Delhi District Court
Dr. Rajnish Bhagirath vs Sh. Pradeep Sethi on 28 July, 2025
DLST010000222007
In the Court of Sh. Munish Bansal,
District Judge-03, South District,
Saket Courts Complex, New Delhi.
CS No. : 7019/2016
Dr. Rajnish Bhagirath,
S/o Shri M.L. Bhagirath,
R/o 103/B, Gautam Nagar,
New Delhi. .... Plaintiff
Versus
1. Shri Pradeep Sethi,
S/o Late Shri R.K. Sethi,
R/o D-63, STC Apartments,
Aurobindo Marg, New Delhi.
Also at :
C/o S-214, Second Floor,
Pancsheel Park,
New Delhi.
2. M/s A.W. Properties Pvt. Ltd.,
Through its Director
Shri. Rajnish Wadhwan,
B-II/35, Lajpat Nagar-II,
New Delhi. .... Defendants
Suit presented on : 11.10.2007
Arguments Concluded on : 17.07.2025
Digitally
Judgment Pronounced on : 28.07.2025
signed by
MUNISH
MUNISH BANSAL
BANSAL Date:
2025.07.28
17:04:28
+0530
CS DJ/7019/2016 Page 1 of 55
SUIT FOR DECLARATION, POSSESSION,
PERMANENT AND MANDATORY INJUNCTION
JUDGMENT
1. Facts as averred in the present suit are that the plaintiff has purchased the first floor of built-up property bearing no. S-214, measuring 250 sq. mtr, situated at Panchsheel Park, New Delhi- 110017, comprising of three bedrooms each with the balcony with two attached bathroom alongwith their passage, one drawing/ dining hall with two balconies, one lobby with attached bathroom, one kitchen, one servant quarter, measuring 65 sq. feet with common toilet on the terrace of second floor with one car parking inside the Southern most gate with 22.5% undivided and indivisible free holder ownership right in the land underneath the said property, together with the right to use/ avail common entrance, passages, staircase, services and facilities provided in the building and easements attached thereto i.e. use of common staircase to access to terrace for servant quarter, maintenance of overhead water tank, right to use of main gate, right to use of common water tank, common jet pump etc. with all fittings, fixtures, connections, structure standing thereon with all rights in common driveway (gate immediately North of specified parking area) entrances, entire passage towards 150 sq. feet road, staircase etc. from defendant no.2 for a valid consideration of Rs.20,00,000/- through a registered and stamped Sale Deed dated 28th February, 2003. The plaintiff is using the said flat for residential-cum-clinic purposes. As per the recitals of Sale Deed Digitally signed by MUNISH MUNISH BANSAL BANSAL Date:
2025.07.28 17:04:33 +0530 CS DJ/7019/2016 Page 2 of 55 on page no. 7, the built-up property comprised of basement, ground floor, first floor and second floor and thus, owner of each floor had a right in the land underneath whereby basement and ground floor owners having together 55% right and first and second floor owners were given 22.25% (should be 22.50 %) rights each in the land underneath which comes to 45%. The defendant no.1 is owner in occupation of second floor of said property having purchased the same from defendant no.2 through a Sale Deed executed on 03.05.2003, who is disturbing the peaceful enjoyment of plaintiff and has also done unauthorized construction and demolition on terrace of second floor. The defendant no.2 is builder of the property who has sold first and second floor of the property to plaintiff and defendant no.1 respectively. The Sale Deed entered with defendant no.1 by defendant no.2 is transferring rights in favour of defendant no.1, which had been earlier transferred and sold to plaintiff and the said act of defendant no.2 is illegal and has caused loss to plaintiff.
1.1. It is further averred that as per covenant no.3 of Sale Deed executed in favour of the plaintiff, the vacant physical possession of property was handed over to vendee/ plaintiff. As per clause-8, the vendor has been left with no right, interest or title in the said portion of property. As per covenant no.11, the vendee/ plaintiff shall have no right on the terrace of the building but they shall have unfettered right to access to the terrace of second floor for servant quarter, installation of TV antennas and overhead water storage tanks on the terrace and they have right to Digitally signed by MUNISH MUNISH BANSAL BANSAL Date:
2025.07.28 17:04:37 +0530 CS DJ/7019/2016 Page 3 of 55 get it repaired and clean at all reasonable times. As per clause 12, the common parts of building were not to be used by the vendee or other owners/ occupants of said building for keeping, chaining pets, dogs, birds or for storage of cycles, motorcycles nor the common passage or common driveway were to be blocked in any manner.
1.2. It is further averred that plaintiff shifted to the premises immediately after purchase of same and a separate Possession Letter for servant quarter and common toilet on the terrace of second floor was also executed in favour of plaintiff. In furtherance of contract and agreement, the plaintiff occupied the first floor and the servant quarter on the terrace of second floor i.e. third floor on the southern-eastern side of property (as shown in site plan). At the time of occupation of property by the plaintiff, there were three servant quarters and one common toilet on the terrace of second floor. There were also three huge water tanks affixed on three different cemented platforms that were at a lever of approx one feet height. One water tank was affixed on the western side and two were affixed on the eastern side of terrace. The western side water tank used to supply Delhi Jal Board water to kitchens on all floors of building and two tanks on eastern side were supplying water to the bathrooms and other areas of all the flats in the building. The supply to said two water tanks was from the common boring jet-pump installed in the building.
1.3. It is averred that the southern and northern side of Digitally signed by terrace of second floor were separated by a straight 7 feet high MUNISH MUNISH BANSAL BANSAL Date:
2025.07.28 17:04:41 +0530 CS DJ/7019/2016 Page 4 of 55 wall initially, which met on a 90 degree right angle to another wall extending from the door of common passage. The width of entire passage was 3 feet. In 2004, the defendant no. 1 demolished and reduced the width of the passage near its entrance to 1 ½ feet only. The said act of defendant no.1 was without any consent from other occupants and it has become difficult now to carry anything through the passage, towards the servant quarter. Immediately after taking possession of the property, the defendant no.1 started harassing the plaintiff and his family. The defendant no.1 is not residing in the property as he is residing in STC Apartment, Aurobindo Marg, but has carried out extensive construction and renovations on the second floor. From the beginning, the defendant no.1 wanted the plaintiff to vacate servant quarter in his possession on the terrace of second floor, so that after demolishing all three servant quarters and common toilet on the terrace, he could construct one complete flat. The defendant no.1 was given possession of western most servant quarter (marked as no.3 in the site plan) which was near the stairs. The servant quarter adjacent to servant quarter of plaintiff, is in occupation of ground floor occupant. On many occasions, the defendant no.1 has stopped entry of plaintiff and his servants to the servant quarter. The servant quarter in occupation of ground floor occupant is mostly lying unused. In the beginning of year 2004, the defendant no.1 started tying a ferocious dog at entrance of common staircase. In the second half of 2004, defendant no.1 started construction on third floor, which is complete illegal and unauthorized. In September-October 2004, the defendant no.1 shifted all three water tanks from the terrace Digitally signed by MUNISH MUNISH BANSAL BANSAL Date:
2025.07.28 17:04:46 +0530 CS DJ/7019/2016 Page 5 of 55 of second floor to the terrace of mumty at third floor and later on, on the terrace of newly built-up area of the third floor.
1.4. It is further averred that despite various objections of the plaintiff, the defendant no.1 disconnected the supply of water from all three tanks and separated all three water tanks and now, all three tanks are supplying water separately to first floor, second floor and one tank is supplying water to ground floor and basement. Later on, the defendant no.1 disconnected the water supply from the common jet-pump and Delhi Jal Board water supply to the tank supplying water to plaintiff's floor and changed the pipes so that the Delhi Jal Board and jet-pump water filled the tank of defendant no.1's floor only. The plaintiff objected to this act but defendant no.1 uprooted the underground pipes and boring pump and broke the electric connections. Thus, plaintiff was left with no water supply for his floor. Thereafter, the plaintiff had to take a separate water connection and the plaintiff also installed one separate water tank for direct DJB water supply so that the said water can be made available in kitchen and other water tank was getting water from jet-pump.
Thus, there are two water tanks on terrace of third floor now, which are supplying water to plaintiff's floor. The unauthorized construction done by defendant no.1 on third floor is shown in yellow color in site plan. The plaintiff has also made a police complaint on 10.09.2004 to SHO, Malviya Nagar police station to said extent. Subsequently, on 11.10.2005, the plaintiff made another police complaint as defendant no.1 had forcibly entered Digitally into the premises o plaintiff and used abusive language. signed by MUNISH MUNISH BANSAL BANSAL Date:
2025.07.28 17:04:52 +0530 CS DJ/7019/2016 Page 6 of 55 1.5. It is averred that again on 12.03.2007, the defendant no.1 installed a lock on common entrance to staircase, which caused undue harassment and trouble to plaintiff's wife as she had to go down every time to open the door. In April 2007, defendant no.1 once again forcibly entered the flat of plaintiff and smashed front door and used defamatory and abusive language against plaintiff's wife when plaintiff was not at home and demanded that plaintiff should vacate the servant quarter in his occupation, so that he could demolish the same and amalgamate the whole portion into unauthorized constructed flat on terrace of second floor. The plaintiff made police complaint on 23.04.2007 against defendant no.1. A complaint has also been made by plaintiff before Ld. ACMM, Patiala House Courts u/s 200 Cr.P.C in April, 2007. The plaintiff, on various occasions, requested the representative of defendant no.2 to settle the dispute and to restrain defendant no.1 from harassing the plaintiff and his family members.
1.6. It is stated that as the defendant no.1 always insisted that he has right to construct the third floor as per his Sale Deed, the plaintiff obtained a copy of the said Sale Deed (from representative of defendant no.2), somewhere in year 2006.
Perusal of the said Sale Deed revealed that defendant no.2 had conveyed certain portion and certain right with respect to property to defendant no.1, qua rights which had already been transferred to the plaintiff. It is stated that as per Section 48 of Transfer of Property Act, if the vendor creates at different times, by way of transfer, rights over the same property and if such Digitally signed by MUNISH MUNISH BANSAL Date:
BANSAL 2025.07.28 17:04:58 +0530 CS DJ/7019/2016 Page 7 of 55 rights cannot co-exist, then the rights created later in time shall be subject to rights previously created. Thus, the defendant no.2 could not have sold the portion which had already been sold to the plaintiff. In the sale deed of defendant no.1, it is mentioned that roof rights are being sold, without the specifications as to roof right of which floor, except the space of two servant quarters with common toilet of the ground floor and first floor and space of water tanks. In clause 14 of sale deed of defendant no.1, it is mentioned that if defendant no.1 constructs the terrace of second floor, he will construct two servant quarters for ground and first floor owners and shift the overhead tanks to next floor at his own costs, however, no such permission was ever taken from the plaintiff nor was it so stipulated in his sale deed.
1.7. It is further averred that contents of Sale Deed in favour of defendant no.1 are vague and contradictory. It is stated that since there was already a registered document existing in favour of plaintiff, as per which common rights have already been sold including space of water tanks, the defendant no.2 could not transfer the said common portion in subsequent sale deed to defendant no.1. As such, the clauses mentioned in Sale Deed of defendant no.1 qua roof rights of second floor are not binding upon the plaintiff. It is stated that the harassment caused by defendant no.1 to plaintiff is continuing as defendant no.1 has demolished from inside the common toilet on roof of second floor and blocked it; blocked the passage leading to servant quarter; removed the tin shed roof of servant quarter in July 2007 and broken its floor; damaged the water tank supplying water to Digitally signed by MUNISH MUNISH BANSAL BANSAL Date:
2025.07.28 17:05:02 +0530 CS DJ/7019/2016 Page 8 of 55 first floor; made holes in drawing room on second floor so that there is seepage in the flat of plaintiff.
1.8. On these grounds, it is prayed that a decree for declaration be passed in favour of plaintiff and against defendant no.2 to the effect that sale deed executed in favour of defendant no.1 on 03.05.2003, qua the rights to defendant no.1 which have already been transferred in favour of plaintiff vide Sale Deed dated 28.02.2003 in property no. S-214, Panchsheel Park, New Delhi- 110017, as null and void. The plaintiff has also prayed for decree of permanent injunction thereby restraining defendant no.1, his representatives, agents etc. from interfering in peaceful possession of plaintiff on first floor, servant quarter, common toilet and water tanks on roof of second floor of said property.
The plaintiff has also prayed for decree of permanent injunction against defendant no.1, his agents etc. to direct them not to demolish the servant quarters and common toilet on terrace of second floor. The plaintiff has also prayed for decree of permanent injunction against the defendant no.1, his agents etc. thereby directing them not to interfere with easement rights of plaintiff and to remove garbage and stuff by which the passage leading to servant quarters at second floor has been blocked and to allow free passage to plaintiff, his representatives, servants etc. The plaintiff has further prayed for decree of mandatory injunction against defendant no.1 thereby directing him to demolish the illegally constructed third floor. The plaintiff has also prayed for restoration of possession of the common space for common water tanks on terrace of second floor and directions to Digitally signed by MUNISH MUNISH BANSAL Date:
BANSAL 2025.07.28 17:05:07 +0530 CS DJ/7019/2016 Page 9 of 55 defendant no.1 to restore the original condition of common water tanks and their supply of water. Hence, this suit.
2. Pursuant to summons issued, the defendants entered appearance. Defendant no. 1 filed written statement in his defence whereby it is stated in preliminary objections that the present suit is time barred; that plaintiff has not approached this Court with clean hands; that plaintiff is owner of first floor and defendant no.1 is owner of second floor and terrace of second floor and a servant quarter each, having purchased the same from defendant no.2, who is the builder; that plaintiff is not residing in the first floor rather using the same as dental clinic in outright violation of norms of Municipal Corporation of Delhi; that plaintiff has even broken the kitchen and made it into reception; that plaintiff is residing at 103 B, Gautam Nagar, New Delhi; that no servant quarters or common toilet existed on the terrace of second floor at the time when the sale deed in respect of first floor was executed on 28.02.2003 in favour of plaintiff or even when sale deed in favour of defendant no.1 was executed on 03.05.2003; that three servant quarters and common toilet were temporarily constructed by the defendant no.1 from his own funds, after purchasing his second floor flat, however, the plaintiff forcibly occupied the servant quarter (marked as no.1 in site plan); that none of the servant quarters was of 100 sq. ft.; that the plaintiff also illegally occupied, blocked and converted to his sole use the passage in front of servant quarters and common toilet on terrace of second floor; that common passage of staircase has been blocked by plaintiff by changing the position Digitally signed by MUNISH MUNISH BANSAL Date:
BANSAL 2025.07.28 17:05:11 +0530 CS DJ/7019/2016 Page 10 of 55 of main door blocking the staircase; that blocking and occupying of common passage has resulted in the seepage of both the floors as water pipes are blocked; that rights to the roof/ terrace of second floor were specifically sold to defendant no.1. It is further stated that at the time of execution of sale deed in favour of defendant no.1, it was agreed between plaintiff, defendant no.1 and other owner at ground floor that as and when defendant no.1 construct on the terrace of second floor, the servant quarters and common toilet would be moved up to the terrace of third floor and that defendant no.1 had purchased his share in the property only contingent upon the no objection/ agreement; that construction of the third floor by defendant no.1 in December 2003- January 2004 was done as per applicable parameters and no objection to the same given by plaintiff himself. It is stated that subsequently, the plaintiff started demanding money from defendant no.1 to permit demolition of servant quarter forcibly occupied by him; that another reason for plaintiff's pique is that defendant no.1 did not accede to plaintiff's desire to use the servant quarters as laboratory for his dentistry practice; that plaintiff and his servants purposely went to water tanks and damaged them every now and then because of which there is continuous leakage from tanks resulting into seepage; that water tanks never had the supply of Delhi Jal Board water and none of water lines of DJB was functional in the building and that water supply was only through boring jet-pump; that water tanks were never shifted on the mumty by the defendant no.2 rather the original position of water tanks was the mumty itself; that there is seepage in the entire building due to acts of plaintiff only; that Digitally signed by MUNISH MUNISH BANSAL BANSAL Date:
2025.07.28 17:05:16 +0530 CS DJ/7019/2016 Page 11 of 55 new connection had to be put by defendant no.1 because of unlawful acts of plaintiff; that plaintiff has never paid his share of electricity charges for the common jet-pump; that the plaintiff obtained water connection from Delhi Jal Board in year 2003, however, plaintiff did not use the same as he wanted to enjoy free water supply at the cost of defendant and when defendant no.1 refused to pay for pump repair, the plaintiff started using water from his own connection; that plaintiff had never cooperated with defendant on any common issues of building; that the plaintiff has always obstructed and blocked the repair work in building.
2.1. It is further stated that defendant no.2 initially was using only one electricity meter for both first and second floors and defendant no.1 had been paying electricity charges for both the floors since he was not aware of the fact and when defendant no.1 asked the share from the plaintiff, he refused to pay the same. It is stated that plaintiff's clinic at first floor generates substantial biomedical waste such as infected gloves, masks, syringes etc. which are thrown in the property, which cause nuisance and are harmful to health; that the plaintiff also encourages other doctors using his clinic and the patients to park their vehicles in the parking of defendant no.1 to harass him; that plaintiff has made up a false case against the defendant no.1; that defendant no.1 has never owned or kept any dog and that the said dog belonged to a friend of defendant no.1 who was temporarily kept by defendant no.1 when his friend had to go out of Delhi;
that defendant no.1 made numerous efforts to amicably settle the matter but to no avail; that the plaintiff had developed hostility Digitally signed by MUNISH MUNISH BANSAL BANSAL Date:
2025.07.28 17:05:20 +0530 CS DJ/7019/2016 Page 12 of 55 towards defendant no.1 when defendant no.1 had complaint in MCD regarding use of residential floor as a polyclinic/ hospital; that plaintiff is misusing the process of law to exert pressure upon defendant no.1 to bow down to illegitimate demands of plaintiffs; that suit has not been properly valued for the purposes of jurisdiction and court fees; that no cause of action has arisen against the defendant no.1.
2.2. On merits, the defendant no.1 has denied the averments of the plaintiff made in the plaint and reiterated the contentions made in the preliminary objections. On these grounds, it is prayed that present suit be dismissed.
3. The defendant no.2 filed his written statement thereby making preliminary objections that present suit is barred by limitation; that present suit is filed to harass defendant no.2 as plaintiff was very well aware of the terms of Sale Deed dated 03.05.2003 executed in favour of defendant no.1; that defendant no.2 had sold one servant quarter admeasuring 65 sq. ft. with common toilet on terrace of second floor to the plaintiff and also the common facility of use and enjoyment of overhead water tank alongwith first floor as mentioned in sale deed dated 28.02.2003 executed in favour of plaintiff; that a belated challenge to sale deed dt. 03.05.2003 much after construction by defendant no.1 upon second floor in the portion sold to him, proves malafide of the plaintiff; that plaintiff did not have any reservation to the terms of sale to defendant no.1; that defendant no.2 has lawfully sold the terrace/ roof rights to defendant no.1; that the rights of Digitally the plaintiff by virtue of sale deed dated 28.02.2003, were kept signed by MUNISH MUNISH BANSAL BANSAL Date:
2025.07.28 17:05:26 +0530 CS DJ/7019/2016 Page 13 of 55 intact and not touched upon while executing sale deed dated 03.05.2003 in favour of defendant no.1; that defendant no.1 was also aware of the rights of plaintiff and that of ground floor owner upon the terrace and same were kept and found mention in sale deed executed in favour of defendant no.1.
3.1. On merits, the defendant no.2 has relied upon the clauses mentioned in sale deeds executed in favour of plaintiff and defendant no.1. Defendant no.2 has denied that his representative has provided copy of sale deed of defendant no.1 to the plaintiff. It is denied that defendant no.2 has conveyed certain portion and certain rights with respect to property to defendant no.1 which has already been transferred to plaintiff.
On these grounds, it is prayed that present suit be dismissed.
4. Replication to written statement of defendant no.1 is filed on behalf of the plaintiff whereby plaintiff has denied the contentions of the defendant no.1 made in the written statement and reaffirmed and reiterated the averments made in the plaint.
5. From pleadings of parties, vide order dated 06.08.2008, following issues were framed:-
1. What are the rights/ shares of the plaintiff and defendant no.1 with respect to the terrace above the second floor of S-214, Panchsheel Park, New Delhi? OPP
2. Whether the plaintiff has has any rights with respect to the portion of the terrace where the construction of the third floor has been raised by the defendant no.1 and if so, Digitally signed by whether the plaintiff is entitled to the decree of mandatory MUNISH MUNISH BANSAL BANSAL Date:
2025.07.28 17:05:32 +0530 CS DJ/7019/2016 Page 14 of 55 injunction for demolition of the said construction? OPP
3. Whether the servant quarter and the common toilet on the terrace on the second floor have been constructed by the defendant no.1 and whether the plaintiff has forcibly occupied the same? OPD-1
4. Whether the plaintiff is in occupation of excess area in the servant quarter and common toilet above the second floor, and if so, to what extent? OPD-1
5. Whether the plaintiff is entitled to relief of permanent injunction with respect to the servant quarter and common toilet above the second floor and if so, with respect to what area? OPP
6. Whether the suit is barred by time? OPD Thereafter, matter was listed for PE.
6. To prove his case, the plaintiff got examined three witnesses.
6.1. PW1 Dr. Rajnish Bhagirath is the plaintiff himself who tendered his evidence by way of affidavit Ex. PW1/A and he exhibited the following documents:-
1. Certified copy of sale deed dated 28.02.2003 Ex. PW-1/1.
2. Certified copy of sale deed dated 03.05.2003 Ex. PW-1/2.
3. Site plan of suit property Ex. PW-1/3.
4. Photographs Ex. PW-1/4 (colly) (pages 48 to 58).
5. Negatives of photographs Ex. PW-1/5 (colly).
He was cross-examined at length on several dates by Ld. Counsel for the Defendants.
Digitally signed by MUNISHMUNISH BANSAL Date:
BANSAL 2025.07.28 17:05:36 +0530 CS DJ/7019/2016 Page 15 of 55 6.2. PW2 Shri Sudhir Bisht, Assistant Ahlmad from the Court of Sh. Deepak Sehrawat, Ld. M.M., Saket Court has produced file of complaint case bearing no. 816/2007, titled as 'Dr. Rajnish Bhagirath Vs. Pradeep Sethi & ors', P.S. Malviya Nagar, New Delhi. He tallied the following certified copies with the original filed brought by him:-
1. Statement of Dr. Rajnish Bhagirath before the Court of Ld. MM Ex. PW2/1.
2. Certified copy of complaint dated 10.9.2004 filed by plaintiff herein Ex. PW2/2.
3. Certified copy of complaint dated 11.10.2005 filed by plaintiff herein Ex. PW2/3
4. Certified copy of complaint dated 12.03.2007 filed by plaintiff Ex. PW2/4.
5. Certified copy of complaint dated 25.03.2007 filed by plaintiff Ex. PW2/5.
6. Certified copies of orders dated 09.04.2007, 10.04.2007 and 13.07.2007 of Ld. MM are Ex. PW2/6, Ex. PW2/7 and Ex. PW2/8 respectively.
6.3. PW3 Shri B.S. Saxena was appointed as Local Commissioner vide order dated 25.10.2007 for the purposes of inspection of suit property. He deposed that he has visited the site on 31.10.2007 and prepared necessary documents including rough site plan, proceeding sheets etc. He also deposed that he was supplied with a site plan of the site by plaintiff side and had also arranged for still photography of site/ premises in question.Digitally signed by MUNISH
MUNISH BANSAL Date:
BANSAL 2025.07.28 17:05:40 +0530 CS DJ/7019/2016 Page 16 of 55 He prepared his report dated 26.11.2007 Ex. PW3/1 and identified his signatures thereon. He also prepared proceeding sheet Ex. PW3/2 (colly) in his own handwriting at the time of inspection. The rough sketch plan prepared by him is Ex. PW3/3 and site plan supplied to him is Mark A. He identified the photographs done in his presence as Ex. PW3/4 to Ex. PW3/11 and negatives of said photographs as Ex. PW3/12 (Colly).
PW3 was cross-examined by Ld. Counsels for defendants. Vide order dated 25.04.2018, PE was closed on behalf of the plaintiff.
7. Thereafter, Defendant no.1 himself stepped into witness box as DW-1. He tendered his evidence by way of affidavit Ex. DW1/A and relied upon following documents:-
1. Certified copy of sale deed dated 03.05.2003 Ex. DW1/1 (also exhibited as Ex.PW1/2 in the evidence of PW1).
2. Photographs Ex. DW1/2.
3. Certified copy of plaint filed by occupant of ground floor and basement namely M/s Nevi Enterprises, Ex. DW1/3.
4. Copy of written statement of MCD Ex. DW1/4.
5. Certified copy of complaint case filed by defendant no.1 against the plaintiff Ex. DW1/5.
6. Complaint dated 23.09.2005 Ex. DW1/6.
7. Complaint dated 12.10.2005 Ex. DW1/6A.
8. Complaint dated 13.10.2005 Ex. DW1/7.
9. Complaint dated 14.03.2007 Ex. DW1/8.
10. Complaint made to MCD dated 13.10.2007 Ex. DW1/9.
Digitally signed by MUNISH MUNISH BANSAL BANSAL Date:
2025.07.28 17:05:45 +0530 CS DJ/7019/2016 Page 17 of 55
11. Receipt of change of name for water connection Ex.
DW1/10.
12. Water bill Ex. DW1/10A.
13. Complaint Ex. DW1/11.
DW1 was cross-examined by Ld. Counsel for the plaintiff.
7.1. Defendant no. 2 Sh. Rajnish Wadhawan stepped in witness box as DW2 and tendered his evidence by way of affidavit Ex. DW2/A. He deposed that he had executed Sale Deed dated 28.02.2003 in favour of the plaintiff and has signed on every page of said Sale Deed. He further deposed that plaintiff was well aware of the terms of sale deed dated 03.05.2003 executed in favour of defendant no.1 by defendant no.2 / DW2. He deposed that he had not transferred any right in favour of defendant no. 1 which had earlier been transferred to the plaintiff. He stated that after executing Sale Deeds dated 28.02.2003 and 03.05.2003, defendant no.2 has no role to play and the present dispute is between the plaintiff and defendant no.1 only. He was cross-examined by Ld. Counsel for the plaintiff.
7.2. DW3 Sh. Babu Lal is the building contractor who deposed that he built Third floor of S-214, Panchsheel Park, New Delhi which was started in the month of December 2003 and completed around end of January 2004 and that the same was constructed at the instance of Defendant no.1 Sh. Pradeep Sethi. He identified copy of quotation letter Mark 'A'. He deposed on behalf of defendant no.1 and tendered this evidence by way of Digitally signed by MUNISH MUNISH BANSAL BANSAL Date:
2025.07.28 17:05:49 +0530 CS DJ/7019/2016 Page 18 of 55 affidavit Ex. DW-3/A. DW3 was cross-examined by Ld. Counsel for the plaintiff.
7.3. DW3 Shri Surinder Singh has deposed on behalf of defendant no.1. DW3 is the contractor who is carrying on his business by the name of Mancoo and Associates (Engineer and Interior Decorator). He deposed that door and chaukhats were supplied and installed by him on the Third floor of building no.
S-214, Panchsheel Park, New Delhi in January, 2004 at the instance of defendant no.1 and bill was raised by him which is Mark 'B'. He was cross-examined by Ld. Counsel for plaintiff.
7.4. DW4 Sh. Sanjeev Gulati deposed on behalf of defendant no.1 being family friend of defendant no.1. He tendered his evidence by way of affidavit Ex. DW4/A wherein he deposed that on 19.02.2004, he was sitting with defendant no.1 when defendant no.1 received a call from his daughter informing that plaintiff herein had entered the flat a 3rd floor and was misbehaving with her on which defendant no.1 instructed his daughter to call police. He further deposed that when he alongwith defendant no.1 had reached the flat at 3 rd floor of S-214, Panchsheel Park, New Delhi, they found that Ms. Ayesha Sethi (daughter of defendant no.1), some police officials alongwith the plaintiff herein were present at the said premises and police had asked the plaintiff herein to reach PS Malviya Nagar and DW4 alongwith defendant no.1 had also reached police station where statement of plaintiff was recorded and he gave an apology letter to police officials. DW4 was cross- examined by Ld. Counsel for the plaintiff. Digitally signed by MUNISH MUNISH BANSAL BANSAL Date:
2025.07.28 17:05:55 +0530 CS DJ/7019/2016 Page 19 of 55 7.5. DW2 Sh. Surender Dagar, LDC from Building Department, SDMC, Green Park, New Delhi has produced Dispatch Register for the year 2009 qua notice regarding misuse of premises. He stated that notice was sent to plaintiff at S-214, First Floor, Panchsheel Park, New Delhi on 08.05.2009 vide entry no. 354, copy of which is Ex. DW2/A. Thereafter, DE was closed vide order dated 05.04.2019.
8. I have heard arguments advanced by Ld. Counsels for both the parties and carefully perused the material on record. I have also considered the written arguments filed by Ld. Counsels for defendants.
9. Before proceeding further into the discussion of the issues framed herein, it would be relevant to quote the excerpts of cross-examination of PW1 that would pave the way for deciding the issues at hand.
Cross-examination dated 07.11.2013 ...... It is correct that the parking area is specifically demarcated in Sale Deed Ex.PW-1/1. There is no specific demarcation mentioned in the Sale Deed Ex.PW-1/1 in respect of the staircase/ access to common facilities at second floor terrace leading to servant quarter and overhead tank. No Site Plan has been annexed with the Sale Deed Ex.PW-1/1, bearing such details, concerning the position of servant quarter and overhead tank. The placement/ location of servant quarter and overhead tank is not mentioned in Ex.PW-1/1.
Digitally signed by MUNISH MUNISH BANSAL BANSAL Date:
2025.07.28 17:06:00 +0530 CS DJ/7019/2016 Page 20 of 55 Cross-examination dated 08.11.2013 Q. Please tell who has constructed the servant quarter which is in your possession?
Ans. It was given to me as partly built up by defendant No.1, then said defendant No.2. Vol. I constructed the roof myself thereafter. The partly built-up servant quarter was handed over to me in the year 2003. The area of the servant quarter as mentioned in Ex.PW-1/1 is 65 sq. ft. At present, I am in possession of the area around 80/90 sq. 1. as far as the servant quarter is concerned.
Q. Please tell as to how are you in possession of 80/90 sq. ft. of area instead of 65 sq. ft. as mentioned in Ex.PW-1/1. Ans. Originally, the area was 65 sq. ft. but later on 1 encroached/amalgamated part of the common passage, abutting the servant quarter, as my servant quarter was the last one in the row. The said encroachment/amalgamation was done in the year 2003.
Q. Whether the area so merged with the servant quarter, was your ownership?
Ans. It was common area and belonged to all owners, and was a part of common passage.
Q. Did you take any consent from other co-owners of the property? Ans. I did not take any consent from any co-owner Vol. It was done sometimes in March, 2003. The same was done after the execution of the sale deed Ex.PW-1/1.
At the time when the possession of the servant quarter was handed over to me, the roof over the servant quarter was made of ACC sheets.
At that time, the other two servant quarters were in existence. Vol. In addition to, toilet. The same, including the Digitally common toilet were roofed with ACC sheets. signed by MUNISH MUNISH BANSAL BANSAL Date:
2025.07.28 17:06:05 +0530 CS DJ/7019/2016 Page 21 of 55 Q. Are all the servant quarters are covered with ACC sheets, including the one in your possession? Ans. My servant quarter has a pucca slab, with RCC on top of it and the other two are partly open and partly covered by ACC sheets. It was in March, 2003 that I covered my servant quarter with pucca slab and RCC.
There was a water supply to the common toilets over the second floor terrace.
There was no water supply to my servant quarter when the possession was given, however, there is water supply as of now, It was sometime in the year 2005-2006 that the water supply was installed in the servant quarter. There is no separate meter for the said supply. Vol. The said supply is connected to my own separate meter meant for the first floor.
*** I have seen Ex.PW-1/D-1, the receipt. It is correct that it was issued in the year 2003. It is also correct that the approval for the supply was given in May, 2003. Ex.PW-1/D-2 is the letter of permission. Ex.PW-1/D-3 is the sanction of water connection, dated 17th May, 2003.
It is incorrect to suggest that the water supply through my own nature was meant for my separate water tank. Vol. It was supplied to the common water tank again said at the time of taking of the connection.
I personally did not get the tanks separated. Vol. It was done by Mr. Sethi. It was got done sometimes in 2003/2004/2005.
Cross examination dated 12.02.2014 I do not have any document with respect to the construction of the roof of the servant quarter, I had made all the Digitally signed by MUNISH MUNISH BANSAL BANSAL Date:
2025.07.28 17:06:10 +0530 CS DJ/7019/2016 Page 22 of 55 cash transactions. I have also not taken any permission from MCD for constructing the Pucca roof. Presently, nobody is residing in the servant quarter but earlier occasionally one of my servants was residing. The servant was residing in the servant quarter till the 2004 and thereafter, nobody was residing in the servant quarter but the same was used.
It is correct that there was access to the servant quarter. Voltd. The access has been reduced. There is no measurement written in the Sale Deed with respect to access of the servant quarter. I had raised an objection at the time of construction by the defendant no.1 on the terrace. The construction work was completed in approximately six months. The construction was carried on in the year 2004 but I do not recall the date and month. I had raised an objection was carried on the terrace of second floor. I had together one or two police complaints in this regard. I do not recollect the date and month but it is a matter of record. Since the defendant no.1 was not residing in the property, as such, there is no question of any relationship with him. The quarrel was started at the time of raising the construction with the defendant no.1. I had subsequently made complaint to the MCD but not made the complaint at the time of raising the construction. I cannot recall the date and month when I made the complaint to the MCD but I have record to this effect. However, the same is not on record. I have placed on record the complaint to the police regarding raising unauthorized construction when it was being carried out.
*** I do not remember the date if the defendant had completed the construction till January end, 2004. The incident as alleged in Ex.PW-1/D-4 was after 19.02.2004. Probably it may be the incident of February-September, 2004. The police official came at the spot, they did not take any action and requested both the parties to amicably settle the matter with respect to the construction. Digitally signed by *** MUNISH MUNISH BANSAL BANSAL Date:
2025.07.28 17:06:15 +0530 CS DJ/7019/2016 Page 23 of 55 Q. Please refer to Ex.PW-2/2 where you have stated that "Mr. Pardeep Sethi had shifted my water tank without my consent from previous location on the common Mumty to the unauthorized terrace of the third floor"? When were these three common tanks shifted from common Mumty to the terrace on the third floor? Ans. I cannot recall the date and month as Mr. Sethi had changed the water tanks 2-3 times.
I cannot say whether the common tanks were shifted from common Mumty on the third floor to the construction made by defendant no.1 in the end of January, 2004.
Cross examination dated 13.02.2014 It is correct that the Site Plan Ex.PW-1/3 has been attached with respect to the third floor by me with the suit is showing the position of the month when the suit was filed.
Cross examination dated 23.07.2016 Q. Please answer as to on which floor's terrace, the said tanks were installed which were supplying water to your servant quarter, common toilet and other floors?
Ans. The three common water tanks were mounted on three feet high cemented platforms on the terrace of the 2nd floor which were supplying water to all the floors and the common toilet but not my servant quarter.
It is correct that water tank mounted on 3 feet high platform was supplying water to the common toilets.
The water could go to the toilet at the terrace of 2 nd floor as there is only one tap which was installed below the height of 3 feet platform.
Q. Have you placed on record any photograph or any document to Digitally show that the tanks were placed at the 3 feet high platform at the signed by MUNISH MUNISH BANSAL BANSAL Date:
2025.07.28 17:06:19 +0530 CS DJ/7019/2016 Page 24 of 55 terrace of 2nd floor?
Ans. I have mentioned this fact in my plaint and affidavit of evidence. However, there is no such photograph or documentary evidence.
Q. You have claimed that tanks were at particular position. Have you placed on record any photograph or documentary evidence to show the location of water tanks on the terrace? Ans. It is mentioned in my Sale Deed and Sale Deed of Pardeep Sethi, that the water tanks are installed at the terrace of 2 nd floor. However, the exact location is not mentioned.
*** It is wrong to suggest that complaint Ex.PW2/2 is not regarding interruption of water supply. It is wrong to suggest that there is a separate water tank for my floor. It is correct that there is a separate water meter for my floor.
Q. As suggested by you above, do you mean to say that you have been getting water supply to your first floor from so called common tanks?
Ans. Till September 2004, I was getting water supply from common water tanks on the terrace of the 2 nd floor. But the supply was changed later by Mr. Pradeep Sethi after shifting of water tanks to the mumty.
Q. What do you mean 'supply was changed by Mr. Pradeep Sethi? Ans. He disconnected my water supply from all the three tanks and limited it to only one tank without any water source.
Cross examination dated 03.11.2017 Q 15. Whether in entrance of the common toilet there has been a Digitally signed by tap for water supply at about 3.5-4 feet and whether the toilet MUNISH MUNISH BANSAL BANSAL Date:
2025.07.28 17:06:24 +0530 CS DJ/7019/2016 Page 25 of 55 contains flush system?
Ans. There was a tap for water supply on a wall opposite to the entrance at the height of 1.5 feet and not 3.5-4 feet which was being supplied water supply by the water tanks installed on 3 feet high platforms on the terrace of the second floor and so was the case with the flush system.
Cross examination dated 03.11.2017 (after-lunch session) Q.17 . I put it to you that now by way of oral evidence in the cross examination, you have stated that three huge common tanks were 3 feet height on the terrace of second floor and you had never stated these facts of three common huge water tanks in the plaint or affidavit by way of evidence dated 18.08.2010? Ans. I have stated these facts in my affidavit though the mentioned height of the platforms in my affidavit have been mentioned as one feet in stead of three feet which itself was sufficient to supply water to the common toilet.
Q.18. Please explain as how were water pipe placed from three common huge tanks to the common toilet? Whether it is underground fitting or open and what level? Ans. The pipe was going at the level of the terrace of second floor from the common water tanks placed on the northern side to the common toilet on the southern side through seven feet high wall.
Cross examination dated 19.02.2018 Q. Can you please tell which month and date Mr. Sethi separated the water tanks as stated by you above? Ans. Mr. Sethi separated the common water tanks in September, 2004 when he started the construction on second floor terrace and Digitally signed by shifted them to the mumpty terrace and thereafter in early 2005 to MUNISH MUNISH BANSAL BANSAL Date:
2025.07.28 17:06:28 +0530 CS DJ/7019/2016 Page 26 of 55 the third floor terrace. I cannot tell the exact month of year, 2005.
Cross examination dated 23.02.2018 It is incorrect to say that I had paid to Mr. Atul Pahwa a sum of Rs.1.60 lakhs as final brokerage in July, 2003. I am in possession and was allotted the present servant quarter at South-East end of the building since I have come into the possession of the property. It is incorrect to suggest that no such servant quarter has not been mentioned in the sale deed.
*** It is incorrect to suggest that since May 2003, there were no water tanks. It is correct that my water tank was separated from the said month as I had obtained separate water connection from Delhi Jal Board. It is incorrect to suggest that I have no right to have water tank placed on the second floor terrace only.
10. My issue-wise findings are as under:-
Issue no.1 What are the rights/ shares of the plaintiff and defendant no.1 with respect to the terrace about the second floor of S-214, Panchsheel Park, New Delhi? OPP 10.1. Onus to prove the said issue was on the plaintiff. In his plaint and in his examination in chief by way of affidavit, plaintiff has stated that plaintiff has purchased the first floor of built-up property bearing no. S-214, measuring 250 sq. mtr, situated at Panchsheel Park, New Delhi- 110017, comprising of three bedrooms each with the balcony with two attached Digitally signed by MUNISH MUNISH BANSAL BANSAL Date:
2025.07.28 17:06:34 +0530 CS DJ/7019/2016 Page 27 of 55 bathrooms alongwith their passage, one drawing/ dining hall with two balconies, one lobby with attached bathroom, one kitchen, one servant quarter measuring 65 sq. feet with common toilet on the terrace of second floor with one car parking inside the Southern most gate with 22.5% undivided and indivisible free holder ownership right in the land underneath the said property, together with the right to use/ avail common entrance, passages, staircase, services and facilities provided in the building and easements attached thereto i.e. use of common staircase to access to terrace for servant quarter, maintenance of overhead water tank, right to use of main gate, right to use of common water tank, common jet pump etc. with all fittings, fixtures, connections, structure standing thereon with all rights in common driveway (gate immediately North of specified parking area) entrances, entire passage towards 150 sq. feet road, staircase etc. from defendant no.2 for a valid consideration of Rs.20,00,000/- through a registered and stamped Sale Deed dated 28 th February, 2003 Ex. PW1/1. In this regard, he relies upon recitals of the terms mentioned on page 7 of the said deed. Plaintiff has further relied upon the possession letter Ex. PW1/3 duly signed by defendant No. 2 which mentions that possession of servant quarter was also handed over to the plaintiff.
10.2. The plaintiff was further relied upon clauses 4, 8 and 11 of the said sale deed wherein it is stated as follows:-
"4.That the Vendor and the confirming Party, do hereby grant to the Vendee 22.5% undivided, indivisible and impartible ownership rights in the plot of land of the building no. S-214, measuring 250 sq. mtrs., or Digitally signed by MUNISH MUNISH BANSAL BANSAL Date:
2025.07.28 17:06:38 +0530 CS DJ/7019/2016 Page 28 of 55 thereabout, situated at Panchshila Park, New Delhi-110017, as also in common facilities such as entrance, passage, staircase, submersible pump etc. to hold/use the same jointly and in common with the other purchaser/s and owner/s of other flats/portions in the aforesaid building.
***
8. That as the Vendor and the confirming Party have been left with no right, interest or title in the said portion of the said property, henceforth the Vendee shall be the rightful and absolute owner of the same and shall peacefully and quietly hold, possess, occupy and enjoy all the rents, profits, benefits and proceeds thereof with the exclusive right to sell or transfer the same without any let, claim, demand denial, hindrance, interruption or eviction of or by the Vendor/confirming Party or any other person claiming through or under them and shall always keep the Vendee secured, harmless and indemnified against all losses and detriments, occasioned to or be proffered by any one, in respect to the said portion of the said property or any part thereof and shall make good the losses unto the Vendee.
***
11.That the Vendee shall have no right on the terrace of the building but they shall have unfettered right to access to the terrace of second floor for servant quarter, installation of TV Antennas and Overhead Water Storage Tanks on the Terrace of the said building and they have the right to get it repaired and cleaned at all reasonable times."
10.3. Furthermore, the plaintiff has relied upon the following recitals at page 10 and clause(s) 14 of the registered sale deed dated 03/05/2003 Ex. PW1/2 executed by defendant no. 2 in favour of defendant no. 1, which reads as follows:-
"And Whereas the confirming Party has now seized and possessed of and otherwise well and sufficiently entitled to all the entire SECOND FLOOR consisting of Three Bed Rooms each with a balcony with two attached Hall with two balconies, one Lobby with attached Bathroom, One Kitchen, One servant quarter measuring 60 Sq.ft.Digitally signed by MUNISH
With common toilet on the terrace of Second Floor with MUNISH BANSAL Date:
BANSAL 2025.07.28 17:06:43 +0530 CS DJ/7019/2016 Page 29 of 55 one car parking inside the southern most gate (adjacent to the parking space for the first floor) in front of the building along with all roof right (except the space of two servant quarters with common toilet of the ground and first floor and space of water tanks) in/of the said freehold Property bearing no. S-214, erected on a plot of land measuring 250 Sq.mtrs. situated at Panchshil Park, New Delhi-110017, with all rights, interests, privileges, appurtenances whatsoever appurtenant thereto or enjoyed therewith, and/with super structure, fixtures, fittings, necessary amenities, along with 22.5% undivided and indivisible freehold ownership rights in the land underneath the said property, together with the right to use/avail common entrance, passages, staircase, series and facilities provided in the building and easements attached thereto i.e. use of common jet pump etc. With all fittings, fixtures, connections, structure standing thereon, with all rights in common driveway (gate immediately north of specified parking area) entrance, entire-passage towards 150 Sq.ft. Road, staircase etc. (herein after collectively referred to as the "SAID PORTION" of the said property).
***
14. That in future if the Vendee will construct the terrace of the second floor, he will construct the two servant quarter with common toilet of the ground and first floor owners and shall also shift the overhead water tanks to the next floor with his own cost and expenses.
The other owners/occupants of the building have no objection in making construction on the terrace of the second floor by the Vendee."
10.4. Basing his reliance on the aforesaid clauses in the sale deeds, plaintiff has contended that plaintiff was given possession of the servant quarter on the terrace above the 2 nd floor and common water tanks were also installed/affixed on the terrace of the 2nd floor and the same is admitted by defendant no. 2 in his cross examination and para 9 of the written statement. It is further contended that the right of the defendant no. 1 with respect to terrace above the 2nd floor as per the registered sale Digitally signed by MUNISH deed is beyond his right of 22.5% in the floor area ratio (FAR) MUNISH BANSAL BANSAL Date:
2025.07.28 17:06:48 +0530 CS DJ/7019/2016 Page 30 of 55 and further that right allegedly created in favour of defendant no. 1 in clause 14 of the sale deed is later in time and the said clause is void in terms of Section 48 of the Transfer of Property Act (TPA) and therefore, plaintiff has a right of common space of water tanks of approximately 10 sq. yds., a servant quarter ad-
measuring 65 sq. fts. as shown in the site plan Ex. PW1/3 and the common toilet.
10.5. Per contra, on behalf of defendant no. 1, it is submitted that right with respect to usage of servant quarter, with common WC on the terrace of 2nd floor was merely descriptive of the terrace which existed when the sale deed was executed and therefore, whichever is the terrace floor, the plaintiff would have right on that floor with regard to usage of servant room, water storage tanks and common WC and the said fact is clear from clause 14 of the sale deed of defendant no. 1 Ex. PW 1/2. It is further submitted that plaintiff has no ownership rights nor any right to construct over terrace which is clear from clause 11 of the plaintiff's sale deed Ex. PW1/1 and as per clause 14 of the sale deed Ex. PW1/2, the entire ownership rights belong to defendant no. 1. It is further stated that no servant quarters existed and the same were later built by the defendant no.1. It is further contended that no person can claim exclusivity over a common area and therefore, as per pleadings of the plaintiff in the plaint and the evidence, since there were 3 common water tanks, the plaintiff cannot claim exclusive water tank on the terrace of the building. It is further contended that as per sale deed of the plaintiff, there was no delineation of servant quarters Digitally signed by MUNISH MUNISH BANSAL Date:
BANSAL 2025.07.28 17:06:53 +0530 CS DJ/7019/2016 Page 31 of 55 since they did not exist at the time of the execution of the sale deed whereas delineation for the parking area etc. was specified in the sale deed. It is further contended that the builder retained the roof rights while selling the ground floor and the 1 st floor and the entire roof rights were legally sold to defendant no. 1 which fact is evident from clause 11 of the plaintiff's sale deed and clause 14 of the defendant's no. 1 sale deed. The defendant No. 1 had relied upon the judgment of Jotinder Sharma versus Seema Chaudhary RSA No. 167/2015 decided on 14/08/2015 wherein distinction between right to use and the right to construct has been explained and therefore, the said distinction clearly explains the rights/ shares of the plaintiff and defendant no. 1 with respect to terrace of the 2nd floor. It is further contended that it is crystal clear that the rights of defendant no. 1 cannot in any manner, in the light of clauses of both the sale deeds when read conjointly to spell out the inference and intention made therein, be curtailed by the plaintiff.
10.6. Perusal of the sale deed Ex. PW1/1 shows that apart from other things, the entire 1st floor sold by defendant no. 2 to plaintiff consisted also of one servant quarter measuring 65 sq ft.
with common toilet on the terrace of the 2nd floor, however, in the entire sale deed, the said servant quarter is not identified by its location or by way of annexing a site plan alongwith the sale deed depicting the location. Even dimensions of the servant quarter are nowhere mentioned in the sale deed. Though plaintiff has annexed site plan Ex. PW1/3, however the same was never a part of the sale deed and it has been admitted by plaintiff that the Digitally signed by MUNISH MUNISH BANSAL BANSAL Date:
2025.07.28 17:06:57 +0530 CS DJ/7019/2016 Page 32 of 55 same was prepared later in time after the execution of sale deed. The said site plan is a self created document of the plaintiff and is neither endorsed or accepted by the defendant no. 1 nor defendant no.2. Thus, reliance cannot be placed on the said document Ex. PW1/3 for proving to determine the exact location of the servant quarter allotted to the plaintiff. It is to be noted that proper description/location has been provided for the car parking facility given to the plaintiff in the said sale deed.
10.7. Though it has been contended by defendant no. 1 that no servant quarters existed on the terrace of the building when sale deed of the plaintiff was executed, however, counter to that, along with the said sale deed, there is a possession letter mentioning that possession of the servant quarter was given to the plaintiff. However, the said possession letter is also silent about the location/description of the servant quarter, the possession of which has been handed over via the said possession letter. Defendant no. 2, in his written statement has clearly admitted that possession of the servant quarter was given to the plaintiff, however the said written statement is totally silent as to the description/location of the said servant quarter. Similarly, as regards description/ location of the servant quarter on the terrace of the building, nothing has been culled out by the plaintiff in the cross examination of defendant no. 2. With respect to description/location of the servant quarter(s), the cross examination of defendant no. 2 assumes significance since defendant no. 2 being the builder of the building has sold different floors to different people including the plaintiff and Digitally signed by MUNISH MUNISH BANSAL Date:
BANSAL 2025.07.28 17:07:02 +0530 CS DJ/7019/2016 Page 33 of 55 defendant no. 1 and to that extent, he was the most appropriate person from whom the evidence could have been culled out by the plaintiff.
10.8. The plaintiff has maintained his stand that servant quarters were in existence when the 1 st floor was purchased by vide registered sale deed Ex. PW 1/1, however, to the contrary, defendant no. 1 has contended that there were no servant quarters at the time of the execution of the sale deeds Ex. PW 1/1 and Ex.
PW 1/2 and the same were built by defendant no. 1. In cross- examination, plaintiff appearing as PW1 has admitted that the servant quarters were not fully built and the pucca roof was built by him. The said fact of servant quarters being partially built has not been disclosed in the plaint.
10.9. From the aforesaid discussion, relying upon the principle of preponderance of probabilities and interpreting various clauses mentioned in the registered sale deeds Ex. PW 1/1 and Ex. PW1/2, it has not been proved by plaintiff that any identifiable area was earmarked for the servant quarter(s) on the terrace of the building nor any identifiable area of the servant quarter was handed over to the plaintiff on the terrace. Even assuming that partially built servant quarter was given possession of to the plaintiff by defendant no. 2 at the time of execution of sale deed, the same does not fructifies into a full-fledged right of occupation or to construct the servant quarter on the terrace above the 2nd floor of the building. The same can be termed as a right to use the servant quarter and the same cannot be affixed to Digitally signed by a particular floor or location. The said finding has to be seen on MUNISH MUNISH BANSAL BANSAL Date:
2025.07.28 17:07:07 +0530 CS DJ/7019/2016 Page 34 of 55 conjoint and holistic reading of the various clauses referred above of the sale deeds Ex. PW 1/1 and Ex PW1/2. As per clause
11 of sale deed Ex.PW1/1, it is clearly mentioned that the vendee (the plaintiff herein) shall have no right on the terrace of the building but they shall have unfettered right to access to the terrace of the 2nd floor for servant quarter, installation of TV antenna and overhead water storage tanks on the terrace of the said building. The words used are "shall have no right on the terrace of the building" and the same is qualified by words "unfettered right to access to the terrace of the 2nd floor for....". The words used are not "right on the terrace for servant quarter". This further has to be seen that no specific description/location of the servant quarter on the terrace above 2nd floor of the building has been mentioned. This further fortifies the idea and intention inherent in the sale deed that what was given is not a full-fledged right on the terrace above 2nd floor for servant quarter but only right to use servant quarter on said terrace without any full- fledged right on the said terrace meaning thereby that to whomsoever, full-fledged rights of terrace above 2nd floor were to be sold, the right to use servant quarter on the said terrace would be subject to or subsidiary to the full-fledged rights and in case, the person to whom full-fledged rights were sold, he shall have right to carry on construction on the said terrace, obviously in accordance with the existing building bye laws, with obligation to shift the servant quarters and other common facilities, of which only right of use was given, to the next terrace, at his own expense/expenditure.
Digitally signed by MUNISHMUNISH BANSAL Date:
BANSAL 2025.07.28 17:07:11 +0530 CS DJ/7019/2016 Page 35 of 55 10.10. As regards the water tanks, plaintiff contend that as as per clauses 2 to 4 of the sale deed Ex. PW1/1, it is stipulated that the property is being sold to the vendee alongwith the common facilities and as per clause 8, it is mentioned clearly that after the sale, the vendor would be left with no right, title in the said portion. Plaintiff also contends that from the registered sale deed of the plaintiff, it is clear that common water tanks were also installed/affixed on the terrace of the 2nd floor and the same is admitted by defendant no. 2 in his cross-examination and para no. 9 of the written statement. Plaintiff further contends that the registered sale deed in favour of the plaintiff is very much clear that he was sold the space of the common water tanks. Per contra, defendant no. 1 contends that that as per the pleadings in the plaint and the evidence of the plaintiff, there were 3 common water tanks and therefore, the plaintiff cannot claim exclusive water tank on the terrace of the building. Defendant no. 1 further contends that as per sale deed in favour of the plaintiff Ex.
PW1/1, only right to use of common water tank has been given and no portion of the said water tanks has been identified either in the sale deed or in the form of a site plan annexed with the said sale deed. The right to use water tanks is mentioned along with other common rights and easements and no specific property in the form of water tanks was conveyed to the plaintiff.
10.11. As per recital on page no. 7 of sale deed Ex. PW1/1, only right to use of common water tank was given and the same is mentioned along with other common rights and easements. There is no specific earmarking or delineation of the said Digitally signed by MUNISH MUNISH BANSAL BANSAL Date:
2025.07.28 17:07:16 +0530 CS DJ/7019/2016 Page 36 of 55 common water tanks. It is not in dispute that common water tanks for all the floors were installed on the terrace above the 2 nd floor. Even under clause 11 of the said sale deed, it is mentioned that the vendee (the plaintiff herein) shall have no right on the terrace of the building but shall have unfettered right to access the terrace of 2nd floor for overhead water storage tanks on the terrace of the said building and shall have right to get it repaired or cleaned at all reasonable times. The plaintiff in his written submissions have submitted that plaintiff was sold the space of common water tanks. Though plaintiff has mentioned some details about the location of the said water tanks, however, the same is not enough to prove a full-fledged right to have a water tank on the terrace above 2nd floor of the building. The right to use the water tanks on the terrace is to be read subject to defendant's no.1 sale deed which says that vendee shall have right to terrace of the building. Perusal of the sale deed in favour of defendant no. 1 Ex. PW1/2, more specifically the recital at page 10 of the said sale deed, apart from other things sold to defendant no. 1, it is mentioned that "alongwith all roof right (except the space of 2 servant quarters with common toilet of the ground and 1st floor and space of water tanks)". In this context, it is relevant to quote herein is clause 14 of the said sale deed:-
14. That in future if the Vendee will construct the terrace of the second floor, he will construct the two servant quarter with common toilet of the ground and first floor owners and shall also shift the overhead water tanks to the next floor with his own cost and expenses. The other owners/occupants of the building have no objection in making construction on the terrace of the second floor by Digitally the Vendee."
signed by MUNISH MUNISH BANSAL BANSAL Date:
2025.07.28 17:07:20 +0530 CS DJ/7019/2016 Page 37 of 55 10.12. The joint reading of the recital and clause 14 of the sale deed Ex. PW1/2 clearly shows that what was sold to plaintiff was in the form of space for water tanks on the terrace above the 2 nd floor and same was subject to the right of defendant no. 1 as and when he constructs on the 2nd floor of the property. Therefore, when the right to build on the 2 nd floor of the property was transferred to defendant no. 1, he was put under an obligation to ensure that all common facilities and rights granted to other owners of the building are shifted to the terrace of the floors so constructed.
10.13. From the aforesaid discussion, it is clear that location of the water tank on the terrace is not established. There is no proof of the location of the same on the terrace above the 2 nd floor. Neither location is mentioned in the sale deed of the plaintiff nor in the sale deed of defendant no. 1 nor in the written statement or testimony of defendant no. 2 (the builder) nor there is any other document including in the form of any site plan annexed with the sale deeds nor any document jointly signed/accepted/ endorsed by the disputing parties. The existence of water tanks on the terrace above 2nd floor is itself in question.
On one hand, plaintiff argues that cross-examination of the plaintiff is not material to look into the sale deed with respect to common ownership of the occupants qua the space of water tanks (for the reason that documentary evidence precedes oral evidence), however at the same time, want the court to rely upon the testimony/ cross-examination of defendant no. 2 regarding the existence/location of the water tank. Relevant to mention Digitally signed by MUNISH MUNISH BANSAL BANSAL Date:
2025.07.28 17:07:25 +0530 CS DJ/7019/2016 Page 38 of 55 herein is that nowhere in the plaint, plaintiff has mentioned the height of the water tanks installed on the floor above 2 nd floor but in cross-examination dated 03.11.2017, admits that in the evidence affidavit he has mentioned the height as 1 feet and further in the same cross-examination states that the height is 3 feet. There is contradiction by the plaintiff regarding the height of the water tank from the level of the terrace. Perusal of cross- examination of the plaintiff regarding height of the water tank shows supply of water to common toilet that would be against the scientific law of gravity.
10.14. Moreover, as per pleadings in para 22 of the plaint, it is stated that the cause of seeking back the possession of the common space of water tanks on the terrace of 2nd floor arose in September-October, 2004, when defendant no.1 shifted the three common water tanks from the terrace of the 2nd floor to the terrace of illegally constructed 3rd floor. However, in cross-
examination dated 23.07.2016, plaintiff/ PW1 has stated that till September 2004, he was getting water supply from common water tanks on the terrace of the 2 nd floor but the supply was changed later by defendant no.1 after shifting of water tanks to the mumty. Thus, there is apparent inconsistency regarding the place where water tanks were shifted. In cross-examination dated 12.02.2014, plaintiff has stated that the construction was carried on in the year 2004 but he does not recall the date and the month when the construction work was completed in approximately six months. In cross-examination dated 19.02.2018, plaintiff has stated that defendant separated the common water tank since Digitally signed by MUNISH MUNISH BANSAL Date:
BANSAL 2025.07.28 17:07:29 +0530 CS DJ/7019/2016 Page 39 of 55 September 2004 when he started the construction on the 2 nd floor terrace and shifted them to mumty terrace and thereafter, in early 2005, to the 3rd floor terrace. There is a contradiction regarding the completion of the construction of the 3rd floor above the terrace of 2nd floor as in the plaint, plaintiff has stated that common water tanks were shifted to the terrace of 3 rd floor in September-October 2004, meaning thereby that construction of third floor was complete by September-October 2004 but in cross-examination dated 19.02.2018, plaintiff has stated that defendant has started the construction on the 2nd floor in September 2004.
10.15. Thus, in view of the aforesaid discussion and in the light of principle of preponderance of probabilities, plaintiff has failed to prove that water tanks were built, existing/constructed on the terrace itself. The burden squarely lied upon him to prove the same, more so of the usage of word "space". The right to access or use means only right to access and use and no further, not culminating into ownership right.
10.16. At this juncture, reference may be made to decision of the Hon'ble High Court of Delhi in Jotinder Sharma Vs. Seema Chowdhary & Anr., RSA 167/2015, decided on 14.08.2015, wherein it was observed:
10. The submission of counsel for the appellant before this Court is that the rights acquired by the predecessor in interest of the appellant vide sale deed dated 22.05.1998 could not be whittled down on the basis of the subsequent sale deed executed by the builder in favour of Digitally signed by MUNISH the predecessor in interest of the plaintiff/respondent MUNISH BANSAL Date:
BANSAL 2025.07.28 17:07:35 +0530 CS DJ/7019/2016 Page 40 of 55 no.1 on 29.06.1998.
11. With this proposition, there could be no quarrel.
However, the courts below have consistently held on the interpretation of the sale deed relied upon by the plaintiff, that the right of the plaintiff was only that of use of a smaller portion of the rear portion which had been earmarked, and the said right did not extend to a right to raise construction on any portion of the terrace, much less on any portion of the rear terrace.
12. The findings returned by the courts below - apart from being consistent, are premised on the evidence led by the parties and on the interpretation of the documents relied upon by the parties. Though the subsequent sale deed dated 29.06.1998 executed in favour of the predecessor in interest of the respondent/plaintiff would not govern or curtail the rights vested in the plaintiffs predecessor in interest by virtue of the sale deed dated 22.05.1998, the same can be looked into to bring out the contrast, and to better appreciate the rights vested in the predecessor in interest of the appellant, which have been acquired by the appellant by virtue of the sale deed dated 22.05.1998. The right vested in the appellant is in respect of, inter alia, one servant quarter under overhead water storage tank with common WC on the terrace floor. The use of the word "second floor terrace", in my view, is merely descriptive of the terrace, which existed when the sale deed was executed. Similarly, the right to "use only of small portion of rear terrace" only pertains to the right to user as a terrace, and not for the purpose of raising construction, which, if permitted would go beyond the right of user of a portion of the terrace floor and would get enlarged into a right of occupation, and a right to construct on the portion of the terrace floor. In fact, the said right of use of a small portion of the rear terrace does not even attach it to the words "second floor". Therefore, whichever is the terrace floor, the appellant would have the right in one servant room under the overhead water storage tank with common WC, and the right of user only of small portion of rear terrace. The appellant cannot insist that his servant room under the overhead water storage tank with common WC should exist on the terrace of the second floor alone, and that it cannot be on the terrace above the third floor, or fourth floor, as the case may be, upon raising of further construction in accordance with law, by the person who has acquired the right of such construction on the terrace Digitally of the second floor, or third floor, as the case may be. signed by MUNISH MUNISH BANSAL BANSAL Date:
2025.07.28 17:07:40 +0530 CS DJ/7019/2016 Page 41 of 55 Similarly, the right of use only of a smaller portion of the rear terrace would relate to whichever terrace comes into existence, upon raising of further construction in accordance with law. In any event, the right of use only of a smaller portion of rear terrace, as aforesaid, only pertains to use as a terrace, and not for purpose of occupying the same to the exclusion of others, or raising construction thereon'.
10.17. In view of the aforesaid observations which fully cover the case at hand, this Court is of the considered opinion that the sale deed Ex. PW1/1 did not declare the terrace above the 2 nd floor to be common for all the owners of the existing structure but only specifically gave certain rights of space to the plaintiff for enjoyment and therefore, right to terrace was rightly transferred by defendant no. 2 to defendant no. 1 vide sale deed Ex. PW1/2. However, the said finding cannot prejudice the rights of the plaintiff to have a right of space for servant quarter and water tanks on the terrace in existence after construction of the 3rd floor in accordance with the existing building bye-laws.
10.18. During the course of the arguments, plaintiff has also contended that since right of defendant no. 1 in the land underneath is 22.5 %, he cannot claim any right beyond that and therefore, roof right on the terrace and associated FAR is beyond defendant's no. 1 own share in the land rights of the plot. Perusal of the plaint states that no pleading in this regard has been made in the plaint and no evidence was led on this aspect and therefore, the said aspect cannot be looked into or considered by this Court.Digitally signed by MUNISH
MUNISH BANSAL Date:
BANSAL 2025.07.28 17:07:44 +0530 CS DJ/7019/2016 Page 42 of 55 10.19. As regards contention of the plaintiff regarding applicability of Section 48 of Transfer of Property Act, which provides that if vendor creates same right at different times by way of transfer to different people and they cannot co-exist, the rights created later in time are subject to rights created previously in time. In view of the aforesaid discussion, this Court has already expressed its opinion regarding the co-existence of the rights of the plaintiff and the defendant no. 1 by holistically and meaningfully reading and interpreting the various clauses mentioned in the sale deeds Ex. PW1/1 and Ex. PW1/2.Issue No. 2
Whether the plaintiff has has any rights with respect to the portion of the terrace where the construction of the third floor has been raised by the defendant no.1 and if so, whether the plaintiff is entitled to the decree of mandatory injunction for demolition of the said construction? OPP
11. The onus to prove the present issue was on the plaintiff. In view of the discussion on issue no. 1, this Court has already decided the rights and shares of plaintiff and defendant no. 1 with respect to the terrace above the second floor, by concluding that defendant no. 1 has rights over the terrace above the 2nd floor and the right of the plaintiff to have space of servant quarter and water tank, whichever is the terrace floor, without plaintiff insisting that his space for servant quarter and water tank should exist on terrace above 2nd floor alone. In view of the same, plaintiff has no rights with respect to the portion of the terrace Digitally signed by MUNISH MUNISH BANSAL BANSAL Date:
2025.07.28 17:07:49 +0530 CS DJ/7019/2016 Page 43 of 55 where construction of 3rd floor has been raised by defendant no. 1 and henceforth, this issue stands decided against the plaintiff.
Issue no. 3 Whether the servant quarter and the common toilet on the terrace on the second floor have been constructed by the defendant no.1 and whether the plaintiff has forcibly occupied the same? OPD-1
12. The onus to prove the said issue is upon the defendant no. 1. Plaintiff has pleaded that at the time of the execution of the sale deed Ex. PW1/1 by defendant no. 2 in favour of plaintiff, possession of the servant quarter was given to him and the same was admitted by the defendant no. 2 in his written statement as well as in the evidence. In his cross examination, plaintiff has stated that servant quarter was partially constructed i.e. the same was without pucca roof and the plaintiff has constructed pucca roofing of the same. In this regard, relevant is Cross-examination of PW1 dated 08.11.2013:-
"Q. Please tell who has constructed the servant quarter which is in your possession?
Ans. It was given to me as partly built up by defendant No.1, then said defendant No.2. Vol. I constructed the roof myself thereafter. The partly built-up servant quarter was handed over to me in the year 2003. The area of the servant quarter as mentioned in Ex.PW-1/1 is 65 sq. ft."
At present, I am in possession of the area around 80/90 Digitally signed by MUNISH sq. ft. as far as the servant quarter is concerned, MUNISH BANSAL Date:
BANSAL 2025.07.28 17:07:53 +0530 CS DJ/7019/2016 Page 44 of 55 Q. Please tell as to how are you in possession of 80/90 sq. ft. of area instead of 65 sq. ft. as mentioned in Ex.PW-1/1.
Ans. Originally, the area was 65 sq. ft. but later on encroached/amalgamated part of the common passage, abutting the servant quarter, as my servant quarter was the last one in the row. The said encroachment/amalgamation was done in the year 2003.
Q. Whether the area so merged with the servant quarter, was your ownership?
Ans. It was common area and belonged to all owners, and was a part of common passage.
Q. Did you take any consent from other co-owners of the property?
Ans. I did not take any consent from any co-owner Vol. It was done sometimes in March, 2003.
The same was done after the execution of the sale deed Ex.PW-1/1.
At the time when the possession of the servant quarter was handed over to me, the roof over the servant quarter was made of ACC sheets. At that time, the other two servant quarters were in existence. Vol. In addition to, toilet. The same, including the common toilet were roofed with ACC sheets.
Q. Are all the servant quarters are covered with ACC sheets, including the one in your possession?
Ans. My servant quarter has a pucca slab, with RCC on Digitally signed top of it and the other two are partly open and partly by MUNISH MUNISH BANSAL Date:
BANSAL 2025.07.28 17:07:57 +0530 CS DJ/7019/2016 Page 45 of 55 covered by ACC sheets.
It was in March, 2003 that I covered my servant quarter with pucca slab and RCC."
Defendant no.1, has though claimed that he has constructed all the servant quarter(s) alongwith the common toilet after purchase of the second floor vide sale deed Ex. PW1/2, there is nothing on record to prove that the said servant quarters have been constructed by the defendant no. 1. Though defendant no. 1 has examined DW2 (wrongly mentioned as DW3) Shri Babu Lal who was a building contractor. However, there is nothing in his testimony to shows that the said servant quarter(s) were constructed on the asking/ instructions of the defendant no. 1. Consequentially, when defendant no. 1 has failed to prove that the servant quarters alongwith common toilet has been constructed by him, no question of plaintiff forcibly occupying the same arises. In view thereof, the said issue is decided against the defendant no. 1.
Issue no. 4 Whether the plaintiff is in occupation of excess area in the servant quarter and common toilet above the second floor, and if so, to what extent? OPD-1
13. The onus to prove the said issue is upon defendant no.
1. During cross-examination, plaintiff has admitted that he has amalgamated the portion in front of his servant quarter, though as per sale deed, plaintiff was entitled to servant quarter of only 65 Digitally signed by MUNISH sq. feet. As per the plaintiff's own admission, he is in occupation MUNISH BANSAL BANSAL Date:
2025.07.28 17:08:02 +0530 CS DJ/7019/2016 Page 46 of 55 of excess area over and above the area to which he was entitled to. Accordingly, the said issue stands decided in favour of defendant no. 1. The extent of excess area which the plaintiff has occupied becomes inconsequential in view of the finding of this Court on issue no. 1 wherein respective rights of the plaintiff and defendant no. 1 have been adjudicated.
Issue no. 5 Whether the plaintiff is entitled to relief of permanent injunction with respect to the servant quarter and common toilet above the second floor and if so, with respect to what area? OPP
14. The onus to prove the said issue is upon the plaintiff. A bare reading of the prayer clause of the plaint shows that plaintiff has sought permanent injunction against the defendant restraining the defendant no. 1 not to interfere into the peaceful possession and enjoyment of the first floor and servant quarter and common toilet on the terrace of 2nd floor and common water tanks, and also not to demolish the servant quarter and common toilet on the 2nd floor. Qua the 1st floor, it is not in dispute that the same is owned and possessed by the plaintiff and therefore, without delving much into the same, it can be safely directed that no interference into the peaceful possession and enjoyment of the first floor shall be done by defendant no.1. As regards the servant quarter and common toilet on the terrace on the 2nd floor, this Court, in view of the discussion on issue no. 1, has already decided the rights and shares of plaintiff and defendant no. 1 with respect to the terrace above the 2nd floor. Accordingly, plaintiff Digitally signed by MUNISH MUNISH BANSAL BANSAL Date:
2025.07.28 17:08:07 +0530 CS DJ/7019/2016 Page 47 of 55 cannot be held entitled to relief of permanent injunction with respect to servant quarter and common toilet above the 2 nd floor as long as servant quarter and the common toilet is shifted to the 3rd floor and built by the defendant no. 1 at his own expense, however, the 3rd floor and the servant quarter and common toilet being built in accordance and compliance of the existing building bye-laws. The said issue stands disposed of in view of the aforesaid observation.
Issue no. 6 Whether the suit is barred by time? OPD
15. The onus to prove the said issue was on the defendant.
Counsel for the plaintiff has contended that the suit is within limitation as plaintiff has specifically sought a relief of possession by asking for restoration of the possession of the common space for water tanks on the terrace of the second floor and that qua the said relief, the suit of the plaintiff is governed by Article 64 or Article 65 of the Limitation Act. Plaintiff has relied upon the judgment of Hon'ble Supreme Court in Sopanrao & Anr Vs. Syed Mehmood & Ors Civil Appeal no. 4478/2007 DOD 03.07.2019 wherein the suit was for declaration and for possession of the suit land and it was held that limitation for suit for possession of immovable property and interest therein based on title is 12 years. However, it may be noted that in the present facts of the case, the relief of possession for common space for common water tanks on the terrace of 2nd floor is consequential and dependent upon the grant of relief mentioned under clause Digitally signed by MUNISH MUNISH BANSAL BANSAL Date:
2025.07.28 17:08:12 +0530 CS DJ/7019/2016 Page 48 of 55
(a) & (e) of the relief clause which provides for relief of declaration to the effect that sale deed dated 03.05.2003 executed in favour of defendant no. 1 by defendant no. 2 to the extent it transfers rights to defendant no. 1 which have already been transferred by defendant no. 2 in favour of plaintiff vide sale deed dated 28.03.2003, is null and void and for relief of mandatory injunction directing defendant no. 1 to demolish illegally constructed 3rd floor on the property. Hon'ble Supreme Court in the judgment titled as Rajeev Gupta & Ors vs. Prashant Garg & Ors 2025 Live Law (SC) 471 has held that where a composite suit has been filed for cancellation of the sale deed and of possession, the limitation period would have to be adjudged from the primary relief of cancellation which is three years and not the ancillary relief of possession which is 12 years. Thus, in view of the same, since the relief of possession is consequential and dependent upon the relief mentioned at serial no. (a) and (e), the limitation has to be seen in the context of the said reliefs.
Perusal of other relief shows that the limitation period is of three years from the date of the accrual of the cause of action. The next question to determined is as to when the cause of action started running.
15.1. From the perusal of the aforesaid cross examination/ testimony of PW1, it is clear that plaintiff has not been able to show as to when the construction over the second floor by defendant no. 1 was completed. There are many discrepancies in his version wherein on one instance in cross-examination, he states that he is not aware as to when construction was started Digitally signed by MUNISH MUNISH BANSAL BANSAL Date:
2025.07.28 17:08:16 +0530 CS DJ/7019/2016 Page 49 of 55 and was completed and on other instance during same cross examination on a subsequent date, he refers to the time period as to when construction started and time period within which it was completed. In cross-examination dated 12.02.2014, plaintiff has stated that the construction was carried on in the year 2004 but he does not recall the date and the month when the construction work was completed in approximately six months. In cross- examination dated 19.02.2018, plaintiff has stated that defendant separated the common water tank since September 2004 when he started the construction on the 2nd floor terrace and shifted them to mumty terrace and thereafter, in early 2005, to the 3 rd floor terrace. There is a contradiction regarding the completion of the construction of the 3rd floor above the terrace of 2nd floor as in the plaint, plaintiff has stated that common water tanks were shifted to the terrace of 3rd floor in September-October 2004, meaning thereby that construction of third floor was complete by September-October 2004 but in cross-examination dated 19.02.2018, plaintiff has stated that defendant has started the construction on the 2nd floor in September 2004. Thus, as regards the completion of the construction of the 3rd floor, testimony of the plaintiff cannot be relied upon.
15.2. As far as issue of limitation is concerned, it has to be seen that the present suit claims multiple reliefs. It has to be seen if any of the reliefs claimed in the plaint is barred by time or all of them or none of them. On the aspect of limitation, it has to be seen as to when the plaintiffs became entitled to seek declaration viz-a-viz the sale deed executed in favour of the defendant no.1 Digitally signed by MUNISH MUNISH BANSAL BANSAL Date:
2025.07.28 17:08:20 +0530 CS DJ/7019/2016 Page 50 of 55 and when the plaintiffs' cause of action was complete for suing for permanent injunction or mandatory injunction as prayed for. Since all reliefs pertain to enjoyment of peaceful possession of the servant quarter, its demolition, the unauthorized construction of 3rd floor by the defendants and shifting of water tanks and common facilities, etc., reliefs are all interlinked. In my view, the cause of action for suing for these claims would have been complete when the defendant occupied the roof above the 2 nd floor and commenced construction of the same. On these aspects, relevant to mention herein is the judgment M/S D.C.M. Ltd vs M/S R.K. Towers (India) Pvt Ltd on 22 August, 2008 Arb.A.415/2006 & OMP 362/2006 wherein Hon'ble High Court of Delhi has observed:-
"23.The next dispute raised is of unauthorized construction including of the 11th floor and of misuse of various portions of the property. The petition is conspicuously silent as to when the said constructions were done. Reliance is sought to be placed on the notices of L&DO, first of which is of 27th December, 2004 and on the basis thereof it is argued that the claims / disputes are alive and not stale or dead. The senior counsel for the petitioner has urged that the cause of action for the removal of unauthorized construction is a continuing cause of action, as long as the unauthorized construction continues and for this reason also the claims are not barred by time.
24. I had during the hearing inquired from the counsel as to, under the agreement, who was entitled to the terrace rights above the 10th floor where unauthorized construction of 11th floor is alleged. I was informed that under the agreement, the terrace rights above the 10th floor belonged to the respondent. The petitioner for this reason also has no locus to object to the same.
25. The only claim of the petitioner before the arbitrator can be for mandatory injunction for removal of the said unauthorized construction. It has been held by this court Digitally signed by in the Rawal Singh v Kwality Stores AIR 1986 Delhi 236 MUNISH BANSAL MUNISH BANSAL Date:
that the limitation for instituting a claim for mandatory 2025.07.28 17:08:25 +0530 CS DJ/7019/2016 Page 51 of 55 injunction for removal of unauthorized construction is three years from the date of unauthorized construction. In my view the existence of unauthorized construction does not give a continuing cause of action to enable the persons seeking to have the same demolished apply at any time for its demolition as long as it existed. Here private and not public rights are sought to be enforced. The position is different when public authorities are seeking removal of unauthorized construction or when court, in public interest is approached to have the same removed. The respondent has stated that the 11th floor was constructed in the year 1991. As aforesaid, the petitioner has not given any date of construction thereof and only relied upon the L&DO having taken objections to the same for the first time on 27th December, 2004. However, the date on which the L&DO objects to the same for the first time does not furnish any cause of action to the petitioner."
15.3. As far as unauthorized construction by defendant no.1 is concerned, the plaintiff has not mentioned any specific date of raising unauthorized construction by defendant no.1. The testimony of PW1 is vague in this regard. The limitation period for filing a suit for relief of injunction is 3 years from the date of accruing of cause of action in favour of the plaintiff. Therefore, mentioning of the date of alleged unauthorized construction was also material for considering whether the present suit is within the period of limitation. Further, it is not the case of the plaintiff that he did not have the knowledge of the alleged unauthorized construction in the suit property. Hence, it cannot be presumed that he did not have the knowledge of the date of starting or completion of the alleged unauthorized construction by defendant no.1. In the normal course of circumstances, the plaintiff ought to have filed the suit at the time when alleged unauthorized construction was in progress in the suit property and would not have waited till its completion. It is apparent that the plaintiff has Digitally signed by MUNISH MUNISH BANSAL Date:
BANSAL 2025.07.28 17:08:29 +0530 CS DJ/7019/2016 Page 52 of 55 filed the present suit without disclosing the entire true facts for seeking the relief of injunction. The plaintiff has relied on complaints made to various authorities regarding the alleged unauthorized construction, however, in the said complaints also no date of alleged unauthorized construction has been mentioned. Merely filing of complaints do not prove that as to from when the defendant no.1 was carrying out unauthorized construction. The plaintiff is bound to prove his assertions by leading cogent evidence and in the present case, no such evidence has been brought on record by the plaintiff.
15.4. The present suit has been filed on 11.10.2007. The defendant no.1 has claimed that he has started the construction of the 3rd floor, on the terrace above the 2nd floor, in November/ December 2003 and in that regard, has brought into the witness box DW2 (wrongly mentioned as DW3 namely Babu Lal who is the building contractor), who in his evidence affidavit has stated that he has started the work in the month of December 2003 and completed the same at the end of January 2004. Even in the cross-examination, he has stated that the he has completed the entire construction within a period of two months which comprise of one drawing room, two bedrooms, one bathroom and one kitchen. Though, a suggestion was put to him regarding the same but he denied the same to be incorrect that the entire construction was not completed in period of two months. On the other side, plaintiff has been inconsistent in his testimony regarding as to when the construction started and when it was completed. There is no specific averment regarding the date of Digitally signed by MUNISH MUNISH BANSAL Date:
BANSAL 2025.07.28 17:08:34 +0530 CS DJ/7019/2016 Page 53 of 55 the start and completion of the construction. Therefore, mentioning of the date of alleged unauthorized construction was also material for considering whether the present suit is within the period of limitation. Further, it is not the case of the plaintiff that he did not have the knowledge of the alleged unauthorized construction in the suit property. The limitation for instituting a claim for mandatory injunction for removal of unauthorized construction is three years from the date of unauthorized construction. The existence of unauthorized construction does not give a continuing cause of action to enable the persons seeking to have the same demolished apply at any time for its demolition as long as it existed. Here private and not public rights are sought to be enforced. The position would have been different when public authorities are seeking removal of unauthorized construction or when court, in public interest is approached to have the same removed. In this scenario, in the light of the observations of the Hon'ble Delhi High Court in the above-mentioned judgment, this Court can safely conclude that the present suit has not been filed within the limitation period. Accordingly, the issue stands decided in favour of the defendant no. 1 and against the plaintiff.
Relief
16. In view of the findings given on the aforesaid issues, the plaintiff is not entitled to the reliefs claimed in the suit and therefore, the suit filed by the plaintiff is dismissed. However, plaintiff shall be entitled to such rights as has been held entitled to under discussion to issue no.1 i.e. rights of the plaintiff to have Digitally signed by MUNISH MUNISH BANSAL BANSAL Date:
2025.07.28 17:08:38 +0530 CS DJ/7019/2016 Page 54 of 55 a right of space for servant quarter and water tanks on the terrace which would be in existence or is in existence, as the case may be, after construction of the 3rd floor above the terrace of 2 nd floor in accordance with the existing building bye-laws with obligation on the part of defendant no.1 to shift the servant quarters and other common facilities, of which only right of use was given, to the next terrace, at defendant's no.1 own expense/expenditure. It is also directed that no interference into the peaceful possession and enjoyment of the first floor of property bearing no. S-214, Panchsheel Park, New Delhi- 110017, shall be done by defendant no.1.
Decree-sheet be prepared accordingly. Parties are left to bear their own cost.
File be consigned to record room.Digitally signed by MUNISH
MUNISH BANSAL BANSAL Date:
Announced in the Open Court 2025.07.28 17:08:47 +0530 on 28.07.2025 (Munish Bansal) District Judge-03, South District, Saket Courts, New Delhi.CS DJ/7019/2016 Page 55 of 55