Delhi High Court
Vinay Kumar Sharda vs Sh. Praveen Kumar Kohli & Ors on 17 March, 2015
Author: Manmohan
28
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 695/2015 & I.As. 5393-5394/2015
VINAY KUMAR SHARDA ..... Plaintiff
Through: Mr. Vinay Sabharwal, Advocate.
versus
SH. PRAVEEN KUMAR KOHLI & ORS ..... Defendants
Through: None.
% Date of Decision : 17th March, 2015
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
JUDGMENT
MANMOHAN, J: (Oral)
1. Present suit has been filed for declaration, permanent injunction and
mandatory injunction.
2. Learned counsel for plaintiff states that plaintiff was the sole and
absolute owner of the first and second floor along with terrace situated at
7A/68, WEA, Karol Bagh, New Delhi (hereinafter referred to as 'suit
property').
3. Learned counsel for plaintiff further states that plaintiff vide General
Power of Attorney dated 27th August, 2001 authorised Mr. K.C. Sharma to
only sell the first and second floor of the aforesaid suit property. He states
that Mr. K.C. Sharma was given no authority to sell the terrace rights above
the second floor of the suit property.
4. Learned counsel for plaintiff also states that Mr. K.C. Sharma
executed a Sale Deed on 14th September, 2005 on behalf of the plaintiff in
favour of defendants No.1 and 2 in respect of only the first and the second
floor of the suit property. He draws this Court's attention to para 15 of the
aforesaid Sale Deed which reads as under:-
"15. THAT the Vendee/Second Party will not be entitled to
make any ownership rights in respect to common areas,
staircase, terrace/roof of said property."
5. Learned counsel for plaintiff contends that since the terrace rights
were not sold and there was a direct approach to the terrace via a staircase,
the plaintiff was surprised when he was recently prevented from visiting the
terrace. Learned counsel for plaintiff states that despite legal notice dated
27th December, 2014, the access to the staircase has not been provided.
6. Having heard learned counsel for plaintiff and having perused the
paper book, this Court finds that in the Sale Deed dated 14 th September,
2005, it has been specifically stipulated as under:-
" xxx xxx xxx
AND WHEREAS Shri Vinay Kumar son of Late Shri Des
Raj resident of 7-A/68, W.E.A., Karol Bagh, New Delhi-110005
executed a GENERAL POWER OF ATTORNEY Regd. as
document No.31790 in Addl. Book No.IV, Volume No.7927, on
pages 30 to 32 dated 27.08.2001 in the office of Sub-Registrar,
New Delhi in favour of SHRI K.C. SHARMA (Vendor of this
Sale Deed) in respect of ENTIRE FIRST & SECOND FLOOR
with terrace roof right meas. about 173.3 sq. yds. in Property
bearing No.7-A/68, W.E.A., Karol Bagh, New Delhi-110005,
(HEREINAFTER CALLED THE FLOORS).
xxx xxx xxx
WHEREAS the Vendor/First Party out of his bonafide needs
and requirements, has agreed to sell the ENTIRE FIRST &
SECOND FLOOR with terrace roof right meas. about 173.3 sq.
yds. in Property bearing No.7-A/68, W.E.A., Karol Bagh, New
Delhi-110005, (HEREINAFTER CALLED THE FLOORS)
along with all rights, title, interest, easements, appurtenances
thereto, benefits, shares and all claims of the said Floors which
is under Sale for a total Sum of Rs.15,00,000/- (Rupees Fifteen
Lacs Only) to the Vendee/Second Party....."
(emphasis supplied)
Even Para 14 of the Sale Deed reads as under:-
"14. THAT the co-owners of the building will have the right to
use common facility, such as open terrace, stair case
upto open roof and open terrace etc."
7. From the aforesaid recitals and covenants, this Court is of the view
that plaintiff by way of the sale deed had sold not only the first and the
second floor, but also the terrace roof rights.
8. Para 15 of the Sale Deed relied upon by the learned counsel for
plaintiff only provides for common ownership rights with respect to
staircase, terrace and roof in the sense that the common facilities would have
to be shared with the co-owner namely, ground floor owner.
9. Further, the plaintiff's averment with regard to recent denial of access
to the terrace are vague inasmuch as no date of denial of access has been
mentioned.
10. As far as the issue of unauthorised construction is concerned, this
Court finds that no document has been placed on record to show that the
plaintiff had raised any grievance before the statutory authority before filing
the suit.
11. Consequently, this Court is not inclined to entertain the said
grievance. However, liberty is given to the plaintiff to approach the MCD
for filing a representation.
12. This Court is confident that as and when MCD is approached, it
would take action in accordance with law. In the event, the MCD does not
act in accordance with law, it shall be open to the plaintiff to file appropriate
proceedings in accordance with law on the said score.
13. Keeping in view the aforesaid, this Court is of the view that plaintiff
has sold not only the entire first and second floor, but also the terrace. If the
plaintiff had any grievance against the Sale Deed or against his Power of
Attorney holder acting in excess of the authority vested in him, the plaintiff
should have filed the suit within three years of execution of the Sale Deed
and not nine and a half years later as has been done in the present instance.
14. Consequently, present suit and applications are dismissed as being
bereft of merits, barred by limitation as well as without any cause of action,
but without any order as to costs.
MANMOHAN, J
MARCH 17, 2015
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