Shri Satinder Kumar vs Shri Parveen Kumar
2006 Latest Caselaw 2025 Del

JUDGMENT

Pradeep Nandrajog, J.

1. Under noted issues framed vide order dated 15.11.2000 require adjudication:

1. Whether the first floor terrace and the shop on the ground floor exclusively belongs to the defendants? If so, to what effect?

2. Whether the deceased Smt. Soma Wanti could not execute the will in respect of the terrace and the shop? If so, to what effect?

3. whether the plaintiff is entitled to partition and possession as claimed in the suit?

4. Whether the suit is bad for non-joinder of parties?

5. Whether the plaintiff is entitled to mesne profits/damages for use and occupation of the shop by the defendant? If so, at what rate and for what period?

6. Relief.?

2. At the hearing held on 8.11.2006, learned Counsel for the parties stated that they do not press issue No. 4. Thus, said issue is being ignored.

3. Issues 1 to 3 and 5 center around the same facts and, therefore, are being decided together.

4. Mr.Satinder Kumar, plaintiff is the uncle of the defendant. He seeks partition of property No. II-A/95-A, Lajpat Nagar, New Delhi and possession of a shop on the ground floor. Damages are claimed in respect of said shop alleging that possession of defendant qua the shop is unathorised.

5. Claim is predicated on the averment that Smt. Somawati, mother of the plaintiff and grand-mother of the defendant was the perpetual lessee of property bearing municipal No. II-A/95-A, Lajpat Nagar, New Delhi. She constructed a double storey house consisting of ground floor and first floor.

6. That, during her life time, she executed a will on 6.5.1994 bequeathing the ground floor to the plaintiff, first floor to the defendant and terrace was to be shared equally by the two parties. Somawati expired on 31.1.1998. Plaintiff and the defendant jointly, acting under the will, obtained mutation of the leasehold rights with the Lesser i.e. LandDO and also got themselves recorded as owners in the municipal records. Thereafter, the two jointly got the property converted from leasehold tenure to freehold tenure in their joint names.

7. It is further stated that after the death of Somawati, plaintiff permitted the defendant to occupy a room on the ground floor w.e.f. 1.2.1998, to be used as a shop. Agreed rent was Rs. 5000/- per month. That in June,1999, defendant was called upon to vacate the room on the ground floor as also to pay the agreed rent, but he declined.

8. Stating that the defendant was threatening to sell the suit property, suit was filed praying that the property be partitioned as per the will of the mother. Defendant be ejected and plaintiff be put in possession of the room, used as a shop, on the ground floor. Damages be awarded for unauthorized use of the ground floor room by the defendant @ Rs. 5000/- per month.

9. defense is that Mohinder Kumar, father of the defendant was permitted by Smt. Somawati to construct a shop on the ground floor, to be used for business purposes and accordingly, Mohinder Kumar, father of the defendant constructed a shop on the ground floor, out of his own funds. Thereafter, in the year 1990, Somawati permitted Mohinder Kumar to erect a first floor. It is accordingly stated that the will cannot operate qua the first floor which was constructed by Mohinder Kumar, father of the defendant out of his own funds and similarly could not operate qua the shop on the ground floor constructed by Mohinder Kumar with his own funds. Qua the shop on the ground floor, it is pleaded that grant would be in the nature of irrevocable license by Somawati to Mohinder Kumar.

10. Site plan filed by the plaintiff has been refuted and it has been stated that the shop in question has not been shown.

11. Plaintiff has examined himself as his witness. Defendant has, beside examining himself as DW-1, examined official witnesses as DW-2 to DW-4. He has examined his mother as DW-5.

12. Notwithstanding that the issues framed do not cast any onus, learned Counsel for the parties agreed that onus would be on the defendant to establish that the shop on the ground floor was constructed by his father and that even the first floor was constructed by his father.

13. I may note that the will in question has not been disputed. The same is Ex.PW-2/1.

14. Evidence led by the defendant proves through Ex.P-1 to P-12 (learned Counsel conceded that inadvertently defendant's documents have been exhibited with the letter 'P' and not the letter 'D') that a commercial/business activity by the trading name M/s Sound Craft was being carried on from the property in question. Ex.P-1 to P-8 are telephone bills pertaining to the years 1987 to 1989. Ex.P-10 and P-11 are the letters written to father of the defendant in context of the business of M/s Sound Craft. These letters are written in the years 1986 and 1988.

15. Apart from the aforesaid documentary evidence, testimony of DW- 2, Shri Attar Singh, UDC from the office of Chief Inspector, Shop and Establishment Department, Govt. of NCT of Delhi reveals that w.e.f. 9.12.1987 registration was granted vide registration No. 9/10905/1 to the father of the defendant under the name of M/s Sound Craft to carry out business from the suit premises. Entries in the register of establishment maintained under the Shop and Establishment Act was proved by the witness as DW-2/1.

16. Further, evidence of DW-4, Record Keeper from MTNL establishes that a PCO booth was sanctioned and operated from the suit premises in the year 1989. That feasibility study was carried out in August,1986. Applicant of PCO booth was M/s Sound Craft.

17. That apart, testimony of DW-5, mother of the defendant has established running of the business by the husband of DW-5 i.e. father of the plaintiff from the premises in question.

18. Admitted case of the parties is that the first floor was constructed post 1990. Thus, prior thereto business of M/s Sound Craft has to be conducted from the ground floor.

19. Possession of the father of the plaintiff qua portion of ground floor cannot thus be as per an oral understanding pleaded in the plaint. The possession was with father of defendant when Somawati was alive.

20. Version qua the possession as pleaded by the plaintiff fails on the evidence on record. Version qua the shop in relation to the date of possession succeeds as pleaded by the defendant.

21. Only question qua the shop on the ground floor which requires to be decided is whether Somawati constructed the shop or the father of the defendant constructed the shop.

22. I would not be wrong in holding that since version of the plaintiff qua possession of the defendant in respect of the shop on the ground floor is falsified, entire case of the plaintiff in respect of the shop must fail inasmuch as plaintiff has not fallen back on an alternative version.

23. But, I prefer to rest my finding on firmer foundation.

24. DW-5 has proved as Ex.P-12 an affidavit deposed by Somawati.

25. The origin of the affidavit is stated to be permission granted by Somawati to her son Mohinder Kumar, father of the defendant, to construct on the first floor. While permitting Mohinder Kumar to construct on the first floor, Somawati has recorded that he will continue to have his shop on the front side of the ground floor measuring 7 ft. x 14 ft.

26. The affidavit, Ex.P-12, reads as under:

I, Smt.Somawati, W/o late Shri Abnash Chander, resident of A-95-A, Lajpat Nagar-II, New Delhi-110024, do hereby solemnly affirm and declare as under:

1. That I am the lawful owner of house No. A/95-A, Lajpat Nagar,-II, New Delhi-110024.

2. That due to shortage of space in the above mentioned house I have authorised my elder son Mohinder Kumar to build/construct separate house for himself and his family on the first floor i.e. over the existing structure.

3. That the entire cost of construction shall be born by him, i.e. Mohinder Kumar, son of Shri (late) Abnash Chander.

4. That Sh. Mohinder Kumar will continue to have his shop on the front side on the ground floor measuring 7' x 14'.

5. That no other person/persons shall have any clai hare in the house or shop constructed by my elder said son Mohinder Kumar.

6. That I have no objection if new electric and water connection is sanctioned in the name of Shri Mohinder Kumar.?

27. Para 4 of the affidavit records that Mohinder Kumar will continue to have his shop on the ground floor. The words ?his shop? are important.

28. Further, para 5 of the affidavit records that no other person shall have any clai hare in the house or shop constructed by Mohinder Kumar.

29. Thus, Somawati during her life time acknowledged that father of the defendant was the owner of the shop on the ground floor.

30. DW-5 in her examination-in-chief filed by way of affidavit has categorically stated that her husband was initially permitted to erect a temporary construction with wooden planks on the right front portion of the courtyard of the house on the ground floor sometime in the year 1982 and thereafter was permitted to convert the same into a puce shop in the year 1986.

This part of her testimony has gone unrebutted.

31. Thus, defendant has succeeded in establishing that with the permission of Somawati, his father was permitted to occupy a part of the front courtyard on the ground floor and erect a permanent shop thereon.

32. As per Section 60 of the Easement Act,1882, where a licensee, acting upon the license has executed a work of permanent character and incurred expenses in the execution, the license cannot be revoked by the grantor.

33. Ex.P-12 is the evidence that Somawati referred to the shop on the ground floor in possession of Mohinder Kumar when she executed Ex.P-12 as his shop. The same is in conformity with the evidence lead by the defendant that his grand mother permitted his father to construct a shop on the courtyard on the ground floor. It is apparent that due to this reason, Somawati referred to the shop as the shop of her son.

34. Issue whether Mohinder Kumar constructed the first floor or not would otherwise be irrelevant for the reason, even as per the will, first floor has been bequeathed to the defendant. However, who constructed the first floor was stated to be relevant because learned Counsel for the defendant had urged that since father of the defendant constructed the first floor, the roof thereof belonging to him. Thus, it was urged that the terrace above the roof of the first floor would also belong to the defendant. Accordingly, it was urged that Somawati could not have made any bequest in respect of the terrace above the roof of the first floor.

35. In view of Ex.P-12 coupled with the fact that sanctioned building plan pertaining to the first floor is in custody of the defendant, meaning thereby that custody thereof was with his father earlier on, there is strong evidence on record that father of the defendant constructed the first floor.

36. Learned Counsel for the plaintiff stated that no documents have been filed by the defendant to show that his father incurred money on construction of the first floor.

37. Equally, plaintiff has lead no evidence that his mother spent money for constructing the first floor.

38. Confronted with the situation aforesaid urged by the defendant, learned Counsel for the plaintiff urged that by joined him in seeking mutation of the leasehold tenure based on the will and even getting the property converted into freehold tenure based on the will, the defendant accepted the will. Counsel urged that the defendant is estopped from questioning the will.

39. Learned Counsel for the defendant urged that admittedly, qua the land in question, comprised under the super structure, parties inherited the same as per the will executed by Somawati and, therefore, by acting under the will did not mean that the defendant accepted the fact that Somawati could make a bequest in respect of the terrace of the roof of the first floor.

40. I agree with the submission made by the counsel for the defendant that on the death of Somawati, parties acted under the will for being mutated as lessees of the land. They did not act under the will in respect of the super structure.

41. However, that would not mean that the terrace above the roof of the first floor becomes the property of the defendant.

42. Enjoyment of urban land is as per the Master Plan framed or Building Bye Laws applicable in municipal urban areas. In Delhi, the notified Master Plan under the Delhi Development Act,1957 governs the extent of construction which can be made on a plot.

43. The extent of construction is called Floor Area Ratio (FAR).

44. Even as per the version of the defendant, Somawati permitted the father of the defendant to erect the first floor above the roof of the ground floor. It is not his case that unutilized FAR on the plot was gifted away by her to the father of the defendant. Evidence establishes that Somawati only permitted father of the defendant to construct the first floor. Thus, unutilized FAR continued to remain the asset of Somawati. During her life time, she could have utilized the remaining unutilized FAR. She could thus bequeath the same.

45. The will Ex.PW-2/1 clearly states that the roof would be utilized by the plaintiff and the defendant.

46. I accordingly hold that the plaintiff is not entitled to any damages against the defendant regarding the shop on the ground floor. I accordingly hold that the defendant is entitled to the exclusive possession of the shop on the ground floor in his possession as also the first floor. I hold that Somewati could not execute any will in respect of the shop on the ground floor in possession of the defendant but could execute a will in respect of terrace above the roof the first floor.

47. I accordingly dispose of the suit declaring that the plaintiff is the owner of the ground floor of the suit property, save and except, the shop delineated in red colour in the site plan Ex.PW-1/1 which is in possession of the defendant. I declare that the defendant is the owner of the shop delineated in red colour in Ex.PW-1/1 as also the owner of the first floor of the suit property. I declare that the plaintiff and the defendant are the co- owners of the terrace above the roof of the first floor, each having half share.

48. Since the stair case landing going up to the terrace above the roof of the first floor has not been shown in any document by the parties and as agreed by the counsel for the parties, on the issue of terrace rights, I hold that parties would be entitled to partition the same by mutual consent if either party intends to construct thereon but till then possession would be enjoyed by both parties.

49. Counsel agreed as aforesaid since till plans are sanctioned in respect of the second floor it cannot be ascertained as to in what manner FAR can be utilized equally by the parties.

50. No costs.