Saroj Aggarwal And Anr. vs Shakuntala Aggarwal
2017 Latest Caselaw 1604 Del

$~25
*       IN THE HIGH COURT OF DELHI AT NEW DELHI
+       CS(OS) 617/2011
        SAROJ AGGARWAL AND ANR.                          ..... Plaintiffs
                          Through Mr Amit Sibal, Senior Advocate with
                          Mr Akhil Anand and Mr Siddharth Agrawal,
                          Advocates.
                          versus

        SHAKUNTALA AGGARWAL                      ..... Defendant
                    Through Mr Rajesh Gupta, Mr Harpreet Singh and
                    Mr Pranjal Saran, Advocates.

        CORAM:
        HON'BLE MR. JUSTICE VIBHU BAKHRU
                     ORDER

        %            27.03.2017
VIBHU BAKHRU, J
IA No. 3802/2017

1. This is an application filed on behalf of the defendant, inter alia, praying that the hearing of the application, I.A. No. 20352/2014, be advanced and in the alternative ad interim orders be passed permitting the defendant to occupy the suit property - bearing No. 12, Road No.42, West Punjabi Bagh, New Delhi - as an interim measure pending disposal of I.A No. 20352/2014.

2. The defendant had filed an application (I.A. No. 20352/2014), inter alia, seeking permission in terms of paragraph 36 of the order dated 07.01.2013, to occupy the suit property.

3. Mr Sibal, learned Senior Counsel appearing for the plaintiffs has

also drawn the attention of this court to another application (I.A. No. 24907/2014) filed by the defendant seeking identical reliefs that have been sought in the present application (I.A. No. 3802/2017). He submits that the defendant cannot be permitted to file repeated applications seeking the same prayers. He has also relied upon the decision of this court in Prime Time India Ltd. v Ashok Kapoor and Ors: 2016 Law Suit (Del) 4198 in support of his contention that repeated applications for similar reliefs are impermissible.

4. Mr Rajesh Gupta, the learned counsel appearing for the defendant submits that the present application has been filed since there is a wedding in the family of the defendant and the suit premises would be required by the defendant for the purposes of the marriage of her son, which is scheduled on 29.05.2017. He further submitted that plaintiffs' application under Order XXXIX Rule 1 & 2 of the Code of Civil Procedure, 1908 (hereafter 'CPC') and the defendant's application under Order XXXIX Rule 4 CPC had been considered and disposed of by this court as early as on 07.01.2013; however, the defendant was given the right to apply afresh for occupation of the said property and the defendant's application (I.A. No.20352/2014) for the said purpose has been pending adjudication for considerable period of time.

5. In view of the above submission, the learned counsel for the defendant was called upon to advance contentions in support of the pending application (I.A. No. 20352/2014) and the same was taken up for hearing.

6. He contended that the entire construction of the suit property had been

carried out by the defendant from her own funds and therefore, on equitable considerations, the defendant should be permitted to occupy the said premises, pending adjudication of the present suit. He submitted that although only 26% of the share of the suit property was registered in the name of the defendant, however, by virtue of an oral partition, which took place in the year, 2000, the defendant had become the exclusive owner of the suit property. He submitted that defendant's husband, the husbands of the plaintiffs and one Mr Sanjay Aggarwal, are brothers and in the year, 2000, there was an oral partition and each of the four brothers/their family members was given an exclusive residential property as well as a commercial property. He contended that the fact that the plaintiffs have signed the plans for construction of the property was clinching evidence to establish that the suit property fell to the share of the defendant and that she became the exclusive owner of the property. He submitted that Mr Sanjay Aggarwal, the brother-in-law of the parties in the suit and one of the four brothers, was granted exclusive right in respect of the property bearing No. 54/43 West Punjabi Bagh under the oral partition. Similarly, plaintiff No.1 is residing in the residential unit built at A-2/138, Safdarjung Enclave, New Delhi and plaintiff No.2 is residing at S-399, Greater Kailash-II, New Delhi. However, the defendant continued to reside in the erstwhile joint family accommodation at 277, Satya Niketan, JJ Colony on account of litigation between the parties.

7. I have heard the learned counsel for the parties.

8. Plaintiffs and the defendant are sister-in-laws (wives of real brothers). The plaintiffs filed a suit for permanent injunction, rendition of accounts

and partition of the suit property bearing No. 12, Road No.42, West Punjabi Bagh, New Delhi admeasuring approximately 1088 sq yards.

9. The plaintiffs claim that the suit property was purchased in the year, 1991 by the parties as well as Mr Sanjay Aggarwal, the brother-in-law of the parties and registered sale deeds were executed in their respective names. The plaintiffs claim that in July, 2009, the parties agreed that the old structure constructed on the suit property would be demolished and a residential building would be constructed thereon to accommodate all family members. According to the plaintiffs, the basement would be used for common purposes of all parties and each of the family units would get one floor each. It is asserted that the ground floor and the second floor were to be used by plaintiffs and the first floor was to be used by the defendant and the right to construct the third floor was with Mr Sanjay Aggarwal. Admittedly, an application was submitted to Municipal Corporation of Delhi for obtaining an approval of building plan for construction of the suit property jointly by all owners - the plaintiffs, defendant and Mr Sanjay Aggarwal. It is further averred that in June, 2010, Mr Sanjay Aggarwal decided to give his portion of the suit property to plaintiff No.1 out of natural love and affection and registered a gift deed conveying his portion of the suit property to plaintiff No.1.

10. On the basis of the registered sale deeds/gift deed, the plaintiffs claim to own 76% of the suit property and are admittedly registered owners to the aforesaid extent.

11. On institution of the present action, this court had passed an ad

interim order on 14.03.2011 restraining the defendant from parting with possession of any part of the suit property or creating any third party interest in the same. By an order dated 07.04.2011, the defendant was also restrained from carrying out any further construction till further orders. The defendant had filed an application under Order XXXIX Rule 4 CPC seeking vacation of the said order. After hearing extensive arguments on two occasions, this court passed an order dated 07.01.2013. The relevant extract of the order reads as under:-

"26. I have heard learned counsel for the parties at considerable length and given my thoughtful and anxious consideration to the arguments advanced by them.

xxxx xxxx xxxx xxxx

28. It is a settled legal position that at the interim stage the court has not to weigh the merits of the case set up by both the parties in a fine scale. The court has to see whether the plaintiff has made out a strong prima-facie case for the grant of ad-interim injunction and the court's interference is necessary to protect him from that species of injury which the court calls irreparable, before his legal right can be established on trial. The other important principle required to be considered at the interim stage is as to whether comparative mischief or inconvenience which is likely to be caused to the plaintiff by withholding the injunction will be greater than that which is likely to arise from granting it.

29. The plaintiffs in the present case have claimed 74% share in the suit property and as per them no oral family settlement had taken place in the year 2000 and the parties are individual owners based on sale deeds executed in their favour. The defendant, who otherwise is the owner of 26% share in the suit property as per the Sale Deed executed in her favour, claims that by virtue of the oral partition which had taken place in the

year 2000, she became exclusive owner of the suit property.

30. Documentary material has also been placed on record by both the sides to substantiate their oral pleas.

31. To support their plea that plaintiffs are co-owners of the subject property and there was no oral family settlement amongst the co-owners and the subject property was being constructed for the benefit of all the co-owners with their consent and approval, the plaintiffs have placed reliance mainly on the following:-

a) Copy of various sale deeds executed in favour of co- owners individually for transfer of specific shares in the suit property;

b) Copy of the affidavits dated 27.7.2009 submitted with the MCD by plaintiffs, defendant and Mr. Sanjay Aggarwal regarding engagement of architect, non- claim of equity, co-ownership, entitlement to construct, construction as per sanction plan, deposit of FAR charges etc. with respect to the suit property;

c) Copy of indemnity bond submitted with the MCD by plaintiffs, defendant and Mr. Sanjay Aggarwal;

d) Copy of sanction letter addressed to all co-owners dated 17.9.2009;

e) Copy of the Registered Gift Deed dated 21.6.2010 executed by Mr. Sanjay Aggarwal in favour of Plaintiff no. 1 containing no such statement regarding oral family settlement having taken place between the brothers;

f) Copy of letter dated 22.9.2010 from Defendant to Sub- registrar, Punjabi Bagh, New Delhi stating co- ownership as well as claiming that the suit property was given to her as per the oral family settlement having taken place in the year 2008, as opposed to

what she avers in the written statement that the family settlement took place in 2001;

g) Copy of letter dated 5.8.2010, confirming mutation of property, from MCD addressed to plaintiff no. 1 and also signed by plaintiffs and the defendant;

h) Receipts of the property tax paid by plaintiff no. 1 in respect of the suit property for the years 2004-2011;

i) Copy of Balance sheets of plaintiff no. 2 for the years 2001 to 2006, showing that there was no variation in the amount of assets held by the plaintiff no. 2 under the heading 'House Property' and supporting their argument that plaintiff no. 2 had never relinquished her share in the suit property in lieu of consideration from the defendant;

j) In addition to above,

1) Copy of bill for an independent gas connection of Mr. Kailash Aggarwal, husband of plaintiff no. 2, dated 1.08.1991;

2) Copy of ration card dated 29.9.92 of Mr. Kailash Aggarwal for his nuclear family for House No. 277 Satya Niketan, Delhi;

3) Copy of ration card dated 22.6.1994 of Mr. Vinod Aggarwal, husband of plaintiff no. 1, for his nuclear family for House No. 277, Satya Niketan, Delhi;

4) Copies of separate electricity bills in the name of Mr. Kailash Aggarwal, husband of plaintiff no. 2 and Mr. Ashok Aggarwal, husband of the defendant, from 1993-2001 with respect of their independent electricity connections in House No. 277 Satya Niketan, Delhi

to support their claim that the brothers were living together

but there never existed any HUF ever.

32. On the other hand, defendant with a view to prove the oral family settlement having taken place in the year 2000 and her exclusive ownership of the subject property, has placed reliance mainly on the following

a) Affidavits dated20.4.2011, of defendant's sisters in law namely Ms. Meera Jain and Ms. Manju Aggarwal, and a family friend, Shri Nityanad Bansal and affidavit dated 3.8.2011 of Mrs. Gomti Devi, mother of the brothers, who thereby concur with the fact of mutual family settlement having taken place between the brothers as a result whereof the suit property came under the share and exclusive possession of the defendant;

b) Copy of relevant record slips of the cheque book of the bank account of the defendant having the entry "relinquishment of right in property due to family settlement";

c) Copy of the two cheques dated 15.3.2001 drawn by the defendant in favour of plaintiff no. 2;

d) Copy of the balance sheet of the defendant's account for the years 2000 and 2001 thereby showing a two- fold increase in the amount of ger assets under the heading „House Property‟ because of such entitlement of the share in the suit property due to family settlement having taken place in 2000;

e) Contract dated 12.3.2009 of defendant with the Architect for the construction of the suit property;

f) Certificate dated 28.3.2011 issued by the Architect himself, thereby acknowledging the fact that the residential house at the subject land was being built for the exclusive use of the defendant's family only and that he had never even met the other brothers of the

husband of the defendant;

g) Electricity bills in respect of the suit property which are in the name of the defendant;

h) The fact that the approved building plan consists of only one kitchen in the suit property suitable for the residential use by the defendant's family only; etc.

33. In the light of the above material placed on record, it is difficult to give any final view, at this stage of the case, on the vexed issue i.e. whether an oral family settlement had taken place in the year 2000 or the parties continue to remain individual owners in respect of their shares in the suit property. Such a contentious issue can be decided by the court only after trial.

34. Having said this, it is an admitted case between the parties that defendant alone has been carrying on construction of the suit property and she alone has incurred all the expenses towards the construction. Also, there has not been any sort of interference from the side of the plaintiffs to the sanction plan or the design of the structure and before the filing of the present suit also, there was no interference from the side of the plaintiffs in the raising of the said structure by the defendant.

35. In my considered view, therefore, if defendant is allowed to complete the entire construction of the said property, no prejudice will be caused to the rights of the plaintiffs as restraining the defendant from completing the said construction will certainly lead to more complications be it on financial front or be it because of various contracts having being entered into by the defendant with the contractors/architects etc. Raising of the construction by the defendant also in any case will not defeat the rights of the plaintiffs either in the said building or in their title, if they ultimately succeed in the present case.

36. To balance the equities between the parties, the ex-parte stay order granted by this court vide order dated 14.3.2011, is therefore made absolute till the final disposal of the present

case. The defendant is restrained from creating any third party right or interest in any manner whatsoever till the final disposal of the suit. The defendant shall also not occupy any portion of the suit property without seeking prior permission of this court. So far the order dated 7.4.2011 restraining the defendant from carrying out further construction over the suit property is concerned, it is hereby vacated. Let the defendant continue with the remaining construction of the residential house as per the sanction plan of the building.

37. It is however made clear that raising of the said residential building by the defendant will not create any kind of special equity in favour of the defendant.

38. The defendant is also directed to place on record all the expenses so far incurred by her in raising the construction of the said house by filing an affidavit along with supporting documents within a period of one month from the date of this order. The defendant shall also continue to place on record similar affidavits alongwith supporting documents for showing further expenses that she incurs in raising construction and renovation of the said house in every three months."

12. I have referred to the aforesaid order extensively as it indicates that this court had considered all rival contentions for balancing the equities at the interim stage. Although this court had restrained the defendant from creating any third party rights or interest in the suit property, it had permitted the defendant to continue construction as per sanction plans. As far as occupation of the suit property is concerned, this court had restrained the defendant from occupying any portion of the suit property without permission of this court.

13. The aforesaid order dated 07.01.2013 was carried in appeal (FAO (OS) No. 84/2013) before a Division bench of this court, which was

disposed of by an order dated 15.02.2013, which reads as under:-

"FAO(OS) 84/2013 and CM No. 2349/2013 (stay)

Issue notice. Mr. Rajesh Gupta, Advocate accepts notice on behalf of the respondent.

With the consent of the parties, the matter was heard finally.

During the course of hearing, the Court had suggested that the directions given in the impugned order could be maintained subject to certain modifications. This was acceptable to both parties. The impugned order is, therefore, left undisturbed except to the extent of the following directions:-

(1) It is open to the respondent/defendant to complete the finishing of the first floor of the suit property in all respects;

(2) The first respondent/defendant is also permitted to complete the outer plaster of the structure built on the suit property, and also carry out the following:-

(i) finishing of the complete passage leading to the staircase to permit access to the first floor;

(ii) lay the electrical and airconditioning conduit and duct in respect of the suit property;

(iii) lay the drainage and down pipes in respect of the suit property;

(iv) sewerage water connections in respect of the entire suit property;

(v) place the water tank on the roof in respect of the first floor;

(vi) It is open to the respondent/defendant to install a lift

in accordance with the plan sanctioned by the municipal authorities.

Apart from the above, it is clarified that the respondent/defendant shall not carry out any further construction.

The appeal is disposed off in the above terms.

Dasti."

14. It is seen that the defendant was given permission to complete the finishing of the first floor and to carry out certain essential works. However, the defendant was restrained from carrying out any other construction except as indicated in the order dated 15.02.2013 referred above. It was the plaintiffs' case that the defendant was to occupy the first floor of the suit property and therefore, insofar as the first floor is concerned, there could be no objection to the plaintiffs continuing with the construction. Further certain other construction was also permitted. It is obvious that such construction was permitted as the same would enable occupation/enjoyment of the first floor of the suit property.

15. After the first floor of the suit property was completed, the defendant once more applied to this court seeking permission to occupy the first floor (by I.A. No. 24907/2014). This was considered by this court on 19.03.2015 and after considering the previous order and considering the rationale and import of the order dated 15.02.2013, passed by the Division bench, this court permitted the defendant to use the first floor without any obstruction from the plaintiffs. However, it was clarified that such use or occupation would not create any special equity in favour of the defendant nor would it

prejudice or abridge the rights of the plaintiffs in the suit property in any manner whatsoever. A Local Commissioner was also appointed to seal the basement, ground floor and the second floor of the suit property. However, the passage to the terrace where the water tanks are kept was not sealed.

16. It is thus seen that the issue as to the occupation of the property has been considered and after examining the rival contentions, this court has passed orders in regard to the suit property at the interim stage pending adjudication of the suit.

17. Mr Gupta was pointedly asked as to what are the changed circumstances, which would warrant modifying earlier orders and permit the defendant to occupy the entire suit property. In response, he submitted that first of all, the defendant had spent her funds and constructed the entire property which was ready for occupation and having spent the necessary funds, the defendant ought to be permitted to occupy the said premises. Secondly, he submitted that by order dated 07.01.2013, the defendant was expressly given the right to apply to the court for occupation of the suit property.

18. In my view, both the aforesaid contentions are unmerited. By an order dated 07.01.2013, this court had restrained the defendant from occupying the premises without permission of the court. This cannot be construed as a positive order in favour of the defendant permitting the defendant to apply for occupation, without any change in the circumstances. More importantly, this court had permitted the defendant to complete the construction; but that order was modified by the Division

Bench restricting the defendant from constructing only the first floor. The defendant was not granted any permission to construct or complete the finishing of the balance floors and by the order dated 19.03.2015, this court had also directed that the basement, ground and second floors be sealed. The contention that defendant be permitted to occupy the suit property since she has incurred the necessary expenditure in constructing the property, is also unmerited for the reason that the defendant was permitted to carry on construction, albeit, on a condition that the defendant would not claim any special equities. Thus, it is not open for the defendant to now seek permission to occupy the suit property on the ground that she has constructed the property. There has been no change in the circumstances which would now warrant grant of relief sought by the defendant. The question whether there was an oral partition by virtue of which the defendant (or her husband) would acquire exclusive right and title to the suit property, has to be established in trial and this court had considered this aspect while passing the order dated 07.01.2013.

19. In view of the above, I.A. No. 20352/2014 is dismissed. Since the said application has been considered on merits, the application (I.A. No. 3802/2017) is infructuous.

20. Both the applications (I.A. No. 20352/2014 and I.A. No. 3802/2017) are disposed of.

VIBHU BAKHRU, J MARCH 27, 2017 pkv