Shri Ashok Chopra And Anr. vs Shri Rohit Aggarwal And Anr.
2002 Latest Caselaw 1652 Del

JUDGMENT

B.N. Chaturvedi, J.

1. Awaiting disposal is an application under Order XXXIX Rules 1 & 2 CPC by the plaintiffs, namely, Shri Ashok Chopra and Shri Syed Wasi ul Hasan in a suit for permanent and mandatory injunction seeking a restraint order against the defendants in terms of prayer made therein.

2. A plot of land bearing No. 7, Lancer Road, Banarasi Dass Estate, Timarpur, Delhi, owned by one Smt. Uma Sethi, was purchased by Smt. Prakashwati, Shri Khushal Chand and Smt. Panna Devi by means of a sale deed dated 8.5.1958. A two and half storeyed building was constructed by them jointly on the said plot of land. At a later point of time, after the death of Panna Devi, her sons, namely Shri Dharmendra Kumar, Shri Virendra Kumar and Shri Surender Kumar in the year 1974 filed a suit bearing No. 446/74 for partition of the property. After passing of a preliminary decree, on 8th of January, 1975, an application being IA. 1689/75 setting out a mutually agreed scheme of partition was filed by the parties to the suit and a final decree for partition was, accordingly, passed by judgment dated 8.1.1975. By virtue of the said scheme of partition, the property was divided into four portions assigning new number as 7/1, 7/2, 7/3 & 7/4. Front portions of the property were numbered as 7/1 & 7/4 and rear portions as 7/2 & 7/3. A ten feet wide passage on eastern and western side of the building was earmarked for common use. The portions numbered as 7/1 (front) & 7/2 (rear) fell on western wide while 7/4 (front) & 7/3 (rear) on eastern side. The common passage on western side was used by the occupants of portions 7/1 & 7/2 while the one on the eastern side was used by the occupants of portions 7/4 & 7/3.

3. By a sale deed dated 18.1.1995, the owner of first floor of property No. 7/3 sold the same to plaintiff No. 2, Shri Syed ul Hasan and by another sale deed dated 23.11.1995 Shri Surender Kumar, owner of the second floor of property No. 7/3 sold the same to Shri Ashok Chopra, plaintiff No. 1. In both the sale deeds, it was clearly mentioned that the ten feet wide passage on the eastern side was for common use of the occupants.

4. The ground floor portion of the property bearing No. 7/4 had earlier been purchased by Shri Jitender Kumar Aggarwal (defendant No. 2) vide sale deed dated 21.11.1988 and the first floor by Shri Rohit Kumar Aggarwal (defendant No. 1) vide sale deed dated 17.2.1989. Both the defendants happen to the real brothers. In the sale deeds executed in favor of respective defendants, there is clear recital of a 10 feet wide passage for common use by the occupants of the building. There is also a mention of the judgment and decree of this Court passed in S. No. 446/1974.

5. According to the plaintiffs, sometime in the year 1992-93, the defendants made some construction in the common passage and also started raising a wall in the middle of the common passage to deprive the occupants of the rear portion access to their portions from front gate. A suit was filed in the court of Sub-Judge by Shri Rameshwar Dass Gupta, erstwhile owner of the first floor of property No. 7/3. In the said suit, it is stated, the defendants undertook to demolish the wall in the common passage raised by them.

6. Again on 9th of February, 1995, the defendants with a view to deprive the plaintiffs and other residents of rear portions of the building of user of common passage, put locks on the front entrance gate. They also started parking their cars in a manner as to make the user of common passage difficult. They, with the same view in mind, have also allegedly extended the landing of their stairs into the common passage. Shri Sukhbir Singh Jain, one of the occupants of the ground floor portion of 7/3, filed a suit bearing No. 1230/97 for permanent and mandatory injunction against the defendants and on an application being made by the said Shri Sukhbir Singh Jain in that suit, an order dated 30.5.1997 was passed restraining the defendants, their agents, servants, employees etc. from putting locks on the front gate of the 10 feet wide common passage leading to property No. 7/3. They were further restrained from interfering with the user of the common passage by Shri Sukhbir Singh Jain or his visitors. This order was subsequently modified by another order dated 17.10.1997 to an extent to facilitate user of the common passage by both the parties to the suit without hazarding security aspect. The order so passed is stated to be still in operation.

7. In spite of the aforesaid restraint order dated 30.5.1997 in S. No. 1230/97 against the defendants, they are allegedly keeping the front entrance gate locked to deprive the plaintiffs and their guests/visitors of user of the ten feet wide common passage for access to their rear portion of the property on the plea that the restraint order passed in S. No. 1230/97 operates in favor of Shri Sukhbir Singh Jain and his visitors only. This necessitated filing of the present suit and the application on hand, by the plaintiffs.

8. Both the defendants in their common written statement question the right of user of the 10 feet wide common passage on eastern side of the suit property by the plaintiffs, stating that by virtue of an oral agreement between the parties to the suit, the passage with an area of 100 sq. yds. out of the property of Smt. Prakashwati and an area of 100 sq. yds. out of the property of Shri Khushal Chand on the western side of the building was to be commonly used by both of them only, and similarly, the passage consisting of an area of 100 sq. yds. out of the property of Shri Dharmendra Kumar and his brothers, and another 100 sq. yds. out of the property of Shri Rameshwar Dass Gupta on the eastern side, was to be commonly used by both of them only. It is added that earlier the Delhi Administration was a tenant in respect of the entire building and after vacation thereof by it, the building was physically partitioned and, thereafter, it became impossible to use the 10 feet wide common passage on either side of the building by respective owners, and, therefore, they raised boundary walls in front of their respective portions from north to south.

9. In the changed situation, as aforesaid, the defendants allege that the compromise decree was undone by the owners of respective portions of the property. It is claimed that the defendants being owners of their respective portions, including area of common passage on eastern side, the plaintiffs have no right to interfere with enjoyment of their portion in any manner. It is added that the plaintiffs never used the alleged common passage and the front gate. They are stated to have been using the gate on the rear side of the property opening on a 15 feet wide road of Banarasi Dass Estate, Timarpur, Delhi for access to their portions of 7/3. The suit filed by Shri Sukhbir Singh Jain is pleaded to be based on misleading facts and false grounds and an application under Order XXXIX Rule 4 CPC for vacation of ex parte order is stated to be pending for consideration before this Court. The defendants, in view of above, plead that the application on hand, is liable to be turned down.

10. I have heard oral submissions of the parties.

11. Existence of a ten feet wide passage for common use by the occupants of properties 7/1, 7/2, 7/3 & 7/4 on either side of the building at the time of passing of final decree based on mutually agreed scheme of partition amongst the erstwhile joint owners of the entire property is beyond any controversy as apart from there being recital of this fact in the sale deeds executed in favor of respective parties to the suit, the same is also admitted by the defendants in their written statement. It was, however, argued on behalf of the defendants that by sale deeds, by virtue of which respective plaintiffs claim to have purchased different floors of property No. 7/3, only a portion of passage on eastern side of the building running to the extent of the portion bearing No. 7/3 had been transferred to them and, thus, no right of user of the passage on eastern side extending beyond the portion of property No. 7/3 and entry/exit through the front gate of the property is available to them. On insistence from the side of the defendants for production of the site plant attached to the sale deeds executed in favor of the respective plaintiffs, the plaintiffs brought the same on record, which were referred to by the learned counsel appearing for the defendants, to point out that in the site plan forming part of sale deed in favor of the plaintiff No. 1, the yellow portion depicting 10 feet wide common passage, which was transferred in his favor, runs only up to the point where property No. 7/3 ends and property No. 7/2 begins, implying thereby that the right of common passage beyond the point indicated in the site plan up to the front gate, had not been transferred in his favor, and, therefore, he cannot claim the right of common user in respect thereof. The site plan so referred to, however, cannot be taken into account in isolation. This has to be viewed in conjunction with the sale deed in favor of plaintiff No. 2 and the site plan attached thereto. The site plan forming part of the sale deed executed in favor of plaintiff No. 1 depicts the position of the 10 feet wide common passage in relation to the ground floor, in yellow colour restricting the same on southern side to the extent of built-up portion of property No. 7/3. As a matter of fact, the common passage extends beyond the built-up portion of property No. 7/3 on the northern side, across the rear courtyard up to the gate opening in the service lane and likewise on the southern side up to the front gate opening on the Lancers Road. This is quite evident if one refers to the other site plan forming part of sale deed in favor of plaintiff No. 2. Unlike site plan attached to the side deed in favor of plaintiff No. 1, this site plan depicts the entire stretch of the ten feet wide common passage right from the front gate facing Lancers Road on southern side and rear gate opening in the service lane on the northern side of the property. It is, thus, difficult to accept the contention that only a portion of ten feet wide common passage up to the point where the built-up portion of property No. 7/3 ends on southern side has been conveyed by means of sale deeds in question in favor of the plaintiffs.

12. Disputes in regard to common user of ten feet wide passage on either side of the building appears to have been a subject matter of persistent litigation between occupants of different portions on the front side and those in occupation of various floors on the rear side. In the series of litigation in this regard, apart from the suit No. 1230/97 filed by Shri Sukhbir Singh Jain, an occupant of ground floor portion of property No. 7/3 against the present defendants, reference may be made to another suit No. 2104/90 between " Dr. Subhash Aggarwal and Anr. v. Khushal Chand and Ors.", wherein on an application under Order XXXIX Rule 4 CPC made by Shri Rajinder Kumar Gadodia, a subsequent purchaser of ground floor portion of property No. 7/2 from its erstwhile owner Shri Khushal chand Jain, for vacation of an ex parte injunction granted in favor of Dr. Subhash Aggarwal & another, occupants of front portion of property No. 7/1, on taking into account the sale deeds and other documents, the claim of the plaintiffs in that suit regarding user of the portion of ten feet wide common passage adjoining their built-up portion of property No. 7/1, on the western side to the exclusion of the occupants of property No. 7/2 on the rear side, was negatived and the ex parte ad interim injunction in favor of the plaintiffs was vacated. The entire stretch of the passage on western side extending from front gate to the rear side of the entire property, was prima facie, held to form part of common passage for use by all the occupants of properties 7/1 & 7/2 and in finding so, a reference was made even to the sale deed in favor of defendant No. 1 carrying recital of ten feet wide common passage on either side of the building. Learned counsel for the defendants argued that in Dr. Subhash Aggarwal's case, the sale deed in favor of Rajinder Kumar Gadodia, (applicant) was in respect of the entire stretch of ten feet wide common passage on western side, and, therefore, the decision in that case ( Dr. Subhash Aggarwal and Anr. v. Khushal Chand and Ors", ) cannot be of any assistance to support the plea of the plaintiffs that the right to use the entire stretch of ten feet wide common passage on eastern side of the building was transferred by way of sale deeds executed in their favor. Such an argument, however, appears to run contrary to the contents of sale deeds, particularly, the one in favor of plaintiff No. 2, wherein there is a specific mention that the vendor had agreed to sell the 1/3rd undivided share of the structure of entire first floor and two mazazine stairs with common stairs leading from ground floor to first floor out of constructed area of 183.66 sq. yds. along with the right to use the ten feet wide common passage on the eastern side of the property. By the sale deed in favor of plaintiff No. 2, the vendor transferred his all ownership rights, title and interest in the property. By virtue of Sections 8 & 54 of the Transfer of Property Act, 1882, on execution and registration of a sale deed, the ownership and all interests in the property pass to the vendee, of course, subject to terms and conditions, if any, embodied therein, indicating the intention of the parties. Prima facie, the ownership, title and all interests in the suit property would, thus, appear to have passed in favor of the plaintiffs unless the defendants are able to show that either expressly or by necessary implication, all interests in the property, including the right to use the ten feet wide common passage on the eastern side of the property running from front gate on southern side to the rear gate opening in the service lane, have no been transferred in favor of the plaintiffs. (see Bishundeo Narain Rai (dead) by L.Rs. and Ors. v. Anmol Devi and Ors.", ). Any oral agreement alleged by the defendants cannot be pleaded to disprove the contents of sale deeds and the same cannot wipe out the legal effect of the final decree of partition passed in the S. No. 446/74. Prima facie, the fact that the ten feet wide passage on the eastern side of the building is for common use by the owner/occupants of the front and rear portions of 7/4 & 7/3 is not only evident from the sale deeds in favor of the plaintiffs, but the same is also decipherable from the sale deed executed in favor of the respective defendants as well. The entire passage on eastern side being earmarked for common user by the residents of different floors of 7/4 & 7/3, the defendants cannot convert any portion of such passage up to the front gate on southern side of the building to their use to the exclusion of the plaintiffs and other occupants of property No. 7/3. It is for this reason that in S. No. 1230/97 filed by Shri Sukhbir Singh Jain, an occupant of ground floor of property No. 7/3 that an ex parte ad interim injunction restraining the defendants from causing obstruction in user of the front entrance gate and ten feet wide common passage for access to the rear portion of the property, was passed, which is stated to be still in operation.

13. In the result, therefore, the application is allowed and the defendants are restrained, pending disposal of suit, from putting locks on the front gate facing lancers Road or from obstructing the plaintiffs and their guests/visitors in any manner from using the front gate as well as the ten feet wide common passage leading to the rear portion bearing No. 7/3 and interfering with the user of the same.

14. The application stands disposed of.