D.R.Batra & Ors. vs Arvinder Pal Singh Makkar & Anr.
2011 Latest Caselaw 5188 Del

*          HIGH COURT OF DELHI: NEW DELHI


+                     C.S.(OS) No.505/2006

%                              Judgment Pronounced on: 21.10.2011


D.R.BATRA & ORS                                   ....... Plaintiffs
                      Through Ms. Anusuya Salwan, Adv. with
                              Mr. Kunal Kohli, Adv.

                      Versus


ARVINDER PAL SINGH MAKKAR & ANR                        ....... Defendants
                Through None

CORAM:
HON'BLE MR. JUSTICE MANMOHAN SINGH

1.

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

2. To be referred to Reporter or not?                  Yes

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

MANMOHAN SINGH, J.(Oral)

1. The plaintiffs have filed the present suit for declaration and

permanent injunction seeking the following reliefs:-

"a) pass a decree of declaration declaring that the common areas in property bearing No.35, North Avenue Road, Punjabi Bagh, New Delhi vests in the owners of the apartments proportionately.

b) pass a decree of permanent injunction permanently restraining defendants No.1 to 3 from carrying out any construction in the open areas and common areas of the property in question.

c) costs be awarded in favour of the plaintiffs."

2. The brief facts of the present case are that plaintiffs No.1 to 6

are the owners in occupation of property No.35, North Avenue Road,

Punjabi Bagh, New Delhi-110026. The said property was constructed by

M/s Santosh Builders through its proprietor Sh. Gurbachan Singh, and 7

apartments, independent units/flats were made in the said freehold

property by virtue of the registered agreements, the details of which are

given in para No.2 of the plaint.

3. As per the plaintiffs, the brochure for sale of the said

apartments issued by M/s Santosh Builders through its sole proprietor

Sh. Gurbachan Singh had indicated common areas and also indicated the

front setback which was left open and a driveway. In front of the

apartments, there was an open space which was to be maintained as green

for the common use of all apartment owners.

4. It is the case of the plaintiffs that M/s Santosh Builders illegally

constructed a room on the front lawn of the property in dispute on the

premises that the same would be used by him to stack its materials and

labour for construction purposes. However, the same was not demolished

and has been illegally handed over to one property dealer by the name of

Punjabi Bagh Properties. M/s Santosh Builders has also constructed a

Guard Room inside the boundary wall of the property.

5. The case of the plaintiffs against the defendants is that the

defendants No.1 & 2 who are the son and widow of the above said

Mr. Gurbachan Singh, have negotiated with some shop-keepers to

demolish the said room and to re-built 2 to 3 rooms inside the boundary

wall and in the common area of the property and to sell the said area to

petty shop-keepers for opening shops of cigarette, pan, cold drinks and

other general merchandise etc. On 14.03.2006 the defendants came with

certain labour in order to demolish the said guard room and to re-construct

2-3 shops which was protested to by the plaintiffs. Their protest was that

no construction could be undertaken in the common area of the property

which was meant as open area.

6. Along with the present suit, the plaintiffs filed an application

under Order XXXIX, Rules 1 & 2 read with Section 151 CPC being I.A.

No.3357/2006. After hearing upon the same, the Court passed an ex parte

injunction order restraining the defendants from carrying out any

construction in front of the suit property or from selling, alienating or

disposing of any part of the common area of open area in front of the

property.

7. The defendants were duly served. They appeared and filed

their written statement denying the contentions of the plaintiffs made in

their plaint. It was stated that the defendants exclusively owned the room

in question and it was never promised that the same would be demolished

after handing over possession of the flats. Mr. Gurbachan Singh, father of

defendant No.1 and husband of defendant No.2 had never assured that the

green lawn would be restored.

8. From the pleadings, the following issues were framed vide

order dated 09.05.2008:-

1. Whether the common areas of property No.35, North Avenue Road, Punjabi Bagh, Delhi belonged to the owners of the apartments and not to defendants No.1 & 2? OPP

2. Whether the defendants No.1 & 2 have no right to carry out any construction in common area/open area? OPP

3. Whether the suit of the plaintiffs is barred under the provisions of Section 41(1) of the Specific Relief Act? OPD

4. Whether the suit is bad for non-joinder of all necessary parties as M/s Punjab Bagh Properties is not made a party? OPD

5. Whether the suit is valued properly for the purposes of Court fee and jurisdiction? OPD

6. Relief.

9. The parties were given time to adduce their evidence by way of

affidavit(s). The plaintiffs filed an affidavit of PW-1 Mr. Balbir Singh in

terms of their evidence. However, the defendants failed to appear before

the Court to cross-examine the said witness. Ultimately, vide order dated

22.11.2010 the defendants were proceeded ex parte, as no one appeared on

their behalf either before the Court or earlier before the Joint Registrar at

the time of recording the evidence.

10. The plaintiffs in support of their case have examined witness,

PW-1 Balbir Singh who tendered on record his affidavit Ex.PW1/A. The

said Balbir Singh is one of the owners of the property in question. He has

corroborated the averments as stated in the plaint and has also proved on

record the following documents:-

Ex.PW1/1 Agreement dated 01.06.1989 in between M/s Santosh Builders and plaintiff No.4

Ex.PW1/2 Agreement dated 03.05.1988 in between M/s Santosh Builders and one Nirmal Rawal, who further entered into an agreement with plaintiff No.5

Ex.PW1/3 Agreement dated 05.04.1988 in between M/s Santosh Builders and wife of plaintiff No.1

Ex.PW1/4 Agreement dated 28.02.1988 in between M/s Santosh Builders and one Veena Arora, who further entered into an agreement with plaintiff No.6

Ex.PW1/5 Agreement dated 05.04.1988 in between M/s Santosh Builders and plaintiff No.3

Ex.PW1/6 Agreement dated 15.03.1994 in between Nirmal Rawal and plaintiff No.5

Ex.PW1/7 Sale deed in favour of plaintiff No.1.

Ex.PW1/8 Possession letter dated 05.04.1988 in favour of plaintiff No.3

Ex.PW1/9 Possession letter dated 05.04.1988 in favour of the wife of plaintiff No.1

Ex.PW1/10 Possession letter dated 01.06.1989 in favour of plaintiff No.4

Ex.PW1/11 & Receipts dated 27.02.1988 & 28.02.1988 issued by Ex.PW1/12 M/s Santosh Builders in favour of one Veena Arora

Ex.PW1/13 Layout plan of the suit property.

Ex.PW1/14 Site Plan

11. The learned counsel appearing on behalf of the plaintiffs has

argued that under the agreement, the plaintiffs had made payment towards

the super area of the flats including the common areas and the plaintiffs

along with other owners have proportionate rights in the common areas

and the front portion of the suit property. She further argued that even

otherwise, the common areas are for the benefit of each of the flat owners

and neither under the agreement to sell, nor in the documents of

conveyance, the common areas could be vested with the defendants.

12. I have heard the learned counsel for the plaintiffs and have

gone through the contents of the plaint along with the affidavit of the

witness and the documents placed and proved on record. I am of the

considered view that the plaintiffs have been able to prove their case on

record. The evidence adduced on behalf of the plaintiffs has gone

unrebutted, as the defendants failed to cross-examine the witness. The

defence raised in the written statement cannot be taken into consideration

in the absence of any evidence/proof on record, as although the defendants

were given opportunity to lead their evidence, but they even failed to

appear before the Court and were proceeded ex parte. In these

circumstances, the plaintiffs are entitled to a decree for declaration and

permanent injunction as prayed for. I hold that the common areas in

property bearing No.35, North Avenue Road, Punjabi Bagh, New Delhi

vests in the owners of the apartments proportionately. The defendants are

permanently restrained from carrying out any construction in the open

areas and common areas of the property in question. The cost of the suit is

awarded in favour of the plaintiffs. The suit of the plaintiffs is accordingly

decreed. Decree be drawn accordingly. The suit and all pending

applications are disposed of.

MANMOHAN SINGH, J.

OCTOBER 21, 2011 ka