from the basement/ underground as prayed for? OPP Issue no.3 Whether the plaintiffs are entitled to relief of mandatory injunction as prayed for? OPP Issue no.4 Whether the plaintiffs are entitled to relief of permanent injunction restraining the defendants from alienating, selling or creating any third party interest in the suit premises as prayed of? OPP Issue no.5 Whether the plaintiffs are entitled to damage/ compensation as prayed for? OPP Issue no.6 Whether the suit is not maintainable in its present form? OPD Issue no.7 Whether this court does not have the pecuniary jurisdiction to decide the matter? OPD Issue no.8 Whether the present suit is not maintainable for want of cause of action? OPD Issue No.9 Relief.CS no. 83329/16
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9. To prove their case, plaintiff no. 1 examined himself as PW- 1 by tendering his affidavit Ex. PW1/A and relied upon the following documents:-
(i) Ex. PW1/1 i.e. special power of attorney dated November 2014;
(ii) Ex. PW1/2 i.e. special power of attorney dated November 2014;
(iii) Ex. PW1/3 i.e. sale dated 17.04.2008;
(iv) Ex. PW1/4 i.e. general power of attorney dated 23.04.2008;
(v) Mark A i.e. sale deed dated 13.07.2009;
(vi) Mark B i.e. sale deed dated 20.09.2011;
(vii) Ex. PW1/7 i.e. sale deed dated 23.01.2009;
(viii) Mark C i.e. sale deed dated 23.03.2012;
(ix) Ex. PW1/9 i.e. sale deed dated 18.12.2008;
(x) Mark D i.e. sale deed dated October 2009;
(xi) Ex. PW1/11 i.e. complaint dated 10.06.2014;
(xii) Ex. PW1/12 i.e. complaint dated 09.07.2014;
(xiii) Ex. PW1/13 i.e. final order dated 12.11.2014 of SEM;
(xiv) Ex. PW1/14 i.e. complaint dated 01.08.2014; and
(xv) Mark E (colly) i.e. photographs (09 in number).
10. Mr. Sunny Thomas, the SPA of plaintiff no. 4, was examined as PW2 who tendered his affidavit of evidence as Ex. PW2/A and relied upon following documents which are already exhibited as:-
(i) Ex. PW1/3 i.e. sale dated 17.04.2008;
(ii) Ex. PW1/4 i.e. general power of attorney dated 23.04.2008;
(iii) Mark A i.e. sale deed dated 13 .07.2009;
(iv) Mark B i.e. sale deed dated 20.09.2011;
(v) Ex. PW1/7 i.e. sale deed dated 23.01.2009;
(vi) Mark C i.e. sale deed dated 23.03.2012;
(vii) Ex. PW1/9 i.e. sale deed dated 18.12.2008;CS no. 83329/16
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CS SCJ 83329/16(viii) Mark D i.e. sale deed dated October 2009;
(ix) Ex. PW1/11 i.e. complaint dated 10.06.2014;
(x) Ex. PW1/12 i.e. complaint dated 09.07.2014;
(xi) Ex. PW1/13 i.e. final order dated 12.11.2014 of SEM;
(xii) Ex. PW1/14 i.e. complaint dated 01.08.2014;
(xiii) Mark E (colly) i.e. photographs (09 in number); and
(xiv) Ex. PW2/1 i.e. special power of attorney.
11. ASI Virender Singh was examined as PW3 who proved the complaint received on 10.06.2014 on behalf of Sunny Thomas as Ex. PW3/1 (OSR); complaint received on 10.07.2014 on behalf of Sunny Thomas as Ex. PW3/2 (OSR) and complaint received on 02.08.2014 on behalf of Sunny Thomas as Ex. PW3/3 (OSR).
12. PW1, PW2 & PW3 were duly cross-examined by counsel for defendants. Thereafter, evidence on behalf of plaintiffs was closed by the counsel for plaintiffs vide statement dated 06.10.18.
13. On the other hand, none of the defendants stepped into the witness box themselves. Rather, one Sh. Jagdish Chand Mehta was examined as DW1 who tendered his evidence affidavit as Ex. DW1/A and relied upon the document Ex. DW1/1 i.e. GPA dated 06.05.2008. During his cross-examination, he stated that the defendants are his nephews. He was also confronted with photograph Mark DW1/X, which reflects the front portion of the Building, and the same was admitted by him. He was duly cross-examined by counsel for plaintiffs. Remaining evidence on behalf of defendants stood closed vide order dated 15.04.19 and matter was fixed for final arguments.
14. Arguments heard. Case file perused. Considered. The issue- wise adjudication and the findings of the court are as under :-
CS no. 83329/16(Bharti Garg) CJ-01/(South) Saket Court/New Delhi -10- Mr. Lais John & Ors. Vs. Mr. Ashok Kumar Khattar & Anr.CS SCJ 83329/16
ISSUE No. 1 & 3 :-
15. Considering that the facts of both these issues are interconnected requiring common discussion and appreciation of evidence, these are being decided together. The onus to prove these issue lies on the plaintiff. PW1 namely Lais John has reiterated the contents of plaint in his affidavit of evidence. PW2 namely Sunny Thomas, who is the husband of plaintiff no.4, has also corroborated the case of plaintiffs in his examination-in-chief. Per contra, DW1 namely Jagdish Chand Mehta has deposed, on the lines of WS, that defendants have been in continuous possession of the Suit Property since 06.05.2008, on which date the GPA was executed by Sanjay Mehta in favor of defendant no.1 qua the Suit Property. He has further stated that the defendants have been using the Suit Property for storing their materials for a long time now.
16. First and foremost, the fact of plaintiffs being the owners of the respective floors of the Building, in consonance with the chain of documents of title tendered as Ex. PW1/4, Mark A, Mark B, Ex.PW1/7, Mark C, Ex. PW1/9, Mark D is not in dispute. Further, the sale deed dated 17.04.2008 Ex. PW1/3 executed by Sanjay Mehta in favor of defendant no.1 is also admitted. Also, the current possession of defendants over the Suit Property is admitted between the parties although the duration of such possession at the time of filing the suit remains a material issue to be adjudicated, considering the fact that plaintiffs have asserted that they were in common possession of the Suit Property until the defendants trespassed thereto in the year 2014 whereas, the defendants maintain that they have been in possession thereof since it was constructed in the year 2008 and the plaintiffs never had the possession. This position is discernible from the perusal of the pleadings of the CS no. 83329/16 (Bharti Garg) CJ-01/(South) Saket Court/New Delhi -11- Mr. Lais John & Ors. Vs. Mr. Ashok Kumar Khattar & Anr.
CS SCJ 83329/16parties itself.
17. It is agitated on behalf of the plaintiffs that defendant no.1 had sold the Suit Property as part of 'common facilities' while transferring the title of respective floors to the plaintiffs by way of different transactions, as is recited in the sale deeds adduced in evidence. On the contrary, the defendants urge that this is not true as there is no explicit mention of the term or clause in the chain of these documents that Suit Property is included as part of 'common facilities'. Suffice it to say, the core issue between the parties is whether the Suit Property, which is the basement in the aforesaid Building, was sold by defendant no.1 along with other floors or whether the defendant no.1 had retained his rights over it despite having sold all the other floors of the Building to plaintiffs through different transactions. In other words, the whole controversy in the suit revolves around the interpretation of the term 'common facilities' as mentioned in the various documents of title relied upon by the plaintiffs.
18. In order to have a better comprehension of the issue, it would be pertinent to reproduce the clause embodying the term 'common facilities' as under:-
" AND WHEREAS the VENDOR has agreed to sell, transfer and convey his rights, interests, liens and titles in the Entire Flat on the First Floor, alongwith common roof right, measuring approx. 945 sq. feet (i.e. 87.82 Sq Meter) in Property No. 886/1-C, Ward No.8, being part of Khasra No. 1151/1 min, situated in abadi of Lal Dora Village Mehrauli, Tehsil Hauz Khas New Delhi, alongwith undivided proportionate, indivisible & impartible ownership rights in the land underneath with all fittings fixtures, common water connection & Separate Electricity Meter, structure standing thereon and all common facilities like staircase, common passage, common parking on Parking area (hereinafter called the said Floor of the said property unto the VENDEE, for a total consideration of Rs. 8,00,000/-CS no. 83329/16
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(Rupees Eight Lacs Only) on the following terms and conditions."
19. The clause is worded in a similar fashion in all the documents of title exhibited by plaintiffs in evidence. The Ld. Counsel for plaintiffs argues that basement is necessarily included as part of 'common facilities' under Section.3 of The Delhi Apartment Ownership Act, 1986 (henceforth 'The Act'). Moreover, the intention of the defendant no.1 to transfer the Suit Property while parting with his title in the all other flats of the Building can be gauged from the fact that vide sale deed Ex. PW1/3, Sanjay Mehta had sold hundred percent of his rights in the entire Building to defendant no.1, which admeasures 440 sq. meters; each floor admeasures approximately 88 sq. meters; there are a total of 5 floors in the property, i.e. ground floor, upper ground floor, first floor, second floor and third floor which have been admittedly sold separately to plaintiffs by/on behalf defendant no.1; and, hence, the Suit Property was never intended to be a separate portion rather, it is a part of 'common facilities'. In rebuttal, the gist of the arguments addressed on behalf of defendants is two-fold: that The Act is not applicable and, the Suit Property was separately sold to defendant no.1 by Sanjay Mehta subsequently vide GPA dated 06.05.200 Ex. DW1/1, meaning thereby that it was not intended to be included while selling the other floors.
20. At the outset, the court shall first proceed to discuss the various prongs of objections as to the applicability of The Act as raised on behalf of defendants during the course of final arguments. Before that, it is worthwhile to mention about a few provisions of The Act, as relevant to the present discussion. The object of this Act, as enunciated in the preamble, is to secure the ownership and control of the material resources of the community to ensure that they are so distributed as to sub-serve the common good, by providing for the ownership of an CS no. 83329/16 (Bharti Garg) CJ-01/(South) Saket Court/New Delhi -13- Mr. Lais John & Ors. Vs. Mr. Ashok Kumar Khattar & Anr.
CS SCJ 83329/16individual apartment in a multi-storeyed building and of an undivided interest in the common areas and facilities appurtenant to such apartment.
21. Section.2 provides that The Act applies to every apartment in a multi-storeyed building which was constructed mainly for residential or commercial or such other purposes as may be prescribed by any group housing co-operative society or any other person or authority, before or after the commencement of this Act and on a free hold land, or a lease hold land, if the lease for such land is for a period of thirty years or more. Section. 3(s) envisages that 'multi-storeyed building' means a building constructed on any land, containing four or more apartments, or two or more buildings in any area designated as a block, pocket or otherwise, each containing two or more apartments, with a total of four or more apartments in all such buildings, and includes a building containing two or three apartments in respect of which a declaration has been made under the proviso to section.2.
22. Further, Section.3(j) of The Act defines 'common areas and facilities' in relation to a multi-storeyed building as:-
(i) the land on which such building is located and all ease-
ments, rights and appurtenances belonging to the land and the building;
(ii) the foundations, columns, girders, beams, supports, main walls, roofs, halls, corridors, lobbies, stairs, stair- ways, fire-escapes and entrances and exits of the building;
(iii) the basements, cellars, yards, gardens, parking areas, shopping centers, schools and storage spaces;
(iv) the premises for the lodging of janitors or persons em- ployed for the management of the property;
(v) installations of central services, such as, power, light, gas, hot and cold water, heating, refrigeration, air condi- tioning, incinerating and sewerage;
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CS SCJ 83329/16(vi) the elevators, tanks, pumps, motors, fans, compressors, ducts and in general all apparatus and installations exist- ing for common use;
(vii) such other community and commercial facilities as may be prescribed; and
(viii) all other parts of the property necessary or convenient to its existence, maintenance and safety, or normally in common use.
23. The definition shows that it takes under its sweep a whole lot of amenities, facilities, common areas including basement, parking areas, foundations, columns, guarders, beams, supports, main walls, roofs, corridors, lobbies, stairs, fire escapes, entrances and exits. Therefore, a basement is undoubtedly included as a 'common facility' under The Act. The Building in the present case is also a multi- storeyed building as it consists of four apartments, inhabited by the plaintiffs as owners. Now, it is submitted on behalf of the defendants that the plaintiffs never relied on this Act in their pleadings and hence, they cannot be permitted to plead the applicability of this statute now. The court finds this argument completely unfounded as firstly, it is trite that the party is not required to assert legal provisions in his pleadings but only the material facts and secondly, the reference to the said statue can, even so, be found in the replication filed by the plaintiffs.
24. It is further argued that the suit has only been filed on behalf of PW1 and PW2 and, none else appeared to depose before the court, that is to say, all the flat owners have not joined in the proceedings to claim the Suit Property jointly and the police complaints were also made by PW1 and PW2 only. Therefore, PW1 and PW2 cannot be allowed to claim the possession of the Suit Property to the exclusion of other flat owners. The said contention of defendants is again devoid of any truth and contrary to the factual position of this case. The plaint has been signed by all the plaintiff nos. 1 to 6 and the same is also verified and CS no. 83329/16 (Bharti Garg) CJ-01/(South) Saket Court/New Delhi -15- Mr. Lais John & Ors. Vs. Mr. Ashok Kumar Khattar & Anr.
CS SCJ 83329/16attested in compliance with Order VI Rule 15 CPC. It is categorically mentioned in plaint that plaintiff nos. 1& 3 are the owners of second floor of the building and plaintiff no.1 is the SPA of plaintiff no.3 vide SPA Ex. PW1/1. Similarly, plaintiff no.2 is the owner of first floor. Plaintiff no.4 is the owner of third floor and PW2, who is her husband, is the SPA vide SPA Ex. PW2/1. Plaintiff nos. 5 and 6 are owners of upper ground floor and plaintiff no.1 is again their SPA vide SPA Ex. PW1/2. The ground floor is common to all, used for parking the vehicles, as is also been admitted by defendants.
25. Therefore, all the flat owners of the Building have brought the instant suit against the defendants. There is no other flat owner of the Building. The mere fact that only two of them had filed complaints with police or deposed before the court is not sufficient to infer that the other plaintiffs do not have any cause of action, especially when the pleadings have been signed by all the plaintiffs wherein the cause of action is stated to be joint. Though the defendants have challenged the validity of the aforesaid SPAs, but nothing positive is brought on record on their behalf to substantiate the basis of such challenge. Only formal suggestions were put to PW1 and PW2 in their cross-examination in that regard which were plainly denied. Hence, it is held that the suit has been duly instituted by all the plaintiffs, being the flat owners of various floors of the Building. Even otherwise, the argument of Ld. Counsel appears in the teeth of Section.18 of The Act as per which even the apartment owner is enabled to bring an action with respect to the cause of action relating to the common areas and facilities.
26. It is next urged by the Ld. Counsel for defendants that for The Act to operate, the multi-storeyed building must have been constructed by any group housing co-operative society or any other CS no. 83329/16 (Bharti Garg) CJ-01/(South) Saket Court/New Delhi -16- Mr. Lais John & Ors. Vs. Mr. Ashok Kumar Khattar & Anr.
CS SCJ 83329/16person/authority and under Section. 3(u) of The Act, 'person' includes a firm and a joint family, but in the case at hand, the Building was constructed by an individual. In the opinion of this court, the interpretation attempted to be accorded by the Ld. Counsel to the word 'person', so as to exclude an individual, is against the basic tenets of statutory interpretation in the sense that Section. 3(u) is only an inclusive definition and seeks to render a broader meaning to the word 'person' so as to allude not only to an individual, as is believed to be in common and ordinary sense, but also to firm, joint family and society as well. There is thus, no merit in this objection as well.
27. The Ld. Counsel for defendants goes on to contend that although The Act has been passed, but the same is not implemented practically in Delhi because the Delhi Government has not appointed any Registrar/Administrator to implement this Act. In that regard, it would be useful to refer to the judgment of Hon'ble Delhi High Court in the case of Sagar Apartments Flat Owners Society (Regd) & Ors. Vs. M/S Sequoia Construction Pvt. Ltd. & Ors. (1993) 26 DRJ 71 wherein it is held that:-
"The Delhi Apartment ownership Act came into existence in the year 1986. However, this was enforced in the year 1988. Passing of the legislation and enforcing the same clearly shows that the Act is intented to be live wire rather than a dead letter. Merely because the competent authority has not been notified so far, does not render the statute otiose. The Act defines common areas and facilities and as such spells out various things in a multi-storeyed building complex which are covered under the sweep of the definition of common areas and facilities. The effect of non notifying the competent authority can at best be that the Deeds of Apartment can not be executed. This does not mean that by non execution of the deeds of apartment, rights and interests of the apartment owners/allotters are obliterated. The non execution of the deeds of apartments CS no. 83329/16 (Bharti Garg) CJ-01/(South) Saket Court/New Delhi -17- Mr. Lais John & Ors. Vs. Mr. Ashok Kumar Khattar & Anr.CS SCJ 83329/16
may mean that the exact percentage of the interest of the individual apartment owners in relation to the building complex is not specified. But it can not surely mean that their rights and interest evaporate in thin air.""
28. It is amply clear in light of the Sagar Apartments Flat Owners (supra) that The Act is still operative even though no competent authority has been appointed and therefore, this objection of the defendants cannot be sustained at all. Furthermore, it is argued that deed of apartment has not been executed or registered with respect to the apartments in the building, thereby ousting the significance of The Act to the present case.
29. The court cannot countenance with this argument as well, for the same reason that in Sagar Apartments Flat Owners (supra), in context of non-execution of deed of apartment, it is held that:-
"So far as the question of non execution of the Deeds of Apartment is concerned, the plaintiffs submit that as per Section 13 of the Act, the responsibility is cast on the promoter to do the needful. It is further submitted that the plaintiffs have done whatever they were required to do under the Act in as much as they have paid the entire sale consideration. Therefore, no fault can be attributed to the plaintiffs regarding non execution of the Deeds of Apartment. On the other hand, it is submitted on behalf of defendant No. 1 that the non execution of the Deeds of Apartment is because of the fact that the competent authority under the Act has not been notified by the Government so far. In other words, the defendant No. 1 also claims to be not at fault in the matter of non execution of the Deeds of Apartment. It follows from this that neither party can be blamed for non execution of the Deeds of Apartment. However, non execution of the Deeds of Apartment can not be taken as giving license to the promoter/builder to go on .and on with additional construction in the building so as to defeat the rights and interests of the apartment owners/allotters in the existing building complex. The question remains should the promoter/builder be allowed to take advantage of this CS no. 83329/16 (Bharti Garg) CJ-01/(South) Saket Court/New Delhi -18- Mr. Lais John & Ors. Vs. Mr. Ashok Kumar Khattar & Anr.CS SCJ 83329/16
situation for which in any case the plaintiffs are not responsible? A reference to the provisions of Section 13 of the Act and the rules framed under the Act called the Delhi Apartment ownership Rules, 1987 shows that in the Deeds of Apartment, the description of the common areas and facilities and the percentage of undivided interests appertaining to the apartment in the common areas and facilities, the description of the multi-storeyed building with number of storeys and basements, number of apartments in the building etc. has to be given. The sanctioned plan of the building has to be annexed. These provisions show that the intention of the statute is that on execution of Deeds of Apartment, the state of the building is frozen, the rights and interests of the apartment owners in the building get crystalised so that in future Vs. Sequoia Construction (P) Ltd. & Ors. there is no scope for maneouvre. From Section 6 of the Act when it ensures that the promoter gets full consideration for sale of the apartments, it should follow that after payment of full consideration there should be some protection or safeguards for the rights of apartment owners/allotters. The non-execution of the Deeds of Apartment should not mean that the building as well as the rights of the existing apartment owners remain in a fluid state."
30. Applying these observations to the instant case, it is not in dispute that valid sale deeds have been executed in favor of the plaintiffs with respect to the dwelling units of the Building, upon the payment of entire consideration. The defendant no.1 is also not the promoter of the Building as such. The plaintiffs have not purchased their flats from the promoter of the Building but through subsequent transferees. Therefore, no fault can be attributed upon them if the deeds of apartment were not got executed by defendant no.1 or other previous owners. Accepting the contention of defendants would tantamount to giving license to the defaulting party to take advantage of its own wrongs and defeat the valuable rights of the innocent buyers. The plaintiffs are in no way responsible for non-execution of apartment deeds and they CS no. 83329/16 (Bharti Garg) CJ-01/(South) Saket Court/New Delhi -19- Mr. Lais John & Ors. Vs. Mr. Ashok Kumar Khattar & Anr.
CS SCJ 83329/16have fulfilled the obligations on their part by paying the consideration amount. Therefore, equity demands that the such technical plea should not stand in way of the plaintiffs to claim their rights and interests so as to deprive them from beneficial provisions of The Act altogether.
31. Finally, it is submitted that the provisions of this Act are not attracted in view of the fact also that no building bye-laws or Association are formed as per Section. 3(f)(ii) and no Board of Management is constituted under Section. 3(h). It is true that no such bye-laws, association or board of management exist qua the Building in question, but it is nowhere implied in The Act that non-formation of these would bar its applicability in any manner. The purpose of bye-laws and the Board of Management is only to safeguard the interests of the flat owners as enumerated in Section.15 of The Act. Merely because the apartment owners have not come forward to form an Association or get the bye-laws formulated yet, cannot be taken to bar their right to raise grievance with respect to the acts of a third person who purport to violate their rights in common areas and facilities in the Building.
32. It is a well-settled principle of law that the jurisdiction of the court to enforce rights under a statue is not barred except in cases of express or implied exclusion thereto, and the courts must give full effect to the proposition that where there is a right, there is a remedy. Exclusion of jurisdiction is not to be readily inferred. Reliance in that regard is placed on the judgment of Hon'ble Supreme Court in the case of Dhulabhai etc. Vs. State of Madhya Pradesh & Anr. AIR 1969 SC 78. In the absence of any such bar apparent from perusal of the provisions of The Act, it is held that The Act still holds relevance to the present dispute. Therefore, all the arguments of the Ld. Counsel for defendants qua the applicability of The Act are unhesitatingly rejected.
CS no. 83329/16(Bharti Garg) CJ-01/(South) Saket Court/New Delhi -20- Mr. Lais John & Ors. Vs. Mr. Ashok Kumar Khattar & Anr.
CS SCJ 83329/1633. Having concluded that, the court opines that The Act does apply to the Building involved in the present case and, the Suit Property would be encompassed within the term 'common facilities' as is stipulated in the chain of documents of title relied upon by the plaintiffs. Now, section. 4(4)(c) incorporates that the percentage of the undivided interest in the common areas and facilities shall not be separated from the apartment to which it appertains and shall be deemed to be conveyed or encumbered with the apartment, even though such interest is not expressly mentioned in the conveyance or other instrument. Section.4 (5) lays down that the common areas and facilities shall remain undivided and no apartment owner or any other person shall bring any action for partition or division of any part thereof, and any covenant to the contrary shall be void.
34. Further, Section. 4(6) postulates that each apartment owner may use the common areas and facilities in accordance with the purposes for which they are intended without hindering or encroaching upon the lawful rights of the other apartment owners. By that corollary, even if there is no express recital in the agreement to transfer any particular common amenity, the same would be taken care of by The Act and it would be deemed to be a part of 'common facilities'. In fact, the court shall disfavor any endeavour on the part of the apartment seller or the previous owner of the property to undo the intent of the parliament as expressed by the statue. The stipulations in the transfer documents ought to be read and construed harmoniously with The Act and not contrary to it. This position is also specifically clear from the reading of Section.24 of The Act as anything contrary agreed to by the parties in the agreement would not negate the applicability of The Act as the said statue overrides such covenants.
CS no. 83329/16(Bharti Garg) CJ-01/(South) Saket Court/New Delhi -21- Mr. Lais John & Ors. Vs. Mr. Ashok Kumar Khattar & Anr.
CS SCJ 83329/1635. By that deduction, the defendant no.1 is deemed to have sold the Suit Property in this case along with other common amenities to the plaintiffs through the chain of documents in the form of appurtenance to the Building. Accordingly, defendant no.1 cannot be permitted to claim any independent right in the Suit Property, more so when he is not even one of the apartment owners of the Building. Needless to state, defendant no.2 does not state to have any independent right in the Suit Property except as the agent of defendant no.1 and therefore, is bound by the decision as regards defendant no1. The plaintiffs are jointly entitled to enjoy the Suit Property till the time they remain owners of their respective flats in the Building, and in that capacity.
36. Besides thereto, the court shall also determine whether independent of the statutory mandate of The Act, the intention of defendant no.1 to transfer the Suit Property while transferring his ownership in the flats of the Building can be said to have been established or not. That brings us to the second aspect of the dissensions expressed by the Ld. Counsel for defendants. In order to ascertain the intention of the parties where any term of the contract is not explicitly clear, the court is bound to read it in context of other recitals of the agreement. At this juncture, reliance may be placed on the following observations of Hon'ble Supreme Court in Bihar State Electricity Board, Patna & Ors. Vs. M/S Green Rubber Industries & Ors. (1990) 1 SCC 731:-
"Every contract is to be considered with reference to its object and the whole of its terms and accordingly the whole context must be considered in endeavouring to collect the intention of the parties, even though the immediate object of enquiry is the meaning of an isolated clause."CS no. 83329/16
(Bharti Garg) CJ-01/(South) Saket Court/New Delhi -22- Mr. Lais John & Ors. Vs. Mr. Ashok Kumar Khattar & Anr.
CS SCJ 83329/1637. Similarly, in Bharat Fire & General Insurance Co. Ltd. Vs. Paramshwari Prasad Gupta AIR 1968 Del 68, the Hon'ble Delhi High held that where the language of any clause is open to two interpretations, the court is required to construe it by taking aid of surrounding circumstances. The relevant paragraph is reproduced as hereinbelow:
"The meaning of the term has to be ascertained not only having regard to the language used but also the surrounding circumstances....I am not unmindful of the well accepted principle that the if the contract is wholly in writing the parties are confined within the four corners of the document in which they have chosen to enshrine their agreement and neither of them can adduce evident to say that his intention has been misstated in the document or that some essential feature of the transaction has been omitted. But, at the same time, in cases where it is considered that the language of the contract is susceptible of two interpretations, it not unknown that the Courts do resort to the surrounding circumstances to find out the intention of the parties and it is for this reason that I mentioned "the surrounding circumstances" a little while ago."
38. In light of the aforesaid legal principles, let's examine the factual matrix of the present case. The intention of parties to include or exclude the Suit Property, whatsoever, within the meaning of 'common facilities' must be gathered from the attending circumstances when the defendant no.1 had executed the sale deeds in respect of other floors of the Building. The perusal of registered sale deed dated 17.04.2008 Ex. PW1/3, which has been executed by Sanjay Mehta s/o Jagdish, reveals that 100% of share in land of built-up property bearing plot no. 886/1- C, Ward no.8, consisting of Ground, Upper Ground, First, Second and Third floor, situated in abadi of Lal Dora of village Mehrauli, Tehsil Hauz Khas, New Delhi was sold by him to defendant no.1 as the absolute owner thereof. The total plinth area of the property is mentioned as 440 CS no. 83329/16 (Bharti Garg) CJ-01/(South) Saket Court/New Delhi -23- Mr. Lais John & Ors. Vs. Mr. Ashok Kumar Khattar & Anr.
CS SCJ 83329/16sq. meters approximately and the total plinth area of each floor as 88 sq. meters approximately.
39. The defendants have submitted in their WS that defendant no.1 had acquired absolute rights in the entire Building vide this sale deed dated 17.04.2008. Going beyond, the GPA dated 23.04.2008 Ex. PW1/4 executed by defendant no.1 in favor of Pushpa Rani qua the second and third floor also mentions that the building consists of GF, UGF, FF, SF and TF, i.e. it does not name the basement separately. Further, the said GPA was executed for second and third floor along with all fittings, fixtures connections and proportionate undivided indivisible rights in the land underneath, together with the rights to use/avail common entrance, staircase, passages, submersible water pump, services and all other common facilities provided in the said building and easement attached thereto.
40. Similar clauses are contained in sale deed Ex. PW1/9 executed by defendant no.1 in favor of Babita qua the upper ground floor and sale deed Ex. PW1/7 executed by him in favor of plaintiff no.2 qua the first floor. Needless to elaborate, but the share of Pushpa Rani was ultimately transferred to plaintiff no. 1 & 3 in second floor and to plaintiff no.4 in third floor. Similarly, the share of Babita in upper ground floor was subsequently sold by her to plaintiff nos. 5 & 6 vide sale deed Mark D. At the cost of repetition, it may be emphasized again that all these subsequent documents contain similar clauses as to 'common facilities'.
41. That being the position, incidentally, it may also be underscored that that there is not a slightest indication of the words 'common areas and facilities' in the sale deed dated 17.04.2008 Ex. PW1/3. Moreover, there is also no explicit mention of the word basement therein. If we employ the analogy manifested by Ld. Counsel for CS no. 83329/16 (Bharti Garg) CJ-01/(South) Saket Court/New Delhi -24- Mr. Lais John & Ors. Vs. Mr. Ashok Kumar Khattar & Anr.
CS SCJ 83329/16defendants, would the defendant no.1 concede that he was not granted any rights in the other 'common facilities' like common staircase, common terrace, etc. in the Building? Certainly not.
42. Obversely, if the basement was actually intended to be separate from the 'common facilities', then the mention of same would have also found in the sale deed Ex. PW1/3 separately in the clause where other five floors are mentioned. But it is not so. This is because the defendant no.1 was vested with 100% rights in the Building and land underneath by Sanjay Mehta through sale deed Ex. PW1/3. There are five floors in the property each admeasuring around 88 sq. meters, aggregating to 440 sq. meters approximately, which is the total plinth area of the property. Hence, if basement was intended to be a different floor, then its area would have been separately delineated in the sale deed.
43. The court is further fortified in its conclusion on the ground that in all the chain of documents executed by defendant no.1, there is an additional stipulation that the transferee was also conveyed 'undivided proportionate rights in the land underneath'. In such a scenario, when all five floors aggregating to area 440 sq. meters, which is the 100% area of the land and building, have been sold by defendant no.1, the only conclusion is that nothing remained with the defendant no.1 in the building as all the rights in the land underneath also were transferred.
44. Dealing with the contention of The Ld. Counsel for defendants fwhereby, he has drawn the attention of the court to the GPA dated 06.05.2008 Ex. DW1/1 to emphasize the fact that the Suit Property was separately sold by Sanjay Mehta to defendant no.1 subsequent to the sale deed dated 17.04.2008 Ex. PW1/3 and by that CS no. 83329/16 (Bharti Garg) CJ-01/(South) Saket Court/New Delhi -25- Mr. Lais John & Ors. Vs. Mr. Ashok Kumar Khattar & Anr.
CS SCJ 83329/16implication, defendant no.1 never sold it to anyone at any point in time as the mention of Suit Property is not there in the aforesaid documents of title with respect to other floors. On the other hand, it is strenuously argued on behalf of the plaintiffs that this GPA Ex. DW1/1 is a sham document and was executed after the filing of suit to circumvent the claim of plaintiffs to the Suit Property as a part of 'common areas and facilities'.
45. It is noteworthy that none of the parties to the document of GPA Ex. DW1/1, much less the attesting witnesses, appeared before the court to testify as to the same. Even defendant no.1 himself did not step into the witness box to prove the said document, and there is no explanation on record for his failure to do so. DW1 Jagdish is a stranger to the entire transaction and his testimony cannot be relied in that regard. In these circumstances, no evidentiary value can be attached to the GPA Ex. DW1/1 and hence, the defendants have failed to prove the only document produced by them in the case.
46. Taking the discussion a step further, if Sanjay Mehta had sold 100% of his share in the building to defendant no.1 vide sale deed Ex. PW1/3 on 17.04.2008, it is inconceivable as to how he could have sold the Suit Property subsequently on 06.05.2008 to defendant no.1 since he was not left with any right in the building pursuant to the sale deed. This is what the principle of 'Nemo dat quod non habet' signifies. Therefore, even if it is assumed that the GPA Ex. DW1/1 was executed by Sanjay Mehta, the same would be an invalid transaction as he could not have transferred what he had already sold off.
47. If for the sake of arguments it is also believed that GPA Ex. DW1/1 is a valid document, then also it would not amount to transfer of title in the subject matter thereof to defendant no.1. Reliance in that CS no. 83329/16 (Bharti Garg) CJ-01/(South) Saket Court/New Delhi -26- Mr. Lais John & Ors. Vs. Mr. Ashok Kumar Khattar & Anr.
CS SCJ 83329/16regard is placed on Suraj Lamps and Industries Pvt. Ltd. Vs. State of Haryana and Anr. (2012) SCC 1 656, wherein the Hon'ble Supreme Court of India has enunciated that:
"We therefore reiterate that immovable property can be legally and lawfully transferred / conveyed only by a registered deed of conveyance. Transactions of the nature of 'GPA sales' or 'SA/GPA/Will transfers' do not convey title and do not amount to transfer, nor can they be recognized a valid mode of transfer of immovable property. The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property."
48. A priori, defendant no.1 should not be allowed to assert his exclusive ownership in the Suit Property at all, except as the attorney of Sanjay Mehta. But his case throughout in the pleadings has been that he is the absolute owner thereof. Even otherwise, the court is surprised by the fact that defendants have not made even a whisper as to GPA Ex. DW1/1 in their entire pleadings. On this ground, the document ought not be read into evidence at all. Besides, DW1 has clearly stated in his cross-examination that no consideration was paid to his son Sanjay Mehta by defendant no.1 in respect of sale of Suit Property, although consideration amount was paid under the sale deed dated 17.04.2008 Ex. PW1/3. This fact coupled with the conduct of defendants as pointed out above, is sufficient to raise an adverse inference against them as regards the genuineness of the document. Hence, the defendants have miserably failed to prove the document of GPA Ex. DW1/1 to in support of their defence.
49. Furthermore, PW1 Lais John and PW2 Sunny Thomas have remained firm in their cross-examination that the Suit Property exists since the inception when the Building was constructed, that the plaintiffs were in possession of the Suit Property since the date of their CS no. 83329/16 (Bharti Garg) CJ-01/(South) Saket Court/New Delhi -27- Mr. Lais John & Ors. Vs. Mr. Ashok Kumar Khattar & Anr.
CS SCJ 83329/16purchase of respective floors in the Building from 2008 onwards, and that there are water and septic tanks in the Suit Property which are used by them. Nothing substantial is elicited in their cross-examination to shake their credibility. The defendants themselves did not come before the court to give evidence in support of their pleadings. Only DW1 Jagdish, who is the paternal uncle of defendants, filed his affidavit. Nonetheless, it is nowhere stated in WS or in his affidavits as to how he has the knowledge of the facts stated by the defendants. Therefore, it clarified at the outset that the court is not inclined to lend much value to his testimony in evidence. Moreover, even DW1 has also admitted in his cross-examination that the Suit Property exists in the Building since the year 2008 and also that the septic tank is installed therein since 2008.
50. The plaintiffs have also placed on record the photographs Mark E (colly) and the site plan Ex. PW1/1 to corroborate their statements. However, the photographs Mark E (colly) are not to be taken as admitted into evidence without the certificate u/S 65B of The Indian Evidence Act, 1872. As far as the site plan Ex. PW1/1 is concerned, it is produced only for illustrative purposes and is not authenticated by any draughtsman as such and hence, has a feeble evidentiary value.
51. In order to substantiate their possession, the plaintiffs submit that there is a water tank and septic tank in the Suit Property. As opposed to this, it is argued on behalf of the defendants that though there is a septic tank in the Suit Property but it has been partitioned from it by a wall and the outlet is also at the ground floor, and also there is no water tank in it, as the septic tank and water tank cannot exist together. It is reiterated that defendants have not come forward to testify their pleadings themselves. In contrast to the evidence of PW1 and PW2, the oral testimony of DW1 certainly carries a lesser weight, as is CS no. 83329/16 (Bharti Garg) CJ-01/(South) Saket Court/New Delhi -28- Mr. Lais John & Ors. Vs. Mr. Ashok Kumar Khattar & Anr.
CS SCJ 83329/16explained hereinbefore. It is true that PW2 has admitted in his cross- examination that there are chances of contamination if there is no wall between the water tank and septic tank, as pointed out by the Ld. Counsel for defendants, but his testimony cannot be read in part. PW2 has clarified further in his cross-examination that they are not using the water tank which is installed in the Suit Property next to the septic tank. Be that as it may, this much is not sufficient to discredit the oral evidence of PW1 and PW2.
52. DW1 Jagdish has also stated in his cross-examination that he has no documents to establish the possession of defendants in the Suit Property or that they were storing the material therein since 2008. He has also admitted that there is no electricity or water connection in the Suit Property since 2008. In the latter part of his cross-examination, he goes on to finally state that there has been no other thing in the Suit Property other than the sewage tank. This essentially demolishes the stand of defendants whereby they have pleaded that they have been using the Suit Property for storing their material since 2008. It is not explained as to on what ground it was so stated if there is no other thing in the Suit Property other than the septic tank.
53. Furthermore, the plaintiffs have filed police complaints and order of the court of Special Executive Magistrate which are Ex. PW1/11 to Ex. PW1/14 to corroborate that they took immediate action when the defendants trespassed into the Suit Property. The receiving of complaints also stands duly proved in view of the evidence of PW3 ASI Virender Singh. On the other hand, no police complaint has been placed on record by the defendants to substantiate their averment that plaintiffs had earlier tried to lock the gate of the Suit Property which was reported by them to the police.
CS no. 83329/16(Bharti Garg) CJ-01/(South) Saket Court/New Delhi -29- Mr. Lais John & Ors. Vs. Mr. Ashok Kumar Khattar & Anr.
CS SCJ 83329/1654. It bears out from the analysis in the foregoing paras that there is admittedly a septic tank in the Suit Property being commonly utilized by the plaintiffs from 2008 onwards. Indisputably, the using of such tanks implies their shared possession over the Suit Property as part of 'common facilities'. In the absence of any cogent evidence led on behalf of defendants and the uncontroverted and untainted testimony of PW1 and PW2, it is also proved on the scale of preponderance of probabilities that the plaintiffs have been using the Suit Property for storing their old material for a long time, until it was trespassed by the defendants in 2014. These facts, thus proved, further supplement the intention of defendant no.1 to sell the Suit Property as part of 'common facilities' by delivering its possession to the plaintiffs contemporaneously while transferring the title in the flats of the Building.
55. The upshot of the entire discussion is that defendant no.1 did not intend to retain the Suit Property when the other floors of the Building were sold by him through the chain of documents placed on record. This is also consistent with the statutory mandate of The Act. In the backdrop of the facts and circumstances of case as analyzed, if the defendant no.1 is allowed to appropriate the basement, i.e. the Suit Property with himself, it would patently run foul of the scheme and object of The Act. Again, defendant no.2, is bound by whatever is decided as regard defendant no.1 in this suit.
56. Without prejudice to the reasoning provided in the foregoing paras, it may further be observed, and as has been asserted by the Ld. Counsel for plaintiffs, that the written statement has not been signed, verified or attested by defendant no.2 although it purports to have been submitted on his behalf too. Needless to mention, defendant CS no. 83329/16 (Bharti Garg) CJ-01/(South) Saket Court/New Delhi -30- Mr. Lais John & Ors. Vs. Mr. Ashok Kumar Khattar & Anr.
CS SCJ 83329/16no.2 was duly served with summons of suit. Neither any authority letter has been filed on his behalf nor it is averred in the WS that defendant no.1 was competent or authorized to do acts in relation to the present suit on behalf of defendant no.2. This constitutes a serious irregularity on account of non-compliance of Order VI Rule 15 CPC. The WS on record ought not be considered the pleadings of defendant no.2 at all. The failure on the part of defendant no.2 to put forth his defence is therefore, also deemed to be an implied admission of the plaint on his part under Order VIII Rule 5 CPC.
57. Once it is proved that the Suit Property is a part of 'common facilities' for the use by the plaintiffs, in capacity as flat owners of the Building, the defendants have no right to possess the same and hence, their status is that of a mere trespasser. Therefore, they are liable to vacate and deliver the possession of Suit Property to the plaintiffs. They are further obliged to remove their custody and all their materials lying in the Suit Property. The plaintiffs shall continue to be enjoy the joint possession of Suit Property as an appurtenant to the Building till they are the flat owners therein. Consequently, the issue nos.1 and 3 are decided in favor of plaintiffs and against the defendants.
ISSUE No. 2 & 4 :-
58. Considering that the facts of both these issues are interconnected requiring common discussion and appreciation of evidence, these are being decided together. The onus to prove these issue lies on the plaintiffs. It is proved that defendants have no right in the Suit Property and their possession thereof is illegal. The Suit Property is a part of 'common facilities' and it cannot be transferred by defendants in any form. Nevertheless, since the defendants have CS no. 83329/16 (Bharti Garg) CJ-01/(South) Saket Court/New Delhi -31- Mr. Lais John & Ors. Vs. Mr. Ashok Kumar Khattar & Anr.
CS SCJ 83329/16continuously asserted their exclusive rights in the Suit Property, there arises a reasonable apprehension that it may be transferred by them to third persons. Further, their continued refusal to vacate the Suit Property also raises an apprehension that they may disturb the peaceful enjoyment of the Suit Property by the plaintiffs. Accordingly, plaintiffs are entitled to restrain the defendants from entering the Suit Property henceforth and also to restrain them from alienating, selling or creating any third party interest. Consequently, the issue nos.2 and 4 are decided in favor of plaintiffs and against the defendants.
ISSUE No. 5 :-
59. The onus to prove this issue lies on the plaintiffs. The plaintiffs have merely averred in the plaint that the defendants have removed their material and tanks from the Suit Property, but such damages have not been quantified by them anywhere in the plaint. There is not even an iota of evidence adduced in that regard by them. In this way, there is no material available on record to enable the court to measure the damages suffered by the plaintiffs in monetary terms. Hence, the plaintiffs are not entitled to any damages/compensation. Consequently, the issue no.5 is decided in favor of defendants and against the plaintiffs.
ISSUE No. 6 :-
60. The onus to prove this issue lies on the defendants. It is the case of defendants that without claiming the relief of declaration, the suit is not maintainable for the relief of mere possession and injunction. They have relied upon the judgment of Anathula Sudhakar Vs P.Buchi Reddy (dead) by LRs & Ors. AIR 2008 SC 2033 to support their CS no. 83329/16 (Bharti Garg) CJ-01/(South) Saket Court/New Delhi -32- Mr. Lais John & Ors. Vs. Mr. Ashok Kumar Khattar & Anr.
CS SCJ 83329/16contention. The Ld. Counsel for plaintiffs has controverted by stating that the basis of their claim to the Suit Property stems out from the applicability of The Delhi Apartment Ownership Act, 1986 which specifies that basement is included in 'common facilities' and thus, there is no requirement to claim the relief of declaration because when law is there, the relief of declaration need not be prayed for.
61. It would be firstly apposite to refer to the ratio of Anathula Sudhakar (supra) as under:
"13. The general principles as to when a mere suit for per- manent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well settled. We may refer to them briefly.
13.1) Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a pro- hibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner. 13.2) Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction sim- pliciter, without claiming the relief of possession. 13.3) Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the de- fendant asserts title thereto and there is also a threat of dis- possession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunc- tion. Where the title of plaintiff is under a cloud or in dis- pute and he is not in possession or not able to establish pos- session, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.
14. We may however clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to plaintiff's title raises a cloud on the title of CS no. 83329/16 (Bharti Garg) CJ-01/(South) Saket Court/New Delhi -33- Mr. Lais John & Ors. Vs. Mr. Ashok Kumar Khattar & Anr.CS SCJ 83329/16
plaintiff to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff's title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient"
"....But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will insure into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case".
62. Thus, it is clear that where a serious cloud over the title of the plaintiff is raised by the defendant, the suit for simpliciter injunction will not lie and the plaintiff will have to ask for declaration of title as well. However, in cases where the denial of title by the defendant is only by way of a bald or superficial averment without anything else in support thereof in the form of documentary evidence or otherwise, the plaintiff is not under the duty to seek the relief of declaration. In the opinion of this court, the present case falls in the latter category as under the garb of raising conflict with respect to the interpretation of a term in the agreement, the defendant cannot be said to have raised any significant dispute as to the title over the Suit Property. In other words, it is not the case where the court has to determine the title of parties by juxtaposing the contrasting documents, but by adjudging upon a pure question of law. Additionally, the defendants have not substantiated their averments CS no. 83329/16 (Bharti Garg) CJ-01/(South) Saket Court/New Delhi -34- Mr. Lais John & Ors. Vs. Mr. Ashok Kumar Khattar & Anr.
CS SCJ 83329/16through substantial material or evidence, but only raised specious objections.
63. During the course of arguments, the defendants also tried to impress upon the court that the suit is bad for non-joinder of necessary party as a person namely Manoj Jha is residing on the ground floor of the building. However, the defendants have nowhere in the written statement taken any such pleading or disclosed about this person. The plaintiffs have a cause of action against the acts of trespass committed by the defendants only. The plaintiffs are the owners of all the flats comprised in the building. Even if some person is residing on the ground floor, does not make him the necessary or proper party per se. The defendants have not explained as to how the presence of Manoj Jha is essential for proper adjudication of the case or for passing an effective decree. Accordingly, it is held that the defendants have failed to establish that the suit is not maintainable in the present form. Consequently, the issue no.6 is decided in favor of plaintiffs and against the defendants.
ISSUE No. 7 :-
64. The onus to prove this issue lies on the defendants. It is urged on behalf of the defendants that the value of the Suit Property is around Rs. 20 lacs and hence, the relief of possession ought to have been valued at that amount, which is apparently beyond the pecuniary jurisdiction of this court. The plaintiffs have countered by submitting that the Suit Property is part of 'common facilities' and holds no distinct monetary value apart from being an appurtenance to the building which is sold along with sale of flat/building, so its money value cannot be estimated and thus, the plaintiffs have valued it at Rs. 200/- under Article 17(vi) of Schedule II of the Court Fees Act, 1870 and paid fixed CS no. 83329/16 (Bharti Garg) CJ-01/(South) Saket Court/New Delhi -35- Mr. Lais John & Ors. Vs. Mr. Ashok Kumar Khattar & Anr.
CS SCJ 83329/16court fees.
65. To the mind of this court, there is substance in the contention advanced on behalf of the plaintiffs. The defendants have not produced any material for perusal of this court to show that the value of the Suit Property is Rs. 20 lacs. Not a single suggestion was put to PW1 and PW2 in the cross-examination with reference to the value of the Suit Property. It has also been established that the Suit Property is comprised within the 'common facilities' of the building. It is rightly said that the consideration amount is paid in respect of flats/buildings and the transfer of such 'common facilities' follows with the land. No monetary standards are available in the present case to determine the separate value of 'common facilities' including the Suit Property. Therefore, the defendants have failed to prove that the court does not have pecuniary jurisdiction to try this suit. Consequently, the issue no.7 is decided in favor of plaintiffs and against the defendants.
ISSUE No. 8 :-
66. The onus to prove this issue lies on the defendants. In view of the discussion with respect to issue nos.1 and 3, the plaintiffs have proved their cause of action on the balance of preponderance of probabilities and therefore, it is not proved that the suit is not maintainable for want of cause of action. Consequently, the issue no.8 is decided in favor of plaintiffs and against the defendants.
ISSUE NO. 9 RELIEF:-
67. In light of the findings in respect of all the issues adjudicated hereinabove, the suit of plaintiffs is hereby partly decreed and the plaintiffs are granted the relief of possession and mandatory injunction CS no. 83329/16 (Bharti Garg) CJ-01/(South) Saket Court/New Delhi -36- Mr. Lais John & Ors. Vs. Mr. Ashok Kumar Khattar & Anr.
CS SCJ 83329/16to the effect that defendants shall hand over the peaceful possession of the Suit Property i.e. basement of property bearing plot no. 886/1-C, Ward no.8, situated in abadi of Lal Dora of village Mehrauli, Tehsil Hauz Khas, New Delhi to the plaintiffs within fourteen days from today by removing their custody and material lying therein. The defendants are also hereby permanently restrained from entering the Suit Property, from dumping their material therein and from demolishing the septic and water tank installed in the Suit Property. The defendants are also restrained from creating any third party interest in the Suit Property. However, no damages/compensation are being granted to the plaintiffs. It is also clarified herein that plaintiffs are jointly entitled to the Suit Property merely in their capacity as the flat owners of the property bearing plot no. 886/1-C, Ward no.8, situated in abadi of Lal Dora of village Mehrauli, Tehsil Hauz Khas, New Delhi.
68. Costs of the suit shall be paid by the defendants to the plaintiffs as per the rules.
69. File be consigned to Record room after due compliance. Pronounced through video-conferencing:
Dated: 14.09.2020 (Bharti Garg) CJ-01, Saket Courts, South Delhi Note :- This Judgment contains thirty-six pages and all the pages have been checked and signed by me.
(Bharti Garg) CJ-01, Saket Courts, South Delhi CS no. 83329/16 (Bharti Garg) CJ-01/(South) Saket Court/New Delhi