Delhi District Court
Surya Prakash Pandey vs Santosh Sharma S/O Not Known on 17 August, 2022
IN THE COURT OF SH. DIVYAM LILA: CIVIL JUDGE01: SOUTH
WEST DISTRICT: DWARKA COURT: NEW DELHI
Unique case ID No: CSSCJ/ 695/17
CNR No. DLSW030012022017
IN THE MATTER OF :
Surya Prakash Pandey
S/o. Sh. Shesh Nath Pandey
R/o. Flat No. 202, F.F. of D95, Satyam Appt. Sewak Park,
Uttam Nagar, Delhi110059. .......Plaintiff
versus
1.Santosh Sharma s/o not known R/o Flat No.302, front side D95, Satyam Aptt., sewak Park, Uttam Nagar, New Delhi110059
2. Dilip Kumar s/o Not known R/o Flat No.303, front side D95, Satyam Aptt., sewak Park, Uttam Nagar, New Delhi110059
3. Vijay Prasad s/o not known Also at : J/505, plot No. 60, Ranjeet ViharII, Dwarka Sec23, Delhi110077.
4.Pradeep Kandpal s/o not known R/o Flat No. 102, UGF D95, Satyam Appt., Sewak Park, Uttam Nagar, Delhi110059.
5.Sumanta Sinha Roy s/o not known R/o Flat No.103 UGF D95, Satyam Aptt., sewak Park,Uttam Nagar, New Delhi110059 ...Defendants.
Digitally
signed by
DIVYAM LILA
CS no. 695/17 DIVYAM Date:
Surya Prakash Pandey vs. Santosh Sharama and ors. LILA 2022.08.17
15:00:24
Judgment dt. 17.08.2022 +0530 page no. 1 Of 33
Date of filing : 14.07.2017
Date of Institution : 15.07.2017
Date of pronouncing judgment : 17.08.2022
SUIT FOR PERMANENT & MANDATORY INJUNCTION.
1. Plaint:
1.1. The plaintiff is the owner of built up first floor flat no. 202, (East and North FacingRight hand side) without roof rights, with common Parking space at ground floor on property bearing No. D 95, Area measuring 60 Sq Yards out of Kh.No.13/5, situated in the Village Matiala, known as Sewak Park, Uttam Nagar, New Delhi having purchased from the erstwhhile owner Smt. Suman Gulati and Smt. Sudesh Rani through registered sale deed dt. 20.12.2011. 1.2. That the defendant no. 1 to 5 purchased their respective flats in Property No. D95, Sewak Park Najafgarh Road, Uttam Nagar, New Delhi and living with their respective families. 1.3. The plaintiff and other occupants i.e. defendants No. 1 to 5 also used the common parking without any obstacle since their purchase of the same and for the last 34 months the defendants No.1 to 5 hatched a conspiracy and they started to obstruct the parking by the plaintiff.
1.4. That on 26.4.2017 when the plaintiff parked his Car in the common parking, the defendants no. 2 and 4 came and started quarrelling with the plaintiff and asked the plaintiff to remove his car from the Car Parking and when plaintiff objected for the same, on this the defendants No. 4 extended for dire consequences including to burn the vehicle of plaintiff.
1.5. That the plaintiff immediately lodged a complaint with P.S. Binda Pur, Uttam Nagar, New Delhi against the above defendants, but police did not take any action.
1.6. The defendants just to grab the common parking put their name plates in the Car Parking, rather they have no right to put their name plates in the common Car Parking and plaintiff then made a call at No. 100 and police came and with great efforts the defendants removed their name plates from the parking.Digitally signed by DIVYAM
CS no. 695/17 DIVYAM LILA
Date:
Surya Prakash Pandey vs. Santosh Sharama and ors. LILA 2022.08.17
15:00:32
Judgment dt. 17.08.2022 +0530 page no. 2 Of 33
1.7.
That on 4.7.2017 the defendant No. the lock on the parking and when the plaintiff objected for the said illegal acts, the defendant No.1 and 89 other defendants become annoyed and they extended threats to the plaintiff that they will put the car in fire if the plaintiff ever asked the defendants to park his vehicle in the parking. The plaintiff also made a call at No.100 and police officials also tried to understand the defendants not to harass the plaintiff but the defendants even refused to oblige the legitimate advise of the police. 1.8. That since 4.7.2017 the defendants after hatching a criminal conspiracy put the illegal lock in the common parking. 1.9. That the above said acts the defendants are highly illegal, unwarranted and against the law of land. The defendants have no right to put lock in the common parking nor they can restrain the plaintiff to park his car in the common parking. 1.10. Hence, a Decree of Injunction may kindly be passed in favour of the plaintiff and against the defendants thereby restraining the defendants their associates, etc from parking the Car by the plaintiff in common parking Area in the suit property bearing No. D95, Satyam apt, Sewak Park, Uttam Nagar, New Delhi110059 shown in red colour in the site plan, illegally, forcibly and without due process of law, in the interest of justice. 1.11. It is further prayed that a Decree of Mandatory Injunction may also be passed in favour of the plaintiff and against the thereby restraining the removal of the lock put on the common parking and allowed the plaintiff to park his vehicle in common parking, in the suit property bearing No. D95, Satyam apt, Sewak Park, Uttam Nagar, New Delhi110059.
2. Written statement to the defendants no. 1, 2, 4 & 5:
2.1. The plaintiff has no locus standi to file the present suit against the answering defendants. Therefore the suit of the plaintiff is liable to be dismissed on this very ground.
2.2. That the suit as instituted by the plaintiff is even otherwise void of merits and is without any jurisdiction, malafide, vexatious and highlights the misdeeds of the plaintiff. 2.3. That the suit of the plaintiff has not been verified properly as per Digitally signed by DIVYAM LILA CS no. 695/17 DIVYAM Date:
Surya Prakash Pandey vs. Santosh Sharama and ors. LILA 2022.08.17 15:00:42 Judgment dt. 17.08.2022 +0530 page no. 3 Of 33 Delhi High Court Rules, hence the suit is liable to be dismissed. 2.4. That the present suit of the plaintiff is an abuse to the process of law and has been filed for taking wrongful gains by plaintiff and to cause wrongful loss, unnecessary harassment, hardships and humiliations to the defendants, as also to extort money from them without any cause or reason on their part.
2.5. That the present suit is not maintainable because the plaintiff is not in possession of the suit property/car parking area as alleged and has not come before this Hon'ble court with clean hands as he has suppressed material vital facts from this Hon'ble court. The plaintiff has no right, title or interest in the suit property/car parking area as in the sale deed of the plaintiff nowhere mentioned that the plaintiff have right to park his vehicle in the common car parking area. 2.6. The Plaintiff has not disclosed his right qua the suit property/car parking area nor has filed any valid document of title qua the same and in the absence of any title document qua the suit land, suit for injunction simpliciter is not maintainable "AnathulaSudhakar Vs P. Buchi Reddy (Dead) By L.Rs & Ors; AIR 2008 SC 2033". That without seeking declaration of rights in respect of the suit property a suit for injunction simpliciter is not maintainable in law. 2.7. That the defendants are the true owner of the suit property/car parking area and no suit for permanent injunction lies against the true owner (Premji Ratan Shah & Ors Versus Union Of India: JT 1994 (6) S.C.585). It is submitted that plaintiff intentionally and deliberately only just to acquire the common car parking area creates the obstacle in the common car parking area since he has purchased the flat not only this even since the defendant no. 3 or his tenant is not residing in said property, he is very adamant to grab the common car parking area.
2.8. That the present suit is bad for mis joinder of parties as defendants have been wrongly impleaded because the plaintiff is seeking a relief against the answering defendants who are not even remotely concerned with the sale deed executed between plaintiff and Ms. SumanGulati W/o. Shri Pawan Kumar Gulati and Smt. Sudesh Rani W/o. Shri Harbans Lal Sachdeva being an erstwhile owner of the Digitally signed by DIVYAM LILA DIVYAM CS no. 695/17 LILA Date:
2022.08.17 Surya Prakash Pandey vs. Santosh Sharama and ors. 15:00:49 +0530 Judgment dt. 17.08.2022 page no. 4 Of 33 complete property to the plaintiff and defendants as in the sale deed of the plaintiff, the said seller/erstwhile owner nowhere given a right to the plaintiff to park his car in the car parking area of the property and other side in the sale deed's of the defendants the seller/erstwhile owner specifically mentioned and gave rights to the defendants for car parking in the car parking area of the suit property.
2.9. The dispute in the suit is interse the plaintiff and the erstwhile owner namely Ms. Suman Gulati W/o. Shri Pawan Kumar Gulati and Smt. Sudesh Rani W/o. Shri Harbans only as they have not given the right to park his car/vehicle in the car parking area of the suit property at the time of executing the sale deed in favour of the plaintiff and hence the seller/erstwhile owner /Ms. SumanGulati W/o. Shri Pawan Kumar Gulati and Smt. SudeshRani W/o. Shri Harbans are necessary parties. The names of defendant no 1, 2, 4 and 5 are liable to be struck off from the array of the parties as in the suit. That no cause of action has accrued against the answering defendants as there is no privity of contract between the plaintiff and the answering defendants for use of the car parking area of the defendants, thus the suit of the plaintiff is liable to be dismissed under order 7 Rule 11 as there is no cause of action arose against the answering defendants.
2.10. Without admitting the contents of the suit, it is submitted that the defendants alone have rights, title and rest upon the common car parking area of the suit property. Defendants park their vehicle/car and the plaintiff has no right in the car parking area of the suit property.
2.11. It is specifically mentioned here that at the time of selling the flats by their erstwhile owner to the defendants, the seller/builder/erstwhile owner told to the defendants that the plaintiff can use the common parking area for the purpose of approaching his flat as the way of the flats of all parties are only from the common parking area. It is further submitted that at the time of purchasing the flats by the answering defendants, Ms. Suman Gulati W/o. Shri Pawan Kumar Gulati and Smt. SudeshRani W/o. Shri Harbans, the said seller/builder/erstwhile owner told to Digitally CS no. 695/17 signed by DIVYAM LILA Surya Prakash Pandey vs. Santosh Sharama and ors. DIVYAM Date:
Judgment dt. 17.08.2022 LILA 2022.08.17 page no. 5 Of 33 15:00:56 +0530 the answering defendants that the plaintiff had not purchased the car parking area of the said property hence in the sale deed of the plaintiff the said dealer had not given the right to the plaintiff to park his car/vehicle inside the car parking area. 2.12. It is further submitted that the said dealer/builder/erstwhile owner also told to the defendants that all defendants had purchased the car parking area hence they specifically gave the right to park their vehicle in the car parking area of the property not only this even at the time of selling the said property by the said builder, builder also told that the space in the common car parking area is only for five cars and the defendants alone have the right to use the same for parking their car. It is further submitted that since the from purchase of the flat by the plaintiff i.e. December 2011, the plaintiff intentionally and deliberately only just to grab the area of the defendants in car parking area used to create nuisance and deliberately block the area of the car parking of the defendants and as and when the defendants object the same then the plaintiff immediatelyv would create a dangerous situation and would mishandle the defendants. The defendants so many times called to the police and intimated about the illegal moto of the plaintiff but the concerned police officer never taken any action against the plaintiff dueto the reason best known to the plaintiff and the concerned police official.
2.13. It is further submitted that the plaintiff intentionally and deliberately would obstruct the area of the car parking by stocking the big water drums.
2.14. That at the time of selling the flats by their defendants, the seller/builder/erstwhile owner told to the defendants that the plaintiff can use the common parking area for the purpose of approaching to his flat as the way of the flats of all parties are only from the common parking area.However, the contents of the preliminary objections be read as a part hereof as the same have not been repeated herein for the sake of brevity. 2.15. the plaintiff never used the common car parking since his purchase of the flat. It is further submitted that the plaintiff never purchased the common car parking area since the purchase of the flat.
Digitally CS no. 695/17 signed by DIVYAM LILA Surya Prakash Pandey vs. Santosh Sharama and ors. DIVYAM Date:
Judgment dt. 17.08.2022 LILA 2022.08.17 page no. 6 Of 33 15:01:04 +0530 2.16.
The plaintiff instead of removing his car from the common car parking gate started to misbehave with the answering defendants and tried to hit the car parked inside the common car parking area, not only this even the plaintiff blocked the common car parking area by storing the big water drums.
2.17. It is specifically denied that the defendants just to grab the common parking put their name plates in the Car Parking, rather they have no right to put their name plates in the common car parking and plaintiff then made a call at no. 100 and police came and with great efforts the defendants removed their name plates from the parking. It is submitted that the photographs annexed by the plaintiff wherein the name plates of the defendants are shown, are affixed in the main gate of the defendants flats not in the common car parking area. 2.18. However, is further submitted that as per sale deed of the plaintiff annexed with the suit, plaintiff has no right to park his vehicle in the car parking area and also there is no space for parking extra vehicle except five vehicles only, which are used by the defendants since purchasing the flat as per terms and conditions mentioned in the separate sale deed of the defendants.
2.19. It is submitted that plaintiff intentionally and deliberately blocked the car parking area by putting his big water drums and tried to mishandle with the defendants and then the defendants called the 100 number and on arrival of the concerned police staff, the plaintiff removed the said big water drums.
2.20. It is submitted that the plaintiff has no right to park his vehicle in the common car parking area as per his sale deed and the defendants have the right to stop anyone who wants to use the area of the defendants, which is purchased by the defendants legally.
3. Written statement of behalf of defendant no. 3 Sh. Vijay Prasad:
3.1. That the claim set up in the present suit is opposed to law and is contrary to the facts and material on record. The plaintiff is guilty of suggestiofalsi and suppressioveri and due to malicious conduct the Plaintiff does not deserve any relief founded upon equity. As such the plaintiff is not entitled to any relief and the suit is liable to be dismissed. Digitally signed by DIVYAM DIVYAM LILA LILA Date:
2022.08.17 15:01:13 +0530 CS no. 695/17 Surya Prakash Pandey vs. Santosh Sharama and ors.
Judgment dt. 17.08.2022 page no. 7 Of 33 3.2. That the suit of the plaintiff has not been verified properly as per Delhi High Court Rules, hence the suit is liable to be dismissed. 3.3. The plaintiff has no right, title or interest in the suit property/car parking area as in the sale deed of the plaintiff nowhere mentioned that the plaintiff has the right to Park his car/vehicle in the common car parking area. The plaintiff has not disclosed his right qua the suit property/car parking area nor has filed any valid document of title qua the same and in the absence of any title document qua the suit land, suit for injunction simpliciter is not maintainable "AnathulaSudhakar Vs P. Buchi Reddy (Dead) By L. Rs & Ors;
AIR 2008 SC 2033". That without seeking declaration of rights in respect of the suit property a suit for injunction simpliciter is not maintainable in law.
3.4. That the defendant is the true owner of the suit property/car parking area and no suit for permanent injunction lies against the true owner (PremjiRatan Shah & Ors Versus Union Of India: JT 1994 (6) S.C.585). It is submitted that plaintiff intentionally and deliberately only just to acquire the common car parking area creates the obstacle in the common car parking area since he has purchased the flat not only this even since the defendant no. 3 or his tenant is not residing in said property, he is very adamant to grab the common car parking area.
3.5. That the present suit is bad for misjoinder of parties as defendant have been wrongly impleaded because the plaintiff is seeking a relief against the answering defendant who is not even remotely concerned with the sale deed executed between plaintiff and Ms. SumanGulati W/o. Shri Pawan Kumar Gulati and Smt. Sudesh Rani W/o. Shri Harbans Lal Sachdeva being a seller/erstwhile owner of the complete property to the plaintiff is defendant as in the sale deed of the plaintiff, the said seller/erstwhile owner nowhere given a right to the plaintiff to park his car in the car parking area of the property and other side in the sale deed's of the defendant the seller/erstwhile owner specifically mentioned and gave rights to the defendant for car parking in the car parking area of the suit property. 3.6. It is submitted that on 26/04/2017, the plaintiff intentionally and deliberately parked his car on the gate of common car parking area CS no. 695/17 Digitally signed by DIVYAM Surya Prakash Pandey vs. Santosh Sharama and ors. DIVYAM LILA Judgment dt. 17.08.2022 LILA Date:
2022.08.17 page no. 8 Of 33
15:01:21 +0530
and when the answering defendant requested to the plaintiff to remove his car from the front of the common car parking gate and park at any other available side so that the answering defendants can move their car smoothly and go to their own work, but the plaintiff instead of removing his car from the common car parking gate started to misbehave with the answering defendants and tried to hit the car parked inside the common car parking area, not only this even the plaintiff blocked the common car parking area by storing the big water drums.
4. Replication to the written statement of defendant no.1,2,4 & 5 was filed by the plaintiff and he denied averments of the written statement.
5. Issues framed:
5.1. Whether the plaintiff is entitled to a decree of permanent injunction, as prayed for? OPP.
5.2. Whether the plaintiff is entitled to a decree of mandatory injunction, as prayed for? OPP 5.3. Relief.
6. Plaintiff's evidence:
6.1. PW1 Sh. Surya Prakash Pandey / Plaintiff, had reiterated the contents of the plaint and relied upon the following documents:
6.1.1. Copy of Aadhar Card is Ex.PW1/1 (OSR). 6.1.2. Copy of sale deed is Ex.PW1/2 (OSR). 6.1.3. Site plan is Ex.PW 1/3.
6.1.4. Copy of complaints Ex.PW1/4 (Colly). 6.1.5. Copy of site plan of parking area is Ex.PW1/5. 6.1.6. Copy of registration details of Santro Car no. DL2CW8064 as marked as Mark PW1/A. 6.1.7. Copy of bank statement of Karnataka Bank for period between 01.4.2021 to 11.11.2021 is marked as Mark PW1/B. 6.2. Following facts came out in the crossexamination by Sh. Arvind Gupta, Ld. Counsel for all the defendants. 6.2.1. I am currently staying at the present address since July 2012 and purchased the property in December 2011. 6.2.2. It is correct that I was not staying at the said property during the above mentioned period. (vol my younger brother was Digitally signed by DIVYAM CS no. 695/17 DIVYAM LILA Surya Prakash Pandey vs. Santosh Sharama and ors. LILA Date:
2022.08.17 Judgment dt. 17.08.2022 15:01:28 +0530 page no. 9 Of 33 staying at the property whose name is Anil Kumar Pandey). Currently, my younger brother Anil s/o. Sh. Shesh Nag Pandey is staying at the native place at village Rampur Sudi Chakraja, District Azamagarh, UP. It is correct that I have not made my brother as the one of witness in the case. (vol because he cannot come to Delhi at this time as my father has suffered paralysis and he is attending him). 6.2.3. It is correct that at the time when my brother was staying in the at flat, he was not using the car parking space in the parking area.
6.2.4. It is correct that I had not made Smt. Suman Gulati and Smt. Sudesh Rani party to the suit from whom I have purchased the said property. The said building is constructed by Sh.
Ram Kishan. I do not remember the address of the said builder. It is correct that I have not made him party in the suit.
6.2.5. As per my knowledge, the building site plan is approved by the MCD. I do not remember if I have placed the approved site plan on the case record.
6.2.6. I have not taken the approved site plan from the builder (vol the builder told me that he has given the site plan to the bank). The bank in which the site plan was given is Karnataka Bank, Janakpuri Branch, C2, New Delhi. 6.2.7. It is correct that I have not seen the site plan. It is correct that I have not verified the site plan from any authority (vol the bank manager has told me that he has got the site plan verified as without verification he could not sanctioned the loan).
6.2.8. I have taken a loan from the same bank of which I do not remember the account number and the loan is currently running. It is correct that I do not know number of cars of which parking is approved by the MCD since I had not seen the site plan.
6.2.9. Q. Have you asked the builder whether how many cars parking is approved by MCD? Ans. He told me total six cars Digitally signed by CS no. 695/17 DIVYAM DIVYAM LILA Date:
Surya Prakash Pandey vs. Santosh Sharama and ors. LILA 2022.08.17 Judgment dt. 17.08.2022 15:01:36 page no. 10 Of 33 +0530 are approved.
6.2.10. It is correct that I have not made the builder and Smt. Suman Gulati and Smt. Sudesh Rani the witness in the present suit. 6.2.11. It is correct that there is no mentioned in Ex.PW1/2 my sale deed of car parking space. (vol: the car word is not mentioned, however, common parking space is mentioned.
At the time of registry on enquiry from the builder, I came to know as he told me that as per Supreme Court order of September 2010, there cannot be mentioned of "car parking area" as these are builder floors and only "common parking area" can be written).It is correct that the sale deeds concerning defendant no.1 to 5 were registered around the same time as mine.
6.2.12. It is wrong to suggest that in the sale deed of defendant no.1 to 5 there is mention of "car parking space". (vol common parking area is mentioned. Again said in the sale deed of Pradeep Kandhpal and Santosh Saxena defendant no. 1&4, there is mention of "Car parking space" in the sale deed and in the rest of defendants' there is mention of "common parking area". It is correct that in the sale deed of Sh. Vijay defendant no.3 there is mention of "common use with common one car parking".
6.2.13. I do not know if there is any site plan annexed with the registered sale deed mentioning five car parking.(vol there is a meeting amongst all where we shared documents with each other and at that time I did not know about the site plan.) 6.2.14. It is correct that in the sale deed of defendant no.1, wife of defendant no.2, and defendant no.5 there is mention of "car parking space at ground floor".
6.2.15. It is wrong to suggest that the builder has never sold me any car parking space in the common parking area that is why there is no mention in the sale deed. It is wrong to suggest that after executing the agreement to sell/bayana receipt, I did not return back to the builder and executing the sale deed in my favour and possession. It is wrong to suggest that the said Digitally signed by DIVYAM LILA DIVYAM Date:
CS no. 695/17 LILA 2022.08.17
15:01:43
Surya Prakash Pandey vs. Santosh Sharama and ors. +0530
Judgment dt. 17.08.2022 page no. 11 Of 33
flat was sold to someone else because I did not approach the builder in reasonable time. (vol: I had paid a bayana of Rs.1.5 lac to the builder and before the registry I had paid all Rs.3.5 lacs to the builder but one day before the registry I had arranged Rs.50,000/ as demanded by the builder.). It is wrong to suggest that builder not enhanced the sale value for the purpose of receiving extra money against the agreement to sell even on that day my wife give threats to the builder that if the said property is not handed over to me then she will commit suicide immediately on the spot, thereafter, on the request of some residents of same society the said builder agreed to execute the sale deed in my favour in terms of making of payment of Rs.50,000/ for the purpose of return the said amount of Rs.50,000/ to the another buyer. 6.2.16. On confrontation with the site plan, it is correct that there is no mention of measurement of the car parking space and neither there is mention of the number of cars that can be parked in the said space. I do not remember by whom the said site plan was drafted.
6.2.17. It is wrong to suggest that the draughtsman did not visit my property. (vol I asked the employee who works as an interior designer who made the above site plan). The name of the employee is Mehtab Ali, he himself prepared the site plan. I do not know if that is the same site plan which is part of the record. It is incorrect to suggest that the site plan so exhibited as Ex.PW1/3 is incorrect and the same does not confirm with the actual dimensions of the property in question. 6.2.18. It is correct that I cannot call for an approved site plan with the Karnataka Bank (vol. said that he can make an application to court for summoning of the same). It is correct that I have not brought the loan account number concern which is running in the Karnataka Bank which is running in my name. I can produce the passbook/statement of the loan account above mentioned on the next date of hearing. 6.2.19. Q. As per you, how many two wheelers are parked in the parking area concerned? Ans. Seven.
Digitally
signed by
CS no. 695/17 DIVYAM LILA
DIVYAM
Surya Prakash Pandey vs. Santosh Sharama and ors. Date:
LILA 2022.08.17
Judgment dt. 17.08.2022 15:01:51 page no. 12 Of 33
+0530
6.2.20. Q. Who are the owners of these seven two wheelers ? Ans.
The owners of the vehicle two wheelers are Sh. Mohan Bhatt, Sh. Prashant Diwedi and Mr. Amit Kumar (tenant of this person) and defendant no.1 Santosh Saxena, Sh. Dilip Kumar (defendant no.2), tenant of Sh. Vijay Prasad (defendant no.3) and mine.
6.2.21. Q. The first three names above as said by you, do they have the right to park the two wheelers? Ans. I do not know if they have the right to park the two wheelers at the said parking area. I have seen the agreements whereby it was not mentioned that they have parking right. However, I have seen an agreement of Mohan Bhatt in which the right of parking was shown but the said agreement was only fast. 6.2.22. It is wrong to suggest that the above three names of the people who parked live in the back side of the apartment who do not have right of parking. There are three big gates and one emergency fire exit at the building.
6.2.23. Q. Have you shown these four gates in the site plan? Ans I do not remember the same. Voluntarily The same is shown in the photographs.
6.2.24. At this stage the site plan is shown Ex PW1/3 is shown to the witness and he was asked by the counsel for the defendant whether it is shown in the site plan the four gates above mentioned. Ans Three gates are mentioned in the site plan however, on the left wall. The emergency gate is not mentioned in the site plan.
6.2.25. At this stage photographs in the plaint are shown to the witness at page no. 29 to 32 and he was asked by the counsel for the defendant whether it is shown in the photographs the said fourth emergency gate as above mentioned. Ans. No, it is not shown in the photographs the said gate. 6.2.26. Q. Whether the document exhibited as Ex. PW1/5 (another site plan) is correct or not? Ans. It is not correct. 6.2.27. Q. The four gates mentioned by you, whether they open towards the outside or inside? Ans. They open towards both Digitally signed by DIVYAM LILA CS no. 695/17 DIVYAM Date:
Surya Prakash Pandey vs. Santosh Sharama and ors. LILA 2022.08.17 Judgment dt. 17.08.2022 15:01:59 page no. 13 Of 33 +0530 sides depending upon the space.
6.2.28. Q. At one time, how many cars can be parked and how many are parked? Ans. At one time, 5 cars can be parked and currently 4 cars are being parked.
6.2.29. XXXXXXXken possession of, I was not staying here. It is correct to suggest that I was staying in Bombay. Vol. My brother wasXXXXXX. It is correct to suggest that I did not mention my brother in the list of witnesses. 6.2.30. Q. Whether the defendant no. 1 to 5 are staying there since the flats are bought and cars are being parked there since then? Ans. I do not know. Vol. Santosh and Vijay have shifted after I bought the property.
6.2.31. It is wrong to suggest that I bought and parked my car in the place when defendant no. 3 shifted out of the building from the flat for the residential purpose. It is wrong to suggest that defendant no. 1 to 5 did not create ruckus and disturbance when I parked my car as I deposed in para no. 6 of my affidavit Ex. PW1/A. It is wrong to suggest that I fought with the defendant no. 1 to 5 when I parked my car on 27.04.2017 and the gate was opened and stray dogs came inside.
6.2.32. It is correct that I have filed a police complaint on 27.04.2017, 04.07.2017, 11.08.2019 and 25.08.2019. It is wrong to suggest that these four complaints were false. It is correct that the police did not take any action upon my complaint. It is correct that I did not move to an appropriate forum when no action was taken by the police on my complaint.
6.2.33. It is wrong to suggest that the doors were locked to prevent entry of stray animals and theft. Vol. The locks were put on the side gates to prevent entry of my car. It is correct that some water metres were stolen from the parking areas where they were installed. (Vol. We all got the protective meshbox created and locked for the metres & all the people got the keys of the same. This was prior to the above mentioned Digitally signed by CS no. 695/17 DIVYAM DIVYAM LILA Date:
Surya Prakash Pandey vs. Santosh Sharama and ors. LILA 2022.08.17 15:02:07 Judgment dt. 17.08.2022 +0530 page no. 14 Of 33 incidents of complaint, the incident of theft happened in March 2017 and I was in Bangalore. Again said, February or March.) I do not remember the exact amount of contribution made by me for the creation of meshbox. I was in Bangalore at that time and my wife paid the same.
6.2.34. Q. In the affidavit Ex. PW1/A on para no. 13 you have mentioned that the defendant was injuncted from dispossessioning me from the common parking area in the suit property illegally and without due process of law? Question is disallowed.
6.2.35. It is correct that the entry and exit of the rest of the occupants in the building is through the common parking area only. It is wrong to suggest that the sale deed was executed by Suman Gulati and Sudesh Rani in the name of all the five defendants. It is correct that the sale deed was executed by Suman Gulati and Sudesh Rani in my name. It is correct that I have not given any notice to the abovementioned seller with respect to the issue of parking. Vol. I have met them physically.I met them physically at their office at Sewak Park. I do not remember the full address. It is close to Dwarka Mor Metro Station. I went there directly. I do not have their phones. I met them before filing a suit. It is wrong to suggest that there is no such office of the abovementioned sellers in that area since the past eight yrs and for this reason I am unable to tell the correct address. It is wrong to suggest that I went to Sewak Park to meet them. I do not know if any police complaints are filed by defendants against me. 6.2.36. It is correct that I have not made a party Smt. Suman Gulati and Smt. Sudesh Rani as the witness in the present matter. It is wrong to suggest that I have not made them party to the suit neither the witness as I was apprehensive that it will come out that they did not sell me the parking area. 6.2.37. The said santro car was purchased by me in the year 2012, and must be in the month of March. This car that I had purchased was a used/second hand car. In the period during Digitally signed by DIVYAM DIVYAM LILA CS no. 695/17 LILA Date:
Surya Prakash Pandey vs. Santosh Sharama and ors. 2022.08.17 15:02:16 Judgment dt. 17.08.2022 +0530 page no. 15 Of 33 December 2011 till January 2012, I had car which was ford Ikon. I could not find the document pertaining to the said car. (vol I even tried finding the documents on the online portal but could not find as I did not remember the exact registered car number).
6.2.38. It is correct that I did not personally went to the bank to seek the documents with respect to site plan. (vol however, I emailed the concerned branch seeking the document and bank statement).
6.3. PW2: Anil Kumar deposed in his affidavit that:
6.3.1. That he is a friend of the plaintiff as well as one of the witnesses who has signed the document of the property which was purchased by the plaintiff in this case and is well conversant with the facts of the case.
6.3.2. That deponent further says on oath that the plaintiff is the owner of built up First Floor No. 202, (East and North FacingRight hand side) without roof rights, with common Parking space at S/F Built on property bearing No. D95, Area measuring 60 Sq Yards out of Kh.No.13/5. 6.3.3. That deponent further says on oath that the plaintiff and other occupants i.e. defendants No. 1 to 5 also using the common parking without any obstacle since their purchase of the same.
6.3.4. That deponent further says. on oath that the defendants No.1 to 5 hatched a conspiracy and they started obstacle in using the common parking by the plaintiff.
6.3.5. The deponent further says on oath that on 26.4.2017 when the deponent parked his Car in the common parking, the defendants 2 and 4 came and started quarrelling with the deponent and asked the plaintiff to remove his car from the Car Parking and when plaintiff objected for the same, on this the defendants No. 4 extended for dire consequences including to burn the vehicle of plaintiff and in this regard plaintiff filed the complaint against the defendants. 6.3.6. That deponent further says on oath that on 6.7.2017 the Digitally signed by CS no. 695/17 DIVYAM DIVYAM LILA Date:
Surya Prakash Pandey vs. Santosh Sharama and ors. LILA 2022.08.17 15:02:23 Judgment dt. 17.08.2022 +0530 page no. 16 Of 33 defendant No. 1 put the lock on the parking and when the plaintiff objected for the said illegal acts, the defendant No.1 and other defendants become annoyed and they extended threats to the deponent that they will put the car in fire if the deponent ever asked the in the parking. defendants to park his vehicle.
6.3.7. The deponent further says on oath that the plaintiff also made a call at No.100 and police officials also tried to understand the defendants not to harass the deponent but the defendants even refused to oblige the legitimate advise of the police. 6.3.8. That since 6.7.2017 the defendants after hatching a criminal conspiracy put the illegal lock in the Common parking. 6.4. In the cross examination of PW2 by the Ld. counsel of defendants, following facts came out:
6.4.1. I have signed this affidavit in the Registrar office of Janakpuri and I have signed this before the concerned officer/Registrar. I had signed this affidavit after reading the same. It is correct that my name, my father's name was written in the affidavit at the time of signing the same. It is wrong to suggest that there was no mention of father's name in the affidavit after the typing and printing of the same. 6.4.2. On being confronted with the photocopy of the affidavit of evidence Ex.PW2/A where counsel for defendants asked whether there is mention of father's name on the affidavit.
Ans. Yes, there is no mention of father's name in the affidavit.
6.4.3. Q. Whether you read the affidavit which is Ex.PW2/A before signing the same? Ans. I read the major points of it. (vol no one can read whole of the document).
6.4.4. I have a degree of M.B.A. I know how to read in English and Hindi languages. I know plaintiff since the year 2007. We know each other by way of occasion of working together in company Micromax. I am used to visiting the residence of the plaintiff and I happen to visit once a month. He is very good and close friend of mine. I cannot tell when did the Digitally signed by DIVYAM LILA CS no. 695/17 DIVYAM Date:
Surya Prakash Pandey vs. Santosh Sharama and ors. LILA 2022.08.17 15:02:30 Judgment dt. 17.08.2022 +0530 page no. 17 Of 33 plaintiff got married. cannot also tell where does the inlaws family of the plaintiff reside. In his family, there is his wife, two daughters and a son.
6.4.5. In the flat no.202 of the plaintiff, there are two rooms, drawing room, kitchen and a toilet. I know as per my knowledge that there is only one toilet. The said flat no. 202, D95, was purchased by the plaintiff in 2013. 6.4.6. At that time, we both were not working together and we were working in different companies as there was job loss. I do not remember the exact month in 2013 when the flat was purchased. I am the witness in the property papers of the flat so purchased. That said deal was concluded before me. 2013. 6.4.7. Q. Since the sale deed was concluded before you, what all was purchased therein? Ans. The flat itself, the passage, and the common parking space (vol in that common parking space, it was sold and told that the person who comes first can park inside and remaining can park outside). 6.4.8. Sh. Ram Kishan was a builder of the entire flats and the said deal was conducted in the office of sh. Ram Kishan, where I came to know about this. (vol all these talks and terms happened in the office of Registrar also). The office of Sh.
Ram Kishan is in the Sewak park in front of Mandir. It is closed to the flats in question.
6.4.9. Q. At the time of purchase of the flat no. 202, there was no temple? Ans. No. Again said there was a very small mandir at that time which was renovated later.
6.4.10. What is the consideration for which the flat no. 202 was purchased? Ans. I do not know the amount of consideration for which it was purchased. I had signed the Ex.PW1/2 Sale deed (OSR) after reading the contents of the same cursorily. It is correct that there is no mention of the above mentioned fact of parking arrangement in the said sale deed. It is wrong to suggest that since there was no such deal concluded with respect to parking arrangement, there is no mention in the sale deed. Digitally signed by DIVYAM DIVYAM LILA LILA Date:
2022.08.17 CS no. 695/17 15:02:38 +0530 Surya Prakash Pandey vs. Santosh Sharama and ors.
Judgment dt. 17.08.2022 page no. 18 Of 33 6.4.11. In the parking space, at one time there can be six cars that can be parked. It is wrong to suggest that at one time there can be only five cars which can be parked.
6.4.12. The plaintiff took the possession of the flat no. 202 as soon as he purchased the same and started living there. It is wrong to suggest that the plaintiff did not live there for one year after purchasing the same.
6.4.13. Plaintiff has been staying at the flat no.202, ever since he purchased the same. When he purchased the property, the plaintiff had Wagon R car. He only had this car. 6.4.14. It is correct that there was some discussion with respect to facts of the case before. It is correct that I have come to the court on being asked by the plaintiff. It is correct that I have come to the court today on being asked by the plaintiff to give witness in his favour (vol I was told that I was bound down to appear and answer in the court as a witness and I was not tutored).
6.4.15. Plaintiff had told me that defendant no.1 to 5 are having some conspiracy with respect to the parking against the plaintiff.
6.4.16. Q. Who told you about the incident that happened on 26.4.2017 between the plaintiff and defendants no.2 and 4?
Ans. I went there in evening. Again said I was present there during the incident.
6.4.17. During the incident/ fight during evening hours on 26.4.2017 the had called the police by making a phone call. I have a bike which I parked along the adjacent street. When I had reached there the fight Incident had already started and was on going.
6.4.18. It is correct that in the para no.7, there is mentioned of my car being parked by me in the common parking area. I never had or owned a car. It is correct that whatever is written para no.7 of the evidence affidavit Ex.PW2/A is wrong. It is wrong to suggest that the above incident happened in the morning and call also made in the morning itself. The police Digitally signed by DIVYAM LILA CS no. 695/17 DIVYAM Date:
Surya Prakash Pandey vs. Santosh Sharama and ors.
LILA 2022.08.17
15:02:45
Judgment dt. 17.08.2022 +0530 page no. 19 Of 33
also arrived before me only and I cannot tell name of any police officer that had come. I do not know if there was any FIR (vol: since this is with respect to the police station and I did not go there). I do not know what happened after 26.4.2017.
6.4.19. Q. In the para no.8 you have mentioned in your affidavit that the lock was put by the defendant no.1? Did this happen before you? Ans. No. 6.4.20. Q. Who told you about the incident mentioned in para no.8 ?
Ans. Plaintiff told me.
6.4.21. It is correct that defendant no.1 did not threaten me from burning down the vehicle in the parking. It is correct that I was not threatened as have written para no. 8 and 9 of my affidavit.
6.4.22. I do not know if that area experiences frequent thefts. I do not know that if the gates were put for the reason of stopping the thefts of meters.
6.4.23. It is wrong to suggest that if six cars are parked then the gates would not be able to close and will remain open. It is correct that I am not the party in the suit. It is wrong to suggest that the plaintiff did not purchase the car parking area. (vol said that in the registrar office it was told that common parking area cannot be allocated to one person, hence, it was not sold).
7. Defendants' no. 1,2, 4 and 5 evidence:
7.1. Statement of Sh. Sumanta Sinha / Defendant no. XXXX reiterated the contents of the written statement and relied upon the following documents:
7.1.1. Copy of Sale Deed dt. 29.12.2011 between Sh. Santosh Saxena and Smt. Suman Gulati is exhibited as DW1/1,OSR. 7.1.2. Copy of Sale Deed dt. 29.09.2011 between Smt. Bibha Kumari and Smt. Suman Gulati is exhibited as DW1/2,OSR. 7.1.3. Copy of Sale Deed dt. 02.01.2012 between Sh.Vijay Prasad and Smt. Suman Gulati is exhibited as DW1/3,OSR. 7.1.4. Copy of Sale Deed dt. 15.09.2011 between Sh. Pradeep Digitally signed by DIVYAM CS no. 695/17 DIVYAM LILA Date: Surya Prakash Pandey vs. Santosh Sharama and ors. LILA 2022.08.17 15:02:53 Judgment dt. 17.08.2022 +0530 page no. 20 Of 33 Kandpal and Smt. Suman Gulati is exhibited as DW1/4,OSR. 7.1.5. Copy of Sale Deed dt.28.09.2011 between Sh. Sumanta Sinha and Smt. Suman Gulati is exhibited as DW1/5, OSR. 7.1.6. Copy of colored photographs is exhibited as DW1/6. 7.1.7. Copy of site plan is exhibited as DW1/7. 7.1.8. Copy of colored photographs is exhibited as DW1/8. 7.1.9. The original site plan of D95, Sewak Park, be taken on evidence, now exhibited as Ex. DW1/9.
7.2. Following facts came out in the crossexamination Sh. Anil Dutt Sharma,Ld. Counsel for plaintiff:
7.2.1. I have been residing at the D95, at flat no. 103, since 2011.
Sh. Pradeep Kandpal was the first occupier of the flat in the D95 and next occupier was me. Me and Mr. Pradeep had both come into the property by occupation in September 2011.
7.2.2. It is correct to suggest that at the time of entering into the property in 2011, I had 'i10' car. It is correct to suggest that at that time of entering Mr. Pradeep did not have a car. I do not remember the exact date when Mr. Dilip / defendant no.2 entered the property but his property was registered in the same month as mine.
7.2.3. It is correct to suggest that at the time of entering into the property, the defendant no.2 did not have a four wheeler. (vol he had a two wheeler/ motorcycle of which brand I am not aware). It is correct to suggest that the said motorcycle was parked in the parking and till date it is being used to park in the parking / suit property. I cannot tell that if the said bike is registered in Chandigarh number as I am not concern. It is wrong to suggest that I have knowledge of the bike registration and it being obsolete. It is wrong to suggest that the brother of plaintiff started residing in January 2012 (vol the brother of plaintiff had only got the flat cleaned but did not use it for residential purposes and he came into the property only later on after threefour months). 7.2.4. It is wrong to suggest that the brother of plaintiff resided at Digitally signed by DIVYAM CS no. 695/17 DIVYAM LILA Surya Prakash Pandey vs. Santosh Sharama and ors. LILA Date:
2022.08.17 15:03:00 +0530 Judgment dt. 17.08.2022 page no. 21 Of 33 the property and parked his commercial Taxi car (WagonR) in the parking/suit property. (vol Brother of plaintiff never stayed and I am not aware if any person has stayed at the property/ flat).
7.2.5. In January 2012, I used to work in Luminous as the Electrical engineer where I worked for 9.00 am to 6.00 pm. In January 2012, there were four occupiers in four flats i.e. me, Pradeep Kandpal and Dilip Kumar and Mr. Santosh Saxena, who is also included and at that time his flat was not registered but he was staying there.
7.2.6. I am not aware of the exact date when the flat of Sh. Santosh Saxena/ defendant no.1 was registered but he was residing with Mr. Dilip Kumar who is the Chacha of Sh. Santosh Saxena. It is wrong to suggest that flat of defendant No.3 Mr. Vijay had his flat registered in 7th January 2012 and started living there.
7.2.7. I am not aware of time when the plaintiff had started living with his family in the flat. Mr. Santosh Saxena did not have a car when he entered the property as an occupant. It is correct that Mr. Vijay had motorcycle at the time of entering into the property.
7.2.8. It is wrong to suggest that plaintiff had ford ikon car at the time when he started residing and he had parked the same at suit property/ parking for about six months (vol he had a two wheeler of red colour and brand I do not remember). 7.2.9. It is wrong to suggest that plaintiff had bought and parked his santro car in the parking in 2013 and onwards. (vol the plaintiff had however purchased a second hand santro car in 2016). Plaintiff had himself told me and showed me the said car and its particulars. It is correct that the plaintiff had sold his santro car in 2016 and then he had purchased the i10 car.
(vol I do not remember the exact dates of the same. (again said that after interim order in 2022, the plaintiff started parking his santro car in the parking area). ( Again said it was i10.).
Digitally signed by DIVYAM DIVYAM LILA LILA Date: 2022.08.17 15:03:07 +0530 CS no. 695/17
Surya Prakash Pandey vs. Santosh Sharama and ors.
Judgment dt. 17.08.2022 page no. 22 Of 33 7.2.10. It is correct that plaintiff used the i10 car till 2022 and it is wrong to suggest that he used to park the same in parking area/suit property. At the time of registration of property of plaintiff, I was not present. I have not taken any photographs of the santro car. I have taken photograph of the i10 car that was parked.
7.2.11. It is correct that the plaintiff had i10 car after interim order. I do not know if there was deal among property dealer and plaintiff and defendant no.1 and defendant no.2. 7.2.12. I cannot tell the exact measurements of the parking area / suit property. I would have to see the site plan to say anything about the same. I have Hyundai i10 car.
7.2.13. I cannot tell what was the property area mentioned in my sale deed which is exhibited already as Ex.DW1/5(OSR). I have purchased the above mentioned car in 2009. I cannot tell the length and width of my car as I have never measured the same.(At this stage, the counsel for defendant objected to the question as the said question is beyond the pleadings and irrelevant and frivolous). (The relevancy of the question will be decided alongwith the final arguments). 7.2.14. At the moment, the plaintiff and Pradeep Kandpal have sedan cars. (vol at the time of filing of the suit, both plaintiff and Pradeep Kandpal had cars (i10 and Santro respectively). 7.2.15. It is wrong to suggest that before filing of the suit, all six flats occupants / owners had cars. (vol only I, Mohan Chandra Bhatt, Vijay Prasad and Sh. Prashant Diwedi had cars and others did not have). It is correct to suggest that Mr. Mohan Chandra Bhatt and Mr. Prashant Diwedi do not have anything to do with the case. It is correct that I had i10 car. 7.2.16. I am not aware whether Mr. Dilip had a Tiago car at the time of filing of the suit, however, he does own that car. I am not aware if Mr. Vijay had shifted out of the property / flat in April 2017 and it is correct that he has swift car. It is correct that Mr. Vijay used to live in the flat in the property but he thereafter shifted out to the rented premises. It is correct that Digitally signed by DIVYAM DIVYAM LILA Date: CS no. 695/17 LILA 2022.08.17 Surya Prakash Pandey vs. Santosh Sharama and ors. 15:03:14 +0530 Judgment dt. 17.08.2022 page no. 23 Of 33 Mr. Vijay used to park his car in the vicinity of the rented premises.
7.2.17. As on today, four cars are being parked out of which one car of Mr. Santosh is not present at the moment, and cars of mine, Dilip Kumar and plaintiff.
7.2.18. It is wrong to suggest that this parking can park six cars simultaneously (vol not even five cars can be parked as we have tried.).
7.2.19. Before filing of the suit, there must be 8 to 10 water drums in the parking area which belong to residents of the building and did not belong to anyone outside. My water tank of 500 ltr is kept on the parking area before filing of the suit and is still kept there. (vol the same is kept to prevent encroachment so that unnecessary bikes and bicycles are not put). There are other water tanks of 200 and 250 ltr of other residents.
7.2.20. Q. Whether have you renovated your flat? Ans. Yes. 7.2.21. Q. Whether the malba of renovation laying in the suit property/ parking spot belongs to you? Ans. No. (vol the malba of plaintiff's house is also laying there and five water drums).
7.2.22. It is wrong to suggest that plaintiff does not own those five.
The plaintiff had five to six drums, Mr. Bhatt had five drums,and Mr. Prashant had three drums and I only have one empty drum. (The counsel for defendant had objected to the question as being beyond pleadings and relevancy will be decided in the final arguments).
7.2.23. I have not filed any case/ complaint / suit against previous owner Smt. Suman Gulati. Before or after filing of the suit, it is correct that four water meters were stolen. 7.2.24. Q. Is it correct that it is the usual practice of parking that parking as on first come first serve as in parking is done as per the vacant space available on daily basis? Ans. No. 7.2.25. this has never been practice and each resident has particular section of designated parking and some of the residents had Digitally signed by DIVYAM CS no. 695/17 DIVYAM LILA Surya Prakash Pandey vs. Santosh Sharama and ors. LILA Date:
2022.08.17 15:03:20 +0530 Judgment dt. 17.08.2022 page no. 24 Of 33 tried to encroach space. At this stage, photograph on page 29 filed on 15.07.2017 by the plaintiff, is exhibited as DW1/PX1 (colly) at point A, the question is put whether the said photograph is belonged to your property? Ans. The deponent admitted to the same. ( vol at point X to X1, the name plate appearing is not always there and the same is put for the purpose of photograph by the person taking it).It is correct that I have not mentioned the above statement anywhere in my WS with respect to point X to X1. 7.2.26. At point B on Ex.DW1/PX1, I am not aware who is the owner of the said car and the bike. It is wrong to suggest that I am aware of the exact make of the car and the bike in the photograph belonging to the Dilip. The cars at point C and D at page no.30 and 31 belongs to the plaintiff. At point E page no. 32 I cannot identify the photographs if the same belongs to parking area/ suit property or not. I do not have any knowledge of about Mark DW1/P1 which is a CD on the file.
( the counsel for defendant has objected to the same and submitted that the same is neither the original, nor accompanied by necessary certificate, nor complying with the requisite section of evidence act and the same is required to be proved and the said CD was never played in the court before asking this question or any question). I do not know if the said CD was played in the court before my previous counsel at the stage of arguments of interim relief under order 39 rule 1 and 2 CPC. (vol I am not aware of the same). 7.2.27. It is wrong to suggest that I alongwith other defendants stopped the plaintiff from parking in the suit area before filing of the suit and it is further wrong to suggest that he used to park his car there.
7.2.28. It is correct to suggest that the first complaint was made by the plaintiff with respect to the parking issue. I do not remember if I had made the first police complaint in 2019, I have to see the court records for the same.
7.3. DW2 Ms. Anjali Taneja, Assistant Branch Manager, Karnataka Digitally signed DIVYAM by DIVYAM LILA CS no. 695/17 LILA Date: 2022.08.17 15:03:27 +0530 Surya Prakash Pandey vs. Santosh Sharama and ors.
Judgment dt. 17.08.2022 page no. 25 Of 33 Bank, Janak Puri, Delhi had brought the summoned records exhibited as Ex. DW2/1 (colly) which are loan documents of the plaintiff with respect to the flat of the plaintiff and Ex.DW2/2 (Colly) Copy of Sale Deed dt. 08.12.2011 between plaintiff and Smt. Suman Gulati, Copy of Site plan, Copy of Legal Scrutiny Report dt. 21.10.2011, Copy of verification of Title documents dt. 08.01.2012, Copy of Agreement to Sell dt. 10.09.2011, Copy of Valuation Report dt. 04.11.2011.
7.4. DW3 Ct. Deepak, 701/DW, Reader to SHO, P.S. Bindapur brought the summoned record pertaining to complaints filed by defendants bearing DD No.88A dt. 25.08.2019, DD No. 49A dt. 26.04.2017 and DD no.89A dt. 28.8.2019, which are hereby exhibited as Ex.DW3/1 (colly).
8. Issue wise findings:
8.1. Whether the plaintiff is entitled to a decree of permanent injunction, as prayed for? OPP.
Whether the plaintiff is entitled to a decree of mandatory injunction, as prayed for? OPP 8.2. Both the issues are similar and interconnected and hence are discussed together, the onus to prove both of them are on the plaintiff. It is admitted that the defendants and plaintiff are all resident of the flats in the suit property in their respective flats through registered sale deeds executed by the common seller namely Ms. SumanGulati W/o. Shri Pawan Kumar Gulati and Smt. Sudesh Rani W/o. Shri Harbans Lal Sachdeva. The respective registered sale deeds of the defendants and plaintiff is admitted and contents of the same is also admitted. These facts admitted by the parties in their pleadings, the issue that remains now is with respect to the parking issues in the parking area in the stilt floor of the property which is the suit property.
8.3. It is the case of the plaintiff that there is parking at the stilt floor, which has a sanctioned capacity of 6 cars, and the plaintiff has the right to park his car at the said place, and he has had parking since the purchase of the flat. The said factum has been denied by the defendants in their written statement, and hence the same is to be Digitally signed by DIVYAM DIVYAM LILA CS no. 695/17 Surya Prakash Pandey vs. Santosh Sharama and ors.
LILA Date:
2022.08.17
15:03:35 +0530
Judgment dt. 17.08.2022 page no. 26 Of 33
proved by the plaintiff. Now, the title and right to park at the stilt floor is accessory right which is derived on the strength of the sale deed of the flat. The admitted sale deed of the plaintiff Ex. PW 1/2, states that the "first floor no. 202, without common roof rights, with common parking space at the G/F, built on property bearing no. D 95, area measuring 60 sq. yds (out of the total 180 sq. yds.) along with ..." the said sale deed does give right to the plaintiff of 'common parking space' in the ground floor/ stilt parking area admeasuring 180 sq. yds i.e. total area. The plaintiff has filed a site plan on the record Ex. PW 1/3, on perusal of the same, it appears that the site plan is divided in two parts 60 sq. yds and 120 sq. yds and whole of the property is marked in red and both the reliefs are sought for the whole property admeasuring 180 sq. yds. It appears that the suit property is divided in two parts off 120 sq. yds and 60 sq. yds, however there is no such mention in the pleadings of the plaintiff, nor any photographs have been filed by the plaintiff, further there appears to be a bathroom Room set in the 120 sq. yds area besides the staircase leading upstairs. The PW1 in cross examination stated that the site plan was prepared by one Sh. Mehtab, however, the site plan PW1/3 is stated to be prepared by one Sh, Naresh Kr. Lather. The site plan filed by the plaintiff does not appear to be reliable, as neither the same is admitted nor the draughtsman of the same is examined.
8.4. On other hand, the plaintiff in his crossexamination had stated he has not taken the approved site plan from the builder, but he told him that he has given the site plan to the bank, The bank in which the site plan was given is Karnataka Bank, Janakpuri Branch, C2, New Delhi. The plaintiff even failed to call for the site plan from the bank for proving the site plan. However, the defendant has summoned record from the concerned branch of the Karnataka bank, which was exhibited as Ex. DW 2/2, which included the site plan of the ground floor/ parking site plan, which showcased similar division of the property, whereby the 60 sq. yds. has a flat in the space. The legal scrutiny report filed in ex. DW 2/2 also mentions in the property description that there is a flat and the parking area in the ground floor. Further, the defendants have filed the site plan Ex.
Digitally
CS no. 695/17 signed by
DIVYAM LILA
Surya Prakash Pandey vs. Santosh Sharama and ors. DIVYAM Date:
Judgment dt. 17.08.2022 LILA 2022.08.17 page no. 27 Of 33 15:03:43 +0530 PW 1/9; the plaintiff has not denied the said site plan in his replication, nor the plaintiff negated the said site plan in the cross examination of the DW1; on perusal of the said site plan, it also has a two divisions of the suit property, wherenby one part consists of the a flat in ground floor and rest in parking area and moreover there is a small one bedroom set in parking area division along with 5 car space markings demarcated. Hence, having perused the three site plans on record, it appears that the whole ground floor is divisioned into two portions, one being a whole flat and another being designated parking area and in the same area there is another one bedroom set besides the stairs. The plaintiff has failed to give the clear description of the suit property in compliance of order 7 rule 3 cpc and failed to mention that there are whole flats constructed in the parking area. The plaintiff has very cleverly hid the said fact about the said construction, no photographs of the said portion nor the description is put forward. The description of the site property has more traction is the present matter as the same is with respect to parking issues of the cars.
8.5. Having established, that the said suit property consists of the two flats built therein, it appears that the plaintiff has not made those flat owners on the ground floor as party in the present proceedings; the said flat owners are actually occupying the actual real estate meant for parking, and thus are the necessary party in suit for proper adjudication.
8.6. The PW1 has admitted in his crossexamination that at onetime, 5 cars can be parked. The same conforms with the site plan filed by the defendants, Ex. DW 1/9 which also shows that 5 cars can be parked.
8.7. The defendants have then proceeded to prove that the sale deeds of defendants and sale deed of plaintiff have a difference; the sale deeds of defendants contain the clause " Car Parking Space", whereas the sale deed of the plaintiff merely contains the clause "Common Parking Space"; it is argued by the ld counsel for defendant that the said difference although appears to be small but has a large implication as the word 'CAR' is missing from the sale deed of the plaintiff whereas the same is present indubitably in sale Digitally CS no. 695/17 signed by DIVYAM LILA Surya Prakash Pandey vs. Santosh Sharama and ors. DIVYAM Date:
Judgment dt. 17.08.2022 LILA 2022.08.17 page no. 28 Of 33 15:03:54 +0530 deeds of all the defendants. The said omission of the word 'CAR' from the sale deed of the plaintiff is not an error of sight/ typographical, but an intentional effect from the plaintiff and the erstwhile seller to not sell the parking space to the plaintiff. The plaintiff is aware of the same, and hence, he has deliberately not implicated the ground floor parking area flat owners. He further argued that the plaintiff has deliberately not made the erstwhile seller of the flat the party in the present proceedings as it would bring out the truth, as the present dispute is actually between the plaintiff and the erstwhile builders and not the defendants. The ld. Counsel for plaintiff on other argued that the cause of action is actually against the defendants who create nuisance and restrain the plaintiff from parking in the suit property. On perusal, it appears that the sale deed of the plaintiff and the defendants do contain this peculiar distinction, that the sale deed of the plaintiff does not mention "Car" in the parking area where as the defendants sale deed contains the clause 'CAR parking area'; this peculiar situation has arisen out of the situation that has been created by enclosure of the portion of the parking area into a flat and creation of the enclosure of the small one bedroom set which has resultantly eaten up the parking area for the residents of the flats. This indubitably leads to the situation where the certain portion of the parking space is actually sold off to certain residents by the builder, and remaining residents buy the flats with parking on the public road. The plaintiff himself has filed an article on news quoting the supreme court judgment along with the plaint which states that the builders cannot sell the parking areas as the independent units or flats. Ironically, the something like that has happened in the present suit, where the plaintiff has himself stated in his crossexamination that "I came to know as he told me that as per Supreme Court order of September 2010, there cannot be mentioned of "car parking area" as these are builder floors and only "common parking area" can be written)"; whereas the "car parking area" is mentioned on the sale deeds of the defendants. Hence; I find force in the arguments of the defendants that the parking space was infact sold to the defendants, and whether or not the plaintiff has actually purchased the said parking area or Digitally signed by CS no. 695/17 DIVYAM Surya Prakash Pandey vs. Santosh Sharama and ors. DIVYAM LILA Judgment dt. 17.08.2022 LILA Date:
2022.08.17 page no. 29 Of 33 15:04:01 +0530 has suffered certain infirmity/ illegality from the builder is a matter interse between the plaintiff and builders. 8.8. Further, with respect to the incident of fights between the parties as alleged by the plaintiff, the plaintiff had produced PW2 Sh. Anil Kumar who was the friend of plaintiff as witness to the sale deed, witness to the fight between the plaintiff and defendants on 26.4.2017 and 06.07.2017 and that the plaintiff and defendant no.1 to 5 were using the parking since the purchase. However, in the crossexamination, the contradiction that appeared was that PW2 had deposed that plaintiff had purchased the property in 2013 while plaintiff, PW1 deposed that he had purchased the property in 2011 .
The PW2 also deposed that parking was used with understanding that first come first park, and the remaining can park outside. The second contradiction appear was that PW2 deposed that at one time six cars can be parked, whereas PW1/ plaintiff deposed that only five cars can be parked at one time. The third contradiction appear was that the PW2 deposed that plaintiff had Wagon R car at the time of purchase of the flat, whereas plaintiff / PW1 deposed that he had Ford Ikon at time of purchase and later in 2012, he had Santro car. The PW2 further deposed that whatever written in the para no.7 of evidence affidavit Ex.PW2/A is wrong. PW2 further deposed that incident at para no.8 did not happen before him and whatever i.e. written in para no.8 is told to him by the plaintiff. He further submitted that defendants have not threatened him as written in para no.8 and 9 of the affidavit. The witness PW2 has deposed numerous contradictory statements and other deposition with respect to the incident of 26.4.2017 and 06.07.2017 are denied by the PW2, and remaining deposition is hearsay, as in the same did not happen in front of deponent. Hence, the evidence of PW2 cannot be relied upon by the court. The complaints Ex.PW1/4 are not proved by the plaintiff by calling the primary evidence nor the incident of 26.4.2017 and 6.7.2017 are proved.
8.9. Further, the sale deeds Ex.DW1/1 to Ex.DW1/5 are already admitted by the parties. Hence, require no proof. The photographs filed by the defendants Ex.DW1/6 and Ex.DW1 /8 are not proved by the defendants, hence, the same cannot be relied upon. The plaintiff CS no. 695/17 Digitally signed by DIVYAM Surya Prakash Pandey vs. Santosh Sharama and ors. DIVYAM LILA Judgment dt. 17.08.2022 LILA Date:
2022.08.17 page no. 30 Of 33
15:04:08 +0530
had produced certain photographs Ex.DW1/PX1 during the cross examination of DW1, however, the photographs do not proved anything in particular and the counsel for plaintiff had put certain question to the identification of the vehicles appearing in the photographs through which deponent denied having any knowledge. 8.10. The ld counsel for defendant has thus argued that the suit of the plaintiff suffers from numerous faults; the suit is bad in law as the necessary parties are not impleaded, the suit is bad in law as the suit property is not described properly, the suit is bad in law as the plaintiff has deliberately suppressed the material facts such as presence of the flats on the parking area, the suit is liable to be dismissed as the plaintiff has failed to prove that he was using the parking area and is entitled to relieved.
8.11. The ld. counsel for plaintiff has argued that the present suit is entitled to be decreed straightaway as the sale deeds are admitted and the plaintiff has the right to park his car in the suit property. He also submitted that the interim order was also in his favour that was passed by the court. He further argued that DW1 has in his cross examination admitted placing certain drums in the suit property, parking area, hence, on the basis of the same, the suit shall be decreed straightaway under order 12 rule 6 CPC as defendants have actually encroached upon the parking area. The counsel for plaintiff has also relied upon the certain judgments, citation (2010) 9 SCC 536 Nahal Chand vs. Panchali Cooperative for defining the word Flat, common area. The plaintiff further relied upon the judgment of Hon'ble Madras High Court in the case of Balaji Builders vs. Collector and ors and judgment of Royal Manor vs. Angana Bhalall Dass and ors.
8.12. I have heard both the counsels, I find force in the arguments of the defendants' counsel as it appears that the plaintiff has not impleaded the necessary parties being the erstwhile owner of the flats, the builder as the registered sale deeds were executed by them. It further appears that plaintiff has deliberatly suppressed the material facts of presence of the two flats on the stilt parking area which is included in the suit property as per the description of the plaint and which is Digitally signed by DIVYAM LILA DIVYAM CS no. 695/17 LILA Date:
2022.08.17 Surya Prakash Pandey vs. Santosh Sharama and ors. 15:04:15 +0530 Judgment dt. 17.08.2022 page no. 31 Of 33 material in adjudication of the present suit. No where in the pleadings, the plaintiff has averred that there are two flats present in the stilt area which are naturally ococupying the actual parking space meant for parking the cars. The plaintiff ha salso failed to implead the owners of the said flats on the stilt parking area. The suppression of the material fact appears from the site plan which has very conveniently failed to show the existence of the two flats on the ground floor. Further, the plaintiff has failed to prove the incident of 26.4.2017 and 06.07.2017. I do not find force in the arguments of the plaintiff that injunction be given against the defendants as there is no suppression of material facts and that if all the cars are parked tightly after removal of residary articles like water drums and motorcycles, sixth car can be parked. The photographs on record show that the water drums and motorcycles are parked between the intervening space of pillars, which cannot be otherwise used for parking of cars. Neither is the case of plaintiff that the drums and motorcycles have to be removed, hence, even this argument of the plaintiff is not tenable. 8.13. Further, the plaintiff has relied upon three judgments, the first judgment is relied upon by the plaintiff to showcase the definition of the flat in the common area appearing on parax 34 and para 57 of the judgment. On further perusal of the highlighted portions it is observed at para no. 65 of the judgment that promoter has no right to sell stilt parking spaces as they are neither flat nor garages. This is the correct view which is also taken above, as in fact there appears to be two distinct flats in the parking area which are occupying the portion of suit property / parking space of 180 square yards, leaving only some portion to the actual residence to park the car. This is the actual mertial facts suppression, which is now supported by the judgment relied upon by the plaintiff. The other two judgments of Balaji Builders and Royal Manor are relied upon by the plaintiff but relevancy of the same is not made out. 8.14. Hence, in the considered view the plaintiff is not entitled to the decree on the ground of suppression of material facts and non impleadment of necessary parties in the present suit. Hence, the suit of the plaintiff is dismissed on merits.Digitally signed by DIVYAM
CS no. 695/17 DIVYAM LILA
Surya Prakash Pandey vs. Santosh Sharama and ors. LILA Date:
2022.08.17
15:04:23 +0530
Judgment dt. 17.08.2022 page no. 32 Of 33
8.15.
Parties to bear own costs.
8.16.
Decree sheet be prepared accordingly.
8.17.
File be consigned to Record Room after compliance with due formalities.
ANNOUNCED IN THE OPEN Digitally signed by DIVYAM COURT ON 17.08.2022 DIVYAM LILA Date:
LILA 2022.08.17
15:04:30
+0530
(DIVYAM LILA)
CIVIL JUDGE01(SW)/DWARKA COURTS
NEW DELHI
CS no. 695/17
Surya Prakash Pandey vs. Santosh Sharama and ors.
Judgment dt. 17.08.2022 page no. 33 Of 33