Sanjay Arora & Anr. vs Surender Singh & Ors.
2018 Latest Caselaw 6632 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                  RFA No. 295/2018 & CM No. 12390/2018

%                                              1st November, 2018

SANJAY ARORA & ANR.
                                                         ..... Appellants
                          Through:       Ms. Ekta Sikri, Mr. Ajay Pal
                                         Singh and Mr. Abhinav Garg,
                                         Advocates (8860843870)
                          versus

SURENDER SINGH & ORS.
                                                        ..... Respondents

                          Through:       Mr. G.B. Singh, Advocate
                                         (9911119367)
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1. This Regular First Appeal under Section 96 of the Code

of Civil Procedure, 1908 (CPC) is filed by the plaintiffs in the suit

impugning the Judgment of the trial court dated 15.12.2017 by which

the trial court has dismissed the suit for possession and mesne profits

filed by the appellants/plaintiffs with respect to the two flats on the

east side and west side on the 4th floor of the property/building No. 15-

A, Jangpura Lane, Bhogal, New Delhi. The suit was dismissed despite

the fact that the appellants/plaintiffs led evidence and proved their

case and the respondents/defendants had led no evidence as their right

to lead evidence was closed.

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

pleaded that in terms of the usual documents being the Agreement to

Sell, Power of Attorney, Will etc., dated 20.11.2000, they purchased

the rights in the two flats on the 4th floor on the east side and west

side of the suit building from the builder/collaborator Smt. Krishna

Saini. The builder, Smt. Krishna Saini, had entered into a

Collaboration Agreement dated 30.12.1999 with the

respondents/defendants, and as per this collaboration agreement, the

rights to the basement, the second floor with the terrace and the rights

over the third floor fell to the share of the builder, Smt. Krishna Saini,

and the rights to the ground floor, first floor and third floor without

roof rights fell to the share of the respondent nos. 1 and 2/defendant

nos.1 and 2/owners. Simultaneous to the entering into of the

collaboration agreement, the respondent nos. 1 and 2/defendant nos.1

and 2/owners executed a General Power of Attorney in favour of the

builder, Smt. Krishna Saini. The appellants/plaintiffs pleaded that on

the execution of the documents dated 20.11.2000 they received the

possession of the 4th floor, and were in possession thereof till

18.06.2009, and when it was found that the respondents/defendants

had taken illegal possession of the subject property at 4th floor and had

also stolen all the articles lying therein including sofa-set, kitchen

appliances, gas, stove, cylinder, almirah, cooler, fan etc of the value of

Rs. 1,00,000/-. The appellants/plaintiffs consequently registered an

FIR No. 286/2009 with Police Station Hazrat Nizamuddin against the

respondents/defendants on 10.07.2009. In the criminal proceedings,

the respondents/defendants had applied for anticipatory bail as also

regular bail and wherein they stated that they had rented out the suit

premises. Accordingly, the subject suit for possession and mesne

profits was filed.

3. The respondents/defendants filed their joint written

statement and pleaded that respondent no. 1/defendant no.1 and his

brother Sh. Harbhajan Singh are the owners of the suit property with

respect to which the other brothers had executed in their favour a

registered Relinquishment Deed on 29.10.1998. It was admitted that

on 30.12.1999 the respondent no. 1/defendant no.1 and his brother Sh.

Harbhajan Singh had entered into a collaboration agreement with the

builder Smt. Krishna Saini. It was also admitted that the builder Smt.

Krishna Saini was entitled to basement, second floor and roof rights

over the third floor, whereas respondent no. 1/defendant no.1 and his

brother, Sh. Harbhajan Singh, were entitled to ground floor, first floor

and third floor without roof rights to the property. It was further

pleaded by the respondents/defendants that the builder left the

construction incomplete and it was the respondent no. 1/defendant

no.1 and his brother who made remaining construction above the third

floor and fourth floor from their own funds and since then they are in

possession of these floors. The suit was hence prayed to be dismissed.

4. The trial court framed issues and appellants/plaintiffs led

evidence, and these aspects are recorded in paras 5 to 5.2 of the

impugned judgment, which read as under:-

"5. On the pleadings of the parties, following issues are framed on 14.03.2013:-

1. Whether plaintiff is entitled for a decree of possession of the suit premises as mentioned in the plaint? OPP

2. Whether plaintiff is entitled for a decree of recovery of mesne profit alongwith interest as claimed in the plaint? OPP

3. Whether the suit is not maintainable in the present form? OPD

4. Whether the plaint is liable to be rejected under Order VII Rule 11 of the Code of Civil Procedure, 1908? OPD

5. Whether plaintiff has not approached this court with clean hands and concealed the material fact, if so to what effect? OPD

6. Whether the suit is bad for non-joinder and mis-joinder of parties, if so to what effect? OPD

7. Relief."

5.1 To prove their case, the plaintiffs have examined six witnesses, Sh. Sanjay Arora, plaintiff no.1 stepped into witness box as PW1 and filed his evidence by way of affidavit as Ex.PW1/1 and deposed in consonance with the pleadings made by him in plaint. He also relied upon documents Ex.PW1/A to Ex.PW1/O. Sh. Manoj Kumar, plaintiff no.2 examined as PW2 who tendered his affidavit of evidence Ex.PW2/1 and relied upon title documents Ex.PW2/A(colly). Sh. Tajendra, UDC from Sub Registrar-V, Mehrauli was examined as PW3/2. Sh. Anil Kumar Singh from office of Sub-Registrar VII was examined as PW4 who produced record pertaining to GPA Ex.PW4/1. Sh. Ravinder Jain, Architect has proved site plan Ex.PW1/C. Sh. Anil Saini, brother-in-law of builder Krishna Saini (now deceased) deposed as PW6.

5.2 Despite ample opportunities, defendants have failed to adduce evidence and vide order dated 27.03.2017, opportunity to lead defendant's evidence was closed."

5. The trial court by the impugned judgment has dismissed

the suit by observing that the 4th floor is an illegal floor as per the

Municipal Bye-laws, and therefore appellants/plaintiffs cannot claim

any right in the same.

6. In my opinion, the trial court has grossly erred in

dismissing the suit because if there was any illegal construction then

whether the same has to be demolished or it has to continue to exist

will be upon the Municipal Corporation of Delhi and the relevant laws

as applicable, but that would not mean that the legal ownership of an

illegal property would not vest with a person who has ownership of

the same. The appellants/plaintiffs have proved in the trial court the

entire set of documents executed in their favour as Ex.PW1/A-

Ex.PW1/O and Ex.PW2/A(Colly). Both the appellants/plaintiffs

stepped into the witness box and proved their cases. It is seen that out

of the documents which have been proved by the appellants/plaintiffs

one document which is proved is the Bail Application dated

25.8.2000/ Ex.PW1/J, and the respondent no. 1/defendant no. 1 in his

bail application has clearly stated that it was the builder, Smt. Krishna

Saini, who had constructed up to the 5th floor illegally and that 4th

floor, being the suit floor/property, was with the respondent no.

1/defendant no. 1. These paras, therefore, show that the case set up by

the respondents/defendants in the written statement that the building

was only constructed by Smt. Krishna Saini only up till the second

floor, is a false case and that in fact there did exist the 4th floor and

which was sold in terms of the usual documentation dated 20.11.2000

by the builder, Smt. Krishna Saini, to the appellants/plaintiffs. The

relevant paras of the Bail Application dated 25.08.2000/Ex.PW1/J are

paras 3-5 and these paras read as under:-

"3. That the true facts of the case are that the applicant/accused and his brother had entered into a collaboration agreement with the builder. The said builder built up the house upto 5th floor; but the inferior quality materials were used in the said building. Thereafter, it was agreed between the applicant/accused, his brother and the said builder that the possession of the 4th floor will remain with the applicant/accused; but the said builder has illegally entered into alleged GPA with the complainant.

4. That the applicant/accused let out the said 4th Floor on rent and presently Ms. Bhagwanti W/o Deepak is residing on the said floor since April, 2008. The copy of tenant verification letter is enclosed.

5. That nothing has been recovered from the possession of the applicant/accused or at his instance as at the time of surrender by the applicant/accused before this Hon'ble Court, the police did not ask the police remand to the applicant/accused for his interrogation."

(Underlining Added)

7. As already stated above, the respondents/defendants have

led no evidence. Once the appellants/plaintiffs proved their case, and

the respondents/defendants had led no evidence and hence failed to

prove their case, the appellants/plaintiffs are bound to succeed and the

trial court has therefore seriously erred in dismissing the subject suit

for possession and mesne profits.

8. Counsel for the appellants/plaintiffs at this stage states

that the concern of the appellants/plaintiffs is really to get back

possession of their valuable property and the appellants/plaintiffs do

not press for the relief of mesne profits.

9. In view of the aforesaid discussion, this appeal is

allowed. The impugned judgment of the trial court dated 15.12.2017

is set aside. The suit of the appellants/plaintiffs is decreed by passing

a decree for possession in favor of the appellants/plaintiffs and against

the respondents/defendants with respect to the suit property being two

flats on the 4th floor, east side and west side, property/building no. 15-

A, Jangpura Lane, Bhogal, New Delhi.

10. The appeal is accordingly allowed and disposed of in

terms of the aforesaid observations. Parties are left to bear their own

costs.

NOVEMBER 01, 2018/ib                          VALMIKI J. MEHTA, J