IN THE COURT OF SH. ARUN SUKHIJA, ADDITIONAL DISTRICT ... · Anil Dua V. Vijay Sharma & Ors. Delhi...

Anil Dua V. Vijay Sharma & Ors.

IN THE COURT OF SH. ARUN SUKHIJA,

ADDITIONAL DISTRICT JUDGE – 07, (CENTRAL DISTRICT)

TIS HAZARI COURTS, DELHI.

SUIT NO.: 237/2018

UNIQUE CASE ID NO.: 613629/2016

IN THE MATTER OF :

Sh. Anil DuaSon of Shri Sukhdev Dua,R/o Flat No.101, First Floor,Sarojini Nagar Market,New Delhi110023. ....Plaintiff

VERSUS

1. Sh. Vijay Sharma

2. Sh. Pramod Sharma

Both Sons of Late Chand Prakash Sharma,Both at Shop No.101, Ground Floor,Sarojini Nagar Market,New Delhi110023.

3. New Delhi Municipal Council,Through its Chairman,

Suit No. 237/2018 Page 1 of 94


Palika Kendra,New Delhi.

4. Land & Development Officer(Union of India)Nirman Bhawan,New Delhi.Through its Secretary ....Defendants

SUIT FOR DECLARATION, DAMAGES OF RS.7,20,000/(RUPEES SEVEN LAKHS TWENTY THOUSAND ONLY),MANDATORY AND PERMANENT INJUNCTION

Date of institution of the Suit : 17/05/2006

Date on which Judgment was reserved : 29/02/2020

Date of Judgment : 26/05/2020

:: J U D G M E N T ::

By way of present judgment, this court shall adjudicate

upon suit for Declaration, Damages of Rs.7,20,000/ (Rupees Seven

Lakhs Twenty Thousand Only), Mandatory And Permanent

Injunction filed by the plaintiff against the defendants.

CASE OF THE PLAINTIFF AS PER PLAINT

Succinctly, the necessary facts for just adjudication of

the present suit, as stated in the plaint, are as under:

(a) The plaintiff is the lawful owner and in possession of one

residential flat bearing no. 101, Sarojini Nagar Market, New



Delhi (hereinafter referred to as “Flat No.101”). The said flat

was initially allotted to one Shri Bhupesh Nandi, Son of Shri

B.C. Nandi by Director of Estate, Govt. of India and the

plaintiff is the lawful purchaser of the same and in enjoyment

of this flat since February, 1986.

(b) The ownership of plaintiff qua the said flat includes the

aforesaid flat with terrace rights, one common W.C. situated

on the ground floor and courtyard on the ground floor just

behind Shop No.101, Sarojini Nagar Market, New Delhi

(hereinafter referred to as “Shop No.101”). The other cousers

of the said W.C. and Courtyard are the occupiers of Shop

No.101 i.e. defendants no. 1 and 2. The original Lease Deed

dated 19.12.1983 in favour of Shri Bhupesh Nandi, previous

owner, from whom this plaintiff purchased the property fully

describes in Schedule that the owner/allottee of Flat no. 101

has share in the stairs, common passage and in lavatory

block.

(c) The father of Defendants no. 1 and 2 has raised unauthorized

construction in the Courtyard just behind Shop no. 101 and

has also tried to block the passage/ entrance/user of the

lavatory on the ground floor and compelled the plaintiff to file

a civil suit for permanent injunction being Suit No. 41 of 2000

on 04.01.2000. The Ld. Civil Judge has dismissed the

application under Order 39 Rules 1 & 2 by means of Order

dated 03.03.2000.



(d) The plaintiff, being aggrieved from the Order dated

03.03.2000, has preferred an Appeal before Ld. Senior Civil

Judge, Delhi being MCA No. 119/2000. Vide Order dated

17.08.2004, the appellate Court has held that Courtyard is

not a part of Shop No.101 and W.C. on the ground floor is at

the end of Courtyard and that Written Statement of L&DO

shows that this W.C. is not a part of Conveyance Deed

executed in favour of respondent i.e. occupant of shop on the

ground floor and the appeal was accepted and the application

under Order 39 Rules 1 & 2 CPC of the plaintiff was allowed

and the then, the respondents/ defendants were restrained

from obstructing common passage and shared lavatory and

also from demolishing lavatory built on the ground floor for

use of the occupants of Flat No.101, Sarojini Nagar Market,

New Delhi till the final disposal of the main suit.

(e) The father of Defendants no. 1 and 2 died in the meanwhile

and these defendants no. 1 & 2 had filed a Civil Misc. (Main)

No. 1131 of 2004 before Hon'ble High Court of Delhi. While

hearing the said petition, the Hon'ble High Court of Delhi has

held in the Order dated 15.09.2004 that Ld. Counsel for

L&DO submits that he has no objection for the construction

of W.C. on the first floor. Further, in another Order dated

30.09.2004, it was recorded that Ld. counsel for NDMC

submits that NDMC has no objection for the construction of



W.C. at the first floor, as per approved standard plan,

provided prior approval/ sanction is obtained from NDMC.

(f) In the meanwhile, vide Order dated 18.11.2005, suit filed by

the plaintiff was abated by the Court of the then Ld. Civil

Judge, Delhi on the ground that the relief claimed is of

personal nature against Sh. Chand Prakash Sharma, father of

defendants no. 1 & 2. Thereafter, the defendants No.1 and 2

have withdrawn Civil Misc. (Main) as the main suit was

abated.

(g) Thereafter, the plaintiff has filed a Writ Petition (Civil) No.4542

of 2006 against the defendants before the Hon'ble High Court

of Delhi praying for removal of the unauthorized construction

on the ground floor i.e. just behind shop in the Courtyard by

defendants no. 1 & 2 and restraining the defendants from

putting hindrance to the user of W.C./Lavatory situated on

the ground floor by the plaintiff. The Hon'ble High Court of

Delhi vide its Order dated 27.04.2006 was of the view that the

dispute between the parties is purely a private dispute and it

requires appropriate Order from the Civil Court and the

plaintiff should approach the Civil Court. With this

observation, Writ Petition was not allowed.

(h) The defendants no. 1 & 2, in collusion with defendants no. 3

& 4 and local police, have illegally encroached upon the

common Courtyard just behind Shop no. 101 by raising pucca

construction thereon and thus, have encroached upon the



right of common user of W.C. by the plaintiff. The sewer main

hole is existing in the Courtyard and the same has been

covered and merged into shop no. 101.

(i) The Defendants no. 1 & 2 have converted the courtyard space

into a shop and merged with shop no. 101 and they have

gained about 200 sq. ft. excess space. The rental value of the

said excess space in Sarojini Nagar Market is more than

Rs.40,000/ per month and this space is being used by

defendants no. 1 & 2 for more than 3 years despite objections,

complaints in writing by the plaintiff to the Government

Authorities like defendants no. 3 & 4 and there are orders for

removal of unauthorized construction on this excess space, by

defendant no.4 but no action has been taken by defendant

no.3 since its officials are being bribed regularly by

defendants no. 1 & 2. The Defendants no. 1 & 2 have blocked

the W.C. on the ground floor and they are not allowing the

plaintiff to use the same, in which the plaintiff has absolute

right to use the same.

(j) The plaintiff has to install a temporary pot for latrine in his

bathroom on the barsati floor, as he was finding very difficult

due to constant obstructing behaviour of defendants no.1 & 2,

but that system is not working since water sewer line is

passing through the courtyard, which has been converted into

a shop by defendants no. 1 & 2 and the plaintiff cannot clean

the waste of his bathroom, which is passing through the



sewer main hole existing in the courtyard and now converted

into a shape of shop and the plaintiff is finding it very difficult

as a lot of smell is coming and unhygienic conditions are

prevailing in the bathroom of plaintiff. Further, on the one

hand, the defendants no.3 & 4 have given their consent for

construction of independent W.C./Latrine over & above the

ground floor/ lavatory block in the Civil Misc.(Main) filed

before the Hon'ble High Court of Delhi, but subsequently, for

technical reasons and at the behest of and in collusion with

Defendants no. 1 & 2, request of plaintiff has been turned

down resulting chaotic condition in the house of plaintiff.

Even this toilet on the Barsati floor is likely to be removed by

defendant no.3 as it is not as per the Sanction Plan and in

case, it is removed, then the plaintiff would have no place to

go even for urinal except to some public urinal.

(k) The plaintiff is filing the present suit for declaration on the

ground that he is one of the coowners qua the Courtyard

space and lavatory situated on the ground floor just behind

shop no. 101. The Conveyance Deed/ Lease Deed duly

executed by the Government of India in the name and favour

of Sh. Bhupesh Nandi, previous owner and after transfer of

the property in the name and favour of plaintiff, all the rights

have been inherited/vested in the plaintiff in the aforesaid

portion/ amenities alongwith Flat No.101.



(l) The plaintiff is entitled for damages and which are quantified

in the sum of Rs.7.20 Lakhs for preceding 36 months @

Rs.20,000/ per month, to which this plaintiff is minimum

entitled to get being coowner to the extent of 50% share in

the said common portion/ space on the ground floor, which is

now being illegally and unauthorizedly used by defendants no.

1 & 2.

(m) The plaintiff wants that the unauthorized construction on the

Courtyard and which has been merged into shop no. 101 may

be reverted back to its original position and that directions for

removal of the unauthorized construction, as shown in the

plan, may kindly be issued by a decree of mandatory

injunction in favour of plaintiff and against defendants

thereby directing the defendants to remove the same and to

bring the same to its original condition/ position.

(n) A decree of permanent injunction restraining the defendants

no. 1 & 2 from blocking lavatory on the ground floor to the

user of plaintiff and his family members may kindly be passed

in favour of plaintiff since the plaintiff is the coowner/couser

of the same.

(o) A decree of permanent injunction restraining the Defendants

no. 1 and 2 from transferring, alienating or parting with the

physical possession of the portion illegally constructed on the

ground floor in the courtyard just behind shop no. 101 and



also the lavatory block and adjacent space thereto, to any

person, without the consent and permission of the plaintiff.

CASE OF THE DEFENDANTS NO. 1 & 2 AS PER WRITTENSTATEMENT

Succinctly, the case of the Defendants no. 1 & 2 is as

under:

(a) This Court has no jurisdiction to try and entertain the present

suit in view of the Order dated 26.04.2006 passed by Hon'ble

High Court of Delhi in WP (C) No.4542/2006 titled Sh. Anil

Dua Vs. NDMC & Ors., wherein the Hon'ble High Court has

clearly stated and decided that there is no common toilet

between the shop and flat owner and there is no evidence that

the owner of the ground floor shop and the owners of first

floor have to share a common toilet.

(b) The courtyard and WC are in the exclusive and absolute

ownership and possession of the allottee/ owner of shop no.

101, Sarojini Nagar Market, New Delhi since beginning and is

fully charged to the shop owner and as per sanctioned plan

rear courtyard has been merged with the shop. The

Conveyance Deed and Lease Deed, both dated 16.01.1984

alongwith the line plan executed in favour of the allottee/

owner of shop no. 101, Sarojini Nagar Market, New Delhi by

the Govt. of India clearly shows, describes and proves that the

courtyard and W.C. of the shop no. 101 are fully charged to

the shop owner and the owner of the shop has exclusive and



absolute right, title, ownership and interest to use and occupy

the same exclusively. Not only this, but the allottee/owner of

the shop has been exclusively assessed and charged with the

house tax of the courtyard covered with the asbestos sheets

and merged with the shop for the past more than 25 years

and copy of notice under Section 80(2) of the Punjab

Municipal Act, 1911 issued to Sh. Chand Prakash, owner of

shop no. 101, Sarojini Nagar Market, New Delhi being dated

15.12.1984 and letter dated 17.05.1984 clearly shows and

proves that the rear courtyard is fully charged to the shop

owner and is also exclusively assessed for the house tax to the

shop owner.

(c) The Lease Deed and Conveyance Deed, both dated 19.12.1983

and the line plan of flat no. 101, Sarojini Nagar Market, New

Delhi do not show and reflect that the rear courtyard of W.C.

on the ground floor, in any manner, belong to the flat owner.

The allottee of flat no. 101 was leased and charged with

198.745 sq. feet area and this does not include the area of

back courtyard of ground floor in the corner of which W.C. is

situated. The Conveyance Deed and Lease Deed of the allottee

of flat no. 101, Sarojini Nagar Market, New Delhi further

reveal that the courtyard belongs to shop no. 101 and is not

common between the owner of the shop and owner of the flat.

(d) Without prejudice to all other rights and contentions of

Defendants no. 1 & 2 and not admitting herein, it is

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submitted that the present suit filed by plaintiff is otherwise

barred by law of limitation.

(e) The present suit is also liable to be dismissed in view of the

provisions contained in Section 3 of the Delhi Law (Special

Provisions) Act, 2006. The declaratory suits/decrees fall

under Chapter IV of the Specific Relief Act, 1963.

(f) The plaintiff has also concealed the very material fact from

this Court that the L&DO in his Written Statement filed in the

suit no. 41/2000 (new no. 45/2005) tilted as “Sh. Anil Dua

Vs. Sh. Chand Prakash Sharma” has categorically and clearly

stated that the measurement of land charged to flat no. 101,

Sarojini Nagar Market, New Delhi as per the lease deed is

198.745 sq. feet. This does not include the area of back

courtyard at ground floor in the corner of which W.C. is

located. Further, the plaintiff has concealed the very material

fact that in the C.M. (Main) 1131/2004 titled “Sh. Chand

Prakash Sharma through his L.R.'s versus Sh. Anil Dua &

Anr.” filed before the Hon'ble High Court of Delhi, the Hon'ble

Court vide order dated 25.08.2004 had directed the L&DO to

clarify whether the open courtyard form part of the shop on

the ground or it is common for the shop owners and flat

owners and in compliance of the above orders, in the affidavit

filed on behalf of the L&DO. It was clearly stated that the rear

courtyard as well W.C. situated in the corner of the courtyard

is fully charged to the shop owner and as per existing

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standard plan of the Sarojini Nagar Market, duly approved by

the NDMC, the rear court yard has been merged with the

shops and toilet has been provided in the first floor flats. It

was further clarified and stated in the said affidavit that

inadvertently, the printed column pertaining to share in

staircase, common passage and lavatory block were not

deleted in the Conveyance Deed of the owner/ allottee of the

flat no. 101, Sarojini Nagar Market, New Delhi.

(g) The plaintiff has concealed and suppressed the very material

fact from this Court that plaintiff himself had filed and

instituted the suit for declaration, permanent cum mandatory

injunction bearing Suit No.66/2002 before the Ld. Civil

Judge, Delhi seeking declaration that plaintiff is also entitled

for being charged 1/3rd of the ground rent of rear courtyard

and the said suit was strongly opposed by the L&DO & Union

of India. In opposition to the prayer sought in the said plaint,

the Union of India/ L&DO in its Written Statement clearly

stated that the relief sought by the plaintiff in the suit cannot

be granted since the rear courtyard is fully charged to the

shop owner and otherwise also, the prayed relief cannot be

granted since the area charged to the flat owner, as per the

lease deed is 198.745 sq. feet and by no way, the plaintiff can

seek any relief in contravention of the Lease Deed and

ultimately, the said suit was dismissed as withdrawn on

12.04.2005.

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(h) The plaintiff was adamant and bent upon and continued with

his illegal and unlawful activities and started interfering in the

peaceful possession and enjoyment of the property of

defendants no. 1 & 2 and was trying to encroach upon space/

roof above the rear courtyard, the defendants no. 1 & 2 herein

filed and instituted a suit for mandatory injunction bearing

no. 109/2002 (new suit no. 794/06/02) titled as Sh. Vijay

Sharma & Anr. Vs. Sh. Anil Dua & Anr. and upon the interim

application under Order 39 Rules 1 & 2 CPC filed on behalf of

the plaintiffs in the said suit, the defendant no.1/ plaintiff

herein was restrained from interfering or using the roof of the

ground floor portion, which is in occupation of the plaintiff

vide Order dated 19.04.2004. The plaintiff also tried to

trespass upon the property of defendants and fought, abused

and breached the peaceful enjoyment of the property for

which FIR No. 79/2002 and FIR No.412/2003 were also

registered against the plaintiff with Police Station Sarojini

Nagar, New Delhi. The plaintiff has filed numerous cases

without any basis in order to harass the defendants and just

to grind his own wheel on baseless and false grounds. The

recital of the cases filed by the plaintiff is as under:

S.No.

Case No. Title Particulars Status

1. Suit No.41/2000(new no.

Anil Dua Vs. Sh.Chand PrakashSharma & Ors.

Suit forpermanentinjunction.

Dismissed

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45/05)2. W.P. (C) No.

2651/2000Anil Dua Vs.Union of India &Oth.

Writ petitionunder Article226 ofConstitution ofIndia.

Dismissed

3. Suit no.66/2002

Anil Dua Vs.Union of India &Oth.

Suit forDeclaration,permanentcummandatoryinjunction.

Dismissed

4. W.P. (C) No.10323/ 2004

Anil Dua Vs.NDMC & Oth.

Writ petitionunder Article226 and 227 oftheConstitution ofIndia.

Dismissed

5. Suit No.318/2004

Anil Dua Vs.Vijay Sharma &Oth.

Suit forpermanentinjunction.

Pending

6. W.P. (C) No.4542/2006

Anil Dua Vs.NDMC & Oth.

Writ petitionunder Article226 and 227 oftheConstitution ofIndia.

Dismissed

7. Suit No.CS/72/2006


Suit fordeclaration,damages,mandatory andpermanentinjunction.

Pending

8. Suit No.134/2006


Suit forrecovery ofRs.4 Lakhs asdamages

Pending

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mandatory &permanentinjunction.

(i) The Site Plan filed with the plaint nowhere shows or describes

that the owner of flat no. 101, Sarojini Nagar Market, New

Delhi has any right either in the rear courtyard or W.C. or the

said land was ever charged to the allottee of the said flat,

rather it clearly shows that rear courtyard and W.C. situated

therein are exclusively belong to the shop/ground floor owner.

The plaintiff deliberately and intentionally has also not filed

the affidavit on behalf of the L&DO before the Hon'ble High

Court in C.M. (Main) No.1131/2004, wherein, it was clearly

stated that the rear courtyard is fully charged to the

ground/shop owner and inadvertently, the printed column

pertaining to share in staircase, common passage and

lavatory block were not deleted in the Conveyance Deed of the

flat owner. The plaintiff has also deliberately and

intentionally not filed the Order dated 26.04.2006 passed by

Hon'ble High Court of Delhi in W.P. (C) No. 4542/2006,

wherein, it was held by the Hon'ble High Court that toilet

situated on the ground floor is not common between the

owner of the flat and owner of the shop.

(j) It is undisputed and candid clear that plaintiff is having bath

cum toilet on the first floor of the flat. By means of relief of

declaration sought in the present suit, the plaintiff wants to

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and is trying to enhance and extent his chargeable/lease area,

of which he is not entitled and has no right. Vide Conveyance

Deed and Lease Deed, both dated 19.12.1983, the owner/

allottee of Flat No.101, Sarojini Nagar Market, New Delhi was

charged with 198.745 sq. ft. of area and the said chargeable

area of 198.745 sq. ft. does not include the courtyard and

W.C. on the ground floor shop no. 101, Sarojini Nagar Market,

New Delhi. The public authorities have rightly refused the

request of plaintiff vide letter and communication dated

24.03.2005 and 05.08.2005.

(k) On merits, the contents of the plaint have been denied. The

owner of shop no. 101 and owner of flat no. 101 were charged

on 2/3rd and 1/3rd ratio of total common area under lease.

Since the total area of land under common charge/ lease was

596.2343 sq. feet, therefore, the owner of shop no. 101 was

charged with 2/3rd of 596.2343 sq. feet, which is 397.4893

sq. feet and the owner of flat no. 101 was charged with 1/3rd

of 596.2343 sq. ft., which comes to 198.745 sq. feet. Hence,

the common area between the owner of shop no. 101 and

owner of flat no. 101 is only 596.2343 sq. feet, out of which,

2/3rd is charged to the shop owner and 1/3rd is charged to

the flat owner. The area measuring 225.0156 sq. feet towards

the courtyard and steps was exclusively, independently and

additionally charged and leased to the owner of shop no. 101,

hence, the total charged/ leased area of shop no. 101 is

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820.8466 sq. feet. The area of rear courtyard situated on the

ground floor is 17'4½” x 11' ½”, which is exclusively and

separately charged and leased to shop/ ground owner and the

owner of flat has no right, title or interest in the said

courtyard. After the death of Sh. Chand Prakash Sharma, his

sons namely Sh. Vijay Sharma & Sh. Pramod Sharma have

become the owners of shop no. 101 and all the lease hold

rights in respect of shop no. 101 have been substituted in the

name of defendants no. 1 & 2 and defendants no. 1 & 2 have

been informed in this regard vide letter no. L&DO/PSIV/3714,

dated 19.10.2004 issued by the Government of India, Ministry

of Urban Development, Land & Development Office, Nirman

Bhawan, New Delhi that the property bearing shop no. 101,

Sarojini Nagar Market, New Delhi now stands in the books in

the names of Sh. Vijay Sharma & Sh. Pramod Sharma, both

S/o Late Sh. Chand Prakash Sharma. The contents of

Conveyance Deed and Lease Deed executed in favour of owner

of flat no. 101, Sarojini Nagar Market, New Delhi are as

follows:

“Bounded by North Courtyard of Shop No. 101 and service lane below.

Bounded by South Service Road below.

Bounded by East Service Road below.

Bounded by West Flat no. 102”

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From the above, it is candid clear that the courtyard

situated on the ground floor is in exclusive ownership and

possession of the allottee of shop no. 101, Sarojini Nagar Market,

New Delhi and the plaintiff has no right over courtyard or W.C.

CASE OF DEFENDANT NO. 3 AS PER WRITTEN STATEMENT

Succinctly, the case of defendant no.3 is as under:

(a) The suit of plaintiff is bad for misjoinder of parties as

defendant no.3 is not a necessary party. The suit is not

maintainable for want of service of mandatory statutory notice

in terms of provisions of Section385 of the NDMC Act. There

never existed any privity of contract between the plaintiff and

defendant no.3 at any point of time.

(b) The suit and claim of plaintiff is liable to be rejected against

defendant no.3 in terms of the contents of plaint, wherein, the

plaintiff himself has fixed the responsibility and liability

against defendant no.1 alone.

CASE OF DEFENDANT NO. 4 AS PER WRITTEN STATEMENT

Succinctly, the case of defendant no.4 is as under:

(a) The suit of plaintiff is bad on account of nonjoinder of

necessary parties as the defendant no.4 is not a necessary

party. The Central Government has decided to transfer

various markets under the Ministry of Urban Development to

the local bodies viz. NDMC and MCD and the Notification in

this regard was issued on 24.03.2006. Sarojini Nagar Market

has been transferred to NDMC.

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(b) Notice under Section 80 CPC has not been sent to defendant

no.4 i.e. Union of India.

(c) On merits, the contents of the plaint have been denied. It has

been admitted that as per record of the office of defendant

no.1, Lease Deed and Conveyance Deed in respect of Flat

No.101, S.N. Market, were executed on 19.12.1983 between

the President of India and Sh. Bhupesh Nandi, S/o Sh. B.C.

Nandi. Sh. Bhupesh Nandi had sold the property to Sh. Anil

Dua vide Sale Deed dated 06.02.1986 in the name of Sh. Anil

Dua. As per Lease Deed, the land charged to Flat No. 101 is

198.745 sq. ft., this does not include the area of back

courtyard at ground floor in the corner of which W.C. is

located. The description in the schedule of Conveyance Deed

that the owner/ allottee of flat no. 101 has share in the

lavatory block appears to be due to clerical error.

(d) The area of rear courtyard in Sarojini Nagar Market is fully

charged to the ground floor shop owners and the flat owners

have no right in that. However, in most of the cases, both the

flats and shops in Sarojini Nagar Market were allotted to the

same persons and therefore, they continued to use the W.C.,

which was originally constructed in the ground floor shops,

till construction of separate W.C. in the flat. In cases, where

the shops and flats were allotted to different persons, the flat

owners continued to share the W.C. in the shops on the

ground floor with the consent of shop owners till they made

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their own arrangements in the flat. In the instant case also,

CPWD was advised vide letter dated 03.01.2001 to provide

separate W.C. in the bathroom in flat no. 101, Sarojini Nagar

Market at the cost of licensee of the flat, as provided under

the existing standard plan of the market. However, when

inspection of Flat No.101, Sarojini Nagar Market was carried

out on 17.04.2002, one bath and W.C. was found at site.

REPLICATIONS AND ISSUES

The plaintiff filed replications and controverting the

assertions made in the Written Statements filed by defendants no.

1, 2, 3 and 4 and reiterated the contents of the Plaint.

From the pleadings of the parties, following issues were

framed vide Order dated 10.08.2011:

ISSUES

1. Whether suit of the plaintiff for relief of declaration is barredby law? OPD

2. Whether suit of the plaintiff is barred by Section 41(h) of theSpecific Relief Act 1963 (wrongly written as 1983) ? OPD

3. Whether suit for declaration simplicitor without claimingdecree of possession is not maintainable? OPD

4. Whether the suit of the plaintiff is barred under Order 2 Rule2 CPC? OPD

5. Whether the Plaintiff is entitled for the decree of declarationas prayed for? OPP

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6. Whether Plaintiff is entitled for damages @ Rs.20,000/ pmbeing coowner of 50% share in the courtyard portionsituated in the ground floor behind shop no.101, SarojiniNagar Market, New Delhi? OPD

7. Whether the Plaintiff is entitled for damages pendentelite andfuture as claimed for? OPP

8. Whether the Plaintiff is entitled for decree for mandatoryinjunction against the defendant as prayed for? OPP

9. Whether Plaintiff is entitled to decree for permanentinjunction against the defendants as prayed for?

10. Relief ?

EVIDENCE OF THE PLAINTIFF AND DEFENDANTS ANDDOCUMENTS RELIED UPON BY THEM:

Plaintiff, in order to prove his case, led plaintiff's

evidence and examined the following summoned witnesses:

1. Sh. Mangesh Kumar, Sr. Assistant, EstateII, NDMC as PW1,

who brought the summoned record i.e. file related to Flat

No.101, First Floor, Sarojini Nagar, New Delhi and stated that

Ex.PW1/1 is the true copy of plan issued by CPWD for shop

no. 101, ground floor. Ex.PW1/2 is the true copy of plan

issued by CPWD of flat no. 101 (first floor), Ex.PW1/3 is the

copy of lease deed of said flat. He further stated that there is

some difference between the record brought by him on that

day. In their record, in the lease deed 2/3rd to ground floor

and 1/3rd to first floor = 198.745 is written while in

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Ex.PW1/3, “1/3rd to ground floor” is written in place of

“1/3rd to first floor”. He stated that he cannot say whether

Ex.PW1/4 is the copy of Conveyance Deed. He stated that he

cannot say whether Ex.PW1/5 is the copy of Sale Deed as

there is cutting on it. He stated that he cannot say whether

Ex.PW1/6 is the true copy i.e. mutation letter as date is not

clear on that document. Ex.PW1/7 is the true copy of letter

dated 11.10.73 issued by Director of Estate. He stated that

he cannot verify the genuineness of Ex.PW1/8 as this

document is not in their records. Ex.PW1/9 is the letter

dated 24.03.2005 issued by NDMC to Sh. Anil Dua.

2. As the abovenamed summoned witness was transferred and

hence, in his place, Sh. Raman Dhingra, Sr. Assistant, Dept.

EstateII, NDMC, New Delhi was examined by the plaintiff as

PW2. This witness has proved on record the certified copy of

CPWD Plan of flat no. 101, Sarojini Nagar as Ex.PW2/1.

Certified copy of CPWD plan of flat no. 101, Sarojini Nagar as

Ex.PW2/2. Certified copy of lease deed of flat no. 101, Sarojini

Nagar as Ex.PW2/3. Certified copy of conveyance deed of flat

no.101, Sarojini Nagar as Ex.PW2/4. Certified copy of

mutation letter dated 19.03.1987 is Ex.PW2/5. Certified copy

of sale deed dated 06.02.1986 executed by Bhupesh Nandi in

favour of Anil Dua as Ex.PW2/6. Certified copy of letter dated

11.10.1973 issued by Director of Estates as Ex.PW2/7.

Certified copy of Complaint dated 24.01.2000 as Ex.PW2/8.

Suit No. 237/2018 Page 22 of 94


Certified copy of complaint dated 31.12.2003 as Ex.PW2/9.

Certified copy of letter dated 26.03.1979 as Ex.PW2/10.

During crossexamination, the dimensions of common

passage have been reflected at encircled portion at pointC of

Ex.PW2/RX1. The line plan as Ex.PW2/RX2. The line plan of

flat no. 101 is Ex.PW2/RX3. True copy of letter dated

15.09.1973 is Ex.PW2/RX4. True copy of complaint dated

30.10.1973 is Ex.PW2/RX5. True copy of letter dated




19.02.1974 is Ex.PW2/RX9. True copy of letter addressed to

Executive Engineer, CPWD is Ex.PW2/RX10. True copy of

pages no. 1 to 6 of noting portion of Order dated 03.03.82 and

subsequent proceedings till 11.04.1983 is Ex.PW2/RX11.

Certified copies of letters are Ex.PW2/RX12 and

Ex.PW2/RX13. The draft lease of Bhupesh Nandi of Flat

No.101, Sarojani Market, Delhi is Ex.PW2/RX14. The

Conveyance Deed pertains to Shop No.101, Sarojani Nagar

Market in favour of Sh. Chand Prakash is Ex.PW2/RX15.

Certified copy of letter dated 30.09.1999 of Sh. Chand

Prakash is Ex.PW2/RX16. Certified copy of letter dated

11.10.1999 in respect of shop no. 101, Sarojani Nagar Market

is Ex.PW2/RX17. The clarification by SHO, Sarojani Nagar

was caused in respect of Shop no. 101 and the same is

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Ex.PW2/RX18. Ex.PW2/RX19 is letter dated 31.12.1999.

Photocopy of letter dated 24.03.2005 addressed to Sh. Anil

Dua is Ex.PW2/RX21. Certified copy of Memorandum dated

13.01.2003 is Ex.PW2/RX24. The original signed office copy

of written statement filed in case titled as Anil Dua Vs. Chand

Prakash Sharma filed by L&DO is Ex.PW2/RX26 and copies

of seven photographs are Ex.PW2/RX27.

3. Sh. Raman Dhingra, Sr. Assistant, Department of EstateII,

NDMC, New Delhi, posted at Palika Kendra was reexamined

as PW2A as official witness for Director EstateII, NDMC. The

earlier examination of the witness was done as a witness for

Directorate of Estate, Govt. of India as the records of

Directorate of Estate have already been sent to NDMC as

transferred.

PW2A has brought on record the attested photocopy of

Inspection Report dated 10.03.1989 as Ex.PW2A/1.

Inspection Report dated 22.02.2000 carried out by L&DO in

shop no. 101, Sarojini Nagar, Delhi as Ex.PW2A/2. Copy of

letter bearing no. L&DO PS.IV/383 dated 29.04.2002 as

Ex.PW2A/3. Copy of letter no. L& DO/PS.IV/3715 dated

19.10.2004 issued by L&DO to defendants no. 1 & 2 is

Ex.PW2A/4. The detailed calculation report as per notice

dated 19.10.2004 is Ex.PW2A/5. The action taken report on

the complaint dated 18.02.2005 of the plaintiff is Ex.PW2A/6.

Suit No. 237/2018 Page 24 of 94


The attested copies of Conveyance Deeds of flat nos. 102, 129,

146, 192 are Ex.PW2A/7 to 10.

4. Sh. Mangal Saini, UDC, L&DO Department, R.P. Cell Section

as PW3 twice.

In his first statement recorded on 02.09.2011, he stated

that he had seen documents Ex.PW3/3 and Ex.PW3/4 and he

cannot say that these documents were received in their office.

He cannot say that seal on document Ex.PW3/3 is of their

office. He cannot say that reply Ex.PW3/1 was given by their

department in response to letters Ex.PW3/3 and Ex.PW3/4.

During crossexamination, he stated that it is correct that

Ex.PW3/4 is a voucher issued by Axis Bank and their

department had no concern with this voucher. He has not

brought the record pertaining to RTI as the same was not

summoned by the Court.

In his second statement recorded on 02.09.2011, he

stated that he has seen document Ex.PW3/1 i.e. copy of RTI

application. There is no document in record brought by him to

verify the genuineness of these documents. He identified the

signatures of Sh. Surender Singh, Dy. L&DO at point X. He

has seen Sh. Surender Singh writing and signing before him.

He has seen document Ex. PW3/2, he cannot verify the

genuineness of this document as copy of same was not in

their record. He voluntarily stated that this document was

pertaining to RTI Cell.

Suit No. 237/2018 Page 25 of 94


During crossexamination of PW3, certified copy of

Written Statement of Defendants no.1 and 2/U.O.I. filed in

the case titled as Anil Dua Vs. Union of India & Ors. was

Ex.PW3/D1. Certified copy of Written Statement of defendant

no.2 filed in the case titled as Anil Dua Vs. Chand Prakash

Sharma & Anr. was Ex.PW3/D2. Copy of Short Affidavit on

behalf of respondent no.2 filed in the case titled as Chand

Prakash Sharma (Through his legal heirs) Vs. Anil Dua & Ors.

was Ex.PW3/D3.

5. Sh. Krishan Kant, Assistant (RKD Branch) from Hon'ble High

Court of Delhi as PW5, who brought on record the WP (C) No.

4542/2006 titled as Anil Dua Vs. NDMC and CM (M) No.

1131/2004 titled as Chand Prakash Sharma Vs. Anil Dua.

The Order dated 25.08.2004 is Ex.PW5/1 and 27.08.2004 is

Ex.PW5/2 respectively passed by Hon'ble Mr. Justice O.P.

Dwivedi and passed in CM (M) No. 1131/2004 and short

affidavit filed by L&DO alongwith Site Plan (6 pages) on

31.08.2004 are Ex.PW5/3. He further stated that Ex.PW4/6

is the Order dated 26.04.2006 passed by Hon'ble Mr. Justice

Pradeep Nandrajog in WP(C) No. 4542/2006.

6. Sh. Ghanshyam, LDC (Record Room, Session), Tis Hazari

Courts, Delhi as PW6, who brought on record the Order dated

17.08.2004 passed by Sh. Daya Prakash, the then Ld. Sr.

Civil Judge in MCA No.119/2000 as Ex.PW6/1.

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7. Sh. M.K. Gautam, Junior Engineer (Civil), Enforcement

Building Regulations, 2nd Floor, Pragati Bhawan, NDMC as

PW7 and his examination in chief was deferred on the ground

that he did not bring the summoned record. Thereafter he was

not examined.

The plaintiff has also examined himself as PW4. PW4

has filed his evidence by way of affidavit, wherein he reiterated and

reaffirmed the contents of the plaint. PW1 in his testimony has

relied upon the following documents:

(i) Certified copy of photograph about the toilet in dispute

as Ex.PW4/1.

(ii) Copy of Order dated 17.08.2004 passed by Sh. Daya

Prakash, the then Ld. Civil Judge, Delhi is Ex.PW4/2.

(iii) Copies of Orders dated 15.09.04 and Order dated

30.09.2004 passed in CM (Mains) 1131/04 by Hon'ble

High Court of Delhi are Ex.PW4/3 and Ex.PW4/4

respectively.

(iv) Copy of Order dated 25.11.2005 in the same case is

Ex.PW4/5.

(v) Copy of Order dated 26.04.2006 in civil Writ Petition No.

4542/2006 is Ex.PW4/6.

(vi) Site Plan is Ex.PW4/7.

(vii) Complaints dated 24.01.2000 are Ex.PW4/8 and

Ex.PW4/9.

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(viii) Complaint dated 02.04.2002 is Ex.PW4/10.

(ix) Complaint dated 31.12.2003 is Ex.PW4/11.

(x) Complaint dated 06.12.2004 is Ex.PW4/12.

(xi) Complaint dated 14.02.2005 is Ex.PW4/13.

(xii) Complaint dated 18.08.2008 is Ex.PW4/14.

(xiii) Copy of Standard Plan is Ex.PW4/15.

(xiv) Copy of Letter dated 06.04.1979 addressed to Director of

Estate is Ex.PW4/16.

(xv) Information received through RTI vide Letter dated

17.12.2003 is Ex.PW4/17.

During crossexamination, following documents were

exhibited:

1. Certified copy of the Civil Suit No. 66/2002titled as Anil

Dua Vs. UOI in the Court of Sh. Daya Prakash, the then

Ld. Civil Judge, Delhi is Ex.PW4/RX1.

2. Certified copy of the suit no. 45/05 titled as Anil Dua

Vs. Chand Prakash Sharma is Ex.PW4/RX2.

3. Copy of plaint in the suit for damages is Ex.PW4/RX3.

4. Letter written by Sh. Chand Prakash is Ex.PW4/RX4.

5. Copy of Letter from L&DO is Ex.PW4/RX6.

6. Ex.PW4/RX28 is Plaint of Suit No.109/2002 (New

Number 269/10/2002) titled as Vijay Sharma Vs. Anil

Dua and Ors.

7. Copy of plaint in a suit for permanent injunction in civil

courts, Delhi is Ex.PW4/RX29.

Suit No. 237/2018 Page 28 of 94


8. Certified copies of CWP No. 2651/2000 titled as Anil

Dua Vs. Union of India & Ors. filed before the Hon'ble

High Court alongwith the Order dated 03.08.2000

passed by Hon'ble High Court are Ex.PW4/RX30 and

Ex.PW4/RX31.

9. Certified copies of plaint filed before the then Ld. Senior

Civil Judge, Delhi (obtained from the Court of Ms.

Somya Chauhan, the then Ld. Civil Judge, Delhi is

Ex.PW4/RX32.

10. Certified copies of plaint and certain orders passed by

the then Ld. Civil Judge in respect of Suit No.

639/11/02 tilted as Vijay Sharma & Ors. Vs. Anil Dua &

Ors. is Ex.PW4/RX33.

11. Certified copy of Order dated 05.08.2004 in CWP No.

10323/04 is Ex.PW4/RX34.

12. Certified copy of Order dated 26.04.2006 in CWP No.

4542/2006 is Ex.PW4/RX35.

13. Certified copy of the documents/ pleadings in CM(M) No.

1131/04 are Ex.PW4/RX36 and

14. Fee receipt of capitalise value of Bhupesh Nandi of

06.04.1979 is Ex.PW4/RX37.

On the other hand, the defendants No.1 and 2 have

examined the summoned witness Sh. Dharam Pal, Inspector Tax,

Suit No. 237/2018 Page 29 of 94


House Tax Department of NDMC, Palika Kendra, New Delhi as DW

1, who had brought the following documents:

1. Copy of letter no. 3126/Tax dated 17.05.1984 issued by

NDMC to Shri Chand Prakash as Ex.DW1/1.

2. Notice No.409/Tax dated 10.01.1984 issued by NDMC to Shri

Chand Prakash as Ex.DW1/2.

3. The mutation stood in the name of Sh. Vijay Kumar and Sh.

Promod Kumar in respect of shop no. 101, Sarojini Nagar

Market, New Delhi vide mutation no. 2704/AST/Tax/2005

dated 25.10.2005 as Ex.DW1/3.

The defendants No.1 and 2 have also examined Shri

Pramod Kumar Sharma as DW2. DW2 has filed his evidence by

way of affidavit and placed reliance upon the following documents:

1. Conveyance Deed dated 16.01.1984 of Shop No.101 is Ex.DW

2/1.

2. Letter dated 19.10.2004 issued by L&DO Office is Ex.DW2/2.

3. Certified copy of Order of Writ Petition No.4542/06 is Ex.DW

2/3 (Colly.).

4. Certified copies of Order passed in C.M. No. 1131/04 is

Ex.DW2/4 (Colly.).

5. Copy of Order dated 12.04.2005 passed by Sh. Vidya Prakash

in Suit No.66/02 is Ex.DW2/5.

6. Copy of Order dated 19.04.2004 and 18.02.2006 passed in

Suit no. 109 is Ex.DW2/6 (Colly.).

Suit No. 237/2018 Page 30 of 94


7. Copies of FIR No.79/02 and 412/03 are Ex.DW2/7 and

Ex.DW2/8 and

8. The notice dated 15.12.1984 is Ex.DW2/9.

This Court heard final arguments at length, as advanced

by Ld. Counsels for the parties. I have perused the material

available on record and also the written submissions filed by Ld.

counsels for Plaintiff and defendants No.1 and 2.

ISSUE WISE FINDINGS

ISSUES NO.1, 3 & 5

1. Whether suit of the plaintiff for relief of declaration is barredby law? OPD

3. Whether suit for declaration simplicitor without claimingdecree of possession is not maintainable? OPD

5. Whether the Plaintiff is entitled for the decree of declarationas prayed for? OPP

The aforesaid issues no. 1, 3 and 5 are interrelated and

interconnected to each other and accordingly, they are decided

together.

FINDINGS AND CONCLUSIONS OF THE COURT

On 31.07.2019, the Plaintiff has given the following

Statement:

“Without prejudice to my other rights, I do not wish to pressupon my claim of ownership over the rear court yard on theground floor except the portion of the WC situated at the

Suit No. 237/2018 Page 31 of 94


corner of the rear courtyard. By making this Statement, Iam not in any way foregoing my easementary rights overthe back court yard or common usage rights as all the pipelines essential for the usage of civic enmities required forenjoyment of my property passes through the rear courtyard on the ground floor. Also I am not foregoing any futurerights or benefits available to me over and above the backcourt yard as per the applicable standard plan andgovernment policies. I am also not foregoing my right toclaim damages for causing hindrance in the enjoyment ofmy rights over the WC and court yard, as I have paid thecapitalized value of the structure, licence of which wasgranted to me for 99 years in my lease deed andconveyance deed.”

On 07.01.2020, the Plaintiff has given the following

Statement:

“I am the plaintiff in the present case. Under the wronglegal advice I had prayed for a relief of declarationthereby declaring me as a coowner qua the courtyardspace and lavatory situated at the ground floor justbehind the shop no. 101, Sarojini Nagar Market, NewDelhi. Since I am deriving my title over the said lavatoryblock vide registered Lease Deed and Conveyance Deed,both dated 19.12.1983, I do not require any declarationwith respect to the same. Therefore, I do not press for myrelief of declaration.”

The aforesaid issues are related to the declaration only,

therefore, in view of the aforesaid statements, specifically statement

dated 07.01.2020, nothing requires to be adjudicated as far as the

relief of declaration is concerned. In view of the aforesaid

statements, the aforesaid issues no.1 and 3 became redundant,

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however, this Court, while adjudicating the other issues, would

consider the implication of withdrawal of the relief of declaration

and further, whether in the facts and circumstances of the present

case, the plaintiff was required to seek the relief of possession.

Accordingly, the relief of declaration, as sought by the Plaintiff, is

dismissed as not pressed and the aforesaid issues are decided in

the aforesaid terms.

ISSUE NO.4

4. Whether the suit of the plaintiff is barred under Order 2 Rule2 CPC? OPD


The Ld. Counsel for defendants No.1 and 2 in order to

support this issue has broadly argued to the following effect:

(a) Re: Suit No. 66/2002:

(i) Plaintiff before filing Suit No. 66/2002 had filed

writ petition No. 2651/2000 seeking (i)

declaration of above referred letters dated

11.10.1999 and 31.12.1999 issued by L&DO as

illegal and void, (ii) sought directions to L&DO

to charge 1/3 of the ground rent of the

courtyard of ground floor from him and (iii)

declare charging of ground rent of complete

courtyard area from the Defendants as illegal.

Suit No. 237/2018 Page 33 of 94


(ii) The Hon’ble High Court while dismissing the

above writ petition vide order dated 3.8.2000

observed that proper remedy of the Plaintiff is to

file a suit where he can challenge the orders of

the public authorities. Liberty to file the suit

was granted.

(iii) Suit No. 66/2002 was filed on 31.1.2002 i.e.

after a gap of more than 1 year 4 months from

order dated 23.8.2000. In this suit defendants

were deliberately not impleaded as parties,

whereas in the above writ petition 2651/2000,

defendants’ father (since deceased) was

impleaded as Respondent. Defendants filed

impleadment application. Before the said

application could be decided, Plaintiff withdrew

the suit on 12.4.2005.

(iv) That as per allegations/averments made in the

plaint of Suit No. 66/2002 filed by the Plaintiff,

his conveyance deed and lease deed documents

dated 19.12.1983 were incomplete , defective

and misleading and the line plan annexed to the

lease deed did not reflect the location of the

lavatory in the premises.

(v) The reliefs sought by the Plaintiff in the above

suit were against the above said letters of L&DO

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dated 11.10.1999 and 31.12.1999 and for

rectification/amendment of his own lease deed

and conveyance deed both dated 19.12.1983.

(vi) The above suit was contested by NDMC and

L&DO by filing their respective written

statements. The above suit was withdrawn on

12.4.2005 by the plaintiff through his counsel.

Reason given for such withdrawal was two

orders, firstly order dated 17.8.2004 passed by

Senior Civil Judge in Misc. Appeal on the issue

of interim injunction and other order dated

30.9.2004 passed by High Court in CM (Main)

Petition No. 1131/2004 filed by Defendants

against the above order dated 17.8.2004.

(vii) None of the above orders in any manner granted

or gave the plaintiff any reliefs which he had

sought in Suit No. 66/2002. Thus, the above

reliefs sought in the above suit No. 66/2002

had nothing to do with the above two orders. In

view of the above, after withdrawing the above

suit in April 2005, Plaintiff is debarred and

estopped from raising any claim or contention

raised in the above suit since he did not seek

any liberty from the said court while

withdrawing suit No. 66/2002. In the present

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suit, the substance of the contentions by the

Plaintiff while claiming coownership in the

courtyard or WC is inconsistent and contrary to

the stand and pleas taken by him in above said

suit No. 66/2002 which is he withdrew.

(viii) Besides above, at the same time, the plaintiff

cannot permitted to take plea which is contrary

to or inconsistent with those taken by him

earlier but were not proved as the suit itself was

withdrawn after L&DO and NDMC had strongly

contested the suit and impleadment application

was filed by the Defendants.

(ix) In view of the above, present suit is barred

under Order 2 Rule CPC and the plaintiff is

estopped from claiming any right in courtyard

or WC in the said courtyard, because he himself

had withdrawn his claim and relief in the said

courtyard, which he had sought in Suit No.

66/2002.

(b) Re: CWP No. 4542/2006 & ORDER DATED

26.4.2006

(i) Plaintiff has deliberately misrepresented by not

bringing out truthfully the real contents and

effect of the order dated 26.4.2006 passed by

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the Hon’ble High Court in above writ petition

which was filed by the plaintiff on the same

subject which forms part of present suit.

Observations made in the order dated

26.4.2006 on certain relevant factual aspects

are crucial and have a direct bearing on the

merits of the present suit. One of the findings

recorded in the aforesaid order dated 26.4.2006

is that there was already existing WC/Toilet on

the first floor of the flat of the Plaintiff. This fact

has not been disclosed by the Plaintiff in the

plaint contents of which rather give a

misleading impression that as if at the time of

filing of the suit there was no WC on the first

floor flat of the Plaintiff.

(ii) Important findings/factual observations made

by the High Court in paras 1 and 9 confirms the

existence of Bath cum Toilet on the first floor

flat of the plaintiff, whereas para 5 of the order

records clear finding that conveyance deeds of

the parties dated 19.12.1983 and 16.1.1984 do

not evidence that the owners of both the floors

have to share a common toilet.

(iii) In the order dated 26.4.2006, the High Court

having noticed the existence of the Toilet on

Suit No. 237/2018 Page 37 of 94


First floor and having found nothing in the

conveyance deeds of the parties suggesting that

ground floor WC was to be shared by the

owners of both the floors, the only liberty which

the High Court gave was that if the Plaintiff

wanted to have an additional Toilet/WC i.e.

above over the one existing on the first floor,

then he could approach the civil court for the

aforesaid purpose.

(iv) But in the plaint filed on 17.5.2006 i.e. within

20 days after the above order dated 26.4.2006,

none of the above said findings and

observations made in the above order have been

disclosed by the Plaintiff in a transparent

manner. Rather, the whole case has been

prepared by the plaintiff indicating as if at the

time of filing of the suit there was no toilet/WC

facility at all on the first floor. In fact the

Plaintiff has misused the order dated 26.4.2006

by seeking such reliefs, which in view of

unchallenged findings recorded in paras 1, 5

and 9 of the said order dated 26.4.2006, cannot

be sought/claimed by him. The issue of having

facility of additional WC on the ground floor has

Suit No. 237/2018 Page 38 of 94


not been narrated or pleaded in the correct

perspective in the plaint.

(v) It is submitted that the liberty granted by

Hon’ble High Court to the Plaintiff was for

seeking relief for additional toilet from the civil

court, whereas, the plaint has not been framed

by giving correct background nor for additional

toilet/WC.

(vi) It is further submitted that the reliefs sought in

the present suit cannot be allowed or accepted

in view of a clear finding given by the High court

to the effect that the Plaintiff was already

having Toilet/WC on the first floor.

It is apposite to reproduce the provisions of Order II

Rule 1 & 2 CPC:

“1. Frame of suit.—Every suit shall as far as practicablebe framed so as to afford ground for final decision upon thesubjects in dispute and to prevent further litigationconcerning them.

2. Suit to include the whole claim.—(1) Every suit shallinclude the whole of the claim which the plaintiff is entitledto make in respect of the cause of action; but a plaintiff mayrelinquish and portion of his claim in order to bring the suitwithin the jurisdiction of any Court.

Suit No. 237/2018 Page 39 of 94


(2) Relinquishment of part of claim.—Where a plaintiffomits to sue in respect of, or intentionally relinquishes, anyportion of his claim, he shall not afterwards sue in respectof the portion so omitted or relinquished.

(3) Omission to sue for one of several reliefs.—A personentitled to more than one relief in respect of the same causeof action may sue for all or any of such reliefs; but if heomits, except with the leave of the Court, to sue for all suchreliefs, he shall not afterwards sue for any relief so omitted.

Explanation.—For the purposes of this rule an obligationand a collateral security for its performance and successiveclaims arising under the same obligation shall be deemedrespectively to constitute but one cause of action.”

The Constitution bench of Hon’ble Supreme Court in

Gurbux Singh v. Bhooralal, AIR 1964 SC 1810, while explaining

the true scope of Order II Rule 2 of CPC, laid down the parameters

as to how and in what circumstances, a plea should be invoked

against the plaintiff. The Hon’ble Mr. Justice Ayyangar J. speaking

for the Bench held as under:

“In order that a plea of a bar under Order 2 Rule 2(3) ofthe Civil Procedure Code should succeed the defendantwho raises the plea must make out

(1) that the second suit was in respect of the same causeof action as that on which the previous suit wasbased;

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(2) that in respect of that cause of action the plaintiffwas entitled to more than one relief;

(3) that being thus entitled to more than one relief theplaintiff, without leave obtained from the Courtomitted to sue for the relief for which the second suithad been filed.”

There is no dispute between the parties that the plaintiff

filed Suit No.41/2000 for Permanent Injunction against father of

defendants No.1 and 2. The facts of the said suit may be said to be

somewhat similar to the facts of the present case, however, there

are also subsequent events in the present suit. During the

pendency of the said suit, the Plaintiff has filed suit No.66/2002 on

a different cause of action impleading defendants No.3 and 4 only

as defendants.

In suit No.66/2002, the defendants No.1 and 2 were not

even the parties, though, they have filed the application for

impleadment under Order 1 Rule 10 CPC and admittedly, the said

suit was withdrawn prior to even deciding of the said application.

At the time of withdrawal of suit No.66/2002, the Suit

No.41/2000 was still pending adjudication. The suit No.41/2000

was abated on account of the fact that suit for injunction against

the father of defendants no.1 & 2 was in personal in nature and

after the death of father of defendants no. 1 & 2, the said suit was

not allowed to continue against his LR’s, as the right to sue does

not survive against defendants no.1 and 2. The primary

Suit No. 237/2018 Page 41 of 94


requirement of Order 2 Rule 2 CPC is that the earlier suit must also

be between the same parties. The earlier suit i.e. suit No.41/2000

was between the plaintiff and father of Defendants no.1 & 2 and the

same was abated, as the right to sue was not survived against

Defendants no.1 and 2. The defendants No.1 and 2 were not the

parties in the said suit. Similarly, the defendants No.1 and 2 were

not even parties in Suit No.66/2002, although, suit No.66/2002

was based on different cause of action as that of Suit No.41/2000.

At the cost of repetition, the Suit No.41/2000 was pending when

Suit No.66/2002 was withdrawn by the Plaintiff. The defendants

No.1 and 2 have also filed an application under Order 7 Rule 11

CPC on similar pleas, which were dismissed by Ld. predecessor of

this Court vide order dated 08.08.2011.

Furthermore, the pleadings and observations, in the

earlier suits and writ petitions, may be relevant for the merits of the

case and the same will be considered while deciding the other

issues on merits, however, the same cannot, by any stretch of

imagination, is a ground of bar to the present suit under Order 2

Rule 2 CPC. Moreover, the Order 2 Rule 2 CPC speaks about the

Suit and not the Writ Petitions. In my considered view, the bar

under Order 2 Rule 2 CPC would not be applicable in the present

case.

Accordingly, in view of the discussions made

hereinabove, the issue no.4 is decided against the defendants and

in favour of the plaintiff.

Suit No. 237/2018 Page 42 of 94


ISSUES NO. 2, 6, 7 & 9

2. Whether suit of the plaintiff is barred by Section 41(h) of theSpecific Relief Act 1963 (wrongly written as 1983)? OPD

6. Whether Plaintiff is entitled for damages @ Rs.20,000/ pmbeing coowner of 50% share in the courtyard portionsituated in the ground floor behind shop no.101, SarojiniNagar Market, New Delhi? OPD

7. Whether the Plaintiff is entitled for damages pendenteliteand future as claimed for? OPP

9. Whether Plaintiff is entitled to decree for permanentinjunction against the defendants as prayed for?

The aforesaid issues 2, 6, 7 and 9 are interrelated and

interconnected to each other and accordingly, they are decided

together.


The relevant portion of internal communication/letter

dated 15.09.1973 by Executive Engineer to the Director of Estate is

reproduced as under:

“….Subject: Unauthorised construction near laterine downstairs to flat no.101 Sarojini Nagar New Delhi.

Ref: D.O. letter No.DE/MKT/SM.101.F dt. 5.7.73

The Flat of the first floor is occupied by Smt. Ava Nandi awidower and the shop on the corresponding down floor isoccupied by Sh. Chand Prakash. There is only one laterinelocated on the open court yard. This latrine was previouslyjointly used by the shopkeeper and occupant of the flat but

Suit No. 237/2018 Page 43 of 94


the use of laterine by occupant of the flat are being deniedby the shopkeeper. The door of the laterine was also foundlocked during inspection.

It was stated by the shop keeper that while revising therent of the shop the water and electricity connections of thelaterine were taken into account and as such the laterinecannot be used by others.

Infact the laterine should be entirely at the disposal of thefamily members of the flats and shop keeper can usecommon laterine outside constructed by the N.D.M.C.

The other alternative is that existing bath room of the flatwhich is sufficiently spacious on can be converted into W.C.cum bath by providing W.C. and a small partition at oneside. There is also no difficulty in making necessaryconnections to manhole adjacent the building.

The shopkeeper has made unauthorized construction on thecourtyard….”

The aforesaid letter reveals that the same was an

internal letter between Executive Engineer and the Directorate of

Estate of L&DO. The Executive Engineer was giving two options to

the Directorate of Estates i.e. i) The latrine should be entirely at the

disposal of the family members of flats and the shopkeeper can use

the common latrine constructed outside by the N.D.M.C. and ii)

alternatively, the existing bathroom of the flat, which is sufficiently

spacious, can be converted into W.C.cumbathroom by providing

W.C. and a small partition wall at one side. Therefore, the same was

Suit No. 237/2018 Page 44 of 94


only the proposal of which was exchanged between the Executive

Engineer and the Directorate of Estates.

The relevant portion of Letter dated 11.10.73 Ex.PW2/7

from defendant No.4 to Shri Chand Parkash is reproduced as

under:

“New Delhi, dated 11/10/73

Shri Chand Parkash,Shop No. 101, Sarojini Market,New Delhi.

Subject: Unauthorised construction near latrine downstairs to flat No.101, Sarojini Market, NewDelhi.

Dear Sir,

I am directed to say that it has been reported thatyou do not allow the occupant of the flat above your shopto use the latrine which is meant for their use also. Thisis objectionable and you are directed to allow them to useit, under intimation to this Directorate.

Yours faithfully,

( B.B. Rao )Asstt. Director of Estates

Copy with reference to her letter dated 15673 isforwarded to Smt. Ava Nandi, Flat No.101, SarojiniMarket New Delhi for information.

( B.B. Rao )Asstt. Director of Estates”

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The aforesaid letter was addressed from the Office of

Directorate of Estates by Asst. Directorate of Estates to Shri Chand

Parkash, the father of defendants no.1 & 2. The tone and tenor of

the aforesaid letter reveals that aforesaid latrine is part & parcel of

the shop but the shop owner is not allowing the flat owner to use

the same, which is also for their use.

The relevant portion of the letter dated

05.11.73/14.11.73 Ex.PW2/RX6 from defendant No.4 to Smt. Ava

Nandi is reproduced hereunder:

“……I am directed to refer to your letter dated 15673 onthe above subject and to request you to indicate in thefirst instance whether you are prepared to pay the cost ofproviding the separate W.C in the flat by theC.P.W.D………..”

The aforesaid letter was addressed from the Office of

Directorate of Estates by Asst. Directorate of Estates to Smt. Ava

Nandi. The aforesaid letter clearly reveals that Smt. Ava Nandi was

given the second option, which was given to Directorate of Estates

by Executive Engineer vide letter dated 15.09.1973 i.e. existing

bathroom of the flat, which is sufficiently spacious, can be

converted into W.C.cumbathroom by providing W.C.

The relevant portion of the letter dated 30/31.10.73

Ex.PW2/RX5 from Late Chand Parkash to defendant No.4 is

reproduced hereunder:

“…….I am to refer to your Registered A.D. letterNo.DE/MKT/SM/101F, dated the 11th October 1973 on

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the above subject and to state that the following factshave not been taken into consideration before asking meto allow the occupant of the flat above my shopNo.101,Sarojini Market, New Delhi :

1. When the shop was allotted tome several yearsago, the Flat in question was being used as a officeand not as Residential Flat. Hence there was notrouble whatsoever at that time.

2. The latrine in question is situated within theboundary area of the shop in question and nothingto do with the above flat. Right from the beginning Ihave been regularly paying electric charges for theelectricity used in the said latrine. Moreover thewater connection to the said latrine is also from mywater meter and I pay water charges for the same.The rent of the shop includes proportionately rent oflatrine actually meant for the shop.

3. For the last several years the latrine was neverused by the occupant of the flat and they very wellunderstood that the same was meant for the shoponly. I fail to understand as to how this questionhas been brought to your notice. It is an admittedfact that no family can even for a day carry onwithout latrine. In view of this the occupants of theflat did not use the latrine because they were fullyaware that the same was not meant for them.

4. At the time of converting office accommodation intoresidential one and allowing the same to thepresent family it was for the Estate Office to makenecessary arrangements for providing latrine tothem. This was also done in many other cases bythe Govt.

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5. Before taking a final decision in the matter, I wouldrequest you to kindly keep the fact in view that theoccupant of the flat has grown up daughters andmy business being a tailoring one, the tailors quitefrequently use the latrine. If the Govt. takes a onesided decision, I would not be responsible for anyuntoward happening that may occur at any time.

I would, therefore, request you most humbly to keepin view of all the above facts in view. I would be glad toappear before you in person if so desired. Moreover thenumber of my own tailors working with me is so largethat it would be practically impossible for both the tailorsand the occupant of the above flat.

The best solution to the problem would be to providelatrine to the occupant of the flat just adjacent to Kitchenas has been done in various other markets viz. KrishnaMarket, Lajpat Nagar, New Delhi, by the Governmentitself.

Hoping to receive a favourable reply. …...”

The letter dated 08.11.73 Ex.PW2/RX7 from Late

Chand Parkash to defendant No.4 is reproduced hereunder:

“With reference to your letter no. DE/MKT/SM101/Fdated 11.10.73 asking me to allow the use of the latrineto the occupant of Flat No. 101 Sarojini Nagar Market, Iwould very much like to state in brief for favour of kindconsideration and favourable action with a hope that nopartial action would be imparted to me. This is incontinuation of my letter dated..

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1. That the laterine provided is attached with the shoponly right from the very beginning.

2. That the provision of the water and electricity isfrom the shop and the occupant of the shop is tosubscribe the consumption of both.

3. That the laterine is hardly sufficient to meet therequirements of my own and my workers andfamily members and it is not feasible for me topermit the use of laterine to the occupants of theflat.

4. That to provide the facility of the laterine to the flatholders is, I understand, the liability of theDepartment and no provision is binding upon me.

5. That there is no provision ever in my lease deedthat I will have to allow the use of the laterine to theoccupant of the flat.

6. I would state that the allotment of the shop and flatare two different issues and are executed on twodifferent licence/ lease deeds, to which Iunderstand these are two units and the provision oflaterine for the flat is required to be separate andthe Department should not force me to part with myshare of allotment under any threat or coercion.….....”

The aforesaid letters were written by Shri Chand

Parkash to the Directorate of Estates. The aforesaid letters also

show that W.C. was part & parcel of the Shop and father of

defendants no.1 & 2 has asked defendant No.4 to reconsider the

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direction, which was issued to him. Shri Chand Prakash has clearly

agitated that latrine was attached with the shop right from the very

beginning. The provisions for water and electricity were also

provided from the shop by father of defendants No.1 & 2.

The relevant portion of letter dated 19.02.74 Ex.PW

2/RX9 from Smt. Ava Nandi to defendant No.4 is reproduced

hereunder:

“…..Reference your letter no. DE/MKT/SM101 dated16.11.73 regarding flat No.101 Sarojini Market, NewDelhi. I do not understand that in the existing space aW.C. is possible. I have also not been given an idea ofthe cost involved in the construction of separate W.C. Irequest that a responsible official may be instructed toexamine the space in my presence.

I would also urge that the provision of analternative W.C. for my residence is the responsibility ofthe Directorate of Estates. …..”

The relevant portion of letter dated 15.1.74 Ex.PW

2/RX8 written by Directorate of Estates to Smt. Ava Nandi is


“…I am to refer to the correspondences ending with thisDirectorate letter of even No. dated 161173 (copyenclosed) on the above subject and to request you tofurnish the required information urgently. Your request of15673 can be processed further only on receipt of yourreply. .....”

The relevant portion of internal communication dated

17.4.74 Ex.PW2/RX10 between Assistant Directorate of Estates

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i.e. defendant No.4 with the Executive Engineer CPWD New Delhi is


“…..I am to refer to your letter No.24(15)/73GD/11378dated 1591973 on the above subject and to request youto let us know the cost of providing a separate latrine inthe flat as suggested by you in your aforesaid letter. ….”

Thereafter, there are no communications, which are on

record, between Smt. Ava Nandi with defendant no.4 or viceversa

and similarly, there are no communications between Sh. Chand

Parkash and defendant no.4 or viceversa. There is no oral or

documentary evidence, which has been placed on record, which

could elicit out that whether Smt. Ava Nandi or for that matter, Shri

Bhupesh Nandi or the Nandi family was using the W.C. in question.

There is also no record to show that Smt. Ava Nandi or Shri

Bhupesh Nandi or Nandi Family had contributed anything towards

the electricity and water charges for the W.C. in question. There is

also no documentary record, which has been produced on record

that the house tax or the ground rent of the W.C. in question was

ever paid/ tendered, either in full or towards their share, to the

concerned authority by Smt. Ava Nandi or Shri Bhupesh Nandi or

Nandi Family. Similarly, the Plaintiff has also not produced any

record.

The plaintiff had laid a lot of emphasis on the

Conveyance Deed dated 19th December, 1983 executed in favour of

Shri Bhupesh Nandi (Exhibit PW1/4 and Exhibit PW2/4) in order

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to claim the share in W.C. on the ground floor. It is apt to

reproduce the relevant portion of the property details from Ex.PW

1/4, which is as follows:

“SCHEDULE ABOVE REFERRED TO

ALL THAT Flat No.101,Sarojini Market, New Delhi doublestoreyed brickbuilt flat consisting of one room, Verandah,Bath Room, Kitchen & open court yard. Total area596.2343 sq.ft. charged 2/3rd to G.F. & 1/3rd F.F. withfixtures and fittings situate the site being held on leaseby indenture of lease dated …............. and moreparticularly described in the Schedule thereunder writtenTOGETHER WITH all buildings, privileges, easementsand apurtenance whatsoever to the said shop/flatbelonging or usually held or enjoyed therewith ORHOWSOEVER OTHERWISE the said shop/flat is orheretofore was called or known or should be described ordistinguished.

Description of the structure of the Transferred Premises.

(i) All that ground floor brick built Flat No.101(First Floor/Second Floor/Residential/flat).

(ii) …........................................................... share in thestaircase and original C.P.W.D. Construction sharein the common passage................................... andshare in the lavatory block.

Bounded by North Court yard of Shop No.101&Service Lane below.Bounded by South Service Road below.Bounded by East Service Road belowBounded by West Flat No.102”

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The question arises for consideration is that whether the

aforesaid clause unequivocally and unambiguously provides the

right to Shri Bhupesh Nandi in the W.C. on the ground floor of the

property in the rear court yard of Shop No.101.

It is clearly mentioned above that “All that Flat No.101,

Sarojini Nagar, New Delhi double storeyed brickbuilt shop/flat

consisting of one room, verandah, bathroom, kitchen and open

courtyard total area 596.2343 sq. ft. charged 2/3rd to G.F. & 1/3rd to

F.F.”

This Court cannot lost the sight of the fact that there

were communications between defendant No.4 and Smt. Ava Nandi

way back in the year 1973 and 1974 i.e. much prior to the

execution of Conveyance Deed and Nandi family was aware about

the fact that Late Shri Chand Parkash, father of defendants No.1

and 2 has not allowed them to use the latrine/ W.C. on the

courtyard of Shop No.101. Despite the said dispute, the details of

the Conveyance Deed incorporated hereinabove, nowhere, mentions

about the W.C. at all. If there was any intention to transfer the

rights in the W.C., then, there ought to have been specific

description of W.C. at first instance and on that very place and it

ought to have recorded the W.C. on the ground floor in the rear

courtyard of Shop No.101 at the said place and it was expected

from the Nandi Family to have got incorporated specifically when

Late Chand Parkash, father of defendants No.1 and 2 had

specifically not allowed the Nandi family to use the W.C. The

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subsequent parts i.e. (i) and (ii) are under the “Description of the

structure of the Transferred Premises”. The structure of the

Transferred Premises cannot, in anyway, derogatory and contrary to

the main clause of the Schedule of property, which was described

hereinabove in detail. The subsequent portions i.e. (i) and (ii) are

subparts of the main clause.

The Ld. Counsel for Defendants no.1 & 2 has argued

that Original C.P.W.D. Construction, as mentioned in 2nd column of

(ii) is actually to be read with Column (i) i.e. after Flat No.101, as

the Flat No.101 in isolation would not carry any meaning. The Ld.

Counsel for Defendants no.1 & 2 has further argued that the word

“Original C.P.W.D. construction” in the Conveyance Deed of

defendants No.1 and 2 is referred against Shop No.101 i.e. column

(i).

The arguments of Defendants no.1 & 2 appear to be

plausible and logical arguments. The “Original C.P.W.D.

Construction” is not written against ……share in the stair case and

the same is also not written against …. share in the lavatory block,

but the same is mentioned prior to share in the common passage

and the same does not carry any meaning.

Furthermore, PW2 i.e. one of the witnesses of Plaintiff

has brought the draft copy of the Conveyance Deed, which is

Exhibit PW2/RX13 and as per said Exhibit PW2/RX13, the

“Original CPWD Construction” has been mentioned against column

(ii), but the column (ii)Point A in Exhibit PW2/RX13 which

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reflects “share in the staircase, share in the common passage and

share in the lavatory block” has been struck off. This is the witness

of plaintiff himself and the plaintiff has not even sought re

examination of the said witness regarding the aforesaid document

i.e. Exhibit PW2/RX13, which was put in the crossexamination by

Defendants No.1 and 2.

The PW2 has also brought the Conveyance Deed of Flat

No.102, Flat No.129 and Flat No.146 and the same are Exhibits

PW2A/7, PW2A/8 and PW2A/9 respectively. The perusal of the

column (ii)Point A of said Conveyance Deeds which reflects “share

in the staircase, share in the common passage and share in the

lavatory block” has been struck off. There is no dispute that Flat

No.102 is the adjacent to Flat No.101 and in the Conveyance Deed

of Flat No.102, the said portion is struck off. The PW2 is the

witness of plaintiff and he has demonstrated himself that in all the

said flats, the L&DO has struck off the said portion. The draft

Conveyance Deed of Flat in question also reflects the same. One

fails to understand, why defendant No.4 would give special

treatment to Shri Bhupesh Nandi when in other flats, the said

portion was struck off and moreso, in the draft Conveyance Deed,

Flat No.101 was struck off. The averment of L&DO appears to be

correct that inadvertently, in the copy of Conveyance Deed of Shri

Bhupesh Nandi, the said portion was not struck off, however, in the

draft Conveyance Deed kept by the L&DO and copy of the same –

Exhibit PW2/RX13 produced by PW2, shows that the said portion

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is struck off. The Policy matter of defendant No.4, who is State,

cannot be different for different persons and it has to maintain

equality. The defendant No.4 was not expected to give preferential

treatment only in respect of Flat No.101 and more so, when in the

adjacent Flat No.102, the L&DO has not given any such treatment.

The Ld. Counsel for plaintiff submits that rectification of

the document can only be done in terms of Section 26 of the

Specific Relief Act and in terms of said Section, only two conditions

are provided i.e. if the act was done under the Mutual Mistake or by

Fraud. The Ld. Counsel for plaintiff has further argued that L&DO

has nowhere sought the rectification of the said document at any

point of time.

The Defendants no.1 & 2 have filed the Writ Petition (C)

No. 7317/2007 and relevant portion of Order dated 25.05.2011,

which was passed by the Hon’ble Single Bench of Hon’ble High

Court, is reproduced as under:

“11. Consequently, the writ petition is allowed and adirection is issued to the NDMC, which has now takenover from the L&DO, to call for the original conveyancedeed of Flat No. 101 and delete the column at page 4under the head Schedule above referred to“(ii).................... share in the stair case and …............share in the common passage …............... and share inthe lavatory block”. The NDMC is directed to issue thenecessary memorandum/letter in terms of this judgmentwithin two weeks clarifying that Respondent No. 2 hasno right, title or interest in the ground floorportion/premises which belongs to Shop No. 101.”

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The Plaintiff has challenged the said order in LPA

599/2011 titled as Anil Dua Versus Union of India and Ors. and

vide Order dated 25.07.2011, the Hon’ble Division Bench of the

Hon’ble High Court has held as under:

“…..In the course of hearing, we have been apprised thatthe respondent No.1 has already issued a corrigendumcarrying out the rectification. In view of the aforesaid, weare only inclined to direct that the rectification that hasbeen carried out by the respondent No.1 shall be subjectto the final adjudication of the suit and while the suit isdecided, any observations made by the writ court oranything stated in this order shall not be pressed intoservice.”

It is not that the aforesaid portion of the Conveyance

Deed was not challenged, but even the Order was passed by Hon'ble

Single Bench of Hon’ble High Court, however, the same has been

kept in abeyance by the Hon’ble Division Bench of Hon’ble High

Court, subject to the decision of this case.

Furthermore, it is apt to reproduce Section18 of the

Specific Relief Act, 1963, which is as follows:

“18. Nonenforcement except with variation.—Where a plaintiff seeks specific performance of acontract in writing, to which the defendant sets up avariation, the plaintiff cannot obtain the performancesought, except with the variation so set up, in thefollowing cases, namely:—

(a) where by fraud, mistake of fact or misrepresentation, the written contract of whichperformance is sought is in its terms or effect

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different from what the parties agreed to, ordoes not contain all the terms agreed tobetween the parties on the basis of which thedefendant entered into the contact;

(b) where the object of the parties was toproduce a certain legal result which thecontract as framed is not calculated to produce;

(c) where the parties have, subsequently to theexecution of the contract, varied its terms.”

The present case is not the case of Specific Performance,

but definitely, the plaintiff, by means of the present suit, wants to

specifically enforce the Contract i.e. the said portion of the said

Conveyance Deed (Exhibits PW1/4 and PW2/4), which was

executed by defendant no.4 in favour of Shri Bhupesh Nandi. The

defendant no.4 has sought the variation of the same on account of

inadvertent mistake, since when the dispute was brought to the

notice of L&DO.

Shri Chand Parkash father of defendants no.1 & 2 has

written the letter dated 01.10.1999 to L&DO and by means of letter

dated 11.10.1999 (Exhibit PW2/RX17), the L&DO has responded

the said letter. The relevant portion of the said letter is reproduced

as under:

“I am to refer to your letter dated 1.10.99 at the abovecited subject and to inform you that the as per the leasedeed/conveyance deed and plan attached share with therear court yard has been fully charged to ground floorand common passage in rear measuring 11'4½” x 2'2 ½”

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has been charged 2/3rd to ground floor and 1/3rd toFirst floor. …...”

The S.H.O., P.S. Sarojini Nagar, New Delhi has also

written Letter dated 13.12.1999 Exhibit PW2/RX18 to the L&DO.

The relevant portion of the said letter is reproduced as under:

“For the reasons recorded above, it is requested that yourgoodself may depute any responsible officer to clarify asto who is the owner of the courtyard on ground floor andlavatory existing therein or jointly occupied by shop andflat owners no. 101, Sarojini Nagar Market or otherwise.It is further requested that matter may please be lookedin to on top priority as there is all possibility of breach ofpeace and any untoward incident could take place incase of delay, if any. ……”

The L&DO has responded to the said letter by means of

Letter dated 31.12.1999 (Exhibit PW2/RX19). The relevant portion

of Ex.PW2/RX19 is reproduced hereunder for apt understanding:

“I am to refer to your letter no. 8104/SHO/S.Nagardated 15.12.99 received in this office on 16.12.99on the above subject and to say that as per thelease & conveyance deed and line plan attachedthereto, the area of court yard measuring 17'4½” x11'4½” including the land underneath W.C. whichis situated in a corner in this court yard, has beenfully charged to Ground Floor.

It is further to say that earlier also in the year 1973 therewas a similar dispute between licencees of flat & shop inregard to the use of W.C. At that time the ownership ofthe flat and the shop vested with the Central Governmentthrough the Directorate of Estates. As the licencee of

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shop had objected to the use of W.C. by the licencee ofthe flat, the Directorate of Estates had suggested thatC.P.W.D. may provide a W.C. in the bath room in the flatat the cost of the licencee of the flat. The ownershiprights have since been given to the licencees. ……”

[Portions bolded in order to highlight]

The plaintiff has challenged the Letters dated

11.10.1999 and 31.12.1999 by filing the W.P(C) No.265/2000. The

relevant portions of the prayers, as sought in the said Writ Petition,

are reproduced as under:

“It is, therefore, most respectfully prayed that this Hon'blecourt may be pleased in the interest of justice to issue awrit in the nature of certiorari and or mandamusdirecting/quashing/settingaside the impugnedorder/letter of respondent No.2 at No. L&DO P.S. IV/shop no.101/SN Mkt./743 dt.11.10.99 and letterNo.L&DO/PSIV/1002 dt.31.12.99 and also declaring theabove said order marked as Annex.P3&P4 illegal, void,arbitrary, discriminatory, unconstitutional and againstthe principles of natural justice, fair play and goodconscious and declaring that the petitioner is entitled forbeing charged of the 1/3rd ground rent of the rear courtyard land of the ground floor.

It is further prayed to direct the respondent No.1 to3 for taking steps to restore the lavotary to the petitioner'suse and his family members which is illegally blocked bythe respondent No.4 and the respondent no.4 be alsodirected to unlock the lavotary and give access to thepetitioners and his family members for their use.

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2) Respondent No. 1 to 3 be directed to charge 1/3rdground rent of the court yard from the petitioner andorder of the respondent No.2 be declared illegal andfurther be directed to amend the lease and conveyancedeed or prepare fresh lease and conveyance deed inrespect of flat/shop No.101,Sarojini Market, New Delhi.

3) It is prayed that the respondent No.1 to 3 maykindly be directed to charge 1/3rd of the ground rent ofrear courtyard in ground floor from the petitioner beingthe user of lavotary constructed on the ground floor courtyard since date of construction by the CPWD. As also thepetitioner is entitled to the right of additional constructionover the rear court yard by the respondent No. 1 to 3.

The said Writ Petition was dismissed by Hon’ble High

Court vide Order dated 03.08.2000, the relevant portion of the said

Order is reproduced as under:

“There is dispute between the petitioner and the fourthrespondent with reference to the premise in the writpetition. The writ petition arises so many questions offacts which cannot be gone into the writ petition. Theproper remedy of the petitioner is to file a suit wherein hecan challenge the orders of the public authorities afterissuing necessary notice if required. The petitionercannot invite this court to decide a writ petition as if it issuit. Granting liberty to the petitioner to file a suit if soadvised, the writ petition is disposed of. ......”

Thereafter, the plaintiff has filed the suit bearing

No.66/2002 challenging the Order dated 31.12.1999. The para

no.13, para no.14 and prayer clause of the said suit are reproduced

as under for apt understanding:

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“13. That the Lease Deed and the Conveyance Deeddated 19.12.83 did not mention any location of thelavatory for the use of the residents of thisresidential flat allotted and subsequently leased bythe Government of India. These Deed documentsare incomplete, defective, misleading and amountsto carrying injustice to the existing and futurerights of the flat residents though this lavatory andthe rights of the lessee are described in theschedule referred to in the Conveyance Deed atpage no.4, but no mention of its location isdescribed and also no charge of ground rent of thepremises of the lavatory land is charged from theresidential flat lessee.

14. That the line plan attached to the Deeddocuments did not reflect the location of theLavatory in the leased premises though it reflectsthe rear courtyard and the common passage veryclearly. It mentions the CPWD construction but theCPWD constructed lavatory is not at all shown inthe above defective line plan, the line plan attachedwith the Lease Deed is marked at Annexure E. Thisomission to reflect the location of this lavatoryamounts to mislead the factual position of theexisting rights of the flat residents, resulting inhardships to the residents in the use of the abovelavatory, provided at the ground floor courtyard.”

“It is, therefore, mosts respectfully prayed that thisHon'ble Court may kindly be pleased to quash/set asidethe impugned order/letters of the Defendant No.2 bearingNo.L&DO/PSIV/shop No.101 / S.N. Market / 743 dt.11.10.99 and letter No. L&DO/ PSIV/1002 dt.

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31.12.1999, and also declare the above said letters/orders as illegal, void, arbitrary, discriminatory andagainst the principles of natural justice, fair play andgood conscious and further this Hon'ble Court may alsodeclare that the Plaintiff is also entitled for being charged1/3 of the ground rent of the rear courtyard land.

It is, further prayed that this Hon'ble Court maykindly be pleased to rectify/ amend the site plan of theleased land, issued by them in respect of the leasedocuments of the property No.Flat No.101, SarojiniMarket, New Delhi and also do the necessaryrectifications and amendments in the Lease Deed dt.19.12.83 and the Conveyance Deed dt. 19.12.83, tomark, reflect and describe the location of the CPWDconstructed lavatory which is in existence as a part andparcel of the allotment and subsequently leased alongwith the land and building and also to restrain thedefendants No.1&2 from attempting to alter the existingrights of the Plaintiff in the lavatory at the ground floor byinvolving CPWD or any other agency to shift the status ofthe existing lavatory as such shift will be against theterms and conditions of the Lease Deed and ConveyanceDeed dt. 19.12.83, by passing an order through means ofmandatory injunction.

It is further prayed that this Hon'ble Court maykindly be pleased to restrain the Defendant No.3, forpassing, sanctioning the site plan for the additionalconstruction in the rear courtyard land of the shopNo.101, Sarojini Market, New Delhi, marked in red colourin the Annexure A, without settling the rights of thePlaintiff, by passing an order of decree by means ofpermanent injunction. ….”

(Portions bolded in order to highlight)

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The aforesaid suit was withdrawn by the Plaintiff and

the implications of the same have been discussed hereinbelow.

The Ld. counsel for plaintiff, during the course of

arguments, has vehemently argued that right in W.C. in question

by means of the Conveyance Deed (Exhibit PW1/4 and Exhibit PW

2/4) is unequivocal, unambiguous and absolutely crystal clear and

for this reason, the plaintiff was not required to seek declaration of

his right in the said WC and furthermore, the plaintiff has not

pressed the relief of declaration by means of his Statement dated

07/01/2020. It is further argued by Ld. counsel for the Plaintiff

that Judgment of Anathula Sudhakar Versus P. Bucchi Reddy

(Dead) by LRs and Ors., (2008) 4 SCC 595, as relied upon by

defendants no.1 & 2, is not applicable to the facts of this case, as

there was no cloud, not to speak of semblance of cloud, on the title

of plaintiff on the W.C. in question.

Firstly, the said arguments of Ld. Counsel for plaintiff

are totally contrary to the submission made in paras no.13 & 14 of

the aforesaid Suit No.66/2002 (which are reproduced hereinabove).

The perusal of paras no.13 & 14 clearly reveals that as per the

Plaintiff’s own admission, the documents executed by L&DO i.e.

Conveyance Deed and Lease Deed, are incomplete, defective and

misleading.

Secondly, in my considered view, the original C.P.W.D.

Construction, which is referred in clause ii) just prior to “…share in

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the common passage” refers to original CPWD Construction relating

to flat in question and the same cannot, by any stretch of

imagination, to be read as Original CPWD Construction of Shop as

the Original CPWD Construction of Flat and Shop are different and

the same has been produced on record by Plaintiff’s witness,

specifically PW2. The CPWD Construction Plan of Flat No.101

nowhere reflects the W.C. in question and moreover, as discussed

hereinabove, the word “Original C.P.W.D. Construction” is not

written against ……share in the stair case and the same is also not

written against …. Share in the lavatory block, but the same is

written prior to share in the common passage.

Furthermore, the plaintiff has withdrawn Suit

No.66/2002 only on the ground that Order dated 17.08.2004 was

passed in MCA No.119/2000 by the then Ld. Senior Civil Judge,

Delhi. In my considered view, the issues in Suit No.66/2002 and

issues in Suit No.41/2000 (out of which order dated 17.08.2004 in

MCA No.119/2000) were totally different and they were having

totally different implications. The Order dated 17.08.2004 in MCA

No.119/2000 and that too, Order passed in the application under

Order 39 Rules 1 & 2 CPC, which is always interim in nature as the

interim order mergers into final order, in no way, affects the final

outcome of Suit No.66/2002. The withdrawal of Suit No.66/2002,

by means of Order dated 12.04.2005, would have serious

implications to the rights of plaintiff, as claimed and alleged in the

present suit. The withdrawal of the suit was based upon the

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application under Order 23 Rule 1 CPC i.e. unconditional

withdrawal. The subclauses (1) to (4) of Rule 1 CPC of Order 23

CPC are reproduced as under:

“1. Withdrawal of suit or abandonment of part of claim.—

(1) At any time after the institution of a suit, the plaintiffmay as against all or any of the defendants abandon hissuit or abandon a part of his claim:

Provided that where the plaintiff is a minor or otherperson to whom the provisions contained in rules 1 to14 of Order XXXII extend, neither the suit nor any partof the claim shall be abandoned without the leave ofthe Court.

(2) An application for leave under the proviso to subrule (1)shall be accompanied by an affidavit of the next friendand also, if the minor or such other person is representedby a pleader, by a certificate of the pleader to the effectthat the abandonment proposed is, in his opinion, for thebenefit of the minor or such other person.

(3) Where the Court is satisfied—

(a) that a suit must fail by reason of some formal defect, or

(b) that there are sufficient grounds for allowing the plaintiffto institute a fresh suit for the subject matter of suit orpart of a claim, it may, on such terms as it thinks fit,grant the plaintiff permission to withdraw from such suitor such part of the claim with liberty to institute a freshsuit in respect of the subjectmatter of such suit or suchpart of the claim.

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(4) Where the plaintiff— (a) abandons any suit or part ofclaim under subrule (1), or

(b) withdraws from a suit or part of a claim without thepermission referred to in subrule (3),

he shall be liable for such costs as the Court may awardand shall be precluded from instituting any fresh suit inrespect of such subjectmatter or such part of the claim.”

The bare perusal of Order dated 12.04.2005 shows that

plaintiff has not sought withdrawal of the Suit under SubRule (3)

of Rule (1) of Order 23 CPC, but the same has been withdrawn on

the application under SubRule (1) of Rule (1) of Order 23 CPC and

this means that the plaintiff shall be precluded from instituting any

fresh suit in respect of such subjectmatter or such part of the

claim. In order to appreciate the same, it is relevant to look into the

stand taken by the Union of India and L&DO in Suit No.66/2002.

The reply to paras no.9 & 10 of the Written Statement filed by

Union of India and L&DO is reproduced as under:

“9 & 10. That, in reply to the contents of paras No. 9 and10 of the plaint it is submitted that the shopkeeperrequested in October, 1999 for confirming the jurisdictionof the rear courtyard and he was informed on 11.10.1999that “as per lease deed/conveyance deed and planattached therewith the rear court yard has been fullycharged to ground floor and common passage in rearmeasuring 17' 41/4” 2'23/4” has been charged 2/3rdto ground floor and 1/3rd to first floor”. In December,1999 a similar letter from the SHO, P.S. Sarojini Nagarasking for the confirmation regarding the ownership of

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the courtyard was received and a similar reply was alsogiven to him on 31.12.1999. The question of informing theplaintiff separately does not arise because as per thelease deed the measurement of land charged to flatNo.101 is 198.745 sq. ft. which does not include the areaof back courtyard at ground floor in the corner of whichW.C. located.”

The L&DO has also taken its stand in C.M.(M) No.

1131/2004. The relevant portion of para no.6 of the Short Affidavit

filed by defendant No.4L&DO in C.M.(M) No.1131/2004 is

reproduced as under for apt reference:

“That the Hon'ble Court also directed the L&DO to clarifywhether the open court yard forms part of the shops onthe ground floor or it is common for the shop owners andflat owners. In this connection it is submitted that thearea of rear courtyard in the Sarojini Nagar Market isfully charged to the ground floor shop owners and thiscourtyard is not common for the shop owners and the flatowners. However, in most of the cases, both the flatsand shops were allotted to the same persons andtherefore, they continued to use the W.C. which wasoriginally constructed in the ground floor shops. In caseswhere the shops and flats were allotted to differentpersons the flat owners continued to share the W.C. inthe shops on the ground floor till they made their ownarrangements in the flats. In accordance with this, inOctober, 1973, when a complaint was received from theallottee of flat No.101, Sarojini Nagar Market that theshop owners was not allowing her to use the latrine inthe shop, the shop owners, vide letter dt. 11.10.1973,was advised to share the latrine. A copy of the letter dt.11.10.1973 is annexed to this affidavit as Annexure R4.However, the shop owners did not agree to this and

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therefore, it was felt that the only solution to the problemwas to construct separate W.C. in the flat. Therefore, theallottee of the flat No.101, Sarojini Nagar Market wasadvised on 16.11.1973 to indicate her willingness to paythe cost of construction of separate W.C. in the flat. Acopy of letter dt. 16.11.73 is annexed as Annexure R5.In response to that, Smt. Ava Nandi, allottee of flatNo.101, Sarojini Nagar Market vide letter dt. 19.2.1974requested to examine the feasibility of providing separateW.C. in the flat and also to intimate the cost of the same.A copy of the letter dt. 19.2.1974 is annexed asAnnexure R6. Thereafter, there were a series ofrepresentations from Mrs. Ava Nandi regarding fixation oflicence fee and regularization of allotment and therefore,the issue of separate latrine in the flat was not followedup. However, in the lease deed dated 19.12.1983 it wasclearly mentioned that the flat owner will have right in1/3rd area of land under superstructure and that noright in the land under superstructure of lavatory block.However, in the conveyance deed, under the schedule ofthe property, even though it was mentioned that it wasoriginal CPWD construction, inadvertently, the printedcolumn pertaining to share in staircase, common passageand lavatory block were not deleted.”

The Plaintiff was very much aware about the stand of

L&DO prior to withdrawal of the said suit, but still, the plaintiff has

chosen to withdraw the said suit unconditionally without taking

leave of the Court by means of Order dated 12.04.2005. Thus, the

stand of L&DO, which was taken in the said suit as well in other

proceedings, has attained finality for all intents and purposes, as

the plaintiff shall be debarred to challenge the same in subsequent

proceedings in view of SubRule 4 of Rule 1 of Order 23 CPC.

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Furthermore, in Suit No.66/2002, the plaintiff has sought setting

aside of letter dated 11.10.99 (Exhibit PW2/RX17) and letter dated

31.12.1999 (Exhibit PW1/RX19) alongwith other reliefs, as

mentioned hereinabove and the said letters would necessarily have

to be read against the plaintiff in view of withdrawal of the suit. In

view of withdrawal of the suit, the letter dated 11.10.99 (Exhibit

PW2/RX17) and letter dated 31.12.1999 (Exhibit PW1/RX19)

have attained finality for all intents and purposes, as the plaintiff

shall be debarred to challenge the same in subsequent proceedings

in view of SubRule 4 of Rule 1 of Order 23 CPC.

Furthermore, in order to appreciate the Original CPWD

Plan, the relevant portion of crossexamination of PW2 dated

07.10.2011 is also reproduced as under:

“It is correct that in PW2/2 the first floor plan of FlatNo.101 is reflected in red colour at point A. It is correctthat said plan was submitted by B.C.Nandi owner of FlatNo.101, under his signatures. The same was certified byCPWD Mr. K.K. Ram. The encircled portion of the CPWDCertificate is point B of Ex. PW2/2.

The Plan of shop No.101, ground floor was submitted byowner of ground floor certified by CPWD vide Ex. PW2/1.The schedule of the area of Ex.PW2/1 is “1. total plotarea + half width half stair case 812.19 sq. ft. 2. totalcovered are of shop + WC = 609.18 sq. feet.

It is correct that the ground floor plan is marked as pointA in Ex.PW2/1 which shows rear courtyard is point A1and WC at point A2….”

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The PW2 was the Plaintiff’s witness. The said cross

examination of PW2 clearly shows that Original CPWD Plan of Flat

No.101 was submitted by Shri B.C. Nandi and Original CPWD Plan

of Shop No.101, which includes courtyard and WC, was submitted

by Shri Chand Parkash. The procedure for the Conveyance Deed

was started on or about 1979 and the Conveyance Deed was

executed on 19th December, 1983. There was dispute regarding WC

since 1973 between Nandi family and Shri Chand Parkash, then

why, Shri Bhupesh Nandi has not got included the WC in question

in the Site Plan submitted by him and certified by CPWD, which

has been reflected as Original CPWD Plan in the Conveyance Deed

of Flat No.101. If the WC was the part & parcel of Flat No.101, then,

the same ought to have been included in the Original CPWD Plan

submitted by Shri Bhupesh Nandi and not by the owner of Shop

No.101.

Moreover, the plaintiff has acquired the right in Flat

No.101 by means of Sale Deed dated 6th February, 1986. The same

was executed by Shri Ashok Kumar as Attorney of Shri Bhupesh

Nandi. As per the said Sale Deed, the registered GPA was executed

on or about 18.1.1984. During the cross examination of plaintiff, it

has been admitted by plaintiff that Power of Attorney was executed

by Sh. B.C. Nandi in favour of nominee of the Plaintiff. The said

property was basically purchased by Plaintiff in the year 1984 as

the Power of Attorney was executed in the month of January, 1984

in favour of the nominee. The perusal of record also reveals that

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prior to execution of the said Sale Deed, the permission was sought

from L&DO by Shri Ashok Kumar i.e. nominee of the plaintiff as

attorney of Shri Bhupesh Nandi and not by Sh. Bhupesh Nandi.

The permission of Sale was granted by L&DO vide Letter dated

07.11.1985. The said property must have been purchased by

plaintiff after physical verification of the property. After verification

of the property, the plaintiff must be aware of the fact that there is

no W.C. in the Flat. The Plaintiff must have asked the Nandi family

about W.C./lavatory. The Nandi Family must have told that the WC

in question was used by them. Furthermore, during the cross

examination of plaintiff, it has been categorically mentioned by the

Plaintiff that he knows that there was dispute between Shri Chand

Prakash and Shri B.C. Nandi about the suit property till 1976 and

the said dispute was in respect of W.C. However, in spite of the

same, in the Sale Deed dated 06.02.1986, that too, executed by the

nominee i.e. Ashok Kumar in favour of the plaintiff, there is no

mention of the W.C. or its common use, which was in existence on

the Courtyard of Shop No.101. One fails to understand, if the

Conveyance Deed in favour of Shri Bhupesh Nandi was giving the

right of W.C., then what stopped the plaintiff to specifically

incorporate about W.C. in question or its common use in the Sale

Deed dated 06.02.1986 and moreso, effectively, when the said Sale

Deed was executed after about 2 years of the purchase of property,

as GPA was executed in favour of nominee of the plaintiff in the

month of January, 1984. The plaintiff has also admitted during

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crossexamination that he is Graduate and he has been residing in

the vicinity of Sarojini Nagar since birth. It is also admitted that the

plaintiff has other properties also in the area apart from the

property in dispute. Therefore, he was in the knowledge of entire

facts of the Sarojini Nagar Market Area. It is also relevant to

reproduce certain portion of the crossexamination of PW4:

“……….It is true that Sh. B.C. Nandi transferred thesuit property to me whatever was in his name. It istrue that mutation of same was done in my favouras per original lease deed. I have not brought thatoriginal lease deed today with me. It is true thatsame is in my possession. It is true that as per SitePlan Ex.PW2/RX3, the courtyard of ground floorand WC has not been shown as part of flat no. 101,Sarojini Nagar, Market.......

…......It is true that in site plan Ex.PW2/2, there is nomention that I have a right in common with thedefendants to use Verandah and WC on the ground floor.Vol. As I was paying rent for residential unit, I had rightin common to WC at courtyard at ground floor. It is truethat I have never challenged genuineness of the site planEx.PW2/2, which is certified by CPWD. It is true that Ihave not been charged any ground rent, house tax,property tax separately in relation to WC and Verandahon ground floor of suit property. Vol. I have been payingrent for enjoying facility of WC and Verandah. It is truethat my bathroom is at point E in said site plan(Ext.PW2/2). It is true that I have been charged for atotal area (carpet area 596.2343 sq.ft.) on the first floor.It is true that the area of twothird has charged forground floor and one third has been charged for first

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floor, which is 198.745 sq. ft. Apart from house tax, I ampaying only ground rent to NDMC in respect of my area.It is true that I have charged ground rent for areameasuring 198.745 sq.ft. only. It is true that leas amountand ground rent are same. When I purchased thisproperty from Sh. B.C. Nandi, bathroom at first floor wasin existence. The existence of bathroom at first floor hasnot been specifically mentioned in sale deed in myfavour. It is true that there is no mentioned in the saledeed that I have a common interest in respect of WC atthe ground floor. WC on the ground floor is withincourtyard of ground floor shop. I never requested theseller Sh. B.C. Nandi to modify the sale deed executed inmy favour. I had received a letter from L&DO copy ofwhich is Ext.PW4/RX6……”

“……It is true that I had no document to verify thatcourtyard was part of first floor premises…..”

“I have no document i.e. receipt etc. to verify that I havepaid capitalized value of the courtyard or superstructureafter I purchased the same in the year 1986. I do notremember whether any site plan of property purchasedby me was annexed with the sale deed. It is true thatcourtyard is not specifically mentioned in the sale deedexecuted by previous owner in my favour. It is true thatsince 1999 said courtyard is fully covered and is beingused for commercial purposes.”

“I have written evidence to show that my previousowner was in possession of courtyard and toilet. Itis true that both i.e. courtyard and toilet wereelectrified in the year 1986 when I purchased thesame. It is true that I never paid electricity

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charges or water charges for the said toilet orcourtyard.......”

“I have not brought the original receipt of thepayment made by me for use of lavatory. It iscorrect to suggest that my title in respect of thefirst floor and the defendants No.1 and 2 title inrespect of ground floor is independent of eachother......”

“At this stage witness is confronted with documentEx.PW1/5. It is correct that on page No.2 onEx.PW1/5, the area purchased by me hasspecifically been mentioned with description, areamentioned with boundary which I admit to becorrect. It is correct that the sale deed Ex.PW1/5do not specifically mentioned my co ownership overground floor shop or any of its portion in flatNo.101.........”

[Portions bolded in order to highlight]

The aforesaid conduct of the plaintiff, at the time of

execution of the Sale Deed itself, shows that W.C. in the bathroom

of the first floor was either in existence since the said period i.e.

from purchase of the said property or the plaintiff has not at all

resided in the said property and the same has been used for other

purposes i.e. other than residence.

The learned counsel for Defendants no.1 & 2 has also

argued that Lease Deed has to prevail and the Deed of Conveyance

should yield to the contents of the Lease Deed. The Lease Deed of

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Flat No.101 also refers to the Schedule referred to and the same is

reproduced as under:

“The schedule above referred to.

Description of land leased jointly with First Floor/SecondFloor/Ground Floor.

(1) Land under the superstructure measuring

about 40'71/2“x13'81/2”+17'–41/2”x2'–33/4”=596.2343 sq.ft.Charged 2/3rd to G.F. and 1/3rd to G.F.=198.745 sq.ft.

Description of land leased jointly under ,staircase andlavatory block and common passage.

(i) Land under superstructure of staircasemeasuring ...............................charged ...................................

(ii) Land under superstructure of lavatory blockmeasuring ...............................charged ...................................

(iii) Land under common passagemeasuring 17'–41/2”x2'–33/4” equal to 41. sq. ft.Charged 2/3rd to G.F. and 1/3rd to F.F.

Bounded by North Court yard of Shop No.101 and ServiceLane below.Bounded by South Service Road below.Bounded by East Service Road below.Bounded by West Flat No. 102.”

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The description of land leased jointly under staircase

and lavatory block and common passage has been struck off in the

Lease Deed. The Land under common passage has been specifically

mentioned. The argument of Ld. counsel for defendants no.1 & 2

appears to be reasonable and plausible and the same is also

accepted by this Court that Conveyance Deed must yield to Lease

Deed and the same cannot be contrary to the terms of Lease Deed.

It is also pertinent to note that the boundary described

on North Side in the Lease Deed, Conveyance Deed and Sale Deed

of Flat No.101 clearly stipulates that North is bounded by

Courtyard of Shop No.101 and Service Lane. The said boundary

itself shows that the Courtyard belongs to Shop No.101. The

boundary on the North Side of Lease Deed and Conveyance Deed of

Shop No.101 reflects Service Lane. The boundary on the North side,

as depicted by the L&DO in Lease Deed and Conveyance of Flat

No.101, shows the Courtyard and thereafter, Service Lane and in

the Shop No.101, it depicts only Service Lane, this further endorses

the stand of L&DO in various proceedings that W.C. is part & parcel

of the Courtyard, which is attached to Shop No.101. Otherwise, the

boundary shown on the North side of the Conveyance Deed and

Lease Deed of Shop No.101 ought to have reflected W.C. instead of

Service Lane alone.

The Ld. counsel for plaintiff has raised the issue that in

case, the submission of L&DO is accepted that portion was

inadvertently not struck off, then, the same would lead to the

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conclusion that plaintiff has no share in the passage and stair case

also. The said argument of plaintiff has also no merits for the

simple reason that it has been categorically mentioned under the

column of “Schedule Above referred to” that “……Together with all

buildings, privileges, easements and appurtenances whatsoever to

the said shop/flat belonging or usually held or enjoyed

therewith……..” The said rights given to the plaintiff in the

Conveyance Deed, would give the right to use the stair case and

passages, which are necessary for reaching to Flat No.101.

There is another aspect of the matter, the word “Original

CPWD Construction” is neither mentioned against ……. share in the

staircase nor the same is also not mentioned against ………share in

the lavatory block, but the same is mentioned prior to share in the

common passage. The detailed discussion has already been made

hereinabove as far as Original CPWD Construction is concerned.

Now coming to the question, what is the meaning of “Lavatory

Block”? The plain and ordinary meaning of the “Lavatory Block”

cannot be taken as single unit, but the same would definitely

means more than one unit, otherwise, there was no requirement to

mention the same as “Block”. There is no CPWD Construction Plan,

which has been placed on record, which shows the Lavatory Block

i.e. more than one unit of Lavatory. Furthermore, in the said

Conveyance Deed, there is no mention about the location of the

said Lavatory Block and whether the same is attached with Ground

Floor Shop or at some other place. Moreover, at the cost of

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repetition, Original CPWD Construction, as shown in the

Conveyance Deed of Flat No.101, nowhere, shows that W.C. in

question.

The detailed discussions made hereinabove, reveals that

even, as per the case of plaintiff and documents relied upon by the

plaintiff, it cannot be said that plaintiff has unequivocal,

unambiguous and absolutely crystal clear title in the W.C. on the

ground floor, which is part & parcel of the Courtyard. It is also

pertinent to reproduce para no.9 of Order dated 26.04.2006 passed

by the Hon’ble High Court in WP(C) No.4542/2006:

“….9. Petitioner admittedly has a bathroomcumtoilet on the first floor. If he needs anadditional one and he insists that he has aright to build on the existing structure on theground floor owner, petitioner has to obtainan appropriate order from a civil court..”

(Portion bolded in order to highlight)

In my considered view, from the detailed discussions

made hereinabove, the plaintiff has utterly failed to show that

plaintiff has the right, title and interest in the W.C. in question,

which is part & parcel of the Courtyard of Shop No.101.

Furthermore, in my considered view, there was serious

cloud on alleged title of W.C., even as per the case presented and

claimed by the plaintiff and the plaintiff was required to seek the

relief of declaration. Moreover, in terms of the pleadings, evidence

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and case presented by plaintiff, the plaintiff was not in possession

of the WC and therefore, the Plaintiff was also required to seek joint

possession of the WC. The plaintiff has, in fact, sought the

declaration, but the same was not pressed in view of the Statement

dated 07.01.2020, however, the plaintiff also has not sought joint

possession. The Judgment of Anthula Sudhakar (Supra), as relied

upon by Ld. Counsel for Defendants no.1 & 2 is squarely applicable

to the facts & circumstances of the present case and the Judgments

of (1) Satya Pal Anand Versus State of M.P. & Ors. and (2)

Thota Ganga Lakshmi & Another Versus Government Of

Andhra Pradesh, as relied upon by Ld. counsel for the plaintiff is

not at all applicable to the facts of the present case. This Court is

not adjudicating, whether the relief of declaration, as originally

pleaded by the plaintiff, was within the period of Limitation, as the

same was not pressed by the plaintiff.

At the cost of repetition, this Court reiterates that the

Plaintiff has failed to prove his right, title and interest in the W.C. in

question. Otherwise also, the suit for Permanent Injunction

simplicitor for the relief of Lavatory/W.C. in question is also not

maintainable in view of the Judgment of Anthula Sudhakar

(Supra).

The Ld. Counsel for plaintiff has also placed reliance on

Section60 of the Indian Easements Act, 1882 and in my considered

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view, in view of the detailed discussions made hereinabove, the said

reliance is also totally misplaced.

The prayer no.(i) was already not pressed by the plaintiff

by means of Statement dated 07.01.2020 and the same is

accordingly dismissed as not pressed. The prayer clause (iii) is

repeated twice – the first is pertaining to future damages and the

second one is for mandatory injunction. In view of the detailed

discussions made hereinabove, the plaintiff is not entitled to any

relief, as prayed in prayers (ii), (iii) [pertaining to future damages],

(iv) and (v) of prayer clause.

Accordingly, in view of the discussions, as adumbrated

hereinabove, the issues no.2, 6, 7 and 9 are decided against the

plaintiff and in favour of Defendants no.1 & 2 in the aforesaid

terms.

ISSUE NO.8

8. Whether the Plaintiff is entitled for decree for mandatoryinjunction against the defendant as prayed for? OPP


The plaintiff has argued that Defendants no.1 & 2 have

carriedout the unauthorized construction/breaches either on Shop

No.101 or on the rear Courtyard and W.C. of Shop No.101 and the

plaintiff is relying upon the various documents. In order to

effectively understand the said documents, relevant details of the

same are reproduced as under:

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(a) Ex.PW4/RX4 dated 25.08.1976 written by Late Shri

Chand Parkash Sharma to defendant No.4 and the relevant

portion is reproduced as under:

“Subject: Show Cause Notice No.DE/MKT/SM101dated 13.8.76 in respect of my shop No.101Sarojini Market, New Delhi.

Sir,

With reference to your office notice mentioned abovealleging therein that I have covered the courtyard ofmy shop with asbesto sheets. In this connection Ihave to submit as under :

That I have demolished the said coverage.

It is requested that the said notice in question betreated as cancelled or withdrawn, if necessary byconducting spot enquiry.......”

b) The breaches, as mentioned in Ex. PW2A/1, dated

10.03.1989, are as under:

“UNAUTHORIZED CONSTRUCTION – YES

1. Verandah enclosed by putting iron shutter on 2sides & kept on wooden racks between shop no.101 & 102.

2. Rear open space covered with A.C. Sheets 2' x11'11¼”

c) The breaches, as mentioned in Ex.PW2A/2, dated


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1. Part of rear courtyard m/a 12'7½” x 12'1½” has beenenclosed and covered and being used as part of theshop.

2. Front verandah has been enclosed m/a 8' 1½”x 13'1½” and being used as part of the shop.

3. Area around W/C in rear courtyard has beenenclosed, covered and locked ma 4'9”x12'1½” andbeing used as store.

UNAUTHORIZED CONSTRUCTION, IF ANY: YES

1. Rear court yard has been covered, enclosed andpartitioned – area m/a (12'4½ “ x 11'4½” 6'1½” x5'6”)= 163.95 sq. ft.

2. Part of area leased to shop No. 102 m/a 2' – 3¾” x 9'1½” = 21 10 beneath stair case has been encroachedby the lessee.”

d) The breaches, as mentioned in Ex.PW2/23, dated


“(i) Central court yard m/a 12'0”x10'6” has been coveredpucca. (OLD Breach).

(ii) u/a room on B.F is m/a 18'3”x13'6” (Pucca) (Old).

(iii) u/a Bath on B.F is m/a 7'6”x8'0” (Pucca) (Old).

(iv) u/a coverage on B.F. (Above central court yard & Kitn.)is m/a 14'10½” x 12'1½” + 8'0” x 6'3” (A.C.C.sheets) (Fresh)”

e) The breaches, as mentioned in the letter dated 29.4.2002

Ex.PW2A/3, are as under:

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“UNAUTHORIZED CONSTRUCTION:

1. On 10.3.89

(i) Verandah enclosed by putting iron shutter on 2 sidesand kept wooden racks between Shop No. 101 & 102.

(ii) Rear open space covered with A.C. sheets 2'x 11' – 11¼”

2. On 22.2.2000

(i) Rear courtyard has been covered, enclosed andpartitioned (17'4½ “x 11'4½” 6'1½”x 5'6”) =163.95 sq. ft.

(ii) Part of area leased to Shop No. 102 measuring 2'3¾”x 9'1½”= 21.10 sq. ft. beneath stair case hasbeen encroached by you.

3. On 16.11.2000

(i) Rear courtyard covered and being used as shop (17'4½“x 11'4½”))6'1½”x5'6”) 163.95 sq. ft.

4. On 17.4.02

(i) Rear courtyard covered (17'4½”x 11'4½”)(6'1½”x5'6”) = 163.95 sq. ft.

MISUSE:

1. On 22.2.2000

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(i) Part of rear courtyard measuring 12'7½”x 12'1½”has been enclosed and covered and being used aspart of the shop.

(ii) Front verandah has been enclosed measuring 8'1½”x13'1½” and being used as part of the shop.

(iii) Area around W.C. in rear courtyard has beenenclosed, covered and locked measuring 4'9”x 12'1½” and being used as store.

2. On 16.11.2000

(i) Front verandah measuring 8'1½”x 13' 6” has beenenclosed and being used as shop.

3. On 17.4.02

(i) Front verandah measuring 8'1½”x 13' – 6” has beenenclosed in shop.

2. The aforesaid breaches are in contravention of clauseno. 1 (iii), (iv). (v). (vi) & (vii) of the Lease Deed.

3. You are therefore, hereby required to remove theaforesaid breaches within 15 days from the date ofissue of this letter.

4. You are also liable to pay the charges (which will beintimated to you hereafter) for having committed thebreach of terms of the lease shown in para 1 abovefor the period of their existence.

5. In case of your i)failure to remove the breaches within15 days of the issue of this notice and (ii) failure topay the charges for past breaches within 15 days of

Suit No. 237/2018 Page 85 of 94


the intimation thereof further action under the ClauseII of the lease deed for the violation of the Clause I(iii), (iv), (v), (vi) & (vii) will be taken against you to re

enter upon the premises in accordance with the termsof the Lease Deed.

6. It is further brought to your notice that once theproperty is reentered, the reentry may not bewithdrawn or if withdrawn it may be on such termsand conditions as the Lessor may deem fit. It may,therefore ,be noted that if no intimation regardingremoval of the breaches is received from you within15 days from the date of issue of this letter, theproposed action will be taken and in that case allconsequences as spelt out above shall follow and youwill become unauthorised occupant of public premisesliable to eviction by due process of law.”

f) Ex.PW2A/5Page No.2123 dated 21.08.2003 shows the

breaches and amount charged and the same are reproduced

as under:

“1. Damages charges:10.3.89 to 31.3.89 @ Rs.666/ PA = Rs.40.001.4.89 to 31.3.91 @ Rs.1295/ PA = Rs.2590.001.4.91 to 31.3.98 @ Rs.1554/ PA = Rs.10.878.001.4.98 to 21.2.2000 @ Rs.1788/ PA = Rs.3390.0022.2.2000 to 14.7.04 @ Rs.19490/ PA = Rs.85596.00

2. Misuse charges:10.3.89 to 31.3.89 @ Rs.11178/ PA = Rs.674.00

Suit No. 237/2018 Page 86 of 94


1.4.89 to 31.3.91 @ Rs.21735/ PA = Rs.43470.001.4.91 to 31.3.98 @ Rs.26082/ PA = Rs.182574.001.4.98 to 14.7.04 @ Rs.29994/ PA = Rs.188592.001/10th penalty on above = Rs.41531.00

3. Ground rent:

15.1.89 (P70/C) to 14.7.04 @ Rs.691.40 PA = Rs.10717.00Int. @ 10% from 15.1.89 to 14.7.04 = Rs.8573.00”

g) Ex.PW2A/4 dated 19.10.2004 shows the breaches and the

amount Charged and the same are reproduced as under:

“Damages charges:

10.3.89 to 31.3.89 @ Rs.666/ PA = Rs.40.001.4.89 to 31.3.91 @ Rs.1295/ PA = Rs.2590.001.4.91 to 31.3.98 @ Rs.1554/ = Rs.10878.001.4.98 to 21.2.2000 @ Rs.1788/ PA = Rs.3390.0022.2.2000 to 14.7.04 @ Rs.19490/PA = Rs.85649.0015.7.04 to 14.1.05 @ Rs.19490(Pro.) = Rs.9745.00

2. Misuse charges:

10.3.89 to 31.3.89 @ Rs.11178/ PA = Rs.674.001.4.89 to 31.3.91 @ Rs.21734/PA = Rs.43468.001.4.91 to 31.3.98 @ Rs.26080/PA = Rs.182560.001.4.98 to 14.7.04 @ Rs.29992/PA = Rs.188580.0015.7.04 to 14.1.05 @ Rs.29992/PA = Rs.14996.001/10th penalty on above = Rs.41603.00

3. Ground rent:

15.1.89 to14.7.04 @ Rs.691.40/ PA = Rs.10717.0015.7.04 to 14.1.05 @ Rs.691.40/PA = Rs.345.70

Suit No. 237/2018 Page 87 of 94


Int.@ 10% from 15.1.89 to 15.1.04 = Rs.8641.00”

h) Ex.PW2A/6 shows the Internal of defendant No.4 regarding

unauthorized construction/ breaches.

Per Contra, Ld. Counsel for defendants No.1 and 2 has

argued that courtyard of Shop No.101 was covered long back and

the same was assessed to House Tax and the defendants No.1 and

2 have relied upon the following documents:

a) Notice dated 10.01.1984 –Exhibit DW1/2 issued by NDMCfor assessment of House Tax, which includes, the coveredarea rear Courtyard.

b) Payment of House Tax vide Receipt dated 17.05.1984 –ExhibitDW1/1.

c) Letter dated 25.10.2005 –Exhibit DW1/3 for change in thename for payment of property tax.

The Ld. Counsel for defendants No.1 and 2 has also

argued that NDMC has clearly opined vide letter dated 03.07.2003

(Ex.PW2/20) that no action of removal of the shed is required. The

relevant portion of the letter dated 03.07.03 is reproduced as

under:

Suit No. 237/2018 Page 88 of 94


“Sub: Removal of unauthorized construction in respect ofFlat No.101, Sarojini Nagar Market and Shop No. 101,Sarojini Nagar Market, New Delhi.

Sir,

With reference to your letter NO. L& DO/PSIV/453dated 21.5.2003 regarding the subject cited above. It is toinform you that action for the removal of shed in the rearopen space of shop was initiated by the NDMC. However,the party produced documentary evidence that the shed inquestion is in existence since 1984 i.e. before theamendment of Punjab Municipal Act, 1911 and also it hasbeen assessed to house tax.

In view of the legal position explained above, no actionfor removal of the shed under question can be taken at thisstage by the NDMC.”

The Plaintiff has also given following various complaints

regarding unauthorized construction:

a) Complaint dated 24.1.2000 to NDMC and L&DO ExhibitPW4/8 and Ex. PW4/9.

b) Complaint dated 02.04.2002 to L&DOExhibit PW4/10.

c) Complaint dated 31.12.2003 to L&DOExhibit PW4/11.

d) Complaint dated 06.12.2004 to SHOExhibit PW4/12.

e) Complaint dated 14.02.2005 to L&DOExhibit PW4/13.

f) Complaint dated 18.08.2008 to NDMCExhibit PW4/14.g)

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The Ld. Counsel for Defendants no.1 & 2 has argued

that even for the sake of arguments that there were unauthorized

construction/breaches done by Late Chand Parkash or for that

matter Defendants no.1 & 2, still they are covered under Section 3

of the Delhi Law (Special Provisions) Act, 2006 and no action can be

taken against the alleged unauthorized construction/breaches. In

order to buttress the said arguments, the Ld. Counsel for

defendants no.1 & 2 has relied upon the following meetings of the

NDMC:

(i) Minutes of meeting held on 15.10.2007 in the Chamber ofMinister of State (U.D.) Government of India, NirmanBhawan, New Delhi and

(ii) Minutes of meeting held on 01.05.2008 at conference roomof MOS(UD), Nirman Bhawan, New Delhi.

It has also been argued by Ld. Counsel for defendants

No.1 and 2 that defendant no.3 has also sanctioned the Site Plan

with regard to the rear courtyard of the property bearing Shop

No.101.

The following documents clearly reveal that the

Defendants no.1 & 2 or for that matter, their predecessor i.e. father

Sh. Chand Parkash, have done the breaches/unauthorized

construction:

a) Ex. PW2A/1 dated 10.03.1989

b) Ex.PW2A/2 dated 22.2.2000

Suit No. 237/2018 Page 90 of 94


c) Ex.PW2/23 dated 17.04.2002

d) Ex.PW2A/3 dated 29.4.2002

e) Ex.PW2A/5 dated 21.08.2003

f) Ex.PW2A/4 dated 19.10.2004

g) Ex.PW2A/6 Internal Noting pertains to defendant No.4regarding unauthorized construction/ breaches.

The aforesaid reports are of defendant no.4 and at

present, NDMC is the sole agency and defendant no.4 has no role to

play in the property in question. The NDMC vide its letter dated

03.07.2003 is taking the stand that no action is required for

removal of the Shed in question. The aforesaid Minutes dated

15.10.2007 and 01.05.2008 also primafacie reveal that the

property is protected under Delhi Law (Special Provisions) Act,

2006, nonetheless, the plaintiff disputes the said protection.

The fact of the matter is that NDMC has not carriedout

the inspection of the suit property in order to demonstrate the

breaches/unauthorized construction in Shop No.101 or the rear

courtyard, which includes W.C. also.

In my considered view, interest of justice would be

served if defendant no.3, who is sole agency, as the defendant no.4

has handedover the entire charge and files to defendant no.3, to

inspect Shop No.101 and the rear courtyard, which includes the

Suit No. 237/2018 Page 91 of 94


W.C., located on the ground floor of Sarojini Nagar Market, New

Delhi within a period of three months from today. The period of

three months is given owing to pandemic of Covid19. Thereafter,

the defendant no.3, within a period of 15 days, would intimate both

plaintiff and Defendants no.1 & 2 whether there are any

breaches/unauthorized construction. If the defendant No.3 would

find the breaches/unauthorized construction, then, defendant No.3

would also inform them the following aspects:

a) What is effect of House Tax Assessment (as relied upon by

defendants no. 1 & 2 in this case) on such

breaches/unauthorized construction.

b) Whether said breaches/unauthorized construction are

covered under Delhi Law (Special Provisions) Act, 2006 (as

relied upon by the Plaintiff in this case).

c) What is the effect of sanctioned site plan of the rear courtyard

on such breaches/unauthorized construction.

After receipt of the Report from defendant no.3, the

plaintiff and Defendants No.1 & 2 are permitted to make their own

representations within a period of 15 days. After receipt of the

representations from the plaintiff and Defendants no.1 & 2, as the

case may be, the defendant no.3 would take its own decision within

a period of one month and the same would again be communicated

by defendant no.3 to plaintiff and Defendants no.1 & 2.

Suit No. 237/2018 Page 92 of 94


In case, finally defendant no.3 would come to the

conclusion that there are breaches/unauthorized construction,

which are neither condonable or compoundable nor covered under

Delhi Law (Special Provisions) Act, 2006 and the sanctioned Site

Plan of the courtyard would have no bearing or effect on the said

breaches/ unauthorized construction, then, after a period of two

months of communicating the same to plaintiff and defendants no.1

& 2, the defendant no.3 is directed to demolish the same after

adopting and following due procedure, as prescribed under law.

It is made clear that the Plaintiff and/or defendants

No.1 and 2, as the case may be, are permitted to challenge the final

decision of defendant No.3 in accordance with law.

Accordingly, in view of discussions made hereinabove,

issue no.8 is decided in the aforesaid terms.

RELIEF:

From the discussions, as adumbrated hereinabove, I hereby

pass the following

FINAL ORDER

(a) The prayer (i) was already not pressed by the plaintiff by

means of Statement dated 07.01.2020 and accordingly, the

same is dismissed as not pressed. The suit of the Plaintiff,

as prayed in prayers (ii), (iii) [pertaining to future damages],

(iv) and (v) of prayer clause, is hereby dismissed.

Suit No. 237/2018 Page 93 of 94


(b) A decree for mandatory injunction is passed in terms of

operative part of decision of issue no.8 and the said

directions are not repeated for the sake of brevity and be

read as mutatis mutandis.

(c) In view of the final decision, the pending applications, if

any, stand infructuous and the same are hereby dismissed

being infructuous.

(d) The parties shall bear their own respective costs of

litigation.

Decreesheet be prepared accordingly in terms of this

decision.

File be consigned to Record Room after due compliance.

Announced in the open court onthis 26th Day of May, 2020.

(ARUN SUKHIJA) ADJ07 (Central)

Tis Hazari Courts, Delhi

Suit No. 237/2018 Page 94 of 94

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IN THE COURT OF SH. ARUN SUKHIJA, ADDITIONAL DISTRICT ... · Anil Dua V. Vijay Sharma & Ors. Delhi...

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