Full Judgment Text
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
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Reserved on : 1 February, 2018
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Date of decision :15 May, 2018
+ RFA 389/2015 & CM APPL. 19318/2015
N K BHATIA (NOW DECEASED THR LRS) ..... Appellant
Through : Mr. Anish Shrestha, Advocate.
(M-9891876595)
versus
GARGI ANAND ..... Respondent
Through : Chaudhary Ranjit Singh, Advocate.
(M-9810222625)
CORAM:
JUSTICE PRATHIBA M. SINGH
JUDGMENT
Prathiba M. Singh, J.
1. Shri Baldev Singh ( hereinafter „Owner‟ ) purchased property bearing
no.C-27, Block No. I, Greater Kailash Enclave-I, New Delhi measuring
473.75 sq. yards ( hereinafter referred as the „Suit Property‟ ) from the DDA.
He had initially constructed in approximately 300 sq. yards of the property
and in respect of the 170 sq. yards plot which was lying vacant in the front
side of the property he entered into a Collaboration Agreement ( hereinafter
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„Agreement‟ ) dated 27 April, 1988 with Shri Navin Kumar Bhatia
( hereinafter „Builder‟ ). As per the said Agreement, the Builder was to carry
out the construction on the ground floor, first floor and second floor of 170
sq. yards of the suit property after obtaining the necessary permissions from
the concerned authorities. The Owner was to get the complete ground floor
along with the exclusive use of the complete drive way and right to use the
entry from the front court yard (adjacent to plot No.C-26 side) and of the
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common staircase/entry along with 1/3 undivided share in the said land i.e.
in 170 sq. yards. Clause 3 of the Agreement reads as under:
“ 3) The constructed area shall be distributed by
the Owner and the Builder as under:-
(i) The Owner shall get the complete ground floor
along with the exclusive use of the complete drive
way and right to use entry from front court yard
(adjacent to plot No.C-26 side) and of common
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stair case/entry alongwith 1/3 undivided share in
the said land i.e. in 170 sq. yards. The Builder
further agrees that he shall construct the
additional portion of the existing structure of the
owner in the Second floor by constructing two
rooms and one toilet approximate area 350 sq. ft.
at his expense, the subject matter which is not of
this agreement. The owner shall have absolute
right to this additional portion so constructed.
(ii) The Builder shall get the complete first floor
and the Second floor along with the entry from the
front court yard (adjacent to plot No.C-26 side)
and use of common staircase/entrance marked
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Yellow on the Plan with 2/3 undivided share in
the said land admeasuring 170 sq. yards. The
builder shall have no right or claim to use the
complete drive way and open front Court Yard for
parking or any allied purpose what-so-ever.
(iii) That in the event of any change in Municipal
By-laws in the Union Territory of Delhi in respect
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of grant of permission to construct 3 Storey or
more on the said property (170 Sq. Yards,) the
owner shall have full right to construct the
additional structure storeys on the top of second
floor, for which the Builder hereby agrees and
binds himself that he will not raise any objection
in this regard what-so-ever.
b) The Builder shall pay a sum of Rs.3,00,000/-
(Rupees three lacs only) to the Owner in addition
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to his Owners share as per Sub-clause (1) above
and as per modus hereunder:-
(i) Rs.2,00,000/- (Rupees two lacs only) at the
time of signing of this Agreement vide P.O. NO.
001977 dated 27.4.1988 drawn on the Union
Bank of India, Kailash Colony, New Delhi.
(ii) The balance of Rs.1,00,000/- (Rupees one lacs
only) shall be paid by the Builder to the Owner at
the time of execution of General Power of
Attorney and Will in favour of the Builder or his
nominee (s) or his prospective buyers in one
installment or on or before 31.12.1988. ”
2. The construction was completed and the occupancy certificate was
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issued by the DDA on 20 July, 1989 recognizing the ground floor, first
floor and barsati floor. As per the Agreement, only the first floor and the
second floor would vest with the Builder along with the use of the common
staircase. The Builder was not to stake any right or claim to use the
driveway and open front courtyard for parking or any other purpose. The
agreement also provides that if municipal by-laws permitted construction on
the third floor then the owner would have the right to construct above the
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second floor i.e. on the third floor. The Owner passed away on 18 April,
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1999 and his wife expired on 28 June, 1999. He had executed Will dated
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9 October, 1992 by which he had bequeathed to his daughters i.e. the
Plaintiff Gargi Anand as under:
“ C. Portion bequeathed to daughter Smt. Gargi,
Wife of Shri Subhash Anand, R/o 40, Mahila
Colony, Shahdara, Delhi.
She shall inherit the Ground Floor and the Thired
Floor portion of the front portion of the house,
The Ground Floor portion consists of two bed
rooms with attached bath rooms, a drawing-cum-
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dining room and a kitchen on the Ground Floor
and vacant land in front of this portion, alongwith
common staircase with Mr. Naveen Kumar
Bhatia, son of Shri B. R. Bhatia or any other
person besides the terrace of the Thired Floor of
the front portion of the house. This portion is
already in occupation of myself, the executant and
my wife, Smt. Maya. My said daughter shall
exclusively inherit this portion, which is already
in my occupation to the exclusion of all other
legal heirs and she shall have absolute right to
rent out or sell or otherwise manage the said
portion in any manner she likes without any
interference. My said daughter shall also inherit
the First Floor of the garage block with right to
make any construction on the Second Floor
portion of a garage block. And Whereas there are
certain common portions which shall be inherited
by my aforesaid legal heirs in common. The
staircase of the rear portion of the house, the
small space between the front portion and the
rear portion and the drive-way shall be common
to all the beneficiaries of this Will. The booster
pump shall also be available to common to all the
beneficiaries i.e. my wife, son and daughter. They
shall be inherit land of the house
proportionately. ”
3. Upon the death of the Owner, disputes arose between his son Shri
Paramdev Verma and the Plaintiff herein Gargi Anand. The said disputes
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were finally resolved in suit No. 134/2003 on 10 July, 2003. The Builder
raised unauthorized construction on the third floor, according to the
Plaintiff, in March, 2001 and also prevented the Plaintiff from accessing the
third floor through the common staircase. The Plaintiff then filed the subject
suit for possession, injunction and recovery of mesne profits seeking the
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following reliefs.
“ (i) Pass a decree for possession in respect of the
portion comprising one room on the third floor of
the premises bearing no.C-27, (Front Portion),
Greater Kailash Enclave-I, New Delhi-110048 as
shown in red in the site plan, filed with the plaint
in favour of the plaintiff and against the defendant
no.1.
(ii) Pass a decree for a sum of Rs.3,60,000/- on
account of Damages, Mesne Profit for use and
occupation of the portion shown in red in the site
plan enclosed and depriving the plaintiff from
using the entire third floor to its optimum utility;
(iii) Pass a decree for Mesne Profit/Damages for
use and occupation of the portion shown in red in
the site plan enclosed and depriving the plaintiff
from using the entire third floor to its optimum
utility. During the pendency of the suit on the
value determined during the enquiry under Order
XX Rule 12 read with Section 151 CPC till the
delivery of the possession by the defendant;
(iv) Pass an Award interest @ 18% per annum on
the amount decreed as prayed in clause No.3.
(v) Pass a decree for Perpetual Injunction
restraining the defendant his employees,
nominees, agents, servants, assignees etc., from
blocking the passage and stair case leading to the
third floor of the property in question i.e. bearing
No.C-27, (Front Portion), Greater Kailash
Enclave-I, New Delhi-110048 to the plaintiff her
family members, employees, nominees, agents,
servants, assignees etc.
(vi) Pass a decree for Mandatory Injunction
directing the defendant to demolish the
unauthorized construction made by him on the
third floor of the property in dispute i.e. bearing
No.C-27, (Front Portion), Greater Kailash
Enclave-I, New Delhi-110048 as shown red in the
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site plan enclosed;
(vii) Cost of the suit and such other or further
relief which this Hon‟ble Court may deem fit and
proper in the facts and circumstances of the case
may also be granted to the plaintiff and against
the defendant. ”
4. The Builder claims in his written statement that the construction on
the third floor had taken place in 1989 itself and it was at the Owner’s
request that instead of 350 sq. feet on the third floor 800 sq. feet was
constructed. It was also claimed by the Builder that he was permitted to
raise two servant quarters in the third floor and that the staircase was not to
be common. In view of the disputes raised, the following issues were struck
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on 3 February, 2006.
“ 1. Whether the plaintiff has not approached the
court with clean hands and has suppressed
various material facts from the court? OPD
2. Whether the suit is bad for non-joinder of
necessary parties? OPD
3. Whether the Site Plan filed by the defendant
shows the correct accommodation with correct
measurement as alleged in the written statement?
OPD
4. Whether the suit has not been properly valued
for the purposes of court fees and jurisdiction?
OPD
5. Whether the plaintiff is entitled to a decree for
possession of the suit property? OPP
6. Whether the plaintiff is entitled to recover a
sum of Rs.3,60,000/- on account of mesne
profits/damages for use and occupation of the suit
property? OPP
7. Whether the plaintiff is entitled to mesne
profits/damages for use and occupation from the
date of filing of the suit till the suit property is
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vacated? OPP
8. Whether the plaintiff is entitled to interest, if
so, at what rate and for what period? OPP
9. Whether the plaintiff is entitled to permanent
injunction? OPP
10. Whether the plaintiff is entitled to mandatory
injunction? OPP.
11. Relief. ”
5. The Plaintiff led the evidence of 7 witnesses. Her husband was
appointed as her attorney holder. She, inter alia, proved the Agreement, the
completion certificate, compromise decree recorded with her brother, Will
executed by her father Shri Baldev Singh, Power of Attorney executed in
favour of the Defendant Builder, site plan etc. Officials were produced from
the High Court to prove the settlement decree with her brother and from the
DDA and Sub-Registrar, Mehrauli office.
6. The Trial Court after examining the evidence held that the challenge
to the Agreement raised by the Defendant is unwarranted inasmuch as the
Defendant acquired the right, title or interest through the said Agreement.
The Trial Court did not rely upon Ex.DW-1/2 which is the possession letter
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but went by the Collaboration Agreement dated 27 April, 1988. The Trial
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Court held that the so-called possession letter dated 1 September, 1989 was
not even pleaded in the written statement and could, therefore, not be
believed. Thus, the Trial Court held that the Plaintiff was not guilty of
suppression as was alleged. Insofar as the right of possession of the Plaintiff
is concerned, the Trial Court held that the Plaintiff was the Owner of the
third floor and that he is entitled to possession of the third floor and that the
construction carried out by the Defendant is illegal. Insofar as the use of the
common staircase is concerned, the Trial Court held that the Defendant was
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given the use of the staircase to the first floor and second floor from the
front courtyard adjacent to plot no.C-26 and the use of the common staircase
on the plan. The Trial Court analysed the Agreement, Wills and GPA and
came to the following conclusion.
“ 23.7 It is therefore, evident from a bare reading
of the aforesaid clauses that the defendant shall
have independent right of access to his floor from
the front stair case and that right extinguished at
the second floor itself as no roof rights were given
to the defendant. This clearly manifest that the
plaintiff was to access the terrace floor of the
front portion of the property from the central stair
case and the defendant had independent access to
his portion at first and second floor, front portion
through the front stair case which admittedly
leads from his property at the first and second
floor. Thus, by virtue of evidence reflected from
the admitted documents, oral evidence to the
contrary is not to be accepted. The plaintiff has
been expressely deprived with the right of joint
use of the front stair case and therefore, the
plaintiff fails for the relief of seeking Permanent
Injunction. The issue is accordingly decided
against the plaintiff and in favour of the
defendant. ”
After analysing the documents a partial decree was passed by the
Trial Court in the following terms.
“ (i) A decree of possession in respect of roof
portion land under suit property i.e. two rooms
and one toilet existing on the third floor, front
portion of property no.C-27, Greater Kailash
Enclave-I, New Delhi-110048 more particularly
described in defendant‟s site plan Ex.DW1/3.
(ii) Decree of Mandatory Injunction is hereby
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passed directing the defendant to demolish the
said construction and hand over the physical
vacant possession of the said portion to the
plaintiff immediately after the period of limitation
to prefer an appeal against this order/judgment by
efflux of time.
(iii) the remaining reliefs as prayed are hereby
expressly declined in view of the findings of the
issues above. However, the plaintiff is awarded
costs of the suit. ”
7. In the present appeal, the question that arises is whether the staircase
located in the 170 sq. yards portion of the property, is to be used jointly by
the owner and the Builder or is the staircase to be treated as being for the
exclusive use of the Builder. The Collaboration agreement clearly used the
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word common staircase in clause 3(1). The Will dated 9 October, 1992
also used the words common staircase with Mr. Navin Kumar Bhatia in the
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portion bequeathed to the daughter i.e. Plaintiff. Even in the GPA dated 28
August, 1992 executed by Shri Baldev Singh to Shri Navin Kumar Bhatia
which was in respect of the collaboration, right to the independent access
from the ground floor to the first floor and second floor has been provided.
However, clause 12 of the GPA reads as under:
“ 12. To sell and dispose off the flat(s) constructed
on the aforementioned premises comprising one
bedroom, one toilet, one drawing, one dining
room, one kitchen on the first floor and three
bedrooms, three toilets on the second floor with
right of independent access from the ground floor
to first and second floor. (The owner shall have
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free access on upto 2 floor terrace) alongwith
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2/3 out of 170 sq. yard undivided share in land
comprising the front portion of property no.C-27,
Greater Kailash Enclave-I, New Delhi-110048.
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In whole or in portion to anybody my attorney
likes and or any terms and conditions of the which
my attorney considers suitable of the said portions
of the building, to execute the proper sale
agreement, sale deeds and to sign any other
applications, forms, bonds, receipts, declaration,
affidavits and to get the same registered and to
present, admit the same for registration in the
office of the Sub-Registrar, New Delhi/Delhi/U.P.
and to collect it thereafter. ”
8. A harmonious interpretation of these documents leaves no doubt that
the word „independent access‟ and `free access‟ in effect, means
independent access for the Builder to the First and Second floor, as part of
the 170 sq. yards and not any common access with the remaining 300 sq.
yards located at the rear of the property. „Free access‟ to the Owner means
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that the owner shall have access through the same staircase for the 2 floor
terrace. It does not mean that there would be two staircases, one leading only
to the Ground floor and then to the Terrace and one leading only to the First
Floor and the Second Floor. Such a situation is totally impractical and
contrary to what is contemplated. The documents do not contemplate two
staircases being carved out from the 170 sq. yards plot. The GPA is very
clear that the Owners shall have ` free access ’ to the second-floor terrace.
9. The manner in which the Builder has interpreted the Agreement has
resulted in completely depriving the Owner from access to the terrace from
within 170 sq. yards area which was completely contrary to the agreement
between the parties. The Builder cannot take away the rights of the Owner to
the third floor by constructing the staircase in such a manner that it cannot
be used by the Owner. The Builder has obviously made a vile attempt to
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usurp the third floor, by not granting access through the common staircase .
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In his cross examination, on 3 May, 2007 the Builder clearly admits that
“it is correct that there is one staircase in the property constructed on 170
sq. yards” and he also admits that “roof right of the property remained with
the Plaintiff.”
10. The Agreement has been interpreted in a manner so as to deprive the
Owner of the use of the third floor of the property. Admittedly the ground
floor and third floor belong to the Owner. When the appeal was first listed
before this Court, keys of the two rooms and one toilet in the 170 sq. yards
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portion on the third floor was deposited in this Court on 29 May, 2015. On
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15 March, 2016 this Court also directed the demolition of the unauthorized
construction on the third floor which, however, was stayed by the Supreme
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Court on 1 April, 2016. Vide order dated 23 February, 2017, the Supreme
Court directed as under:
“3. The High Court by the impugned interim
order dated 15.03.2016 during the pendency of the
appeal had directed the concerned Engineer, South
Delhi Municipal Corporation to demolish the portion
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of the 3 floor of property situated in Greater Kailash
Enclave-I, New Delhi on or before 08.04.2016 and to
raise the bill for demolition charges on the appellant.
The appellant was directed to make the payment of the
said bill. The aforesaid order has been questioned in
the present appeal.
4. After hearing the matter, this Court had directed
stay of operation of the impugned order vide order
dated 1.4.2016. In our opinion, said interim order
deserves to be continued till the final decision of the
appeal by the High Court.
5. The High Court is requested to expedite the case
and decide it expeditiously.
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6. It is made clear that we have stayed the order
regarding demolition during pendency of appeal in the
High Court. The appeal is allowed to the aforesaid
extent.”
11. The Agreement is clear that there was a common staircase which is
also clear from the Will and GPA. Thus, the fact that there is only one
staircase in the 170 sq. yards portion of the property clearly means that it is a
common staircase to be used by the Owner for the purpose of accessing the
third floor. The independent staircase referred to in the GPA has to only
mean that the independent staircase is independent from the rear portion of
the 300 sq. yards of the property and not an independent staircase within 170
sq. yards of the property. Thus, the Trial Court is wrong in holding that the
Plaintiff is not entitled to access to the third floor through the staircase.
12. From the records it is also clear that the Defendant made the
construction of the servant quarters on the third floor after obtaining the
completion certificate from the authorities. This is admitted by him in the
cross-examination as under:
“ I obtained completion certificate in the month of
August, 1989. I have not brought original
certificate today. Servants quarters were
constructed in the year 1989 after the completion
certificate was obtained. ”
It was clear that at the time of obtaining the completion certificate the
servant quarters was clearly hidden from the authorities. There can be
nothing which can be termed as exclusive use of common staircase since
there is only one staircase in the property and the roof rights vested with the
Plaintiff who ought to be given access to the roof. In view of the fact that
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the rooms constructed on the third floor were unauthorized, no mesne profit
was liable to be granted.
13. The appeal is dismissed and the cross objections of the Plaintiff are
allowed and the suit is decreed in the following terms.
1) A decree for possession is granted in favour of the Plaintiff against the
Defendant in respect of the third floor admeasuring 170 sq.yards of property
no.C-27, Block No. I, Greater Kailash Enclave-I, New Delhi.
2) A mandatory injunction directing the Plaintiff to remove any
unauthorized construction on the third floor including tin sheds and any
other moveables;
3) A decree of declaration in favour of the Plaintiff, declaring the
Plaintiff as the owner of the third floor with rights to use the common
staircase for access to the third floor (i.e., roof above second floor), in the
170 sq. yards part of the property; and a decree of permanent injunction
restraining the Defendants from blocking the passage and staircase leading
to the third floor of the property.
4) The Plaintiff having been declared the owner of the third floor would
be entitled to enjoy the peaceful use and occupation of the third floor
including the ownership thereof. Construction may be carried out on the
third floor by the Plaintiff or anyone duly authorised by her, in accordance
with law and after obtaining the proper sanctions from the authorities.
14. Relief of mesne profits is rejected. All pending applications are also
disposed of. Decree sheet be drawn accordingly.
PRATHIBA M. SINGH, J.
JUDGE
MAY 15, 2018/ dk
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