Meera Jain & Another vs Sundari Devi Garg & Others
2014 Latest Caselaw 939 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                             Order Reserved on: 09th January, 2014
                              Pronounced on:            20th February, 2014

+                               CS(OS) 1953/2013


MEERA JAIN &        ANOTHER                                  ..... PLAINTIFFS

                                Through:        Mr. Anil K. Kher, Senior
                                                Advocate      with     Mr.
                                                Siddhartha Jain, Advocate

                                versus

SUNDARI DEVI GARG & O THERS                                ..... DEFENDANTS

                                Through:        Mr.    Varun        Nischal,
                                                Advocate for D - 1.

                                                Mr.    Harish    Malhotra,
                                                Senior   Advocate    with
                                                Mr.Vikas Arora and Mr.
                                                Dheeraj        Manchanda,
                                                Advocates for D - 2.

                                                Mr.     Mukesh      Gupta,
                                                Advocate,         Standing
                                                counsel for D-3 /SDMC

                                                Ms. Purnima Maheshwari,
                                                Adv for D-4.

        CORAM:

        HON'BLE MR. JUSTICE SANJEEV SACHDEVA
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I.A. 16249/2013 & I.A. 19009/2013 in CS(OS) 1953/2013               Page 1 of 25
 SANJEEV SACHDEVA, J.

IA No. 16249/2013 (under Order 39 Rule 1 & 2 CPC) and IA 19009/2013 (under Order 39 Rule 4 CPC)

1. The Plaintiffs have filed the present suit for permanent

and mandatory injunction. The property in dispute is

property No. A - 1/66, Safdarjung Enclave, New Delhi.

The said property was owned by Late Mr. Banwari Lal

Garg. After the death of Mr. Banwari Lal Garg, the

property devolved upon the legal heirs, i.e., the parties

to the suit. The Defendant No. 1 is the wife of Late Mr.

Banwari Lal Garg and the Plaintiffs and Defendant No.

2 are real sisters and the daughters of Defendant No.

1 and Late Mr. Banwari Lal Garg. Mr. Banwari Lal

Garg expired on 19th February, 2008.

2. As per the Plaintiff, after the death of Late Mr. Banwari

Lal Garg with a view to arrive at an amicable

settlement, the parties to the suit entered into a family

settlement which was recorded in memorandum of ===================================================================

family settlement deed dated 12 th March, 2008. In

terms of memorandum of family settlement, Defendant

No. 1 (the mother) had the right to reside on the

ground floor of the suit property and enjoy the rental

income from the second floor portion during her

lifetime. Plaintiff No. 2 was to be the absolute and

exclusive owner of Ground floor portion of the suit

property and Plaintiff No. 1 was to be the absolute and

exclusive owner of the second floor of the suit property

and the Defendant No. 2 was to be the absolute owner

of the first floor. The drive way, roof/terrace, servant

quarter and any other common area/space is under

the joint ownership of all the original heirs of late Mr.

Banwari Lal Garg. As per the Plaintiffs, the

memorandum of family settlement has been accepted

and acted upon by the parties.

3. Plaintiff No. 2 is stated to be residing in United States

of America and Plaintiff No. 1 is residing in another ===================================================================

property in New Delhi. As per the Plaintiffs, the

Plaintiffs had given a General Power of Attorney in

favour of Defendant No. 2 to carry out various act and

deeds as detailed in the said power of attorney. The

Defendant No. 2 by misusing the power of attorney

started raising construction over the second floor by

constructing an entirely new third floor. As per the

Plaintiffs, Defendant No. 2 has got the building plan

sanctioned from Defendant No. 3, i.e., South Delhi

Municipal Corporation of Delhi for construction of third

floor over the terrace of the second floor and was

proposing to sell and/or transfer the third floor portion

to be constructed by Defendant No. 2 to third parties.

4. The Plaintiffs issued a legal notice dated 22.07.2013

informing Defendant No. 2 about the revocation of the

power of attorney and to cease and desist from raising

any unauthorised construction on the terrace of the

second floor. As per the Plaintiffs the said terrace of ===================================================================

the second floor on which the construction was being

raised is a joint property and the Defendants could not

have raised construction over the same without

obtaining 'No objection' from the Plaintiffs. In these

circumstances, the Plaintiffs have filed the present suit

seeking permanent injunction against the Defendant

from dealing with the property in a manner violating

the provisions of memorandum of family settlement

and for a mandatory injunction for demolition of the

construct raised and for the cancellation of the

sanction and approval by Defendant No. 3 for

construction of the third floor portion.

5. Though the Defendants have filed separate Written

Statements but the stand of both the Defendants No 1

and 2 is identical.

6. As per the Defendants No. 1 and 2, the First Floor in

terms of the Family Settlement belongs exclusively to

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the Defendant No. 2 and the drive way, roof/terrace,

servant quarters and other common areas/spaces of

the suit property was under the joint ownership of only

Defendant No. 1 and 2 to the exclusion of the

Plaintiffs.

7. The said Defendants place reliance on the term of the

family settlement deed that records that the said

portion shall be under the joint ownership of all the

original heirs of Late Mr. Banwari Lal Garg, who are

residing in the said property. As per the Defendants,

since on the date of the family settlement only

Defendant Nos. 1 and 2 were residing in the suit

property, the said portions including drive way,

roof/terrace came to the share of Defendants only.

The said Defendants claim that Plaintiffs have no right

in any manner upon the drive way, roof/terrace since

they were not residing in the suit property at the time

of the family settlement.

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8. The Defendant No. 1 is stated to have relinquished her

entire share in the suit property with regard to the drive

way on the ground floor, roof/terrace above the second

floor, servant quarters and other common areas/space

by a registered relinquishment deed dated 12.01.2012

in favour of Defendant No. 2.

9. As per the Defendants, the Plaintiffs had executed an

irrevocable registered general power of attorney dated

13.03.2008 giving absolute power to Defendant No. 2

to manage and control the entire property including the

right to sell the said property and to represent the

Plaintiffs and Defendant No. 1 before the statutory

authorities and also with the right to make

additions/alterations, to get the building plan

sanctioned from MCD or concerned authority.

10. The Defendant No. 2 is stated to have been managing

the affairs of the property and letting out the same,

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recovering rent and giving the said rent to Defendant

No. 1. The Defendant No. 2 is the absolute owner of

the first floor of the suit property and the

aforementioned portions including roof/terrace above

the second floor. As per the said Defendants, the

Defendant No. 2 at her own cost and expense has

commenced construction/additions/alteration in the

entire suit property after obtaining the requisite

permission from Defendant No. 3. After the requisite

plan for the same was duly sanctioned/approved, the

construction was commenced in April, 2013. The

permissions were obtained on behalf of the Plaintiffs

as well as Defendant No. 1 on the basis of the

registered general power of attorney dated 13.03.2008

which is claimed to be irrevocable.

11. As per the said Defendants, the Plaintiffs were aware

about the permission received from MCD and

commencement of construction work from the very ===================================================================

beginning and the Plaintiffs have waited for the

Defendant No. 2 to complete the entire building

structure by investing huge amount of money before

approaching this court.

12. It is claimed by the Defendant No. 2 that since the

sanction of the building plan was applied for in the join t

names of the co-owners on the basis of the power of

attorney, admittedly, executed by the Plaintiffs, there

was no requirement for obtaining 'No Objection

Certificate'. The Defendant No. 2 claims to have

invested over Rs. 50 lacs in the construction of not

only the third floor but also extension/alterations in the

ground floor, first floor and second floor portions. As

per the Defendants, the Plaintiffs did not raise any

objection when Defendant No. 2 was making

addition/alteration by spending her own money in the

portions of the Plaintiffs on the ground floor and the

second floor. It is only when the entire structure of the ===================================================================

third floor is completed with the complete roof being

laid and the walls having been plastered that the

Plaintiffs have filed the present suit to harass the

Defendants.

13. Learned senior counsel for the Plaintiffs has submitted

that the Defendants have no right to raise any

construction over the roof of the second floor portion

as the terrace floor was common area to all and in

case the Defendants were permitted to complete the

construction, equities would be created in favour of the

Defendants and there would be ouster of the rights of

the Plaintiffs from the said portion.

14. Learned senior counsel further contended that to avoid

any equities being created, the Plaintiffs were

agreeable to the completion of the construction subject

to the fact that the property was rented out to a third

party and 2/3 rd of the rent were to be deposited in

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Court. As per the learned senior counsel for the

Plaintiff the fair rental would be approximately

Rs.1,00,000/- per month. He further contended that

the Plaintiffs were agreeable to sharing the cost of the

construction provided the Defendants gave a cap on

the cost of construction.

15. Learned senior counsel for the Defendants, on the

contra, submitted that the Plaintiffs had no right title or

interest on the terrace of the third floor by virtue of the

memorandum of family settlement executed by the

parties. He further contended that Defendant No. 2

was raising lawful construction in accordance with the

sanctioned/approved additions/alterations plan. He

further contended that when the plan was sanctioned,

admittedly, there was a power of attorney executed by

the Plaintiffs authorising Defendant No. 2 to obtain

necessary sanctions and raise construction. Learned

senior counsel further submitted that the fact that the ===================================================================

Plaintiffs kept quiet when the construction was being

raised and additions/alteration were being made in

their portions establishes the fact that the Plaintiffs

were very much aware of the sanction of the third floor

and the construction being raised thereon. Learned

senior counsel further contends that the Plaintiffs

cannot revoke an irrevocable power of attorney.

16. Learned senior counsel further contends that in view of

the fact that Plaintiffs are not residing in the suit

property and the Defendant No. 2 on account of the

needs of her growing family was facing space crunch

and as such had constructed the said terrace floor.

Learned senior counsel further contented that no

equities were being claimed by the Defendants by

raising the said construction. He further submits that

Defendant No. 2 is not claiming any amount nor would

claim any amount for raising the said construction from

the Plaintiff in case the Plaintiffs were to succeed in ===================================================================

the suit and in case, the Plaintiffs were to succeed in

their claim, the Defendant No. 2 would hand over the

peaceful vacant possession of the share of the Plaintiff

without claiming any money for the construction

raised.

17. Learned senior counsel contended that in case, the

super structure that had been raised on the third floor

was not permitted to be completed, great loss and

damage would be caused to the entire property

inasmuch as there would be water seepage and

damage to the property. He further submitted that the

Defendant No. 2 would be ready to deposit

proportionate the fair rental of the second floor in

Court with prejudice to the rights and contentions of

the Defendants. As per him the fair rental would be

about Rs. 50,000/- per month for the entire floor.

18. The Defendant No. 3 MCD has filed the status report

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that the building plan for additions/alteration was

sanctioned under the simplified procedure on an

application made by Defendant No. 2 accompanied

with the power of attorney of Plaintiffs and Defendant

No. 1. As per the status report, the application was

submitted on 01.04.2013. However on the complaint of

the Plaintiff a show cause notice has been issued in

the name of all the applicants and the matter is under

consideration.

19. For grant of ad-interim injunction the plaintiff has to

satisfy three requirements. Plaintiff has to show a

strong prima-facie case, the balance of convenience

has to tilt in favour of the plaintiff and in favour of grant

of ad-interim injunction and the plaintiff has to show

that in case the ad-interim injunction is not granted the

plaintiff shall suffer an irreparable loss and injury.

Unless all the three requirements are satisfied the

plaintiff is not entitled to the relief of injunction. ===================================================================

20. In my opinion at least two out of the three

requirements are not satisfied by the plaintiffs. The

balance of convenience tilts substantially in favour of

the Defendants.

21. The construction that is being raised by the Defendant

is lawful construction. The Defendants are raising

construction after sanction of the additional/alteration

plan from the Defendant No. 3. Admittedly the

Plaintiffs had executed a registered general power of

attorney dated 13.03.2008 giving amongst other the

power to represent the Plaintiffs and Defendant No. 1

before the statutory authorities and also with the right

to make additions/alterations, to get the building plan

sanctioned from MCD or concerned authority. The

Defendant No. 2 at her own cost and expense has

commenced construction/additions/alteration in the

entire suit property after obtaining the requisite

permission from Defendant No. 3. The permissions ===================================================================

were obtained on behalf of the Plaintiffs as well as

Defendant No. 1 on the basis of the registered general

power of attorney dated 13.03.2008. Construction

based on the sanctioned plan has also been made in

the floors falling to the share of the plaintiffs. When the

plan was got sanctioned and the construction

commenced there was admittedly a registered power

authorising her to apply for and get a plan sanctioned

and raise construction. The plea of the Plaintiffs that

the power of attorney has subsequently been revoked

would not invalidate an action taken on the basis of the

power of attorney at a time when it was admittedly in

force.

22. The plaintiffs have not raised any real objection to the

raising of the construction except that the same would

create equities in favour of the defendants and there

would be ouster of the rights of the plaintiffs. The ===================================================================

Plaintiffs have themselves submitted that they were

agreeable to the completion of the construction subject

to the renting out of the property to a third party and

2/3rd of the rent being deposited in Court. The

plaintiffs are agreeable to sharing the cost of the

construction provided the Defendants gave a cap on

the cost of construction.

23. On the other hand the defendants have contended that

the plaintiffs are not residing in the property in suit and

the defendant No. 2 is raising construction on account

of the needs of her growing family and she was facing

space crunch. The Defendants are not claiming any

equities by raising the said construction. The

Defendants have submitted that they are not claiming

any amount nor would claim any amount for raising the

said construction from the Plaintiffs in case the

Plaintiffs were to succeed in the suit and in case, the

Plaintiffs were to succeed in their claim, the Defendant ===================================================================

No. 2 would hand over the peaceful vacant possession

of the share of the Plaintiff without claiming any money

for the construction raised. The Defendants are

agreeable to deposit of a fair rental in court.

24. By order dated 06.11.2013 A local commissioner was

appointed to inspect the suit property to find out the

status of the construction of the said third floor portion.

The local commissioner has submitted a report dated

27.11.2013 and has annexed the photographs of the

construction raised. The local Commissioner vide his

report in respect of the status of the property has

reported as under:

a. That while entering I noticed that the cement packets were lying at the ground floor near entry gate and construction/amendment was there on the ground floor just adjacent to starting of stairs for lift provision.

b. That the top of the second floor is totally covered with lenter/concrete plastered ceiling. ===================================================================

c. That the construction materials like phatte, balli, chhali, water pipe, window and Bucket etc. was there on the said floor.

d. That the bundle of electricity pipes was lying in front portion.

e. That the bricks of the wall of right side covered front portion had been cut for affixing the electricity pipes.

f. That there is an old structure/old toilet-

washroom near the entry gate on top of the second floor.

g. That new bricks had been filled in old wall in grill portion facing stairs near old structure.

h. That the wall has been cut for the purpose of affixing the door facing stairs and some new bricks had been affixed.

i. That walls in various portion of the top of the second floor had been cut out for the purpose of affixing electricity or water pipes etc. out of

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which in some areas electricity pipes had been affixed while others remaining un-affixed.

j. That the daily used household goods belong to labours was also lying on the said floor and there was sign of preparing foods seems to be prepared by the labours.

k. That there were plasters in patches in different portions of said floor on different walls out of which some were looking new as the same were wet when touched by hand.

l. That the portion of the last room wall of left side portion of the property was looking fresh as when I touched the same by hand then the pieces of plaster fell down.

m. That only the front portion i.e. front open area/looking front drawing room is partly whitewashed except old structure.

n. That the railing portion/backward portion was also plastered and the same was also looking wet.

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o. That there was no wet mixture of building material available at the spot at the time of inspection and no labour persons was present on the top of the second floor.

p. That there is no affixation of doors in any room except an old door at the entry gate of top of the second floor as well as on old structure.

q. That there was temporary electricity connection on the said floor.

25. The report of the Commissioner and the photographs

filed by the commissioner suggests that substantial

structural civil work has been carried out. The

complete roof slab has being laid and the ceiling and

walls have been plastered. Even electrical conduit

pipes were being laid.

26. The stage of construction is such that the property

cannot be left as it is. In case the property is left in the

incomplete state, the entire property would deteriorate.

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There would be water seepage and the existing

structure be damaged. In case the defendant is

directed to remove the construction raised there would

be complete wastage of the amount spent on the

construction by the Defendant No. 2. This would not

be a desirable consequence in view of the fact that the

amount has been spent on the construction after

sanction of the plan on the basis of the power of

attorney of the Plaintiffs and also the fact that the

amount has been spent on making

additions/alterations to the floors admittedly falling to

the share of the Plaintiffs. Further the Plaintiffs have

not objected to the raising of the construction but only

to it creating equities in favour of the Defendants.

27. In view of the above, I am of the opinion that the

balance of convenience tilts substantially in favour of

the Defendants. In case the construction is now

directed to be removed, it would cause substantial ===================================================================

damage and loss to the property. I am of the view that

the solution to the problem can be achieved by

permitting the Defendant No. 2 to complete the

construction and occupy the third floor without any

rights or equities being claimed and subject to terms.

28. In view of the above, it is ordered as under:

(i) the Defendant No. 2 is permitted to

complete the construction of the third floor

in accordance with the approved plan; and

(ii) the Defendant No. 2 is permitted to occupy

the said floor after completion of

construction;

(iii) the Defendant No. 2 shall not create any

third party right in respect of the said third

floor, he shall not sell, mortgage, rent out,

part with the possession of the whole or any

part of the third floor; and

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(iv) from the date of completion of construction

the Defendant No. 2 shall deposit a sum of

Rs. 50,000/- per month with this court. The

deposit shall be made every quarter in the

name of the Registrar General. The amount

deposited shall be kept in an interest

bearing fixed deposit. The amount

deposited shall be subject to the final

outcome of the suit.

(v) In case the plaintiffs succeed in the suit,

apart from being entitled to the rental, the

plaintiffs shall be entitled to the

proportionate share in the said third floor

subject to payment of fair cost of

construction.

(vi) The Defendant No. 2 shall not claim any

rights or equities on the basis of the above

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directions and the possession of the

Defendant No. 2 shall be akin to that of a

court receiver.

29. The interim order dated 08.10.2013 is modified in the

above terms. Nothing stated herein shall amount an

expression of opinion on the merits of either party.

30. With the above directions, the applications are

disposed off. No costs.

SANJEEV SACHDEVA, J

FEBRUARY 20, 2014 sv

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