Shri Viney Kumar Mahajan vs Shri Vikram Bakshi & Anr.
2009 Latest Caselaw 2420 Del

*            HIGH COURT OF DELHI : NEW DELHI

+                  I.A. No. 8417/2008 in CS(OS) No. 1363/2008

%                     Judgment reserved on : 10th February, 2009

                      Judgment pronounced on :        2nd July, 2009

SHRI VINEY KUMAR MAHAJAN                              ..... Plaintiff
        Through: Mr. R.P. Sharma, Adv.

                                  versus

SHRI VIKRAM BAKSHI & ANR.                           .... Defendants
        Through : Mr. Anil Sapra, Adv. for def. no. 1
                  Mr. S. Sirish Kumar, Adv. for def. no. 2


CORAM:
HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                                       No

2. To be referred to Reporter or not?                                    No

3. Whether the judgment should be reported                               No
   in the Digest?

MANMOHAN SINGH, J.

1. By this order, I shall dispose of Plaintiff‟s application being

IA No.8417/2008 under Order XXXIX Rules 1 & 2 CPC.

2. The Plaintiff has filed a suit for permanent injunction before

this court on 18th July, 2008 to pass a decree of declaration to the effect

that the passage emanating from the first floor (Balcony) to ground floor

and two rooms opposite the boundary wall of Standard Restaurant

(collectively referred to as the „disputed area‟) are the property of the

plaintiff and that the defendants have no right to use the said passage

and two rooms in any manner whatsoever.

3. The brief facts leading up to this order are that vide

Agreement to Sell dated 4th December, 1995 the Plaintiff sold certain

area including Standard Restaurant having an area measuring about

8000 sq.ft on the First Floor to Defendant No.1.

4. According to the plaintiff, the said area did not include the

disputed area. The plaintiff had not claimed exclusive possession of

two rooms and the passage and contended that he has sold only the

plinth area to the defendant No.2 which covers the above mentioned

area admeasuring about 8000 sq. ft. only and not the disputed area.

5. It is also alleged in the plaint that Defendant No.2 having no

right to the disputed area could not have sold the same to Defendant

No.1. It is also contended in the plaint that the defendants have no right

to use the same in any manner whatsoever.

6. By order dated 30th July, 2008 this court appointed a Local

commissioner to visit the suit premises and to inform the court as to the

status of the disputed area which were stated to be locked by the

defendants.

7. After inspection, the Local commissioner has filed his report

wherein it is stated that the said two rooms exists on the left side of the

passage emanating from the first floor (balcony) of Regal Threatere

and which has been locked by the owner of the Standard Restaurant

which is on the right side of the passage. It is also mentioned in the

report that due to renovation being carried out by the owners of

Standard Restaurant, the wall dividing the two rooms has been

demolished from inside and the keys of the locks of the two rooms are in

possession of the owner of the Standard Restaurant.

8. In view of the said report, by order dated 31st August, 2008

this court passed an order with regard to construction in respect of the

said two rooms. Thereafter, Plaintiff filed an application under Order 6

Rule 17 CPC being I.A.No.396/09. By consent, The said application

was allowed without prejudice to the rights and contentions of the

parties after completion of hearing of IA No.8417/2008.

9. In the amended plaint, the Plaintiff had brought various new

facts which are incorporated in para 17-A of the amended plaint. The

plaintiff contended that during the course of hearing of the application

he did not sell to Defendant No.2 any area other than the area forming

part of the Standard Restaurant.

10. I have heard learned counsel for the parties and have also

gone through the relevant pleadings in the matter. A mere perusal of the

Agreement to Sell dated 4th December, 1995 between Plaintiff and

Defendant No.2 shows that the area which was sold by Plaintiff to

Defendant No.2 includes Standard Restaurant measuring approximately

8000 sq.ft on the First Floor apart from the other areas. It is clearly

mentioned on Page 3 of the said Agreement that "the entire portion of

the property agreed to be sold is occupied by the following tenants":-

                   i)    Sh.Ram Kishan Goel & Sons.

                   ii)   Standard Restaurant.

Thus, it appears that the entire portion which was at that time

in occupation and possession of Standard Restaurant had been sold by

the Plaintiff to Defendant No.2.

11. According to the defendants, the said area included the said

two rooms which are in occupation and possession of the Standard

Restaurant for the last 50 years and the said area was included in 8000

sq. ft area sold to Defendant No.2. The defendants state that letter

dated 19th June, 2008 sent by the plaintiff to Defendant No.1 and 2

merely averrs that the two rooms were being used as toilet without

specifying by whom the same were being used. The contention of the

plaintiff is contrary to the statement made in Para 10 of the plaint.

12. It is not in dispute that the Plaintiff has a separate

independent access from the Balcony to the ground floor and also toilets

on the first floor (other than the toilets in dispute). Further the plaintiff

throughout has obtained Cinematograph licence. The Defendant No.1

by letter dated 25th June, 2008 clearly mentioned that the disputed area

has always been in possession of Standard Restaurant and has been used

exclusively by the guests of the Restaurant.

13. Further, the electricity, water and maintenance charges in

respect of the said toilets have always been paid on behalf of the

Standard Restaurant. It is specifically contended that at no stage the

said two toilets were used by the Patrons of Regal Cinema as they

continued to remain in the exclusive possession of Defendant No.1.

This fact was not contradicted by the plaintiff. The plaintiff has never

disputed the factum of possession and usage by Defendant No.1 but has

only prayed that it should not be exclusively used by Defendant No.1 as

averred in the application under Order 39 Rules 1 & 2 CPC and has

prayed that "the defendants be restrained from converting or attempting

to convert the passage of two rooms to their exclusive use".

14. The learned Local Commissioner has also not mentioned in

his report that the Defendant No.1 has ever taken forcible possession of

the said two rooms. It is pertinent to mention that nowhere in the plaint,

the Plaintiff has averred that he was at any point of time in possession

of the disputed area nor has he alleged that this possession was

adversely and wrongfully taken by the Standard Restaurant or

Defendant No.1.

15. All the above said circumstances clearly show that the

Defendant No.1 has been the tenant and in possession of the disputed

area and the two rooms were only toilets for the use of patrons visiting

the Standard Restaurant.

16. Learned counsel for the defendants have argued that the

plaintiff in fact has made wrong allegations before the court during the

course of hearing held on 30th July, 2008 to the effect that the

defendants had put their locks on the two rooms but it was not stated as

to when the said locks were placed or that the said rooms were in

possession of the Plaintiff. Learned counsl for the defendants states

that it was only on the basis of the abovesaid statement that the order

of status quo regarding the construction of the said rooms was passed

otherwise the suit as well as the interim application is totally false and

frivolous.

17. Learned counsel for the defendants has denied the

genuineness of the plans filed with the rejoinder to the amendment

application by alleging that the two rooms were not part of Standard

Restaurant. Learned counsel for the defendants has argued that these

two plans were signed only by the owner and not by the Standard

Restaurant. Further, it has been argued that the markings of the plan

appear to be very fresh and recent and these could not have been of the

year 1969. If they existed since 1969, why were they not filed earlier.

There was no occasion for these rooms being shown as disputed in the

year 1969, therefore, the same are manipulated and fabricated.

18. It is not in dispute that the defendant No.1 has been using the

said toilets for the last more than 50 years. The disputed area has

always been in the possession of the Standard Restaurant and has been

used exclusively by the guests of the Restaurant. There are no other

toilets which are available in the possession of Defendant No.1. In case

the interim orders are passed in favour of the plaintiff, the defendants

will suffer irreparable loss and injury.

19. On the other hand, the plaintiff has a separate independent

access (other than the one in dispute) from the Balcony to the ground

floor and also toilets on the first floor. In the interim application, the

plaintiff has never claimed the exclusive ownership of the disputed area.

The plaintiff has only prayed that the defendants should not convert the

passage and two rooms to their exclusive use. The stand taken by the

plaintiff now in the amended plaint would have to be examined at the

time of the trial.

20. Prima facie, the overall circumstances show that defendant

No.1 has been using the said passage and two rooms from the very

beginning for the last more than 50 years. Since the plaintiff has never

disputed this fact and at this juncture, the main grievance of the plaintiff

is that the defendants should not be permitted to renovate and use the

said two rooms as toilets. The suit filed by the plaintiff on the basis of

non use of passage and toilets appears to be barred by time.

21. Hence, the application of the plaintiff under Order 39 Rules 1

& 2 is dismissed. In view of the above, the interim order dated 13th

August 2008 is vacated. The matter shall now be listed before the Joint

Registrar on 22nd July, 2009.

22. It is made clear that any observation made herein shall be

treated as tentative in nature and shall not constitute any expression of

final opinion on the issues involved and shall have no bearing on the

final merit of case and submissions of the parties in the suit.

MANMOHAN SINGH, J.

JULY 02, 2009 SD