Delhi High Court
Ved Prakash Shakkarwal vs Deepak Sharma & Anr on 24 January, 2020
$~51
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision : 24.01.2020
+ RSA 8/2020 & CM Nos.2895-97/2020
VED PRAKASH SHAKKARWAL ..... Appellant
Through: Mr. Sidhu & Mr. Hitender,
Advocates
versus
DEEPAK SHARMA & ANR ..... Respondents
Through: Mr. Arun Birbal & Mr. Ajay
Birbal, Advocates for DDA
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
NAVIN CHAWLA, J. (Oral)
1. This appeal has been filed challenging the judgement and order
dated 25.03.2019 passed by the learned Additional District Judge-10
(Central), Tis Hazari Courts, Delhi (hereinafter referred to as the
'Appellate Court') in RCA no.10/2015 (61431/2016), titled Ved
Prakash Shakkarwal v. Deepak Sharma & Anr., dismissing the
appeal filed by the appellant herein, challenging the judgement and
order dated 16.02.2015 passed by the learned Civil Judge-06, Central,
Tis Hazari Courts, Delhi (hereinafter referred to as the 'Trial Court').
2. The predecessors in interest of the appellant (hereinafter
referred to as the 'Plaintiffs) had filed a civil suit seeking recovery of
the possession and damages with respect to a portion of the shop in
property bearing no.4364, Gali No.58, Basti Rai-gar Pura, Rai-gar
RSA No.8/2020 Page 1
Pura, Karol Bagh, New Delhi-110005 against the respondents herein.
The said suit was dismissed by the learned Trial Court by its
judgement and order dated 06.02.2015 and such dismissal has been
affirmed by the learned Appellate Court by the Impugned judgement
and order.
3. It was the case of the plaintiffs that they had filed an Eviction
Petition being E-18/1999, titled Puran Chand & Anr. v. Jai Lal &
Anr., inter-alia against the respondents herein on the ground of
subletting of the abovementioned shop. An order of eviction dated
08.03.2002 was passed in the said petition. In the course of the
execution of the said order, a compromise was entered into between
the plaintiffs and the respondents herein, whereunder a portion of the
shop ad-measuring 15'x10' out of total area of 15'x12'6" was agreed
to be sold by the plaintiffs to the respondents. A registered Sale Deed
dated 24.07.2002 was executed between the parties for this purpose.
For purposes of division of the shop, a wall of 4" thickness was raised.
The Execution Petition was accordingly dismissed as satisfied on
26.07.2002.
4. It was further alleged that the respondents, sometime in August,
2002, demolished the partition wall and occupied the remaining
portion of the shop admeasuring 15'x2'6", that is the area for which
possession was sought in the plaint.
5. Both, the learned Trial Court and also the learned Appellate
Court, have disbelieved this case of the plaintiffs and as noted above,
have dismissed the suit and the appeal.
RSA No.8/2020 Page 2
6. The learned counsel for the appellant has urged that the Sale
Deed clearly gives the dimension of the shop as 10'x15' (150 sq.ft). It
further states that on the west side of the shop is the remaining part
portion of the aforesaid property, meaning thereby, it clearly reflects
that a portion of the shop is on the west side of the shop which was
agreed to be sold. She submits that both, the learned Trial Court and
also the learned Appellate Court, have therefore mis-interpreted the
Sale Deed and the Impugned Judgment is liable to be set aside.
7. The Clause of the Sale Deed relied upon by the learned counsel
for the appellant is reproduced hereinbelow:
"AND WHEREAS the Vendors for their bonafide needs
and requirements have agreed to sell the Ground floor
Shop Size measuring 10 X 15 (150 sq.ft.) two side open,
(site plan attached) out of total land area measuring 100
sq.yds., of Property bearing Nos.4363, 4364, 4365 and
4366, in Khasra No.1467/1468, Block-F, Gali No.58,
situated at Basti Rai-gar, Rai-gar Pura, Karol Bagh, New
Delhi-110005. Which is bounded as under:
East: - Road (Shri Vishnu Mandir Marg)
West: - Remaining Part Portion of aforesaid
Property.
North: - Street No.58.
South: - Remaining Part Portion of aforesaid
Property."
8. I am unable to agree with the submission made by the learned
counsel for the appellant. The learned Trial Court while rejecting the
similar plea, has observed as under:
"17. From the reading of the above noted clauses of the
sale deed it comes out that the plaintiffs, being owners,
sold ground floor shop measuring 10' X 15' out of the
RSA No.8/2020 Page 3
total land measuring 100 sq. yards of the built up
property bearing nos. 4363, 4364,4365 and 4366 in the
said khasra no. 1467/1468. What transpires from the
reading of these clauses of the sale deed is that the
vendors i.e. plaintiffs sold a shop out of the total land held
under the property nos. above mentioned. It is of much
importance to note here that the sale deed uses the word
"shop" and does not use the phrase "portion of the
shop" which phrase has been used in the plaint. Even in
the other clauses of this sale deed also the word 'shop'
has been used to describe what has been sold. Nowhere
has it been stipulated in the entire sale deed that there
was this 'shop' initially measuring 15' X 12'-6" which has
been partitioned by a wall reducing it to 15' X 10' and
separate numbers have been allotted to both portions and
the major portion measuring 15' X 10' is being sold to the
defendants while the minor portion of 15' X 2'-6" is being
retained or taken back by the plaintiffs. Thus, there is
apparent conflict between the pleadings of the plaint and
the stipulations of the said sale deed in terms that the
'shop' being sold vide the said sale deed reflects that a
shop is sold and not 'portion of shop', while the plaint
avers that 'portion of shop' was sold. Also the plaint
specifically states sale of portion of shop no. 4364 while
the sale deed stipulates no particular shop number which
is being sold. Had it been 'portion of shop' sold vide the
sale deed, the same would have mentioned the total area
of the particular shop out of which the 'portion' is being
sold. But instead, the sale deed mentions the total land
area to be 100 sq. yds of property bearing numbers 4363,
4364, 4365 and 4366 as a whole in said Khasra no.
1467/1468 out of which ground floor shop measuring
10'X 15' (150 sq. ft.) was sold.
RSA No.8/2020 Page 4
18. Even reading of the description at page 5 of this sale
deed regarding adjoining properties is also of no help to
the plaintiffs as it mentions 'Remaining Part Portion of
aforesaid Property' on West & Southern side. Here the
word 'aforesaid property' denotes the entire property
bearing nos. 4363, 4364, 4365 and 4366 and cannot be
assumed to be only property no. 4364 or any portion of it.
Rather this sale deed gives a picture that the vendors/
plaintiffs treat these numbers as one property and
therefore the word ' properties' is not used in this sale
deed. In this 'property', admittedly there are shops and as
per the plaintiffs a shop numbered as 4364 was sold to
defendants after partitioning the same & therefore
plaintiffs plead that a portion measuring 12' X 10' of shop
no. 4364 was sold. Thus, the import of the phrase '
Remaining Part Portion of aforesaid Property' can never
be taken to be some remaining portion measuring 12' X
2'-6" of shop no. 4364. It is further noted here with this
discussion that in the site plan Ex. DW-1/4 of this sale
deed also the entire property is shown as one block
without any demarcation of shops and no separate shop
numbers are mentioned not even on the shop measuring
10' X 15' shown to be under sale. It is also pertinent to
observe in this site plan that in the area not sold it is
mentioned "REMAINING PART OF PROPERTY".
9. The learned Appellate Court has also relied upon the cross-
examination of the PW-1, that is the plaintiff no.1, to disbelieve the
story of any partition wall being constructed and only a portion of the
shop being sold to the respondents.
10. Similarly, the learned Appellate Court has also discussed this
issue at length and has observed that there was not even an iota of
RSA No.8/2020 Page 5
evidence on record to suggest or show that at any point of time a
partition wall was raised or demolished.
11. I do not find any ground to interfere with the above findings of
the learned Trial Court and the learned Appellate Court.
12. Consequently, the present appeal and all the pending
applications are dismissed. There shall be no order as to costs.
NAVIN CHAWLA, J
JANUARY 24, 2020/Arya
RSA No.8/2020 Page 6
