Mrs. Perminder Kaur vs Mr. Harbans Singh Gulati And ...
2011 Latest Caselaw 2197 Del

         THE HIGH COURT OF DELHI AT NEW DELHI

%                    Judgment Pronounced on: 26.04.2011

+           I.A. No. 5001/2010 in CS(OS) No. 734/2010

Mrs. Perminder Kaur                               .....Plaintiff

                             - versus -

Mr. Harbans Singh Gulati and others             .....Defendant

Advocates who appeared in this case:
For the Plaintiff: Mr. V.K. Sharma with Mr. Bharat Deepak.
For the Defendants: Mr. Kirti Uppal for D-1.
                       Mr. Atul Kumar for counsel for D-2.
                       Mr. N.S. Jain for D-3 to D-5.
                       Mr. Abhishek Goyal for D-6.

CORAM:-
HON'BLE MR JUSTICE V.K. JAIN

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

2. To be referred to the Reporter or not?                        No.

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

V.K. JAIN, J. (ORAL)

1. This is a suit for partition and injunction.

Late Dr. Prabh Dayal Singh Gulati was the lessee

of land comprised in plot No.19/6, Kalkaji, New Delhi

admeasuring about 200 sq.yds. having been leased out by

Land & Development Office (L&DO). A residential house

was constructed on the aforesaid plot of land by late Dr.

Prabh Dayal Singh Gulati, who expired on 27 th December,

1990 leaving four sons and one daughter as his legal heirs,

his wife having predeceased him. Defendant Nos.1 and 2

are the surviving sons of late Dr. Prabh Dayal Singh Gulati.

Mr. Kuldip Singh Gulati is one of the three surviving sons of

late Dr. Prabh Dayal Singh Gulati and his fourth son, Dr.

Iqbal Singh Gulati has died. The case of the plaintiff is that

in his life time, Dr. Iqbal Singh Gulati had bequeathed his

share in the suit property to Smt. Sushil Kaur, who has also

expired leaving defendant Nos. 3 & 5 and plaintiff as her

legal heirs. This is also the case of the plaintiff that Shri

Kuldip Singh Gulati had gifted his share in the suit property

to her and defendant Nos. 3 and 4.

2. The suit has been contested by defendant Nos. 1

and 2. Mr. Kirti Uppal, who appears for defendant No.1,

states that they are disputing the Will alleged to have been

executed by late Dr. Iqbal Singh Gulati in favour of Smt.

Sushil Kaur as also the Gift Deed alleged to have been

executed by Mr. Kuldip Singh Gulati in favour of plaintiff

and defendant Nos. 3 and 4. This is also the case of

defendant Nos. 1 and 2 that there was an oral partition

allocating various portions of the suit property amongst

legal heirs of late Dr. Prabh Dayal Singh Gulati and in that

allocation, ground floor came to defendant Nos. 1 and 2,

first floor came to Iqbal Singh Gulati and Kuldip Singh

Gulati whereas future rights in the yet to be constructed

basement alleged to have come to the share of defendant

Nos. 1 and 2. Future rights in the 2nd and 3rd floors which

do not exist as yet alleged to have come to the share of all

the four sons of deceased Dr. Prabh Dayal Singh Gulati in

equal proportion.

3. I.A. No.5001/2010 has been filed by the plaintiff

seeking injunction against creation of third party rights as

well as against making any unauthorized construction in

the suit property and making any structural changeand/or

additions, alternations etc. therein. She has also sought an

injunction against misuse of the suit property besides

seeking an injunction against L&DO from taking any

coercive action with respect to the suit property.

4. It is agreed, in Court, between the parties that they

will maintain status quo with regard to status and title of

the suit property during pendency of the suit. It has also

been agreed between the parties that none of them will

make any addition, alteration and structural changes

during pendency of the suit without prior permission of the

Court. It is ordered accordingly.

5. The main dispute between the parties, as far as

this application is concerned, is with respect to a takeaway

restaurant, which is being run by the son of defendant No.1

on the ground floor of the suit property under the name and

style of M/s Shekaza Restaurant. The case of defendant

No.1 is that such a user is permitted under the mixed land

use provisions of master plan and they have already

deposited requisite charges in this regard with the MCD. A

perusal of the lease deed executed by the L&DO in respect

of plot No.19/6, Kalkaji, Delhi would show that the building

which is constructed on the demised land can be used only

for residence. No use for any trade or business is permitted

without prior permission of the Lessor. Clause I (vi) of the

lease deed is relevant in this regard and reads as under:-

"I(vi) not without the written consent of the Chief Commissioner, Delhi, to carry on or permit to be carried on, on the sid land and buildings erected thereon during the said lease any trade or business whatsoever or use the same or permit the same to be used for any purpose other than that of a single storeyed building consisting of one or two

residential flats in all, with a barsati on top, as may be approved for the locality or as provided in the building already erected on the said land."

6. Clause (II) of the lease deed provides for

determination of the lease deed in case there is any breach

of the covenants or conditions contained therein, and reads

as under:-

"II. If the yearly rent hereby reserved or any part thereof shall at any time be in arrear and unpaid for one calendar month next after any of the said days whereon the same shall have become due, whether the same shall have been demanded or not, or if there shall have been in the opinion of the Lessor or the Chief Commissioner of Delhi whose decision shall be final, any breach by the Lessee or by any person claiming through or under him of any of the covenants or conditions herein before contained and on his part to be observed or performed then and in any such case it shall be lawful for the Lessor or any person or persons duly authorized by him notwithstanding the waiver of any previous cause or right of re-entry upon any part of the premises hereby demised or of the building thereon in the name of the whole to re-enter and thereupon this demise and everything herein contained shall case and determine and the Lessee shall not be entitled to any compensation whatsoever, nor to the return of any premium paid by him."

7. It would thus be seen that terms of the lease deed

prohibit the lessee or any person deriving title through him

from using the building, which has been constructed at plot

No.19/6, Kalkaji, Delhi or any part thereof for carrying any

trade or business of any nature without prior permission of

the Lessor. Business of running a takeaway restaurant

cannot be said to be a use for residential purpose and,

therefore, is not permissible under the terms of the lease

deed. Even if such a user is permissible under the mixed

land use provisions of the Master Plan, nothing in law

prevents the Lessor from determining the lease on account

of breach of the lease on account of use of a portion of the

building for carrying a business or trade. The terms and

conditions of the lease deed would still bind the parties to

the Deed or their successors in interest, as far as

compliance with them is concerned and Master Plan

provisions do not override the terms and conditions of the

lease deed. The lessee is required not only to observe the

provisions of the Delhi Development Act and the Master

Plan notified under the Act but also the covenants of the

lease deed under which the land underneath the building

has been demised to him. Mere permission from the Lessor

would not give him a license to contravene the provisions of

Delhi Development Act or the Master Plan/Zonal Plan

notified under that Act. Similarly, the enabling provisions of

Master Plan/Zonal Plan will not permit a lessee to

contravene the terms of the lease deed. Any activity by the

lessee or a person acting under him needs to conform to

Master Plan provisions as well as the terms of the lease

deed. Admittedly, no permission of the Lessor has so far

been obtained by defendant No.1 or any other person for

running a takeaway restaurant on the ground floor or any

portion of the suit premises. Defendant No.1, therefore, has

no right to run a business in the ground floor of the suit

property without prior permission of the Lessor.

8. In its written statement, defendant No.6 L&DO has

emphatically stated that the lease deed can be cancelled in

accordance with the terms and conditions stipulated

therein, on account of commercial use of the property. If

the lease is determined on account of user of the ground

floor for running a takeaway restaurant, that would

prejudicially affect not only defendant No.1 but also the

other co-lessees of the property. Therefore, they have a

vested right to ensure that no part of the suit property is

used for a non-residential purpose lest the lease is cancelled

by the Lessor on account of such a use.

9. For the reasons given above, defendant No.1 is

restrained from using or allowing use of any part of the suit

property for a non-residential purpose without prior

permission of the Lessor. In order to ensure that the

business of the son of the defendant does not suffer all of a

sudden on account of this order, it will come into force with

effect from 7th May, 2011, but will not affect the right of the

lessor to take any action in terms of the Lease Deed.

10. This application stands disposed of.

CS(OS) No.734/2010

The following issues arise on the pleadings of the

parties:-

(i) Whether the suit is properly valued for the purpose of court fee and jurisdiction? OPP.

(ii) Whether late Dr. Iqbal Singh Gulati had bequeathed his portion in the suit property to late Smt. Sushil Kaur? OPP.

(iii) Whether Mr. Kuldip Singh Gulati has gifted his share in the suit property to the plaintiff and defendant Nos. 3 and 4? OPP.

(iv) Whether there was an oral agreement/settlement between the parties, as alleged in the written statement of defendant Nos.1 and 2? OPD 1 & 2.

(v) Whether the suit is bad for non-joinder of necessary parties? OPD.

(vi) Whether the plaintiff is entitled to damages? If so, from whom and to what amount? OPP.

(vii) Whether the plaintiff is entitled to injunctions sought by her? OPP.

(viii) Relief

No other issue arises or is framed.

Affidavit by way of evidence be filed within four weeks.

The parties shall appear before the Joint Registrar on 26 th

May, 2011 for fixing dates for cross-examination of

plaintiff's witnesses.

(V.K. JAIN) JUDGE

APRIL 26, 2011 VKM