Delhi District Court
Dr. Madan Mohan Gupta vs Sh. Punardeep S. Sawhney on 25 January, 2016
IN THE COURT OF CIVIL JUDGE-11, CENTRAL DISTRICT,
TIS HAZARI COURTS: DELHI
Civil Suit No.158A/2014
In the matter of
Dr. Madan Mohan Gupta, s/o Shri Bhagwan S. Gupta
R/o 1-C, Ashoka Apartments, 7, Rajput Road, Civil Lines, Delhi
.....Plaintiff
Vs.
1. Sh. Punardeep S. Sawhney, S/o Shri P.S. Sawhney
R/o 1-B, Ashoka Apartments, 7, Rajpur Road, Civil Lines,
Delhi-110054.
2. Sh. Prahlad S. Sawhney,
R/o 1-B, Ashoka Apartments, 7, Rajpur Road, Civil Lines,
Delhi-110054. .....Defendants
Date of institution of the Suit : 20.05.2006
Date on which arguments were heard : 13.01.2016
Date of decision : 25.01.2016
SUIT FOR DECLARATION AND PERMANENT INJUNCTION
JUDGMENT
1. Sale Deed in the present case, a copy whereof has been exhibited as Ex.PW2/1 records the following averments:-
"AND WHEREAS the abovesaid flat forms part of share of built-up area in lieu of land contributed by late Shri Lal Chand Bagai and his wife Smt. Basanti Devi and after their death the Dr. Madan Mohan Gupta Vs. Punardeep S. Sawhney & Anr. 1 vendors jointly inherited the above flat/portion of property, being their only legal heirs on the basis of Indenture of Conveyance deed dated 13.06.1990 and the same is assessed in their name in the house tax department of Municipal Corporation of Delhi".
(emphasis supplied)
2. What is interesting when the aforesaid paragraph talks about the exchange i.e. what is received in lieu of the contributed land, it refers to the "flat" but when it talks about inheritance, it refers to "flat/portion of property". If in the share of Lal Chand Bagai and Basanti Devi only the flat was received in lieu of the contributed land, there could not have been any question of inheritance of anything in addition of the said flat. However, very cleverly, the aforesaid paragraph has talked about "flat/portion of property" while referring to inheritance. This cannot be accepted.
3. The above clearly shows the manner in which the persons became the owner of the property. But when they made averments about their ownership, the Sale Deed records as under:-
"WHEREAS the vendors are the absolute owners of a freehold flat No.1-C, measuring 1514 Sq. fts on the second floor and open space adjoining to flat, with roof rights thereon, situated in Ashoka Apartments, 7, Rajpur Road, Civil Lines, Delhi, duly fitted with electricity and water and all fittings & fixtures in working Dr. Madan Mohan Gupta Vs. Punardeep S. Sawhney & Anr. 2 condition alongwith proportionate ownership rights in the land underneath with space for parking of One Car, none particularly shown in RED colour in the site plan attached herewith, which is bounded as under".
(emphasis supplied)
4. Again, very interestingly, the paragraph has used an expression "open space adjoining to flat" without any basis as there is no factual averment in the Sale Deed as to how the ownership was to be claimed by the Lal Chand Bagai and Basanti Devi or by their legal heirs. In such circumstances, the claim of legal heirs who purportedly sold the property to the present Plaintiff cannot be accepted.
5. Before claiming ownership in any immovable property, a person has to show his rights to support his claim. The only right shown in the Sale Deed is the averment as reproduced in first paragraph of this order. The concerned persons, therefore, could not have claimed any additional thing being under their ownership. And if they were not having the ownership of the additional thing so mentioned, naturally they could not have conveyed the same to a subsequent buyer. Therefore, the subsequent buyer cannot claim any right on such additional thing. Clearly, the additional thing was the open space adjoining to flat. In my opinion, roof rights simply means a right to construct upto the sky. So far as roof rights are concerned, the expression given in the Sale Deed is susceptive of two interpretations. The expression used is "on the second floor and open space adjoining to flat, with roof rights thereon...........". Either the roof rights can be taken as rights over the entire area i.e. the roof of second Dr. Madan Mohan Gupta Vs. Punardeep S. Sawhney & Anr. 3 floor and also the roof rights of open space as a " , " has been used before the expression "with roof rights". But in such a situation, since the actual open space could not have been conveyed, there cannot be any question of roof rights thereon. The other interpretation would be that the expression "roof rights" was only denoting the rights over the roof of the second floor. But in this situation there would be no necessity to discuss roof rights in respect of open space.
6. The entire case of the Plaintiff who is a subsequent buyer revolves around the fact that he had purchased even the said additional thing i.e. the open space and, therefore, he has a right to make constructions and Defendants cannot claim any right thereon nor can make any interference in the construction work being done by the Plaintiff. As has been discussed, the Plaintiff cannot claim ownership of such open space and, therefore, the entire basis of the plaint falls.
7. To complete the picture, factual score may be provided. Plaintiff claims himself to be the owner of the Property No.1C, Ashoka Apartment, 7 Rajpur Road and open space adjoining to the flat with roof rights thereon and being using the property for residential purpose and wants to make constructions in the open space but the defendants are creating problems and, therefore, the plaintiff filed the present suit for an injunction against the defendants.
8. The Ld. Predecessor on 19.08.2009 framed following issues:-
1. Whether the plaintiff has suppressed any material facts from this Court? OPD
2. Whether the suit is not maintainable in its Dr. Madan Mohan Gupta Vs. Punardeep S. Sawhney & Anr. 4 present form? OPD
3. Whether defendant has the roof rights over his first flat floor bearing No.1-B, Ashoka Apartments, 7, Rajpur Road, Civil Lines, Delhi? OPD.
4. Whether plaintiff is entitled to exclusive use of the open space as shown in yellow in the site plan? OPP.
5. Whether plaintiff is entitled to the relief claimed? OPP.
6. Relief.
9. In the evidence plaintiff examined himself as PW1 and record keeper from Sub Registrar office as PW2. The defendants side despite having opportunity failed to lead evidence. When the matter was at the stage of arguments, the plaintiff side moved an amendment application to include a prayer regarding negative declaration to the effect that defendants were not having roof rights over the first floor of the flat i.e. 1B, Ashoka Apartment, 7 Rajpur Road. The said amendment was allowed and defendants filed amended WS and plaintiff filed amended replication. Parties did not press for any additional issues and did not claim any opportunity to lead evidence (see order dated 19.12.2015). Consequently, arguments were heard on 13.01.2016. I now proceed to decide controversy.
10. Issue No.1 and 2 are taken up for consideration. These issues appear to be based on preliminary objection no.8 and 1 respectively of the WS. But no reasons have been disclosed by the defendants side for such claim. I am of the opinion that such type of objections cannot justify Dr. Madan Mohan Gupta Vs. Punardeep S. Sawhney & Anr. 5 anything (see the judgment of Division Bench of Hon'ble High Court of Delhi in Naveen Garg Vs. Rajrani Garg & Anr. RFA (OS) 163/2014 dated 19.08.2015). The issues are decided against the defendants.
11. Issue No.3 is taken up for consideration. The issue pertains to roof rights of the defendants over the first flat floor. It appears that there is no counter claim in the present suit and, therefore, this issue ought not to have been framed. Reason is obvious. Any right in immovable property has to be claimed in appropriate manner i.e. filing the suit by paying necessary court fee and alternatively by raising counter claim again by paying necessary court fee. Unless the exceptional circumstances exist, the court should not venture to return a finding about rights in immovable property vis-a-vis defendants when no counter claim has been filed. In the present case however due to an amendment carried out in the plaint, a prayer for negative declaration in respect of roof right was included. The prayer shows that it relates to roof rights over first floor of flat. Naturally, since there is a second floor built up on the first floor, the owner of the first floor cannot claim roof rights unless specifically given by the actual owner as the roof right will start from the last built floor. No evidence is available from the defendant side. The sale deed available in favour of the plaintiff shows that he is having roof right over the second floor and therefore to this extent defendants cannot have any roof rights over the property. On the other hand if the prayer is considered vis-a-vis the open space adjoining the second floor i.e. right to built upto sky on the said open space, it would have been for the plaintiff to establish the factum supporting the negative declaration. Needless to say that after the conclusion of trial, the placement of onus vis-a-vis issue becomes immaterial and entire circumstances available on record have to Dr. Madan Mohan Gupta Vs. Punardeep S. Sawhney & Anr. 6 be considered to decide any issue. The entire thrust of the plaintiff is on the fact that since he is having the rights the others will not have. The plaintiff since has failed to establish his right cannot seek negative declaration. There is nothing to suggest that the suit relates to activity over the roof of the second floor and, therefore, I am of the opinion that the plaintiff was seeking negative declaration in respect of the roof rights over the first floor in respect of the portion which is adjoining the second floor. The plaintiff, therefore cannot seek such a declaration as he has failed to establish his own right which is the basis of his entire plaint. The issue is decided against the plaintiff.
12. Issue No.4 is taken up for consideration. Apart from the sale deed there is no document available in support of the plaintiff in respect of his claim over the open space adjoining the flat. As such, he cannot claim any right thereon. Whether he has been using the said open space so as to make him entitled to claim any right thereon can be considered in view of oral deposition. But before that we have to see the factual pleading. The plaintiff claims that he is in physical possession of the property which is being used as personal residential premises/house and has constructed the parapet wall from Point-A to B in the site plan. No details have been provided as to from when the plaintiff was using the said open space. However, Paragraph-7 of the plaint shows that it could be taken as the year 2003 when he purchased the suit property as from then he was intending to construct outer boundary of the open space. If his occupation is counted from the date of purchase of the property, in the absence of any title document related to open space he could not have claimed any right thereon and at that moment there could not have been any applicability of concept of settled possession in his favour. Even if Dr. Madan Mohan Gupta Vs. Punardeep S. Sawhney & Anr. 7 we consider the situation in the year 2006 when the present suit was filed, a bare less than three years duration cannot be taken to justify the concept of settled possession and therefore, the plaintiff cannot claim any right in respect of open space. Apart from this, the plaintiff has not produced any evidence except his own bare claim that he was in use and occupation of the open space. This cannot be accepted. It is held that plaintiff has no right over the open space. Issue No.4 is therefore decided against the plaintiff.
13. Issue No.5 is taken up for consideration. Since the plaintiff has failed to establish any right over the open space, he cannot claim any relief in the present case. The issue is decided against the plaintiff.
14. In view of the above discussion, the suit is dismissed. In the facts and circumstances of the case, parties are left to bear their own costs.
15. Decree be prepared accordingly.
Announced in the open (RAKESH KUMAR SINGH) court today on 25.01.2016 CJ-11/CENTRAL/DELHI Dr. Madan Mohan Gupta Vs. Punardeep S. Sawhney & Anr. 8