Mokul International Ltd. & Anr. vs Veena Paintal
2014 Latest Caselaw 1143 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           RSA No.92/2012
%                                                          March 4, 2014,

MOKUL INTERNATIONAL LTD. & ANR.       ...... Appellant
                Through: Mr. Arun Kumar Varma, Mr. Vikrant
                          Vasisth and Mr. Joydeep
                          Bhattacharya, Advs.

                            VERSUS

VEENA PAINTAL                                           ...... Respondent
                            Through:     Mr. Naveen Kumar Chaudhary,
                                         Mr. Shiv B.Chotry and Mr. Rajesh
                                         Kumar, Advs.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1.    This Regular Second Appeal is filed against the concurrent judgments

of the courts below; of the trial court dated 22.2.2010 and the first appellate

court dated 31.01.2012; by which the suit filed by the respondent/ plaintiff

for permanent and mandatory injunction and mesne profits was decreed by

granting the following reliefs:-


              "13. Relief
              In view of the findings given in the above issues,
              the plaintiff is entitled to the following reliefs:
RSA 92/2012                                                                 Page 1 of 14
               1.     Plaintiff is entitled to the decree of
              mandatory injuction against the defendant in
              respect of unbuilt area of the suit property, as
              delineated and shaded in the red in the site plan
              and exhibited as Ex.PW1/4. The defendants are
              directed to remove their goods and material from
              the aforesaid unbuilt area of the suit property
              forthwith.
              2.    A decree of permanent injunction is hereby
              passed in favour of the plaintiff, thereby
              permanently restraining the defendants from using
              the unbuilt area of the suit property and for
              permanently restraining the defendants for using
              the built area of the suit property for any
              commercial purpose or for any purpose other than
              residential.
              3.    The plaintiff is entitled for recovery of
              mesne profits @ Rs.15,000/- per month since
              10.11.01 till the vacation of the suit property.
              Further, plaintiff is also entitled to future interest
              @ 9% per annum on the principal amount that is
              calculated in respect of mesne profit till the
              passing of decree.
                    Decree sheet be prepared accordingly after
              court fees in respect of the mense profit is
              deposited. Plaintiff is also entitled to cost. File be
              consigned to record room after due compliance."
2.    The issue in the present case is with respect to an open area of about

1140 sq. ft. adjoining the constructed area of about 1110 sq. ft. situated on

the barsati floor/ third floor of the residential unit at 71, Paschimi Marg,

Vasant Vihar, New Delhi-110057. There is no dispute that so far as the

constructed area of the third floor admeasuring 1110 square ft. is concerned
RSA 92/2012                                                              Page 2 of 14
 and that the appellant/ defendant is the owner of the same, but, the dispute

is with respect to the adjoining open space of approximately 1140 sq. ft.

Appellant no.2 claims that this open space unbuilt area of 1140 sq. ft. forms

part of the property which she had purchased from one Ms.Savita Narayan

under an Agreement to Sell etc dated 28.01.1994. Ms. Savita Narayan had

purchased     the   same   from    the   original   owner   late   Lieutenant

General Rajender Singh Paintal, and whose widow Veena Paintal was the

plaintiff in the suit. Smt. Veena Paintal, expired during the pendency of the

suit and is now represented by her legal heirs.


3.    The issue in this case is as to whether Lieutenant General Rajender

Singh Paintal sold and transferred the open space of about 1140 square feet

to Ms. Savita Narayan under the Agreement to Sell dated 25.03.1991,

inasmuch as, only if Ms.Savita Narayan, the predecessor-in-interest of the

appellant no.2 was given ownership rights of this open space of 1140 sq. ft.

under the Agreement to Sell dated 25.3.1991, then the appellant no.2 could

have purchased the same from Savita Narayan.


4.     Both the courts below have referred to the Agreement to Sell dated

25.03.1991 executed between the predecessor-in-interest of the appellant

no.2/Ms. Savita Narayan and late Lieutenant General Rajender Singh

RSA 92/2012                                                              Page 3 of 14
 Paintal, and have held that what is transferred under the Agreement dated

25.03.1991 is only the constructed area of 1110 sq. ft. of the third floor and

not the additional adjoining open space of 1140 sq. ft. This Agreement to

Sell has been proved and Exhibited as Ex.PW-1/3 in the trial court.


5.    I have gone through the Agreement to Sell dated 25.03.1991 (Ex.PW-

1/3), and found that the transfer of interest by the same was only in the

constructed area/third floor/barsati floor comprising of 1110 sq. ft. and the

agreement is not for the additional adjoining        area of 1140 sq. ft. The

relevant portion of this Agreement showing the transfer of interest which is

the subject matter of the Agreement reads as under:-


              "And whereas the First Party has agreed to Sell
              and the Second Party has agreed to purchase all of
              the constructed built up area measuring about
              1110 sq. ft. on the barsati floor i.e. the third floor
              consisting of one residential unit, comprising of 3
              bedrooms with attached batrooms, a drawing-cum-
              dining room, kitchen and lobby along with the
              proportionate rights in the plot of land situated at
              71, Paschimi Marg, Vasant Vihar New Delhi
              (hereinafter referred to as Pent House) for a total
              consideration of Rs.8,00.00 (Rupees eight lakhs
              only) payable in the manner as hereinafter
              appearing.
              ..............

.............

2. That the sale as hereunder includes the sale/transfer by the First Party of all rights, title and interest, privileges, appurtenance, easements and ways as also right of existing support from the second floor with respect to PENT HOUSE to the Second Party, the right to use all common utilities such as lift, bore water pull system, municipal water storage and pumping system etc. The Second Party will bear pro-rata expenses of utilities and common staff such as lift operator, water pumps man etc."

6. A reference to the aforesaid paras make it more than abundantly clear

that what is sold is only the constructed built up area of 1110 sq. ft. on the

barsati floor. Therefore, the contention of the appellants that appellant no.2

herein and her predecessor-in-interest Savita Narayan also had purchased

ownership rights in 1140 sq. ft. of open space adjoining the third

floor/barsati floor is really misconceived and so rightly held against them by

the Courts below.

7. Learned counsel for the appellants sought to argue before this Court

that rights such as appurtenance/easements etc which are mentioned in para

2 of the Agreement Ex.PW-1/3 dated 25.03.1991 will include the adjoining

open space of 1140 sq. ft., but, I cannot accept this Agreement inasmuch as

neither the Agreement dated 25.03.1991 says so nor can I extinguish

valuable rights in an immovable property of a value of at least Rs.10 crores

of the respondents/plaintiffs by a strained reading of the agreement. I am

stating the value of Rs.10 crores as an approximation and it is possible that

the value may be a few crores more or few crores less but the issue is not

what is the exact value but the issue is surely of a property of many crores of

rupees.

8. If there was any doubt that the open space of 1140 sq. ft. was not

transferred to Savita Narayan and thereafter to the appellant no.2, the same

becomes clear from the MOU (Ex.PW-1/5) executed between late Lt. Gen.

Rajender Paintal and Ms. Savita Narayan which was proved before the trial

court by the plaintiff. By this MOU, late Lt. General Rajender Singh

Paintal gave rights to use the open space of 1140 sq. ft. to Ms. Savita

Narayan only for a period of seven years. Therefore, once the entitlement to

use the open space is given only for seven years, surely there was no

permanent transfer of ownership rights of this open space to Savita Narayan,

the predecessor-in-interest of the appellant no.2 (and therefore to the

appellant no.2 from Savita Narayan) for her to transfer the same to the

appellant no.2 by means of the Agreement to Sell etc dated 28.1.1994. I

may note that the appellants have not proved before the trial court the

documentation dated 28.01.1994 by which the appellant no.2 purchased

rights of Ms. Savita Narayan, but in any case, appellant no.2 can only

purchase rights which Ms. Savita Narayan had no more. Since Ms. Savita

Narayan had ownership rights only in the constructed area and not beyond

seven years in the disputed open space, the appellant no.2 could not become

owner of the open space of 1140 sq.ft.

9. Learned counsel for the appellants argued that courts below had

wrongly given benefit of the MOU Ex.PW1/5 dated 25.03.1991 to the

respondent/plaintiff inasmuch as the document was not proved and the

appellants had only admitted to the signatures of Ms. Savita Narayan on this

document but the signatures of Lieutenant General Rajender Singh Paintal

have not been proved on this document by the plaintiff. It is also argued that

the admission on the part of the appellants was only of the signatures of Ms.

Savita Narayan on the MOU, and the document is not proved because Ms.

Savita Narayan was not brought into the witness box by the plaintiff.

10. I cannot agree with the arguments urged on behalf of the appellants

because the MOU was exhibited as Ex.PW1/5 without any objection by the

appellants at the time of exhibition of the MOU. Once no objection is

raised at the time of exhibition of the documents, the document is proved as

held by the Supreme Court in the case of R.V.E Venkatachala Gounder

Vs. Arulmigu Viswesaraswami & V.P.Temple & Anr. 2003(8) SCC 752.

Also, the MOU is of the same date by which Ms. Savita Narayan had

purchased the constructed third floor barsati portion from Lieutenant

General Rajender Singh Paintal. If appellants were of the view that the said

MOU was not executed between Savita Narayan and late Lieutenant General

Rajender Singh Paintal, it was upon the appellants and not the

respondent/plaintiff to summon the said Savita Narayan, and which the

appellants did not do. In any case, as already held in detail above, that the

Agreement to Sell Ex.PW1/3 dated 25.3.1991 did not give any rights of the

open space of 1140 sq. ft. to Ms. Savita Narayan, and who therefore could

not transfer the rights of the open space to the appellant no.2 herein.

11. Learned counsel for the appellants finally argued that the suit as

framed for mandatory injunction was not maintainable and that the

respondent/plaintiff had to sue for declaration of title with possession, and

for this purpose, reliance is placed upon the judgment of the Supreme Court

in the case of Anathula Sudhakar vs. P.Buchi Reddy (Dead) by LRs. and

Ors., 2008 (4) SCC 594. Reliance is placed upon following paragraph of the

aforesaid judgment, which reads as under:-

"17. To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under :

(a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.

(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.

(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specific, or implied as noticed in Annaimuthu Thevar (supra)]. Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.

(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and

straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.

12. Appellants placed reliance upon the judgment of Supreme Court in

Anathula Sudhakar(supra) to argue that a suit for injunction was not

maintainable in the present case as the plaintiff was not in possession of the

open space and also that issues of title cannot be gone into in a suit for

injunction.

13(i) In my opinion the paragraph of the judgment of the Supreme Court in

the case of Anathula Sudhakar(supra) relied upon by the appellants in fact

goes against the appellants because paragraph holds that it is perfectly

possible in a suit for injunction, once there are sufficient pleadings, to go

into the questions of title. So far as the aspect that the suit in question

should have been a suit claiming possession and not mandatory injunction,

when I asked the counsel for the appellants/ defendants to show me if any

such objection was raised in the written statement, there was no option to the

counsel but to concede that no such objection was raised that the suit filed

could not have a suit for mandatory injunction but had to be a suit for

possession. Also, because of no such pleadings having been made by the

appellants, no such issue has also been framed by the trial court.

(ii) In any case, the objection raised with respect to the suit being only a

suit for mandatory injunction and not for possession has been rightly dealt

with by the first appellate court and held against the appellants by referring

to the judgment of the Supreme Court in the case of Sant Lal Jain Vs.

Avtar Singh, AIR 1985 Supreme Court 855. The first appellate court has

dealt with this aspect in paras 18 and 19 of the judgment and which read as

under:-

"18. Appellants have contended that the suit for injuction alone was not maintainable in view of law laid down in the matter of Anathula Sudhakar vs. P.Buchi Reddy (supra). In that matter, it was held that where a cloud is raised over the plaintiff's t9itle and he does not have possession, a suit for declaration and possession, with or without a consequential injunction is the remedy. Appellants have themselves admitted that Lt. Gen. Rajinder Singh Paintal acquired the plot of land bearing No.71, Paschimi Marg, Vasant Vihar, New Delhi, as sub-lessee on lease hold basis from DDA. The built up area of third floor has been agreed to be sold to the appellants herein. No dispute or

cloud is raised with respect to title of the suit property as agreement to sell in itself is not a document of title. Further as observed earlier, the agreement to sell was not executed with respect to unbuilt area which is the subject matter of the present suit. The owner of unbuilt area indisputably in view of the observations made above is the respondent and hence there is no dispute of title at all with respect to unbuilt area. It was held in Anathula Sudhakar vs. P. Buchi Reddy (supra), that where the plaintiff has clear title supported by documents, if a tress passer without any claim or title or an interloper without any apparent title, merely denies the plaintiff's title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient. The respondent herein is the sole legal heir of Lt. General Rajinder Singh Paintal and in his favour perpetual lease deed in respect of property No.B-71, Paschimi Marg, Vasant Vihar, New Delhi, has been executed by President of India and accordingly, plaintiff has clear title supported by documents. Thus there was no need for plaintiff t o claim the relief of declaration.

In Sant Lal Jain vs. Avtar Singh, AIR 1985 SC 855, it was held that "After the termination of licence, the licencee is under clear obligation to surrender his possession to the owner and if he fails to do so, we do not see any reason why the licencee cannot be compelled to discharge this obligation by way of mandatory injuction under Section 35 of Specific Relief Act.

19. As the licence in favour of appellants was terminated vide notice dated 10.11.2001, learned trial court has rightly passed the decree of mandatory injunction against the appellants in

respect of unbuilt area of the barsati/third floor and appellants were rightly directed to remove their goods and material from the aforesaid unbuilt area. Similarly, I find no infirmity in the decree of permanent injunction having been passed in afavour of the respondent thereby permanently restraining the appellants from using the unbuilt area of the suit property and permanently restraining the appellants from using the unbuilt area of the suit property for any commercial purpose or for any purpose other than residential."

(iii) Actually, the issue of the suit ought to have been a suit for possession

is really a case of much ado about nothing because what is to be seen is the

substance of claim and the relief, and by the relief of mandatory injunction

actually benefit of user is claimed because the space in question is an open

space and not constructed space. Even if the suit had to be suit for

possession, the issue will only be of court fees and the issue of court fees is

really between the State and the private party. This issue would have arisen

only if there were sufficient pleadings to buttress issue but as already stated,

there are no pleadings with respect to non-maintainability of the suit on the

ground that the suit filed should have been the suit for possession and if such

issue had been raised the court could have always called upon the

respondent/plaintiff to pay additional court fees.

14. In view of the above, no substantial question of law arises for this

appeal to be maintainable under Section 100 of CPC, and the same is

therefore dismissed leaving the parties to bear their own costs.

Any amount which has been deposited in this Court by the appellants

towards mesne profits as decreed by the trial court, can be withdrawn by the

respondents along with accrued interest thereon, in appropriate satisfaction

of the money decree against the appellants.

 MARCH 4, 2014                                VALMIKI J. MEHTA, J.
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