Delhi High Court

Group Captain Ved Kumar vs Swaran Marwah & Anr. on 19 September, 2008

Author: Pradeep Nandrajog

*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+    RFA 300/2006

     Group Captain Ved Kumar               ..... Appellant
                Through: Mr.Deepak Dhingra, Adv.
                         with Mr.Siddharth Tanwar, Adv.
                         Mr.Anjaneya Mishra, Adv.

                  versus

      Sh. Swaran Marwah & Anr.            ..... Respondent
                 Through: Mr.K.N.Kataraia, Adv. with
                          Mr.K.P.Mavi, Adv.

                           RESERVED ON:
                            01.09.2008

                        DATE OF DECISION:
%                          19.09.2008

     CORAM:

*    Hon'ble Mr.Justice Pradeep Nandrajog
     Hon'ble Mr.Justice Sunil Gaur

1.   Whether reporters of local papers may be allowed
     to see the judgment?

2.   To be referred to the Reporter or not?

3.   Whether judgment should be reported in Digest?


PRADEEP NANDRAJOG, J.

1. Group Captain Ved Kumar, the appellant has suffered

a dismissal of a suit vide impugned judgment and decree dated

17.2.2006.

2. As per the plaint, Group Captain Ved Kumar stated

that he was a perpetual lessee of land bearing Municipal No.C-

264, Defence Colony, New Delhi and that the perpetual lease

deed was executed in his favour on 29.8.1975. He claimed to

have constructed a ground floor and a first floor on the land. He

claimed that on 5.9.1989 he had entered into an agreement to

sell 'Mark A' with Swaran Kumar Marwah, material terms whereof

read as under:-

"1. That in pursuance of this Agreement and in consideration of a total sum of Rs.5,00,000/- (Rupees Five lacs only) out of which the first party shall receive a sum of Rs.2,25,000/- (Rupees Two lacs Twenty Five Thousand only) from the second party at the time of signing of this Agreement. In lieu of this payment the first party shall deemed to have handed over possession of entire terrace of first floor (to be named as Second floor) and has asked the tenant to attorn the second party, and also shall sign all the relevant documents i.e. Agrreement to Sell, Will, General Power of Attorney, Special Power of Attorney, Affidavits, etc. etc. in favour of the second party. The first party shall further receive a sum of Rs.1,75,000/-(Rupees One lacs seventy five thousand only) from the second party at the time of sanction of Site Plan from the M.C.D. For further construction and start of the construction on the second floor. The remaining balance of Rs.1,00,000/-(Rupees One lacs only) shall be received by the first party from the second party at the time of completion of second floor, however, not later than a period of Twelve months from the date of handing over the possession of terrace.

2. That the first party has assured the second party that the entire terrace of first floor of the above said property is free from all kinds of encumbrances, such as prior sale, mortgage, gift count litigation dispute, charges liens notices etc and if it is proved otherwise, the first party shall be liable and responsible or all the losses and damages, if any suffered by the second party or his nominee/nominees.

3. That the second party shall construct the remaining required portion viz Dining/Drawing room, Bath Room and other remaining part etc. with his own funds and resources and also responsible for any damages, losses to the other constructed floors, if any.

x x x x

14. If the staircase is constructed from the front side it will be a common to first party and second party at the cost and expenses of second party otherwise the second party shall be using the existing staircase.

x x x x

19. That the second party shall allow the first party to use the terrace of the second floor for looking after the Water Tank, Anteena etc.

x x x x

24. That the second party will have the full right to take charge of the second floor terrace (roof) for use and security.

25. That the second party shall not construct anything on the third floor. However, the first party will bear and pay the expenses for shortening the roof of the existing servant quarter which is at present higher than the roof of first floor, hence the roof of the servant quarter shall be put to the equal of the first floor roof by the first party."

(N.B. Gr.Capt.Ved Kumar has been referred to as the first party

and Swaran Kumar Marwah as the second party)

3. It was further pleaded that on 12.2.1991, 5 other

documents were executed by Gr.Capt. Ved Kumar, being a

general power of attorney, Ex.PW-1/1, an indemnity bond, Mark

'D', a declaration, Mark 'E', an affidavit, Mark 'F' and a will Mark

'G', as per which, the right of Swaran Kumar Marwah to construct

a second floor on the roof of the existing first floor was

recognized. It was pleaded that under the agreement to sell and

the documents referred to hereinbefore, no right was created in

favour of Swaran Kumar Marwah in respect of the resultant

terrace which would come into existence when second floor was

constructed by Swaran Kumar Marwah. It was pleaded that in the

agreement to sell dated 5.9.1989 and the other documents

executed in the year 1991, Swaran Kumar Marwah was given a

mere right to use the terrace above the second floor. It was

pleaded that in the year 1991 Swaran Kumar Marwah wanted to

purchase the ownership rights of the terrace above the second

floor which request was turned down by Gr.Capt. Ved Kumar.

4. A sale deed, Ex.PW-1/2, dated 18.6.1998 executed by

the general attorney of the plaintiff exercising power under the

general power of attorney, Ex.PW-1/1, was also challenged inter

alia on the plea that the general attorney exercising power under

Ex.PW-1/1 could not do an act beyond the scope of the power

granted and since the sale deed Ex.PW-1/2 transferred the

ownership right of the terrace above the second floor, the sale

deed was liable to be declared null and void and that directions

were liable to be issued to the Sub-Registrar before whom the

sale deed was executed to rectify the sale deed dated 18.6.1998

by recording the declaration that the sale deed was void.

5. It was pleaded that Swaran Kumar Marwah had no

right to install a partition in the main staircase which leads to the

terrace as the same prevented Gr.Capt.Ved Kumar's right to

access the terrace. It was further pleaded that Swaran Kumar

Marwah could not seal the entry to the terrace from the rear open

spiral stair. It was prayed that a decree for mandatory injunction

is liable to be issued directing Swaran Kumar Marwah to remove

the partition in the main staircase as also to remove the

construction blocking entry to the terrace from the rear open

spiral staircase.

6. In the written statement, Swaran Kumar Marwah took

a defence that the ownership right qua the terrace of the second

floor was also transferred to him and thus he was the owner

thereof.

7. The documents executed by Gr.Capt. Ved Kumar in

favour of Swaran Kumar Marwah were not disputed.

8. Needless to state, on the pleadings of the parties the

only material issue which arose for consideration was: what were

the rights transferred by Gr.Capt.Ved Kumar in favour of Swaran

Kumar Marwah and whether the sale deed Ex.PW-1/2 was liable

to be declared null and void.

9. Pertaining to the terrace which would come into

existence when the second floor was constructed, in all the

documents i.e. the agreement to sell dated 5.9.1989 and the 5

documents executed in the year 1991 i.e. General Power of

Attorney Ex.PW-1/1, the indemnity bond, Mark 'D', the

declaration, Mark 'E', the affidavit, Mark 'F' and the will Mark 'G',

identical language has been used as to what would happen to the

terrace. The reference is in the recital to the documents

executed in the year 1991. It reads as under:-

"......in respect of the entire Second Floor alongwith right to use the terrace over the second floor, not to construct the terrace, out of property bearing No. C-264, Defence Colony, New Delhi measuring about 325 Sq. yards (hereinafter called "the said portion")....."

10. Vide judgment and decree dated 17.02.2006 the

learned Trial Judge has dismissed the suit for declaration,

mandatory and permanent injunction giving the following

reasons:-

"7............ From the perusal of record it is apparent that instead of executing the agreement to sell in January 1991, the plaintiff has executed a General Power of Attorney dated 12.2.1991 in favour of defendant No.2 with regard to entire second floor along with right to use the terrace over the second floor. The plaintiff has also executed Indemnity Bond dated 12.2.1991 in favour of defendant No.1. The plaintiff has also executed a declaration dated 12.2.1991 declaring that he has entered into an agreement to sell with. Sh.Swaran Marwha (defendant No.1) for the sale of entire second floor and right to use the terrace over and above the second floor. From the perusal of record it is established on the record that the defendant has given a proposed agreement to sell to the plaintiff in January, 1991 which was not executed by the plaintiff. It has also been established on the record that instead of executing the agreement to sell in 1991, the plaintiff has executed a General Power of Attorney dated 12.2.1991 declaring that he has

entered into an agreement to sell with Sh.Swaran Marwha (defendant No.1) for the sale of entire second floor and right to use the terrace over and above the second floor. Consequently, in the facts and circumstances of the case and in the presence of general power of attorney dated 12.1.91, indemnity bond dated 12.2.91 and declaration dated 12.2.91 it is held that the plaintiff has sold the entire second floor and terrace over and above the same to the defendants.

8. It is further the case of defendants that the plaintiff has executed a sale deed dated 18.6.98 in favour of defendant No.1 with regard to second floor along with terrace rights over and above for the sum of Rs.5,00,000/-. It has been argued on behalf of the defendants that the plaintiff out of his own free will appointed the defendant No.1 as attorney in respect of the second floor along with terrace rights over and above vide sale deed dated 18.6.98. The plaintiff has not produced anything on the record to show that the sale deed dated 18.6.98 was not executed by him or the same has been fraudulently procured by the defendant.

9. As discussed above in detail, it is held that the plaintiff is not entitled to the relief of declaration to declare that the defendants are merely the use of the terrace of the suit property. It is also held that the plaintiff has failed to show that the sale deed dated 18.6.98 is null and void. Issues are accordingly decided against the plaintiff and in favour of defendants."

11. We may note at the outset that at the hearing of the

appeal, Sh.K.N.Kataria learned senior counsel for Swaran Kumar

Marwah on instructions from Sh.K.P.Mavi counsel for Swaran

Kumar Marwah stated that his client does not claim any right to

construct on the terrace of the second floor in view of the

restrictions imposed upon his client under the agreement to sell

dated 5.9.1989 and in particular clause 25 thereof. However,

counsel urged that vide clause 24 of the agreement to sell his

client had the full right to take charge of the second floor terrace

(roof) for the use and security. Thus, counsel urged that his

client was fully justified in securing access to the terrace from the

main staircase and the rear spiral staircase.

12. Per contra, Sh. Deepak Dhingra, learned counsel for

Gr.Capt. Ved Kumar urged that his client had not transferred any

interest in the terrace in favour of Swaran Kumar Marwah. With

reference to document Mark 'B', learned counsel urged that the

same revealed that Swaran Kumar Marwah had vetted a draft of

an agreement to sell which shows the desire of Swaran Kumar

Marwah to purchase the terrace rights of the terrace above the

second floor.

13. Before discussing the rival contentions we must

record that the documents Mark 'B' to Mark 'G' were duly proved

at the trial; in fact were admitted documents, but for

unexplainable reasons neither party nor the learned Trial Judge

gave an exhibit mark to the documents. Thus, with consent of

parties, as recorded in our order dated 26.8.2008, noting that the

said documents were proved documents, for identity, we had

assigned Mark 'B' to Mark 'G' to the said document.

14. Document Mark 'B' is a draft of an undated agreement

to sell prepared in the month of January 1991 and has corrections

thereon in the hand of Swaran Kumar Marwah which evidence

Swaran Kumar Marwah's desire to purchase full and unrestricted

rights qua the terrace above the second floor. We need not

discuss the said document any further inasmuch as, as noted

above, Sh.K.N.Kataria learned senior counsel for Swaran Kumar

Marwah conceded that his client does not claim full ownership

rights and in particular the right to construct upon the terrace of

the second floor. Counsel urged, as noted above, that his client

claims a mere right to the exclusive use of the said terrace and

the right to secure the same for safety purposes.

15. The law is settled that an interest is created when an

agreement clearly provides for the same. Also, an interest is said

to be created if the terms of an agreement reveal an intention to

create an interest. The negative clauses in an agreement could

be indicative of the creation of interest. They could be

suggestive, because the negative clauses cannot believably be

stipulated without creation/granting of an interest.

16. In the decision reported as Addiscombe Garden

Estates Ltd. & Anr. V Crabbe & Ors. [1958] 1 Q.B. 513 the

agreement reproduced at page 515 was worded in the following

terms:-

"The agreement was in these terms: "Whereas the grantors inter alia carry on business as hotel proprietors and are the owners of the Shirley Park Hotel (hereinafter called 'the hotel') and the gardens and pleasure grounds appurtenant thereto including

the premises situate and known as the Shirley Park Lawn Tennis Club whereby it is agreed as follows: (1) The grantors hereby license and authorize the grantees to enter upon, use and enjoy the following:

(a) the club house .............(b) the tennis courts.............(c)............ (2)......

(3)......

(4)......(i)..., (ii)..., (iii)..., (iv)...

(v) not without the grantors previously written consent to cut down or injure any plants trees bushes or hedges or remove from the said property any soil clay sand or other materials and not to make any excavations thereon except for the purpose of maintaining the said hard and grass tennis courts and the practice court in accordance with the agreement and conditions hereinbefore contained

(vi) not to erect any building or other structures upon the said property except such as shall be approved by the grantors.

(vii)...."

17. Justice Jenkins noted about the same terms of the

agreement as under:

"Looking at the substance of the matter, what do the grantees get? By clause 1 they are licensed and authorized "to enter upon use and enjoy" the items mentioned; and it seems to me that those words, taken together, are apt to give the tenant something in the nature of an interest in the land....

....Then under sub-clause (iv) there is the obligation to maintain the tennis courts. In sub-clause (v) there is a provision which, I think, is not without significance. That is the provision under which the grantees shall not "without the grantors' previously written consent cut down or injure any plants trees bushes or hedges or remove from the said property any soil clay sand or other materials and not make any excavations thereon except for the purpose of maintaining the [tennis courts] in accordance with the agreement and conditions hereinbefore contained." The significance of that is that it should have been thought necessary expressly to prohibit the grantees from doing certain things which quite plainly, if they were mere licensees,

they would have no right or power to do. What business could a licensee have to cut down or injure plants, trees, bushes or hedges, or to do any other of these things, including the removal of "soil clay sand or other materials"? In similar sense one may note the provision in sub clause (vi): "not to erect any building or other structures upon the said property except such as shall be approved by the grantors...

...In the present case there is not only the indication afforded by the provision which shows that exclusive occupation was intended, but there are all the various other matters which I have mentioned, which appear to me to show that the actual interest taken by the grantees under the document was the interest of tenants, and not the interest of mere licensees."

18. In the instant case each and every document

executed by the appellant has clearly granted an interest in

favour of Ved Kumar Marwah to exclusively use the terrace of the

second floor and secure the same for safety purposes as per his

wishes. Term 24 of the agreement to sell clearly states that

Swaran Kumar Marwah 'will have the full right to take charge of

the second floor terrace (roof) for use and security. Vide term 25

immediately following term 24 of the agreement to sell, the right

of user has been restricted by cutting down the same with a

prohibition that Swaran Kumar Marwah would not construct upon

the terrace. Term No.19 of the agreement to sell is also

important. It stipulates that Swaran Kumar Marwah would permit

Gr.Capt. Ved Kumar to use the terrace for looking after the water

tank, antenna, etc. If Swaran Kumar Marwah had no right or

interest in the terrace of the second floor, where was the

occasion to insert a term (No.19) that he would allow Gr.Capt.Ved

Kumar to use the terrace for looking after the water tank and

antenna etc.

19. Looked at from any angle, the inescapable conclusion

is that under the agreement to sell dated 5.9.1989, Mark 'A', and

the documents Mark 'C' to Mark 'G' executed on 12.2.1991,

Gr.Capt.Ved Kumar granted/conveyed an interest in favour of

Swaran Kumar Marwah in the terrace of the second floor with a

restriction that no construction would be raised on the terrace.

The right created in favour of Swaran Kumar Marwah was a full

right to take charge of the second floor terrace for use and

security (Term 24).

20. Thus, the contention of the learned counsel for the

appellant that his client had retained to himself the complete

rights qua the terrace of the second floor is repelled.

21. On the issue of the sale deed Ex.PW-1/2, it has to be

noted that the said sale deed has been executed by the attorney

constituted by Gr.Capt.Ved Kumar vide general power of attorney

Ex.PW-1/1. In the sale deed Ex.PW-1/2, with reference to the

power of the general attorney, Ex.PW-1/1, in the recitals it is inter

alia recorded:-

"And whereas...... the vendor on request of the vendee has appointed the said attorney in respect of the second floor along with terrace rights over and above.

And whereas the vendor through his duly constituted general power of attorney has agreed to execute this sale deed in favour of the vendee in respect of entire second floor along with terrace right over and above of property bearing No.C-264, Defence Colony, New Delhi."

22. The operative part of the sale deed refers to the

transfer of a complete right from the vendor to the vendee qua

the entire second floor of the property without any restrictive

covenant pertaining to the use of the terrace of the second floor.

23. It is settled law that a general attorney cannot, while

exercising power under a general power of attorney, do an act

which he is not empowered to do and can bind the executant of

the power of attorney only with respect to acts done within the

scope of the power granted. Thus, the general attorney of

Gr.Capt.Ved Kumar could not have executed any sale deed which

purports to transfer an absolute and unrestricted right in favour

of Swaran Kumar Marwah qua the terrace above the second floor