Jagat Narain Saraf & Anr. vs Anjani Kumar Sharma Through ...
2017 Latest Caselaw 2662 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RSA No. 194/2004

%                                                        25th May, 2017

JAGAT NARAIN SARAF & ANR.                               ..... Appellants
                 Through:                Mr. Manish Bishnoi, Adv.
                          versus

ANJANI KUMAR SHARMA THROUGH LR'S AND ANR.
                                        ..... Respondents

Through: Mr. M.M.Kalra and Ms. Sonali Kumar, Advocates for R-1.

Ms. Shipra Garg, Adv. for Mr. Gaurang Kanth, Adv. for R-2.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?        YES


VALMIKI J. MEHTA, J (ORAL)

1. This Regular Second Appeal under Section 100 of the

Code of Civil Procedure, 1908 (CPC) is filed by the

appellants/plaintiffs impugning the concurrent judgments of the courts

below; of the Trial Court dated 22.3.2003 and the First Appellate Court

dated 22.4.2004; by which the suit filed by the appellants/plaintiffs for

injunction has been dismissed. The subject suit for injunction was filed

by the appellants/plaintiffs that the respondent no.1/defendant no.1

should not raise walls of his property towards the eastern side which

would have the effect of closing the windows etc of the property of the

appellants/plaintiffs.

2. The facts of the case are that the appellants/plaintiffs

purchased the property bearing no.2797, Gali Matawali, Cheerakhana,

Chandni Chowk, Delhi. Appellants/plaintiffs when they were owners

of the property no. 2797, the adjoining property bearing no. 2793, Gali

Matawali, Cheerakhana, Chandni Chowk, Delhi was purchased by the

respondent no.1/defendant no.1 as per a registered sale deed dated

14.8.1984. The predecessor-in-interest of the appellants/plaintiffs as

regards the property no.2797 and the property no.2793 of the

respondent no.1/defendant no.1 was the same i.e there was one owner

of both the properties nos. 2797 and 2793 and that the original owner

had sold one property bearing no. 2797 to the appellants/plaintiffs and

property no. 2793 to the respondent no.1/defendant no.1. I may note

that the respondent no.1/defendant no.1 expired during the pendency of

the suit and was thereafter represented by his legal heirs.

3. The limited issue which was called for decision by the

courts below, and is also called for by this Court, is whether Clause 12

which existed in the sale deed dated 14.8.1984 executed in favour of

the respondent no.1/defendant no.1 by the owner restricting the

respondent no.1/defendant no.1 from raising the height of the walls or

blocking or closing of the widows and ventilators in the adjoining

property of the appellants/plaintiffs, is a valid clause in view of Section

11 of the Transfer of Property Act, 1882. Respondent no.1/defendant

no.1 pleaded that though there did exist a Clause 12 in the sale deed

dated 14.8.1984 executed in his favour with respect to the property no.

2793, however any such direction in the sale deed as per Clause 12

with respect to restriction on enjoyment of the property purchased by

the respondent no.1/defendant no.1 fell foul of Section 11 of the

Transfer of Property Act.

4. Section 11 of the Transfer of Property Act reads as under:-

"11. Restriction repugnant to interest created.--Where, on a transfer of property, an interest therein is created absolutely in favour of any person, but the terms of the transfer direct that such interest shall be applied or enjoyed by him in a particular manner, he shall be entitled to receive and dispose of such interest as if there were no such direction.

Where any such direction has been made in respect of one piece of immoveable property for the purpose of securing the beneficial enjoyment of another piece of such property, nothing in this section shall be deemed to affect any right which the transferor may have to enforce such direction or any remedy which he may have in respect of a breach thereof."

5. A reference to the first part of Section 11 of the Transfer

of Property Act shows that wherever a property is sold by the

transferor to the transferee and whereby the transferor by a clause in

the sale deed imposes terms and conditions upon the transferee for user

of the property which is purchased by the transferee, and whereby

there is caused restriction on user, such a clause is liable to be ignored

by the transferee inasmuch such a clause restricting user and

enjoyment of a property purchased has to be taken as illegal and void.

Therefore, in the opinion of this Court the clear language of first part

of Section 11 of the Transfer of Property Act would make the subject

Clause 12 as illegal and void and thus liable to be ignored by the

respondent no.1/defendant no.1. Resultantly, once Clause 12 of the

sale deed executed in favor of the respondent no.1/defendant no.1 is

illegal, hence there cannot be any restriction imposed for user and

enjoyment of the purchased property upon the respondent

no.1/defendant no.1 or his successor-in-interest, and therefore, no

injunction can be granted in favour of the appellants/plaintiffs,

restraining the respondent no.1/defendant no.1 from making any

construction towards the eastern side of the respondent

no.1's/defendant no.1's property no. 2793, including by raising of

walls etc etc.

6. Learned counsel for the appellants/plaintiffs argued that

the second part of Section 11 of the Transfer of Property Act shows

that any restriction which is imposed as per Clause 12 of the sale deed

in the present case of the respondent no.1/defendant no.1 is a valid

clause and it is argued that when in the second part of Section 11 of the

Transfer of Property Act reference is made to enjoyment of one piece

of immovable property so as to secure beneficial enjoyment of another

piece of the property, then by virtue of the second part of Section 11 of

the Transfer of Property Act, the relevant Clause 12 in the sale deed of

the respondent no.1/defendant no.1 is valid and binds the respondent

no.1/defendant no.1 whereby the respondent no.1/defendant no.1

should be restrained from making any construction towards the eastern

side of the property which has the effect of blocking or closing of the

widows and ventilators in the property of the appellants/plaintiffs.

7. I cannot agree with the arguments urged on behalf of the

appellants/plaintiffs because the second part of Section 11 of the

Transfer of Property Act deals with and its subject matter is one single

immovable property and different parts of that one single immovable

property. Once there is one single immovable property, then different

parts of one such immovable property if sold, in such a case the sale of

different parts of one immovable property can contain a clause so as to

put restriction on one owner of the part of one whole immovable

property, and which is for the beneficial enjoyment of the single

property by the owner of the other parts of the single/joint immovable

property. Second part of Section 11 of the Transfer of Property Act

does not entitle any valid restraint on being put on separate immovable

properties, such as upon the adjoining separate immovable property

being property no. 2793 in the present case. I may note that it is not

the case of the appellants/plaintiffs that the properties bearing nos.

2797 and 2793 were/are actually one immovable property as a whole

and that it is only that they are separately sold in terms of separate sale

deeds containing separate municipal numbers and although the

immovable property remained as one whole single immovable

property. Therefore, once the property of the appellants/plaintiffs

bearing no. 2797 is a totally separate immovable property, then the

property no. 2793 of the respondent no.1/defendant no.1, merely

because the property no. 2793 of the respondent no.1/defendant no.1 is

adjoining to the property no. 2797 of the appellants/plaintiffs, would

not mean that the second part of Section 11 of the Transfer of Property

Act will come into play.

8. Learned counsel for the appellants/plaintiffs sought to

place reliance upon certain judgments of the courts of UK, however in

none of these judgments it is found that the facts of any of such case

deals with two separate independent immovable properties.

9. In view of the above, the courts below have rightly held

that Clause 12 of the sale deed dated 14.8.1984 executed in favour of

the respondent no.1/defendant no.1 was illegal/invalid/void and that

the respondent no.1/defendant no.1 was rightly entitled to ignore the

same and raise construction on his separate immovable property

inasmuch as by virtue of first part of Section 11 of the Transfer of

Property Act it is clear that there cannot be any restriction on an

absolute owner from enjoyment and user of his separate independent

immovable property.

10. In view of the above, no substantial question of law arises.

Dismissed.

MAY 25, 2017/ib                              VALMIKI J. MEHTA, J