M/S Sumanta Sushanta Overseas ... vs Sanjay Adlakha & Ors.
2014 Latest Caselaw 6950 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                          RESERVED ON : 21.11.2014
                                          DECIDED ON : 18.12.2014

+      CS(OS) 452/2006 and IA Nos.3062/06,11218/06, 12249-50/06,
       10763/07, 2735/08

       M/S SUMANTA SUSHANTA OVERSEAS PVT.LTD.
                                               ..... Plaintiff
                    Through : Mr.Amit Bansal, Advocate.

                             VERSUS

       SANJAY ADLAKHA & ORS.
                                                             ..... Defendants.
                             Through :    Mr.Atul Nigam with Mr.Amit
                                          Tiwari, Advocates.
                                          Mr.Gyanesh Bhardwaj proxy
                                          counsel for L&DO (UOI)
                                          Ms.Sakshi Popli, Advocate, for
                                          NDMC.
        CORAM:
        HON'BLE MR. JUSTICE S.P.GARG
S.P.GARG, J.

IA No.18952/2013 (u/O 6 R 17 CPC)

1. The plaintiff has instituted the instant suit for permanent

injunction to restrain the defendants from interfering with its ownership

and possession with regard to the suit property shown in 'red' colour in

the site plan filed as Annexure 'A'. It is averred that by a registered

Agreement to Sell dated 28.09.2004, the suit property bearing No.16-A,

IA No.18952/2013 in CS (OS) No.452/2006 1 of 10 Regal Building, Cannought Place, New Delhi-110001, was purchased

from Shikha Properties Pvt.Ltd. It was a fully constructed property which,

inter alia, included ground floor admeasuring 2000 sq.ft., mezzanine

admeasuring 800 sq.ft and first floor admeasuring 6000 sq.ft, roof

admeasuring 12000 sq.ft., as also the entire back portion on the ground

floor admeasuring 1200 sq.ft. The entire area acquired by the plaintiff

company was shown in purple and red colour in the site plan attached as

Annexure 'A'. The plaintiff further averred that the defendants are the

owner of the adjoining property bearing No.17 after purchase by an

Agreement to Sell dated 14.07.2004 from Shikha Properties Pvt.Ltd. It

was admeasuring 2361 sq.ft. as shown in green colour in Annexure 'A'.

In the written statement, the defendants controverted the assertions of the

plaintiff and alleged that forged and fabricated documents have been filed

by the plaintiff along with the plaint. The plaintiff has no right even to the

land behind its own premises. Shikha Properties Pvt.Ltd. could not have

agreed to sell the 'vacant' land at the back of Shop No.17 as it had no title

or interest therein and it vested in NDMC. The plaintiff was challaned by

NDMC on 08.03.2006 for encroachment of that area. The site plan

annexed to the agreement to sell is a fabricated document. The land being

IA No.18952/2013 in CS (OS) No.452/2006 2 of 10 a vacant one vested in NDMC, no right therein could have been conveyed

by the vendor to the plaintiff.

2. Undertaking was given by the defendants on 03.04.2006

before this Court not to raise any construction on the 'vacant' land in the

portion marked red in the site plan attached as Annexure 'A' to the plaint.

It was also recorded therein that neither party would use the portion

marked red in the site plan till the next date of hearing.

3. On 21.10.2013, this Court while hearing various IAs

observed that during the pendency of the suit, the plaintiff had claimed to

have executed a 'Rectification Deed' with the plaintiff's predecessor in

interest in title in respect of the suit property. However, there were no

pleadings made in the suit with regard to the execution of the Rectification

Deed. Learned counsel for the plaintiff then sought leave to amend the

plaint. The matter was adjourned to 21.1.2014 permitting the plaintiff to

move an appropriate application subject to right of the defendants to

oppose it. Subsequently, the IA in question was moved to seek

amendment.

4. The plaintiff seeks to amend the plaint to incorporate the

subsequent factum of execution of Rectification Deed with the vendor.

IA No.18952/2013 in CS (OS) No.452/2006 3 of 10 He also proposes to amend the plaint to incorporate the subsequent event

whereby order dated 3.04.2006 was flouted by the defendants. The

amendment application is under contest by the defendants. It is alleged

that the Rectification Deed has been executed during the pendency of the

suit to circumvent the real issues. The purported document i.e.

Rectification Deed, does not confer any ownership rights over the land

falling conjoint to shop No.17, Regal Building, Cannought Place, New

Delhi-110001 which is part of common/public land as per the Resolution

No.7/1978-79 of NDMC dated 07.07.1978. The defendants have

easementary rights over it. The said area was never in possession of the

plaintiff. The plaintiff under the garb of 'Rectification Deed' intends to

illegally incorporate open/common land falling behind the shop of

defendants i.e. 17 Regal Building, Cannought Place, New Delhi-110001.

The 'Rectification Deed' dated 29.08.2006 does not show the subject land

to have been sold to the plaintiff. It is an attempt to fill the lacuna in the

suit which is not maintainable on facts and law. It is further pleaded that

the application seeking amendment of plaint on the basis of Rectification

Deed dated 29.08.2006 is barred by limitation as seeking declaration of

title and injunction on the basis of purported document while introducing

IA No.18952/2013 in CS (OS) No.452/2006 4 of 10 a fresh cause of action alleged to have occurred in August and October,

2006 would be barred by limitation. The suit for permanent injunction

simplicitor instituted by the plaintiff is not maintainable when there is

clear cloud over his right in respect of the common/public land. The

plaintiff can not be permitted to overcome the shortcomings and falsehood

of the suit.

5. Learned counsel for the plaintiff urged that the proposed

amendments are necessary for the purpose of determining the real

questions / controversy between the parties. The plaintiff intends to

incorporate only subsequent events whereby 'Rectification Deed' was

executed with the vendor. Learned counsel for the defendant vehemently

urged that the proposed amendments cannot be permitted to be allowed as

it would change the nature of the suit. The plaintiff cannot be allowed to

claim ownership over a piece of land on the basis of Rectification Deed

when, in fact, it is a common area maintained by NDMC. The plaintiff

has even been challaned for encroachment of that area by NDMC. The

land agencies L&DO and NDMC have disputed ownership of the land

with the plaintiff or his predecessor-in-interest. The Rectification Deed

cannot confer ownership of the public land in favour of the plaintiff. The

IA No.18952/2013 in CS (OS) No.452/2006 5 of 10 defendants have enjoyed easementary rights over it. The site plans filed

by the plaintiff are contradictory. The proposed amendments are not

permissible and are barred by limitation. Reliance has been placed on

Ravajeetu Builders and Developers vs.Narayanswamy and Sons & Ors.

(2009) 10 SCC 84 and A.K.Gupta and Sons Ltd. vs.Damodar Valley

Corporation AIR 1967 SC 96.

6. The plaintiff has instituted the suit for permanent injunction

simplicitor claiming ownership of the suit land to restrain the defendants

from interfering in its ownership and possession. The premises in

questions were purchased vide agreement to sell dated 28.09.2004 and the

entire area has been depicted in colour red and purple in the site plan

attached as Annexure 'A'. The vacant land behind the property bearing

No.16A has been shown in colour 'red' in the said site plan. From the

very inception, the plaintiff's case is that the 'entire back portion' on the

ground floor admeasuring 1200 feet was sold to him among other areas by

an agreement to sell dated 28.09.2004. Area purchased by the defendants

by an agreement to sell dated 14.07.2004 was reflected in 'green' colour

in Annexure 'A'. In the written statement, defendants' plea is that the

portion shown in the colour 'red' in the site plan as Annexure 'A' is a

IA No.18952/2013 in CS (OS) No.452/2006 6 of 10 'public' land and it belongs to NDMC. The plaintiff has been challaned

for encroachment over this land. Shikha Properties Pvt.Ltd. had no right,

title or interest on the said land to sell it to the plaintiff. At no stage in the

written statement, the defendants claimed the said area to have been sold

to them by the vendor or that it was in their possession.

7. Subsequently, Rectification Deed dated 29.08.2006 was

executed between the plaintiff and Shikha Properties Pvt.Ltd. (Original

has been placed on record). Its relevant portion reads:

XXX XXX XXX XXX "AND WHEREAS certain mistakes and inaccuracies have accidently and inadvertently crept in the schedule at page 110 and map of the principal deed at page 114 and 115 which require rectification without changing the schedule property of the principal deed in the manner hereinafter appearing.

           XXX                 XXX            XXX                  XXX
           It further reads:

A) In the schedule of property in the principal deed at page 110, after the word 1200 sq.ft. (approx) and before the word „together‟ the following sentence be incorporated, "lying and situated just behind the structural wall (which does not bear any window/ventilator/exhaust fan opening/door) of the shop room No.17" and upon rectification the schedule be read and be as follows:

--------------------------------------------------"

IA No.18952/2013 in CS (OS) No.452/2006                                        7 of 10
            XXX                 XXX             XXX               XXX
           B)       That the two existing maps of the principal deed

annexed at page 114 and 115 do not cover the specific boundary line and/or identity of the entire schedule property of the principal deed and for which the existing two maps of the principal deed be substituted by the following four maps annexed with this deed which will identify the boundaries of the scheduled properties without changing and or modifying the scheduled property of the principal deed."

XXX XXX XXX XXX

8. Apparently, the Rectification Deed appears to have been

executed for correction of certain mistakes and inaccuracies that emerged

accidently and inadvertently as so mentioned in it. The

validity/authenticity/admissibility of this Rectification Deed will be

decided only after the parties adduce their respective evidence.

Objections taken by the defendants alleging the Rectification Deed as

fraudulent document executed to fill up the lacunae cannot be considered

at this juncture. The parties are still at pre-trial stage and issues have not

yet been settled. The plaintiff was given liberty to move the IA for

amendment by an order dated 21.10.2013 to enable it to incorporate the

factum of execution of the Rectification Deed in the plaint. Onus will be

upon the plaintiff to prove that the open piece of land shown in colour

IA No.18952/2013 in CS (OS) No.452/2006 8 of 10 'red' in the site plan Annexure 'A' was purchased for consideration from

the vendor who had the title, right or interest therein. The proposed

amendment seeks to incorporate the subsequent events i.e. execution of

Rectification Deed. The proposed amendments if allowed would not

change the nature and character of the case as from the very inception, the

plaintiff has claimed the ownership/possession of suit land shown in

colour 'red' in Annexure 'A'. The amendments do not introduce an

entirely new or inconsistent case to take the defendants by surprise. To

overcome the defendants' objection in the written statement, Rectification

Deed has been executed to elaborately describe the suit property sold by

the vendor to the plaintiff. The proposed amendment merely clarifies the

existing pleadings and does not in substance add to or alter it. It is relevant

to note that the vendor for both the plaintiff and the defendant is Shikha

Properties Pvt.Ltd. The proposed amendment is necessary to avoid

multiplicity of litigation and to determine the real controversy effectively

between the parties. The defendants will be at liberty to take all such

objections/pleas in their written statement to the amended plaint and to

agitate during trial. Whether the suit property is a 'public' land owned by

NDMC or L&DO or not will be determined only after the parties are

IA No.18952/2013 in CS (OS) No.452/2006 9 of 10 given fair opportunity to lead their evidence. Since it is a suit for

permanent injunction simplicitor and no declaration as such has been

sought, the proposed amendment cannot be considered to be barred by

limitation. For delay and inconvenience, defendants can be compensated

with costs.

9. In the light of the above discussion, the proposed amendment

are allowed subject to cost of `20,000/- to be paid to the defendant Nos.1

to 3.

10. The IA stands disposed of.

CS(OS) 452/2006

11. Amended plaint has already been filed. Copy of the amended

plaint be made available to the defendants within seven days.

12. Written statement (if any) to the amended plaint will be filed

within four weeks. Replication (if any) shall be filed before the next date

of hearing.

13. Relist on 7th April, 2015.

                                                          (S.P.GARG)
                                                            JUDGE
December 18, 2014/sa


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