Smt. Murti Devi vs Sh. Kamal Kishore Sehgal & Ors.
2011 Latest Caselaw 5290 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RFA No.465/2002

%                                                 1st November,      2011

SMT. MURTI DEVI                                    ...... Appellant
                    Through:    Mr. J.P.Sengh, Sr. Adv, with Mr. Amit Singh
                                & Mr. Sumeet Batra, Advs.

                          VERSUS

SH. KAMAL KISHORE SEHGAL & ORS.           ...... Respondents

Through: Mr. S.K.Sharma, Adv.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

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

2. To be referred to the Reporter or not? Yes

3. Whether the judgment should be reported in the Digest? Yes

VALMIKI J. MEHTA, J (ORAL)

1. The challenge by means of this Regular First Appeal under

Section 96 of the Code of Civil Procedure (CPC), 1908 is to the impugned

judgment of the Trial Court dated 22.2.2002. The impugned judgment

dismissed the suit of the appellant/plaintiff in which reliefs of injunctions

were prayed.

2. The appellant/plaintiff in the suit prayed for the following

reliefs:-

"i) restraining the defendants, their agents, servants and workers from putting up or constructing any Ramp at the gate of the property facing Battery Lane at 8-C/1, Rajpur Road, Civil Lines, Delhi;

ii) restraining the defendants from causing any hindrance or interference in the quiet, peaceful and beneficial enjoyment of the entire common passage, shown in green colour in the plan, leading from the gate of the plaintiff facing the Battery Lane to the rear boundary of the property up to the entire depth of 214 ft.

iii) restraining the defendants from bringing their vehicles in and upon the common passage and use the said passage as a drive-way for vehicle or as parking place for their vehicles, or to use the said passage for any purpose other than or having access to their portion-B and from having ingress and egress thereto.

iv)issuing a mandatory injunction directing the defendants to remove the gate put up by them in the middle of the common passage at point-X and also remove the annexation of the rear portion of the common passage measuring about 11‟-0"x 15‟-0" and to make the entire common passage available for free, unobstructed and unfettered common use of the plaintiff."

3. The basic dispute between the parties is as to whether the

passage which adjoins the two plots of the respective parties is a

common passage or that the portion of the passage which adjoins the

portion of the defendants/respondents is in their exclusive ownership and

not a commonly owned passage with the appellant/plaintiff. On a

decision of this issue as to whether the complete passage is or is not the

common passage, other reliefs whether the same be with regard to

putting a ramp from the main road to come to this passage or for putting

up a gate by the respondents/defendants in roughly around the middle of

the common passage or the entitlement/disentitlement of the

respondents/defendants to take their vehicles in the passage, will stand

automatically decided. I say so that the same will be consequentially and

automatically decided because if the passage is a common passage in

common ownership of both the parties, then the appellant/plaintiff is not

entitled to prevent making of the ramp or for preventing the vehicles of

the respondents/defendants from using the passage, and similarly, the

respondents/defendants will not be entitled to claim the passage

adjoining their portion as being exclusively owned by them and they will

also not be entitled to put a gate in the middle of the passage that is at

the point of the passage where their property begins or prevent the

appellant/plaintiff from using that portion of the passage which adjoins

the property of the respondents/defendants.

4. The facts of the case are that both the plots of 699 square

yards each, which are owned by the appellant/plaintiff and the

respondents/defendants respectively, were part and parcel of a larger

plot of 1398 square yards (699 + 699 square yards) bearing municipal

No.8-C/1, Rajpur Road, Civil Lines, New Delhi. This plot of 1398 square

yards was sold by the original owner/seller/Sh.Jaspal Singh by means of

two sale deeds of the same date, i.e. 12.4.1974 simultaneously to the

appellant/plaintiff and the respondents/defendants. It is not disputed

between the parties that both the sale deeds, one in favour of the

appellant/plaintiff, and another in favour of the respondents/defendants

were simultaneously executed by the original owner-Sh.Jaspal Singh in

their favour, as part and parcel of the transaction of selling the larger plot

of 1398 square yards. I am stating this because the original plot of 1398

square yards was broken up in two parts of 699 square yards as part and

parcel of the same transaction of sale of the original plot of 1398 square

yards in favour of the respective parties to this litigation. It is also

undisputed that both the parties were fully aware of the respective

contents of the respective sale deeds which were simultaneously

executed by the original seller-Sh.Jaspal Singh in favour of the respective

parties to this litigation.

5. The only issue therefore which is called for decision in this

appeal is as to whether the passage which adjoins the two plots towards

the right side of the plot, when the entire plot of 1398 square yards is

looked at from the Battery Lane, is a common passage or not.

6. In order to determine the issue in question, it is necessary at

this stage to refer to the relevant clauses of the sale deeds dated

12.4.1974 executed in favour of the respective parties along with the site

plans attached to those sale deeds. The sale deed executed in favour of

the appellant/plaintiff has been exhibited in the Court below as

Ex.DW1/P1, and the plan attached thereto has been exhibited as

Ex.DW1/P1. The sale deed in favour of the respondents/defendants has

been exhibited as Ex.P2 and the site plan attached to this sale deed has

been exhibited as Ex.P1.

7. The relevant clauses of the sale deed, Ex.DW1/P1 in favour of

the appellant/plaintiff read as under:

"6. The seller has agreed to sell his 699/3116 share in plot No.8-C, measuring 3116 square yards i.e. 699 square yards out of 3116 square yards more specifically shown in the plan enclosed unto the purchaser for a total sale price of Rs.98,000/- (Rupees ninety eight thousand only) and the purchaser agreed to purchase the same on 11-6-1973 vide terms and conditions in the agreement of sale registered as No.1218 in Addl. Book No.I, Vol.3084 on pages 50 to 53 in the office of the Sub-Registrar, Delhi on 28-3-1974.

1. That in pursuance of the said agreement and in consideration of the said sum of Rs.98,000/- (Rupees ninety eight thousand only) out of which a sum of Rs.5,000/- has already been paid by the purchaser to the seller as earnest money at the time of agreement of sale made on 11-6-1973 as embodied in the agreement of sale in writing and registered as No.1218 in Addl. Book No.I, Vol.3084 on pages 50 to 53 in the office of the Sub- Registrar, Delhi on 28-3-1974, receipt of which is hereby acknowledged by the seller and the balance of Rs.93,000/- (Rupees ninety three thousand only) will be paid by the purchaser to the seller at the time of the presentation of the sale deed for registration before the Sub-Registrar, Delhi in the manner indicated in this sale deed. The said seller do thereby sell, convey, transfer and assign by way of absolute sale his share to

the extent of 699/1136 in Plot No.8-C, Rajpur Road, Delhi i.e. 699 square yards out of his own 1398 square yards as shown and marked as Portion „A‟ in the plan annexed together with right of use of 15‟ wide common passage which has been left for access to the back portion as shown in green colour in the plan annexed unto the purchaser along with all his rights, title, interest, option and privileges. The vacant possession in respect of the demised property has already been given to the purchaser on spot."(underlining added).

8. The corresponding site plan with respect to the sale deed of

the appellant/plaintiff is reproduced below:

9. The relevant clauses of the sale deed in favour of the

respondents/defendants read as under:-

"6. The seller agreed to sell his 699/3116 share in Plot No.8-C, Rajpur Road, measuring 1398/3116 square yards i.e. 699 square yards out of his 1398 square yards more specifically shown in the plan annexed i.e. being the area measuring 699 square yards with right of use of 15‟ wide common passage for access thereto as left by Smt. Murti Devi for that purpose, to whom the whole of the front portion measuring 699 square yards facing Battery Lance has been sold, unto the purchasers for a total sale price of Rs.98,000/- (Rs. Ninety eight thousand) and the purchasers agreed on 6-11-1973 to purchase the same vide terms and conditions in the agreement of sale registered as No.1219 in Addl. Book No.I, Vol. No.3084 on pages 54 to 58 in the office of the Sub-Registrar, Delhi on 28-3-1974."

"1. That in pursuance of the said agreement and in consideration of the said sum of Rs.98,000/- (Rupees ninety eight thousand only) out of which a sum of Rs.6,000/- has already been paid by the purchasers to the seller as earnest money, the receipt of which is hereby acknowledged by the seller and the balance of Rs.92,000/- (Rupees ninety two thousand only) will be paid by the purchasers to the seller at the time of the presentation of the sale deed for registration before the Sub-Registrar, Delhi, the said seller do thereby sell, convey, transfer and assign by way of absolute sale his share to the extent of 699/3116 in Plot No.8-C, Rajpur Road, Delhi i.e. 699 square yards out of his own 1398 square yards area together with right of use of 15‟ wide common passage for access to the portion sold herein as left by Smt. Murti Devi to whom the whole of the front portion facing Battery Lane, measuring 699 square yards has been sold, unto the purchasers along with all his

rights, title, interest, option and privileges. The vacant possession in respect of the demised property has already been given to the purchasers on spot."(underlining added).

10. The corresponding plan with respect to this sale deed is as

under:

11. So far as the law with respect to interpretation of

documents is concerned, it is not disputed between either of the

parties that in order to understand the document, firstly only

the express and clear words of the documents must be looked at.

The issue with regard to looking at the surrounding

circumstances to determine what was intended can only arise, if there is

an ambiguity in the language of the document. Learned counsel for the

respondents relied upon the decision of the Supreme Court in the case of

Pandit Chunchun Jha vs. Sheikh Ebadat Ali & Anr. AIR 1954 SC

345 and paras 5 and 6 of the judgment read as under:

"5. The question whether a given transaction is a mortgage by conditional sale or a sale outright with a condition of repurchase is a vexed one which invariably gives rise to trouble and litigation. There are numerous decision on the point and much industry has been expanded in some of the High Courts in collating and analyzing them. We t ink that is a fruitless task because two documents are seldom expressed in identical terms and when it is necessary to consider the attendant circumstances the imponderable variables which that brings in its train make it impossible to compare once case with another. Each must be decided on its own facts. But certain broad principles remain.

6. The first is that the intention of the parties is the determining factor : see Balkrishen Das vs. Legge 27 I.A. 58. But there is nothing special about that in this class of cases and here, as in every other case where a document has to be construed, the intention must be gathered in the first place, from the document itself. If the words are express and clear, effect must be given to them and any extraneous enquiry into what was thought or intended is ruled out. The real question in such a case is not what the parties intended or meant but what is the legal effect of the words which they used. If, however, there is ambiguity in the language employed, then it is permissible to look to the surrounding circumstances to determine that was intended. As Lord Cranworth said in Alderson v. White 44 E.R. 924 :

"The rule of law on this subject is one dictated by commonsense; that prima facie an absolute conveyance, containing nothing to show that the

relation of debtor and creditor is to exist between the parties, does not cease to be an absolute conveyance and become a mortgage merely because the vendor stipulates that he shall have a right to repurchase .......... In every such case the question is, what, upon a fair construction, is the meaning of the instruments ?"

12. There is no quarrel to this proposition of law that a literal

construction must first be preferred because the literal construction

shows the intention of the parties. Courts cannot presume an intention

dehors the express language as found in the document. In this view of

the matter let us now examine the language which is used in two

documents, being the two sale deeds, which are basically part and parcel

of the same transaction of sale of the entire plot of 1398 square yards

into two plots of 699 square yards each in favour of the appellant/plaintiff

and the respondents/defendants by the original owner-Sh.Jaspal Singh.

Before proceeding further, I must mention that the passage which is

adjacent to the right side of the plots in fact has been carved out of both

the plots of 699 square yards, i.e., though each of the parties have

purchased a plot of 699 square yards each, however the actual area of

699 square yards is reduced by the passage in question which adjoins the

respective plots.

13. A reference to the relevant clauses of the sale deed executed

in favour of the appellant/plaintiff and as reproduced above shows that

besides mentioning the area which is sold, it is categorically mentioned

that the area which is sold is more specifically delineated in the plan

attached to the sale deed. Para 1 of the operative part of the sale deed

in form of the appellant/plaintiff categorically states that what is sold is

the portion mark „A‟ of 699 square yards of which a portion of 15 feet

wide would be a common passage. This common passage has been

shown in green colour in the plan annexed to this sale deed. When we

look at the green colour in the plan attached to the sale deed, and which,

as per the sale deed is the common passage, we find that this green

marked portion being the passage runs right from the beginning of the

property to the end of the property, i.e. this common passage adjoins not

only the portion of the appellant/plaintiff, but it also adjoins the portion of

the respondents/defendants. A literal construction therefore leaves no

manner of doubt that what is stated is a common passage in the sale

deed is the green colour portion shown in the plan annexed to the sale

deed and which green colour portion runs right adjacent to both the

portions of the appellant/plaintiff and the respondents/defendants. On a

literal construction therefore there is no scope to reduce this green colour

passage as shown in the plan only to half of its size as is being sought to

be contended on behalf of the respondents/defendants.

14. The matter, however, does not stop over here because

besides looking at the plan annexed with the sale deed in favour of the

appellant/plaintiff, we will also have to look into the sale deed and the

plan annexed in favour of the respondents/defendants by the original

owner-Sh. Jaspal Singh. A reading of the relevant clauses of the sale

deed in favour of the respondents/defendants show that again what is

sold is 699 square yards which is more specifically shown in the plan

annexed, with the right of use of 15 feet wide common passage for

access thereto as left by Smt. Murti Devi/appellant/plaintiff. Para 1 of the

operative part of the sale deed again specifically states that what is sold

is the 699 square yards with right to use of 15 feet wide common

passage for access to the portion sold to the respondents/defendants as

left by Smt. Murti Devi/appellant/plaintiff. Again the sale deed

specifically mentions the 15 feet wide common passage. This common

passage is again shown in an identical manner in the site plan attached

to the sale deed of the respondents/defendants. I have already scanned

above the site plans attached to the sale deeds of both the parties, and

which plans form part of the sale deeds and are duly exhibited before the

Trial Court.

15. There is hardly any ambiguity to the word "common" when

the same is used in the expression „common passage‟. Common passage

therefore is common to owners of both the plots of 699 square yards, i.e.

common to both the plaintiff and the defendants. The argument of the

respondents/defendants that the passage adjoining their portion is not a

common passage defeats the whole intention of the entire 15 feet wide

passage being a common passage. I also do not place any importance to

the argument raised by the learned counsel for the respondents that why

should a portion of the passage which adjoins the property of the

respondents/defendants be treated as common when the

appellant/plaintiff would have no use of the same, because once the

passage is common, both the parties can use it in different ways for

common purposes whether they be for parking of cars or in any other

manner, and it is not therefore permissible for any one party to

exclusively appropriate any portion of this common passage as belonging

only to them, as is contended by the respondents/defendants. It is not

unknown as to many areas in a property which form part of the larger

plot may be left as a common for joint benefit of the parties, and

therefore, to introduce logic as to what right an opposite party will have

to a common passage which adjoins a portion of the opposite party, is a

self-defeating argument inasmuch as once a passage is common if the

appellant/plaintiff wants she can use the same for any purposes including

for parking of her cars. The entire object of a common portion is joint

and common user thereof by the parties and it is an antithesis of the

word common for the same being used as being exclusively appropriated

by any one person. I have already stated in the beginning of this

judgment, that both the documents/sale deeds are part and parcel of the

same transaction of sale of the larger plot of 1398 square yards and

therefore it is necessary that both the parties who were well aware of the

respective sale deeds, should be held bound by totality of all the

aforesaid relevant clauses in both the sale deeds along with the

accompanying site plans. To do otherwise will be to allow one party to

steal a march over another which is not permissible.

16. Once there is a joint reading of the respective clauses of both

the sale deeds and taken together with the respective plans, the passage

which is carved out from each of the owners‟ portion of 699 square yards

has necessarily to be taken as a common passage to be jointly used by

both the parties. This is the categorical intention of the parties on a

literal construction of both the sale deeds taken together.

17. The issue then arises is whether the appellant/plaintiff is

entitled to all the reliefs as claimed in the plaint. I have already

reproduced the prayer clauses of the plaint above. So far as the prayer

no. (i), i.e. to restrain the defendant from putting a ramp is concerned,

the same cannot be granted. The ramp is only a means of access to this

common passage, but for which, the common passage cannot be

effectively used and therefore prayer (i) is declined. Same is the position

with respect to prayer (iii) inasmuch as once the passage is a common

passage the appellant/plaintiff cannot prevent the

defendants/respondents from bringing their vehicles in the common

passage including for reasonable parking of the vehicles. I must hasten

to add that nothing in this judgment should be taken as a license for any

of the parties to cause parking of their vehicles in such a way in this

common passage that another person is prevented from effectively using

common passage. Of course, for the period of the night hours, and which

would be depending upon the season, the parties would be entitled to

park their respective vehicles in this common passage in such a way that

none of the parties prevents user of the passage by the other and the

passage is used equally by both the parties for parking of their vehicles.

I would further add that it would be advisable for the appellant/plaintiff

not to object to parking of the vehicles by the respondents/defendants on

the portion of the common passage which adjoins their plots, unless and

until the appellant/plaintiff really has any need to go to that portion of the

common passage which adjoins the portion of the

respondents/defendants, and in which case the respondents/defendants

will not cause any obstruction for the necessary or immediate use of that

common passage adjoining the portion of the respondents/defendants.

The appellant/plaintiff will however be entitled to the reliefs prayed for in

prayers (ii) and (iv).

18. While therefore accepting the appeal and setting aside the

impugned judgment dated 22.2.2002, it is directed that the

respondents/defendants are restrained from, in any manner, preventing

the appellant/plaintiff from use of the entire common passage which runs

right from the beginning of the plot to the end of the plot, i.e. the

passage adjoining not only the portion of the appellant/plaintiff but also

the passage adjoining the portion of the respondents/defendants. Since

the putting of the gate by the respondents at a point „X‟ shown in the

respective site plans amounts to prevention of access to the portion of

the common passage adjoining the portion of the

respondents/defendants to the appellant/plaintiff, such gate would

ordinarily be liable to be removed. Counsel for the

respondents/defendants has however contended that the gate had been

put because passage was used as ingress and egress by some persons of

the public inasmuch as the properties of the parties adjoin the famous

Tirath Ram hospital, therefore, I modulate the relief prayed for by the

appellant/plaintiff with respect to removal of the gate to allow the gate to

remain, however, whenever the same is locked for a reasonable time, the

respondents/defendants will give one key of the lock to the

appellant/plaintiff.

19. As an epilogue, I must mention that earnest endeavors were

made by Advocates of both the parties to bring about a re-conciliation

and various alternative positions were discussed, however, no concrete

result came about and therefore this judgment had to be passed on

merits. Actually, it would be advisable for the parties to sit across the

table, inasmuch as, being neighbors, litigation is not preferable when a

compromise solution would surely be a better way out. One of the better

suggestions, which in my opinion, ought to have prevailed was that a

twenty four hour guard should be put at the gate at the beginning of the

passage on the main road so that there is no unnecessary entry of

unknown persons /public in this passage and which would have thereafter

removed any issues with respect to apprehension of the

respondents/defendants, however, nothing came out of the suggestion.

This suggestion was also feasible because practically, I do not expect that

the appellant/plaintiff would or ought to park their vehicles in the

common passage which adjoins the portion of the

respondents/defendants or use that portion in any other manner except

for genuine needs. The said passage will only be used in case of a

genuine, urgent or necessary need or some other pressing need of the

appellant/plaintiff. As already stated however it seems that the ego

battle will have to carry on and therefore is the present judgment.

21. In view of the above, the appeal is accepted to the extent as

stated above in paras 17 and 18. Parties are left to bear their own costs.

Decree sheet be prepared. Trial Court record be sent back.

VALMIKI J. MEHTA, J.

NOVEMBER 01, 2011 ak