* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Order Reserved on: 09th January, 2014
Pronounced on: 20th February, 2014
+ CS(OS) 1953/2013
MEERA JAIN & ANOTHER ..... PLAINTIFFS
Through: Mr. Anil K. Kher, Senior
Advocate with Mr.
Siddhartha Jain, Advocate
versus
SUNDARI DEVI GARG & O THERS ..... DEFENDANTS
Through: Mr. Varun Nischal,
Advocate for D - 1.
Mr. Harish Malhotra,
Senior Advocate with
Mr.Vikas Arora and Mr.
Dheeraj Manchanda,
Advocates for D - 2.
Mr. Mukesh Gupta,
Advocate, Standing
counsel for D-3 /SDMC
Ms. Purnima Maheshwari,
Adv for D-4.
CORAM:
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
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I.A. 16249/2013 & I.A. 19009/2013 in CS(OS) 1953/2013 Page 1 of 25
SANJEEV SACHDEVA, J.
IA No. 16249/2013 (under Order 39 Rule 1 & 2 CPC) and IA 19009/2013 (under Order 39 Rule 4 CPC)
1. The Plaintiffs have filed the present suit for permanent and mandatory injunction. The property in dispute is property No. A - 1/66, Safdarjung Enclave, New Delhi. The said property was owned by Late Mr. Banwari Lal Garg. After the death of Mr. Banwari Lal Garg, the property devolved upon the legal heirs, i.e., the parties to the suit. The Defendant No. 1 is the wife of Late Mr. Banwari Lal Garg and the Plaintiffs and Defendant No. 2 are real sisters and the daughters of Defendant No. 1 and Late Mr. Banwari Lal Garg. Mr. Banwari Lal Garg expired on 19th February, 2008.
2. As per the Plaintiff, after the death of Late Mr. Banwari Lal Garg with a view to arrive at an amicable settlement, the parties to the suit entered into a family settlement which was recorded in memorandum of =================================================================== I.A. 16249/2013 & I.A. 19009/2013 in CS(OS) 1953/2013 Page 2 of 25 family settlement deed dated 12 th March, 2008. In terms of memorandum of family settlement, Defendant No. 1 (the mother) had the right to reside on the ground floor of the suit property and enjoy the rental income from the second floor portion during her lifetime. Plaintiff No. 2 was to be the absolute and exclusive owner of Ground floor portion of the suit property and Plaintiff No. 1 was to be the absolute and exclusive owner of the second floor of the suit property and the Defendant No. 2 was to be the absolute owner of the first floor. The drive way, roof/terrace, servant quarter and any other common area/space is under the joint ownership of all the original heirs of late Mr. Banwari Lal Garg. As per the Plaintiffs, the memorandum of family settlement has been accepted and acted upon by the parties.
3. Plaintiff No. 2 is stated to be residing in United States of America and Plaintiff No. 1 is residing in another =================================================================== I.A. 16249/2013 & I.A. 19009/2013 in CS(OS) 1953/2013 Page 3 of 25 property in New Delhi. As per the Plaintiffs, the Plaintiffs had given a General Power of Attorney in favour of Defendant No. 2 to carry out various act and deeds as detailed in the said power of attorney. The Defendant No. 2 by misusing the power of attorney started raising construction over the second floor by constructing an entirely new third floor. As per the Plaintiffs, Defendant No. 2 has got the building plan sanctioned from Defendant No. 3, i.e., South Delhi Municipal Corporation of Delhi for construction of third floor over the terrace of the second floor and was proposing to sell and/or transfer the third floor portion to be constructed by Defendant No. 2 to third parties.
4. The Plaintiffs issued a legal notice dated 22.07.2013 informing Defendant No. 2 about the revocation of the power of attorney and to cease and desist from raising any unauthorised construction on the terrace of the second floor. As per the Plaintiffs the said terrace of =================================================================== I.A. 16249/2013 & I.A. 19009/2013 in CS(OS) 1953/2013 Page 4 of 25 the second floor on which the construction was being raised is a joint property and the Defendants could not have raised construction over the same without obtaining 'No objection' from the Plaintiffs. In these circumstances, the Plaintiffs have filed the present suit seeking permanent injunction against the Defendant from dealing with the property in a manner violating the provisions of memorandum of family settlement and for a mandatory injunction for demolition of the construct raised and for the cancellation of the sanction and approval by Defendant No. 3 for construction of the third floor portion.
5. Though the Defendants have filed separate Written Statements but the stand of both the Defendants No 1 and 2 is identical.
6. As per the Defendants No. 1 and 2, the First Floor in terms of the Family Settlement belongs exclusively to =================================================================== I.A. 16249/2013 & I.A. 19009/2013 in CS(OS) 1953/2013 Page 5 of 25 the Defendant No. 2 and the drive way, roof/terrace, servant quarters and other common areas/spaces of the suit property was under the joint ownership of only Defendant No. 1 and 2 to the exclusion of the Plaintiffs.
7. The said Defendants place reliance on the term of the family settlement deed that records that the said portion shall be under the joint ownership of all the original heirs of Late Mr. Banwari Lal Garg, who are residing in the said property. As per the Defendants, since on the date of the family settlement only Defendant Nos. 1 and 2 were residing in the suit property, the said portions including drive way, roof/terrace came to the share of Defendants only. The said Defendants claim that Plaintiffs have no right in any manner upon the drive way, roof/terrace since they were not residing in the suit property at the time of the family settlement.
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8. The Defendant No. 1 is stated to have relinquished her entire share in the suit property with regard to the drive way on the ground floor, roof/terrace above the second floor, servant quarters and other common areas/space by a registered relinquishment deed dated 12.01.2012 in favour of Defendant No. 2.
9. As per the Defendants, the Plaintiffs had executed an irrevocable registered general power of attorney dated 13.03.2008 giving absolute power to Defendant No. 2 to manage and control the entire property including the right to sell the said property and to represent the Plaintiffs and Defendant No. 1 before the statutory authorities and also with the right to make additions/alterations, to get the building plan sanctioned from MCD or concerned authority.
10. The Defendant No. 2 is stated to have been managing the affairs of the property and letting out the same, =================================================================== I.A. 16249/2013 & I.A. 19009/2013 in CS(OS) 1953/2013 Page 7 of 25 recovering rent and giving the said rent to Defendant No. 1. The Defendant No. 2 is the absolute owner of the first floor of the suit property and the aforementioned portions including roof/terrace above the second floor. As per the said Defendants, the Defendant No. 2 at her own cost and expense has commenced construction/additions/alteration in the entire suit property after obtaining the requisite permission from Defendant No. 3. After the requisite plan for the same was duly sanctioned/approved, the construction was commenced in April, 2013. The permissions were obtained on behalf of the Plaintiffs as well as Defendant No. 1 on the basis of the registered general power of attorney dated 13.03.2008 which is claimed to be irrevocable.
11. As per the said Defendants, the Plaintiffs were aware about the permission received from MCD and commencement of construction work from the very =================================================================== I.A. 16249/2013 & I.A. 19009/2013 in CS(OS) 1953/2013 Page 8 of 25 beginning and the Plaintiffs have waited for the Defendant No. 2 to complete the entire building structure by investing huge amount of money before approaching this court.
12. It is claimed by the Defendant No. 2 that since the sanction of the building plan was applied for in the join t names of the co-owners on the basis of the power of attorney, admittedly, executed by the Plaintiffs, there was no requirement for obtaining 'No Objection Certificate'. The Defendant No. 2 claims to have invested over Rs. 50 lacs in the construction of not only the third floor but also extension/alterations in the ground floor, first floor and second floor portions. As per the Defendants, the Plaintiffs did not raise any objection when Defendant No. 2 was making addition/alteration by spending her own money in the portions of the Plaintiffs on the ground floor and the second floor. It is only when the entire structure of the =================================================================== I.A. 16249/2013 & I.A. 19009/2013 in CS(OS) 1953/2013 Page 9 of 25 third floor is completed with the complete roof being laid and the walls having been plastered that the Plaintiffs have filed the present suit to harass the Defendants.
13. Learned senior counsel for the Plaintiffs has submitted that the Defendants have no right to raise any construction over the roof of the second floor portion as the terrace floor was common area to all and in case the Defendants were permitted to complete the construction, equities would be created in favour of the Defendants and there would be ouster of the rights of the Plaintiffs from the said portion.
14. Learned senior counsel further contended that to avoid any equities being created, the Plaintiffs were agreeable to the completion of the construction subject to the fact that the property was rented out to a third party and 2/3 rd of the rent were to be deposited in =================================================================== I.A. 16249/2013 & I.A. 19009/2013 in CS(OS) 1953/2013 Page 10 of 25 Court. As per the learned senior counsel for the Plaintiff the fair rental would be approximately Rs.1,00,000/- per month. He further contended that the Plaintiffs were agreeable to sharing the cost of the construction provided the Defendants gave a cap on the cost of construction.
15. Learned senior counsel for the Defendants, on the contra, submitted that the Plaintiffs had no right title or interest on the terrace of the third floor by virtue of the memorandum of family settlement executed by the parties. He further contended that Defendant No. 2 was raising lawful construction in accordance with the sanctioned/approved additions/alterations plan. He further contended that when the plan was sanctioned, admittedly, there was a power of attorney executed by the Plaintiffs authorising Defendant No. 2 to obtain necessary sanctions and raise construction. Learned senior counsel further submitted that the fact that the =================================================================== I.A. 16249/2013 & I.A. 19009/2013 in CS(OS) 1953/2013 Page 11 of 25 Plaintiffs kept quiet when the construction was being raised and additions/alteration were being made in their portions establishes the fact that the Plaintiffs were very much aware of the sanction of the third floor and the construction being raised thereon. Learned senior counsel further contends that the Plaintiffs cannot revoke an irrevocable power of attorney.
16. Learned senior counsel further contends that in view of the fact that Plaintiffs are not residing in the suit property and the Defendant No. 2 on account of the needs of her growing family was facing space crunch and as such had constructed the said terrace floor. Learned senior counsel further contented that no equities were being claimed by the Defendants by raising the said construction. He further submits that Defendant No. 2 is not claiming any amount nor would claim any amount for raising the said construction from the Plaintiff in case the Plaintiffs were to succeed in =================================================================== I.A. 16249/2013 & I.A. 19009/2013 in CS(OS) 1953/2013 Page 12 of 25 the suit and in case, the Plaintiffs were to succeed in their claim, the Defendant No. 2 would hand over the peaceful vacant possession of the share of the Plaintiff without claiming any money for the construction raised.
17. Learned senior counsel contended that in case, the super structure that had been raised on the third floor was not permitted to be completed, great loss and damage would be caused to the entire property inasmuch as there would be water seepage and damage to the property. He further submitted that the Defendant No. 2 would be ready to deposit proportionate the fair rental of the second floor in Court with prejudice to the rights and contentions of the Defendants. As per him the fair rental would be about Rs. 50,000/- per month for the entire floor.
18. The Defendant No. 3 MCD has filed the status report =================================================================== I.A. 16249/2013 & I.A. 19009/2013 in CS(OS) 1953/2013 Page 13 of 25 that the building plan for additions/alteration was sanctioned under the simplified procedure on an application made by Defendant No. 2 accompanied with the power of attorney of Plaintiffs and Defendant No. 1. As per the status report, the application was submitted on 01.04.2013. However on the complaint of the Plaintiff a show cause notice has been issued in the name of all the applicants and the matter is under consideration.
19. For grant of ad-interim injunction the plaintiff has to satisfy three requirements. Plaintiff has to show a strong prima-facie case, the balance of convenience has to tilt in favour of the plaintiff and in favour of grant of ad-interim injunction and the plaintiff has to show that in case the ad-interim injunction is not granted the plaintiff shall suffer an irreparable loss and injury. Unless all the three requirements are satisfied the plaintiff is not entitled to the relief of injunction. =================================================================== I.A. 16249/2013 & I.A. 19009/2013 in CS(OS) 1953/2013 Page 14 of 25
20. In my opinion at least two out of the three requirements are not satisfied by the plaintiffs. The balance of convenience tilts substantially in favour of the Defendants.
21. The construction that is being raised by the Defendant is lawful construction. The Defendants are raising construction after sanction of the additional/alteration plan from the Defendant No. 3. Admittedly the Plaintiffs had executed a registered general power of attorney dated 13.03.2008 giving amongst other the power to represent the Plaintiffs and Defendant No. 1 before the statutory authorities and also with the right to make additions/alterations, to get the building plan sanctioned from MCD or concerned authority. The Defendant No. 2 at her own cost and expense has commenced construction/additions/alteration in the entire suit property after obtaining the requisite permission from Defendant No. 3. The permissions =================================================================== I.A. 16249/2013 & I.A. 19009/2013 in CS(OS) 1953/2013 Page 15 of 25 were obtained on behalf of the Plaintiffs as well as Defendant No. 1 on the basis of the registered general power of attorney dated 13.03.2008. Construction based on the sanctioned plan has also been made in the floors falling to the share of the plaintiffs. When the plan was got sanctioned and the construction commenced there was admittedly a registered power of attorney in favour of the Defendant No. 2 authorising her to apply for and get a plan sanctioned and raise construction. The plea of the Plaintiffs that the power of attorney has subsequently been revoked would not invalidate an action taken on the basis of the power of attorney at a time when it was admittedly in force.
22. The plaintiffs have not raised any real objection to the raising of the construction except that the same would create equities in favour of the defendants and there would be ouster of the rights of the plaintiffs. The =================================================================== I.A. 16249/2013 & I.A. 19009/2013 in CS(OS) 1953/2013 Page 16 of 25 Plaintiffs have themselves submitted that they were agreeable to the completion of the construction subject to the renting out of the property to a third party and 2/3rd of the rent being deposited in Court. The plaintiffs are agreeable to sharing the cost of the construction provided the Defendants gave a cap on the cost of construction.
23. On the other hand the defendants have contended that the plaintiffs are not residing in the property in suit and the defendant No. 2 is raising construction on account of the needs of her growing family and she was facing space crunch. The Defendants are not claiming any equities by raising the said construction. The Defendants have submitted that they are not claiming any amount nor would claim any amount for raising the said construction from the Plaintiffs in case the Plaintiffs were to succeed in the suit and in case, the Plaintiffs were to succeed in their claim, the Defendant =================================================================== I.A. 16249/2013 & I.A. 19009/2013 in CS(OS) 1953/2013 Page 17 of 25 No. 2 would hand over the peaceful vacant possession of the share of the Plaintiff without claiming any money for the construction raised. The Defendants are agreeable to deposit of a fair rental in court.
24. By order dated 06.11.2013 A local commissioner was appointed to inspect the suit property to find out the status of the construction of the said third floor portion. The local commissioner has submitted a report dated 27.11.2013 and has annexed the photographs of the construction raised. The local Commissioner vide his report in respect of the status of the property has reported as under:
a. That while entering I noticed that the cement packets were lying at the ground floor near entry gate and construction/amendment was there on the ground floor just adjacent to starting of stairs for lift provision. b. That the top of the second floor is totally covered with lenter/concrete plastered ceiling. =================================================================== I.A. 16249/2013 & I.A. 19009/2013 in CS(OS) 1953/2013 Page 18 of 25 c. That the construction materials like phatte, balli, chhali, water pipe, window and Bucket etc. was there on the said floor.
d. That the bundle of electricity pipes was lying in front portion.
e. That the bricks of the wall of right side covered front portion had been cut for affixing the electricity pipes.
f. That there is an old structure/old toilet-
washroom near the entry gate on top of the second floor.
g. That new bricks had been filled in old wall in grill portion facing stairs near old structure. h. That the wall has been cut for the purpose of affixing the door facing stairs and some new bricks had been affixed.
i. That walls in various portion of the top of the second floor had been cut out for the purpose of affixing electricity or water pipes etc. out of =================================================================== I.A. 16249/2013 & I.A. 19009/2013 in CS(OS) 1953/2013 Page 19 of 25 which in some areas electricity pipes had been affixed while others remaining un-affixed. j. That the daily used household goods belong to labours was also lying on the said floor and there was sign of preparing foods seems to be prepared by the labours.
k. That there were plasters in patches in different portions of said floor on different walls out of which some were looking new as the same were wet when touched by hand.
l. That the portion of the last room wall of left side portion of the property was looking fresh as when I touched the same by hand then the pieces of plaster fell down.
m. That only the front portion i.e. front open area/looking front drawing room is partly whitewashed except old structure.
n. That the railing portion/backward portion was also plastered and the same was also looking wet.
=================================================================== I.A. 16249/2013 & I.A. 19009/2013 in CS(OS) 1953/2013 Page 20 of 25 o. That there was no wet mixture of building material available at the spot at the time of inspection and no labour persons was present on the top of the second floor.
p. That there is no affixation of doors in any room except an old door at the entry gate of top of the second floor as well as on old structure. q. That there was temporary electricity connection on the said floor.
25. The report of the Commissioner and the photographs filed by the commissioner suggests that substantial structural civil work has been carried out. The complete roof slab has being laid and the ceiling and walls have been plastered. Even electrical conduit pipes were being laid.
26. The stage of construction is such that the property cannot be left as it is. In case the property is left in the incomplete state, the entire property would deteriorate. =================================================================== I.A. 16249/2013 & I.A. 19009/2013 in CS(OS) 1953/2013 Page 21 of 25 There would be water seepage and the existing structure be damaged. In case the defendant is directed to remove the construction raised there would be complete wastage of the amount spent on the construction by the Defendant No. 2. This would not be a desirable consequence in view of the fact that the amount has been spent on the construction after sanction of the plan on the basis of the power of attorney of the Plaintiffs and also the fact that the amount has been spent on making additions/alterations to the floors admittedly falling to the share of the Plaintiffs. Further the Plaintiffs have not objected to the raising of the construction but only to it creating equities in favour of the Defendants.
27. In view of the above, I am of the opinion that the balance of convenience tilts substantially in favour of the Defendants. In case the construction is now directed to be removed, it would cause substantial =================================================================== I.A. 16249/2013 & I.A. 19009/2013 in CS(OS) 1953/2013 Page 22 of 25 damage and loss to the property. I am of the view that the solution to the problem can be achieved by permitting the Defendant No. 2 to complete the construction and occupy the third floor without any rights or equities being claimed and subject to terms.
28. In view of the above, it is ordered as under:
(i) the Defendant No. 2 is permitted to complete the construction of the third floor in accordance with the approved plan; and
(ii) the Defendant No. 2 is permitted to occupy the said floor after completion of construction;
(iii) the Defendant No. 2 shall not create any third party right in respect of the said third floor, he shall not sell, mortgage, rent out, part with the possession of the whole or any part of the third floor; and =================================================================== I.A. 16249/2013 & I.A. 19009/2013 in CS(OS) 1953/2013 Page 23 of 25
(iv) from the date of completion of construction the Defendant No. 2 shall deposit a sum of Rs. 50,000/- per month with this court. The deposit shall be made every quarter in the name of the Registrar General. The amount deposited shall be kept in an interest bearing fixed deposit. The amount deposited shall be subject to the final outcome of the suit.
(v) In case the plaintiffs succeed in the suit, apart from being entitled to the rental, the plaintiffs shall be entitled to the proportionate share in the said third floor subject to payment of fair cost of construction.
(vi) The Defendant No. 2 shall not claim any rights or equities on the basis of the above =================================================================== I.A. 16249/2013 & I.A. 19009/2013 in CS(OS) 1953/2013 Page 24 of 25 directions and the possession of the Defendant No. 2 shall be akin to that of a court receiver.
29. The interim order dated 08.10.2013 is modified in the above terms. Nothing stated herein shall amount an expression of opinion on the merits of either party.
30. With the above directions, the applications are disposed off. No costs.
SANJEEV SACHDEVA, J FEBRUARY 20, 2014 sv =================================================================== I.A. 16249/2013 & I.A. 19009/2013 in CS(OS) 1953/2013 Page 25 of 25