Shiela Sethi vs Mohd. Naseem And Ors.
1992 Latest Caselaw 304 Del

JUDGMENT

Arun Kumar, J.

(1) AS. 3723/86 & 4465/86

(2) The plaintiff has filed the present suit for permanent injunction praying that defendants 1 and 2 be restrained from carrying out any construction on the plot bearing No.A-197, New Friends Colony, New Delhi. In the amended plaint, further prayer has been made that defendants 1 and 2 be restrained from occupying the building raised on the said plot and the plaintiff be allowed to occupy the same. Along with the suit the plaintiff filed an application being I.A. No. 373/86 under Order Xxxix Rules 1 and 2 of the Code of Civil Procedure praying for an interim injunction restraining defendants 1 and 2 from carrying on any construction on the said plot. An ex parte interim order was passed on the said application.

(3) On 30th May, 1986 restraining the said defendants from carrying on any construction activity on the plot inquestion. Soon thereafter the plaintiff filed not her application under Order 39 Rules 1 and 2 being I.A. 4465/86 praying that defendants 1 and 2 be restrained from occupying the structure existing on the said plot. On the said application, an ex parte interim order was passed on 6th August,1986 restraining the defendants 1 and 2 from occupying the whole or any part of the structure on plot No.A-197, New Friends Colony, New Delhi. The said ex parte order was modified on 11th August,1986 and defendants 1 and 2 were permitted to carry on the construction on the ground floor of the said plot but the said defendants were restrained from starting construction above it. The said defendants were further restrained from physically occupying the property and from handing over possession thereof to any one else. These orders have been continuing since then. Defendants 1 and 2 have been pressing that in view of the fact that ground floor has already been fully constructed on the said plot totally at their cost, they should be permitted to occupy the same. They have stated at the bar that they will occupy the ground floor only after obtaining the completion certificate and secondly they have agreed not to induct any one else in the said property or to part with possession thereof in any manner. I find from the order sheet that attempts have been made earlier to arrive at at least a working arrangement regarding occupation of the ground floor portion constructed on the said plot during the pendency of the suit. However, no agreed arrangement has been possible. Therefore, I have heard the counsel for the parties on these applications and I propose to dispose of the same by this order.

(4) The case of the plaintiff is that Shri Balram Sethi, husband of the plaintiff was the sub-lessee regarding plot in question i.e. plot bearing No.A-197, New Friends Colony, New Delhi. The sub-lease in favor of Shri Balram Selhi is dated 16th July,1975. Shri Balram Sethi died on 30th December, 1981 leaving behind a Will dated 20th October, 1981 whereby he bequeathed his entire estate to the present plaintiff. The plaintiff further states that she obtained probate of the said Will and sought mutation of the said plot in her name in the records of defendants 3 and 4. It is further the case of the plaintiff that she was surprised to find on a visit to the plot that some construction was going on there at the instance of defendants 1 and 2. She immediately approached the Society defendant No.3 to prevent the construction. However, this did not yield any result. According to the plaintiff, defendants 1 and 2 have got no right to carry out construction on the said plot.

(5) On the contrary the case of defendants 1 and 2 is that Shri Balram Sethi husband of the plaintiff and the sub-lessee regarding the plot in question had entered in to an agreement to sell dated 17/20 September, 1980 in respect of the said plot. Under the said agreement.Shri Sethi agreed to sell his entire right, title or interest under the plot to defendants 1 and2 for a total consideration on of Rs.l,10,000.00 . The entire sale consideration was paid by the defendants to the said Shri Sethi by means of two cheques for Rs.55,000/ -each. Shri Balram Sethi executed a receipt dated 20th September, 1980 acknowledging the payment of the entire sale consideration. Apart from these two documents Shri Sethi also executed an agreement of construction dated 20th September, 980 regarding the said plot entrusting the construction work to defendants 1 and 2. Shri Sethi also executed a Will dated 20th September, 1980 bequeathing plot and the super structure thereon in favor of defendants 1and 2. The agreement to sell, the receipt regarding payment ofRs.l,10,000.00 and the construction agreement are also signed by the present plaintiff as an attesting witness. Therefore, it is the case of the defendants that the plaintiff was fully aware of the entire transaction between her husband and defendants 1 and 2 regarding sale of the said plot in favor of defendants 1 and 2. Shri Sethi received the entire sale consideration for the plot and put the defendants in possession of the plot in part performance of the agreement to sell. It is also strongly urged on behalf of defendants 1 and 2 that the plaintiff has suppressed all these material facts from the Court since there is no mention of these documents/facts either in the plaint or in the applications. Therefore, the plaintiff is guilty of suppression of material facts and is not entitled to any relief.

(6) It is worthwhile to mention here that after all these facts were unfolded by the defendants in their written statement as well as replies to the applications under consideration, the plaintiff sought amendment of the plaint which was refused by the learned Single Judge. However, the Division Bench allowed the plaintiff to amend the plaint and an amended plaint has been placed on record. In the amended 'plaint, the plaintiff has made certain averments to the effect that her signatures on the agreement to sell and the construction agreement were obtained by her husband and she was not aware of the contents of the said documents. Since, she signed the documents only as an attesting witness it was further averred that the agreement to sell and the construction agreement stood abandoned and that the defendants have virtually waved their rights under this agreement. In para 9 (C) of the amended plaint it is specifically admitted by the plaintiff that possession of the plot in question was given to the defendants as a licensee which in other words means in pursuance of the aforesaid agreement between Shri Balram Sethi and defendants 1 and 2.

(7) During the course of hearing of these applications, counsel for the parties have made reference to certain clauses of the agreements executed between the parties. A reference to the agreement to sell shows that Shri Balram Sethi sought to convey and transfer of his rights, title and interest in the plot in question for a consideration of Rs.l,10,000.00 in favor of defendants 1 and 2 and received the payment of Rs.l,10,000.00 in full payment of the sale consideration. In clause 5 of the said agreement, it is mentioned that the possession of the plot has been given to the purchasers as contractor for construction under a contract for construction executed between the parties. Agreement provides that the vendor was not entitled to charge anything as rent and the taxes and lease money payable regarding the plot would be the liability of the purchaser. I am not inclined to make further reference to various clauses of the agreements executed between the parties for the reasons that in view of certain admitted facts which I am going to deal hereinafter it is not necessary for the purpose of disposal of these applications to go into details of the recitals in the agreements. Secondly I am also refraining from going into the details of the clauses in the agreements for the reasons that any opinion expressed on interpretation of the closes may prejudice either party at the final stage of trial and decision of the suit. The admitted facts are: (1)Execution of various documents referred to herein before is not disputed which also means that neither the signatures of Shri Balram Sethi on these documents nor those of the plaintiff as an attesting witness on three of the documents are disputed. (2) The possession of the plot was admittedly handed over to defendants 1 and 2 by Shri Sethi in pursuance of these documents. (3) Defendants 1 and 2 got the plans for construction of a building on the said plot sanctioned in their name. The original sanctioned plan is on record. (4) Defendants 1 and 2 have made construction up to the leval of ground floor only on the said plot totally at their own cost.

(8) The interim orders referred to herein before were passed in middle of the year 1986 and have been in force since then. The ground floor of the building was completed at that lime and is lying unoccupied since then. The suit is still at a stage that even issues have not been framed so far. It may take some time before the suit can be finally disposed of. The question arises is it worthwhile to keep the property vacant, unoccupied and unproductive for such a long time. The continuance of the injunction against defendants 1 and 2 that they should not occupy the premises in order to induct anyone else therein does not benefit the plaintiff in any manner except that it deprives the defendants of the possession of the property for which they have spent a huge sum and it may be giving a sort of sadistic to the plaintiff. The defendants claim that they have spent a sam of Rs.7 lakhs in the construction of the ground floor of the plot The area of the plot is 517 sq.yards and taking the cost of construction at the relevant time, the figure quoted by the defendants of the amount claimed to have been spent by them on construction does not prima facie seem to be arbitrary. Whatever may be the strength or the weakness of the respective cases set up by the parties one aspect is very significant and it is this. The defendants claim to have been put in possession of the plot in part performance of the agreement to sell and they have admittedly paid a sum of Rs.l,10,000.00 to Shri Balram Sethi, husband of the plaintiff which the defendants claim to be in full payment of the entire sale consideration for the plot as per the agreement to sell. The agreement to sell as well as the receipt of Rs.l,10,000.00 are not disputed by the plaintiff.

(9) Taking all these facts into consideration and particularly the fact that the defendants have paid Rs.l,10,000.00 to the predecessor in interest of the plaintiff and have also spent the entire amount on construction of the ground floor on the plot in question, I am inclined to allow defendants 1 and 2 to occupy the said constructed portion of the plot. However, the defendants will occupy the same only after obtaining the occupation/ completion certificate from the appropriate authority. Defendants 1 and 2 are restrained from making any further construction on the plot and also from using the same in any manner which may be contrary to the terms of the sub-lease regarding the said plot. The defendants are also restrained from inducting any one in the said properly or parting with possession of any portion thereof in favor of any other party.

(10) Counsel for the plaintiff has urged that in the event of the Court permitting the defendants 1 and 2 to occupy the property, the defendants should be required to deposit some money every month towards use and occupation of the property and such deposits ultimately be made available to the successful party. This request of the plaintiff again does not appear to bejustified. The plaintiff has received a sum ofRs.l,10,000.00 from the defendants which according to the defendants was the full sale consideration for the entire plot. Even if it was not a sale and the payment of the said amount was not towards sale consideration, the fact remains that the plaintiff has received the said amount and has been using that money ever since. Then, the entire cost of construction has been borne by defendants 1 and 2. They claim that the cost was Rs.7 lakhs. Without going into the question as to what was the exact cost of construction, it can reasonably beside that some substantial amount must have been spent by defendants 1 and 2 on the cost of construction. In any case, the plaintiff does not claim to have spent any money towards cost of construction. Therefore, it appears to be just that defendants may reap the benefit of the cost of construction incurred by them. They have also been deprived of the use of the property for last about six years. For these reasons it does not appear to be equitable to keep them out of the property any longer or to call upon them to deposit some amount every month in Court for use or occupation of the building.

(11) The result is that the ex parte orders passed by this Court on the applications under consideration to which reference has been made in the beginning of this order stand modified to the extent that defendants 1 and 2 are permitted to occupy the ground floor constructed portion of the plot subject to their obtaining a completion/ occupancy certificate before they occupy the same. The defendants will be further subjected to the condition that they will not induct anyone else in the property nor they will part with possession thereof or possession of a portion of thereof to any other party. The defendants will also not use the property in any manner which may be contrary to the terms of the lease deed granted by the Lesser. The defendants will not make any further construction on the plot in question. With these observations, the applications stand disposed of. Any view expressed at this stage is only a prima facie view and 'will be subject to final decision of the suit. In the circumstances of the case there will be no orders as to costs.