Delhi High Court
Golden Assets Holdings Pvt Ltd & Ors. vs Sanjay Gupta & Anr. on 8 January, 2024
Author: Dharmesh Sharma
Bench: Dharmesh Sharma
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on : 22 December 2023
Judgment pronounced on : 08 January 2024
+ FAO 300/2023 & CM APPL. 59331/2023
GOLDEN ASSETS HOLDINGS PVT LTD & ORS.
..... Appellants
Through: Mr. Rajshekhar Rao, Sr.
Advocate with Mr. S.P. Mehta,
Advocate.
versus
SANJAY GUPTA & ANR. ..... Respondents
Through: Mr. Rajat Aneja, Ms. Sonali
Chopra, Mr. Sahil Gupta & Ms.
Alka Dwivedi, Advocates.
+ FAO 301/2023 & CM APPL. 59333/2023
GOLDEN ASSETS HOLDINGS PVT. LTD. ..... Appellant
Through: Mr. Rajshekhar Rao, Sr.
Advocate with Mr. S.P. Mehta,
Advocate.
versus
SANJAY GUPTA & ANR. ..... Respondents
Through: Mr. Rajat Aneja, Ms. Sonali
Chopra, Mr. Sahil Gupta & Ms.
Alka Dwivedi, Advocates.
CORAM:
HON'BLE MR. JUSTICE DHARMESH SHARMA
J UDGMEN T
FACTUAL BACKGROUND
1. This common judgment shall decided the above-noted two
appeals filed by the appellants under Order XLIII Rule 1 of the Code
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of Civil Procedure, 19081 assailing the common order dated
10.11.2023 passed by Mr. Satyabrata Panda, learned Additional
District Judge-03, Patiala House Courts, New Delhi 2, whereby the
applications moved by the appellants i.e. the defendants before the
learned ADJ (hereinafter referred as the appellants/defendants) under
Order VII Rule 11 of the CPC as also application under Order XXXIX
Rules 1 and 2 of the CPC were dismissed, while at the same time the
applications moved by the respondents i.e., the plaintiffs before the
learned ADJ (hereinafter referred as the respondents/plaintiffs) were
allowed in Civil Suit bearing No.409/2023 titled as „Sanjay Gupta v.
Golden Assets Holding (P) Ltd. It is clarified that in FAO 301/2023
the appellants/defendants have challenged the dismissal of their
application under Order XXXIX Rule 1 & 2 C.P.C while in FAO
300/2023, the appellants/defendants have challenged the grant of
interim injunction on the application under Order XXXIX Rule 1 & 2
C.P.C in favour of the respondents/ plaintiffs as against them.
FACTUAL BACKGROUND:
2. Briefly stated, the respondents/plaintiffs filed a suit for
"Mandatory Injunction & Damages" against the appellants/defendants
claiming themselves to be the owners of property on the first floor
bearing No. E-40 & E-41, Connaught Place, New Delhi (hereinafter
referred as the „suit property‟) and claiming possession of the
roof/open terrace vertically over the suit property and sought the
following reliefs:
1
CPC
2
ADJ
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"a) Pass a Decree of Permanent Injunction restraining the
Defendants their agents, employees, representatives, assigns,
executives, legal heirs, nominees etc. from in any manner
obstructing, preventing or interfering with the Plaintiffs' peaceful
use and possession of the open roof/terrace over and above the
properties bearing No. E-40 & E-41, Connaught Place, New Delhi -
110001;
b) Pass an order/ decree of damages in favour of the Plaintiffs and
against that Defendants, thereby granting a sum of Rs.10,00,000/-
[Indian Rupees Ten Lakhs] for causing criminal intimidation,
mental stress, trauma, anguish and frustration to the Plaintiffs;"
3. Shorn of unnecessary details, suffice to state that the
respondents/plaintiffs also filed an application under Order XXXIX
Rules 1 and 2 of the CPC claiming interim relief against the
appellants/defendants from obstructing their ingress and egress to the
roof/open terrace of the suit property and inter alia from preventing,
obstructing and/or interfering with the repair and renovation work
sought to be carried out by the respondents/plaintiffs in the suit
property. The suit was filed on 19.10.2023, which was listed before
the learned ADJ on 20.10.2023 and on issuance of summons/notice,
the appellants/defendants put their appearance on 21.10.2023 and
thereafter moved an application under Order VII Rule 11 of the CPC
pleading that the respondents/plaintiffs have not been in possession of
the roof/open terrace portion of the suit property even much prior to
the month of September, 2001 which was in occupation of certain
outsiders/tenants/trespassers and since 20.09.2001 the appellants/
defendants have been in exclusive use, occupation and possession of
the same. It is pertinent to mention here that the appellants/defendants
are admittedly owners of the adjoining premises bearing No. E-42 and
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E-43, Connaught Place, New Delhi and it was claimed that they have
had uninterrupted access to the roof/open terrace of the suit property
through the adjoining property since September, 2001 to the total
exclusion of the respondents/plaintiffs, although the latter are the
owner and occupier of the suit property No. E-40 & E-41.
ANALYSIS AND DECISION:
4. I have given my anxious consideration to the submissions
advanced by Mr. Rajshekhar Rao, learned Senior Advocate appearing
for the appellants/defendants and Mr Raj Aneja, learned counsel
appearing for the respondents/plaintiffs. I have meticulously gone
through the record.
5. At the outset, the appellants/defendants‟ case appears to be most
bizarre and ridiculous, and even unconscionable. Learned Senior
Counsel for the appellants/defendants has vociferously urged that the
respondents/plaintiffs have made wrong averments in the plaint that
they have been in exclusive possession of the roof/open terrace over
the suit property since the access to aforesaid roof/open terrace has
always been through the adjoining property belonging to the
appellants/defendants and in this regard he relies upon the report dated
21.10.2023 of the Local Commissioner, who was appointed on the
direction of the learned ADJ, after a visit at the spot, the Local
Commissioner inter alia made the following observations in
paragraph (7) of the report dated 25.10.2023:
"That after concluding the above said visit/execution of
commission, the undersigned found out that there is no access,
ingress and/or egress to the roof over the property bearing no. E-
40 and E-41 through the property bearing no. E-40 and E-41,
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Connaught Place. The report Prepared by the undersigned while
inspection is annexed herewith as Annexure-E"
6. It was urged that the learned ADJ has completely overlooked
the aforesaid aspect and has passed the impugned order in a
mechanical manner without considering their counter claim. First
things first, it would be relevant to reproduce the operative portion of
the impugned order dated 10.11.2023 passed by the learned ADJ,
which reads as under:-
"18. The entire case of the defendants is essentially that the
defendant no.1 was in possession of the open roof/terrace since
20/09/2001 and that the defendant no.1 had become owner by way
of adverse possession as the defendant no.1 was in uninterrupted
physical possession of the roof since 20/09/2001 which was hostile
to the owner.
19. The defendants have taken this defence in their written
statement and have on this basis sought dismissal of the suit as well
as the application of the plaintiffs for interim relief. It is also on the
very same basis that the defendant no.1 is seeking a counter-claim
for declaration of its ownership by way of adverse possession and
interim relief in its application.
20. However, this defence of the defendant no.1 of having
become owner byway of adverse possession as sought to be raised
by the defendants is prima facie not tenable in the face of the very
opening paragraph of the counter-claim. In this regard, the
paragraph 2 of the counter-claim of the defendant no.1 is set out as
under:
"2. The present counter claim is being filed in respect
of roof portion of property bearing No. E-40 and E-41,
Connaught Place, New Delhi which is in possession of
the answering defendant and its associates since
20.09.2001. The possession of the roof portion was
taken by the answering defendant No.1 and one of its
associates namely Jainsons Export Corporation from
the unauthorized occupants of the same with the
consent and knowledge of the then owner of the same
namely Mr. Y.N.Gupta." (Emphasis supplied )
21. From the aforesaid paragraph 2 of the counterclaim, it is
very dear that the defendant no.1 has pleaded that the defendant
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no.1 was in possession of the roof of the properties bearing no. E-
40 and E-41 since 20/09/2001 and that the possession of the roof
was taken by the defendant no.1 and one of its associates from the
unauthorised occupants of the same "with the consent" of the
owner Mr. Y. N. Gupta (who is the predecessor in interest of the
plaintiffs).
22. Hence, dearly it is the own case of the defendant no.1 that it
had come into and was in possession of the roof "with the consent"
of the owner Mr. Y. N. Gupta. Once, this is the own admitted case
of the defendant no.1, then prima facie I fail to see how the
defendant no.1 is claiming to be in adverse possession which was
hostile to the owner since 20/09/2001. When the defendant no.1
has itself averred that it was in possession of the roof since
20/09/2001 "with the consent" of the owner Mr. Y.N. Gupta, then,
even as per its own case, at best, the defendant no.l could be said to
be in use of the roof only on a permissive basis. Prima facie, this
would not create any title in favour of the defendant no.1 by
way of adverse possession.
23. That apart, I have also perused the documents filed by the
defendants and I find that the defendant no.1 has not filed any
document which would go to even prima facie show that the
defendant no.1 had ever claimed title hostile to that of the owner
Mr. Y.N. Gupta or even to show that the defendant no.1 had ever
claimed title to the roof over the properties bearing no. E-40 and E-
41. A bald plea of ownership through adverse possession without
anything more in support would not create a prima facie case in
favour of the defendants, especially in light of the own admission
of the defendant no. 1 of taking the possession with the consent of
the owner Mr. Y.N. Gupta who is predecessor in interest of the
plaintiffs.
24. The plaintiffs have been able to show that they have a
prima facie strong case. The plaintiffs have already received
approval from the NDMC for repairs and renovation of the
properties bearing no. E-40 and E-41. The defence taken by the
defendants prima facie appears untenable in the face of the own
admission of the defendant no.1 that it had come into possession of
the roof with the consent of the owner who is the predecessor in
interest of the plaintiffs. Prima facie as per the admission made by
the defendant no. 1 in paragraph 2 of the counter claim, the
possession of the defendant no. 1 could at best be only permissive.
The balance of convenience is in favour of the plaintiffs.
Irreparable damage would also be caused to the plaintiffs since it
has been shown that the properties bearing no. E-40 and E-41
including the roof/terrace are in urgent need of repairs and the
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plaintiffs have also received approval for repairs and renovation
from the NDMC.
25. In the result, the application of the plaintiffs under Order
XXXIX Rules 1 and 2 is allowed in terms of the prayers sought in
the said application."
7. Challenging the aforesaid reasons, Mr. Rajshekhar Rao, learned
Senior Advocate for the appellants/defendants alluded to the averments
made by the appellants/defendants in their counter-claim (Annexure A-
10) and it was vehemently urged that the respondents/plaintiffs have not
been enjoying access to the roof/open terrace of the suit property and
although the appellants/defendants had purchased the adjoining property
i.e. E-42 and E-43 by virtue of a registered Agreement to Sell dated
16.04.2001 from Mr. Y.N. Gupta i.e., the predecessor-in-interest of the
respondents/plaintiffs, it was evident that the predecessor-in-interest had
no access, ingress or egress to the to the roof/open terrace through the
suit property, which was lying closed. Mr. Rao also invited the attention
of the Court to the suit bearing No. 1204/2001 filed on the original side
of the High Court of Delhi titled as „Golden Assets Holdings (P) Ltd. v.
Smt. Chandra Devi and Ors.‟ viz., against the occupants/tenants/
trespassers on the roof/open terrace of the suit property, in which suit
Mr. Y.N. Gupta, predecessor-in-interest of the respondents/plaintiffs,
was arrayed as defendant No.9 and it was canvassed that Mr. Y.N. Gupta
admitted the claim of the appellants/defendants that the access to the
roof/open terrace of the suit property i.e., has always been from the
adjoining property belonging to them (appellants/defendants).
8. Reiterating that the learned ADJ, in passing the impugned order,
did not give any findings with regard to the observations made by the
Local Commissioner in his report dated 25.10.2023, it was urged that the
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learned ADJ erroneously assumed that the appellants/defendants are
admitting that there has been express consent by Mr. Y.N. Gupta, to
allow them access to the roof/open terrace; and that the learned ADJ
overlooked the fact that the appellants/defendants have been consistently
making the case that they have been in exclusive use and occupation of
the roof/open terrace since September, 2011 so much so that they had
filed a suit against the earlier occupants on the roof/open terrace and
eventually got the matter settled with them by virtue of which the
exclusive possession of the roof/open terraced was surrendered in their
favour to the knowledge of late Mr. Y.N. Gupta, and in that way the
appellants/defendants have been claiming adverse possession as well in
respect of the roof/open terrace.
9. Learned Senior Counsel for the appellants/defendants placed
heavy reliance on decision in Kishore Kumar Khaitan & Anr. v.
Praveen Kumar Singh 3 canvassing that the Court while granting or
refusing interim mandatory injunction has to firstly consider whether the
plaintiff has proved that "he was in possession on the date of suit and on
the date of order and that he had been dispossessed the next day. Unless
a clear prima facie finding that the plaintiff was in possession on those
dates is entered, an order of interim mandatory injunction could not
have been passed and such order passed would be one without
jurisdiction".
10. Learned Senior Counsel for the appellants/defendants also relied
on a decision of the Madras High Court in Chellathurai & Five Ors. v.
Perumal Nadar4 wherein it was observed that "a suit for declaration of
3
(2006) 3 SC 312
4
1998 (3) Mad LJ 567
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title and consequential relief is not maintainable where the plaintiff is
not found to be in exclusive possession of the premises and that in the
suit for injunction it is the duty of the plaintiff to prove that he continued
to be in possession on the date of the suit". He also placed reliance on
the decision in Nazir Mohamed v. J. Kamala & Ors5 to buttress the
point that "where the plaintiff wants to establish that the defendant‟s
original possession was permissive, it is for the plaintiff to prove this
allegation and if he fails to do so, it may be presumed that possession
was adverse, unless there is evidence to the contrary".
11. Per contra, Mr. Rajat Aneja, learned counsel appearing for the
respondents/plaintiffs was mercifully brief and urged that the entire
claim of the appellants/ defendants is bizarre as it is difficult to
understand as to how could they claim exclusive possession and use of
the roof/open terrace, which is open to the skies and upon which no
structure is existing in the nature of a room or bathroom. It was urged
that the counter claim of the appellants/defendants is clearly an attempt
to usurp on the property of another. Learned counsel for the
respondents/plaintiffs vehemently urged that the suit bearing No.
1204/2001 filed by the appellants/defendants against Smt. Chandra Devi
and others, the latter being unauthorized occupants/licensees/tenants,
was only to restrain them from having access, ingress or egress from
their property/adjoining property No. E-42 and E-43 as inter alia an
apprehension was expressed therein that the said unauthorized
occupants/licensees/tenants might eventually lay claim to the roof/ open
terrace over the property i.e. E-42 and E-43. It was pointed out that there
is a proper demarcation between the suit property and the adjoining
5 (2020) 19 SCC 57
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property except that there is a small opening so as to have access to the
roof/open terrace of the suit property from the adjoining property, which
opening has merely been for facilitating washing utensils etc. by the
appellants/defendants who are running a Restro-Bar.
12. It was vehemently canvassed that the use of the roof/open terrace
was merely causal, fleeting and in the nature of intermittent possession,
and there is no way in law that the appellants/defendants can lay claim
by way of adverse possession as there has never been any hostile and
open declaration nor continuous possession for more than 12 years. Mr.
Aneja also pointed out that the appellants/defendants have very
conveniently relied on one receipt showing payment of some money to
the previous occupants on the roof/open terrace for settlement of the
issues arising in suit No. 1204/2001 and pointed out that the
respondents/plaintiffs too have filed two receipts on the record with their
short reply that would go to show that the occupants/licensees/tenants
had also been paid a lump sum amount by late Mr. Y.N. Gupta. Lastly,
learned counsel for the respondents/defendants pointed out that they
have faced great difficulties and have had to run from pillar to post
seeking permission from the concerned authorities to carry out repair and
renovate their property, and ultimately the respondents/plaintiffs
instituted Writ Petition (C) 14240/2022 titled 'Sanjay Gupta & Anr. v.
NDMC‟ before the High Court of Delhi. On passing of directions on the
judicial side, eventually the NDMC granted permission to make repairs
and renovation in the suit premises vide their letter dated 11.09.2023,
which is valid for six months and thus the appellants/ defendant cannot
prevent them from conducting such repairs/renovations in the suit
property. Learned counsel for the respondents/plaintiffs in his
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submissions relied on decisions in Murti Devi & Anr. v. NCT of Delhi
& Ors. 6; Navalram Laxmidas Devmurari v. Vijayaben Jayvantbhai
Chavda7; Chepudira Madaliah v. Mallengada Chengappa & Ors. 8;
and Thimappa v. The Tahasildar & Ors. 9
13. At the outset, the pleas canvassed by the learned Senior Counsel
for the appellants/defendants are manifestly unfathomable, misconceived
and unsustainable in law. It is well ordained in law that for seeking
interim injunction under Order XXXIX Rules 1 and 2 of the CPC, the
well-known trinity tests are mandated to be satisfied and a plaintiff has to
show the existence of a prima facie case in his favour, at the core of
which lies existence of a legal enforceable right and its prima facie
infringement by the opposite party. Admittedly, the
respondents/plaintiffs are the owners and in possession of the suit
property bearing No. E-40 & 41 and even the appellants/defendants had
purchased the adjoining property bearing No. E-42 & 43 from the
predecessor-in-interest of respondents/plaintiffs by virtue of a registered
"Agreement to Sell" dated 16.04.2001.
14. A bare perusal of the recitals in the registered "Agreement to Sell"
dated 16.04.2001 in favour of the appellants/defendants would show that
it does not create any right or interest in their favour in respect of the
roof/open terrace existing over the suit property belonging to the
respondents/plaintiffs. There is no acknowledgement or concession that
the buyers i.e., the appellants/ defendants are entitled to have access and
use the roof/open terrace over the suit property. Interestingly, a bare
6 RSA 115/ 2018 decided on 21.08.2018 [2018:DHC:5290]
7
AIR 1998 Gu j 17
8
RFA No. 1840 of 2005 decided on 17.11.2021 [Karnataka High Court]
9
RSA No. 371 of 2021 decided on 04.10.2023 (NC:2023:KHC:35950]
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perusal of the pleadings in the earlier suit filed by the
appellants/defendants bearing No. 1204/2001 on the Original Side of the
High Court of Delhi and the order dated 06.09.2001 by the learned
Single Judge of the this High Court (as his lordship of the Supreme
Court was then) shows that they had claimed reliefs in the nature of
restraint/injunction against the occupants/tenants/tress-passers on the
roof/open terrace of the suit property since they had been evidently using
their staircase to have access to the roof/open terrace of the adjoining
property No. E-42 & 43. It is pertinent to indicate that there was no claim
lodged against defendant No.9 Mr. Y.M. Gupta, urging that the
appellants/defendants had any legal right or interest to have exclusive
access to the roof/open terrace of the suit property, and on the contrary it
was pleaded that the suit property was a separate property inter alia
acknowledging defendant No. 9 as its owner.
15. Further, it is more than manifest that the real apprehension of the
appellants/ defendant in the said suit was that the use of the stairs from
their property i.e. E-42 & 43 by the occupants/tenants/tress-passers
might result in such unauthorized persons claiming possession or
occupation of the roof/open terrace of their property. Assuming for the
sake of convenience that the appellants/ defendants indeed entered into
some settlement with the occupants/ tenants/tress-passers occupying the
roof/open terrace over the suit property since, say 1947, that alone would
not create any legal right or interest in favour of the
appellants/defendants so as to claim unhindered access to the roof/open
terrace of the suit property belonging to the respondents/plaintiffs. It
needs no divine wisdom to perceive and raise an inference that perhaps
both parties i.e., the appellants/defendants and defendant No. 9 brought
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about a situation that left no option with the occupants/ tenants
/trespassers but to vacate the premises. Be that as it may, as per the
documents placed on record it is also brought out that a substantial
amount was paid by late Mr. Y.N. Gupta to the said occupants/
tenants/tress-passers so as to enable him to reclaim the possession and
occupation of the roof/open terrace over the suit property, and it prima
facie appears the vacant possession of the roof/open terrace was
surrendered in favour of late Shri Y.N.Gupta.
16. The aforesaid view is fortified on a bare perusal of the operative
portion of the order dated 06.09.2001 passed by Hon'ble Mr. Justice A.K.
Sikri, Judge, High Court of Delhi (as his Lordship of the Supreme Court
was then) and it would be relevant to extract the operative portion of the
said order, which reads as under:
"As already mentioned above, it is not in dispute that the plaintiffs
are the owners of suit premises No.E-42 and E-43, Connaught
Place, New Delhi. It is also not in dispute that the defendants 1-8
are in occupation of portion of the terrace of E-40 and E-41,
Connaught Place, New Delhi and not of the property No.E-42 and
E-43. In fact the defendants 1-8 claim themselves to be the tenants
of defendant No.9 who is the landlord of E-40 and E-41,
Connaught Place, New Delhi which fact is disputed by defendant
No.9. It may be pointed out here that the defendants 1-8 had filed
Suit No.57/2001 for injunction in the court of Mr. Pravin Kumar,
Civil Judge, Delhi and had also moved an application under
Orde r XXXIX Rules 1 and 2 CPC for ad-inte rim injunction. It
was pleaded by defendants 1-8 that they were the tenants of
defendant No.9 (defendant No.1 in the said suit) and the relief
prayed for was that the defendants be restraine d from
dispossessing the plaintiffs (defendants 1-8 herein) from the
portion in their possession. The application under Order XXXIX
Rules 1 and 2 CPC was dismissed by the Civil Judge by order
dated 23rd March, 2001 and the Civil Judge, prima facie, came to
the conclusion that the defendants 1-8 could not establish their
tenancy in respect of the portion of the premises in their possession
in E-40 and E-41, Connaught Place, New Delhi. I am informed that
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the defendants 1-8 have not filed appeal against that order and the
defendants 1-8 have also withdrawn that suit.
Be as it may, admittedly the defendants 1-8 have no right or
interest, of in any nature whatsoever, in suit pre mises, namely,
E-42 and E-43, Connaught Place, New Delhi. They are in
occupation of a portion of terrace of E-40 and E-41. They are
supposed to use the staircase of E-40 and E-41 to reach terrace
and not that of the plaintiffs in E-42 and E-43. If they are not
allowed to use the staircase of premises No.E-40 and E-41 which
leads to the terrace, the grievance of the defendants 1-8 could be
only against the defendant No. 9 and it would not give them any
right to use the stairs of adjoining suit premises No. E-42 and E-43
belonging to the plaintiffs. The plaintiffs have, the refore, every
right to stop the defendants 1-8 from using the staircase which
leads to the terrace of premises No. E-42 and E-43 and from
there jumping to the terrace of pre mises E-40 and E-41,
Connaught Place, New Delhi allegedly in the occupation of the
defendants 1-8.
The plaintiffs have, therefore, made out a prima facie case for grant
of ad- interim injunction. Order dated 4th June, 2001 is accordingly
made absolute till the disposal of the suit. Consequently IA No.
8193/2001 filed by the defendants 1-2 and 5-8 is dismissed. At this
stage, learned counsel for defendants 1-2 and 5-8 prays for two
weeks‟ time to be given to defendants 1-8 to file appropriate
proceedings against the defendant No. 9 and seek appropriate
orders from the court to enable them to use the staircase of E-40
and E-41, Connaught Place, New Delhi. This time is granted upto
20th September, 2001 to defendants 1-8 subject to furnishing an
undertaking to this court that these defendants shall stop using the
staircase of suit premises No. E-42 and E-43, Connaught Place,
New Delhi irrespective of the fact as to whether they take any
action against the defendant No. 9 or not or whether they succeed
in obtaining any order from the court. The undertaking should be
filed within two days. The defendant No. 8 is present in person in
court who gives an undertaking to this effect which is hereby
accepted. However, proper undertaking in the form of affidavits
would be filed by all the defendants.
The prayer contained in IA No. 7199/2001 is also allowed.
However, the plaintiffs shall not construct the wall and door as
stated in this application upto 20th September, 2001 and thereafter
they would be free to make the construction and in case the
defendants create any obstruction, the plaintiffs shall be entitled to
approach police for providing necessary assistance and on their
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approaching the concerned police station, it is directed the SHO
shall give necessary police assistance.
These IAs stand disposed of. {Bold portions emphasized}
17. The crux of the matter at this stage is that there is not an iota of
material on the record to even remotely suggest that there has been any
open and hostile declaration or assertion on the part of the
appellants/defendants claiming adverse possession over the roof/open
terrace. In other words, no material worth its salt has been presented to
suggest use and occupation of the roof/open terrace to the total exclusion
of the respondents/plaintiffs Such claim belies common sense and logic,
particularly when the roof/open terraces of the two properties are
vertically placed and properly demarcated except for their being an
opening in the intervening wall so as to allow access to the roof/open
terrace of the suit property belonging to the respondents/plaintiff, which
access by all mean prima facie appears to be casual, fleeting and in the
nature of intermittent possession as rightly canvassed by the learned
counsel for the respondents/plaintiff.
18. Indeed, the Local Commissioner in the report dated 25.10.2023
inter alia has also brought out that access, ingress or egress to the
roof/open terrace was found to be through the adjoining property bearing
No. E-42 & 43 belonging to the appellants/defendants and the learned
ADJ has not dealt with such aspect. All said and done, the said aspect
does not cut much ice either so as to confer any legal benefit upon the
appellants/defendants. It is also evident from the report of the Local
Commissioner that there was access and/or opening from the stairs of the
suit property No. E-40 & 41 except that it was blocked using iron wires
and by placing some junk material. The appellants/defendants while
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laying their claim for adverse possession have never ever raised any
claim so as to warrant full closure of such opening so as to prevent or
refrain the respondents/plaintiffs from gaining access to the roof/open
terrace. The fact that there has always been an opening, has evidently
been in their knowledge throughout this relevant time. Learned counsel
for the respondents/plaintiffs rightly urged that it is a bizarre claim by the
appellants/defendants where they claim exclusive right to use and
occupy the roof/open terrace over the adjoining property, which is
admittedly an open terrace in the sense open to the sky and there exists
no room, bathroom or any other structure upon it.
19. The last twist in the tale was sought to hammered by Mr. Rao,
learned Senior Counsel who argued that the respondents/plaintiffs in the
garb of seeking repairs and renovation are attempting to usurp upon the
roof/open terrace of the suit property to their detriment. In this regard, it
is pertinent to mention that the respondents/plaintiffs have received
approval from the NDMC as well as an „NOC‟ from the Heritage
Conservation Committee on 11.09.2023 to carry out following works in
the suit property bearing No. E-40 & 41
"a) Plastering, POP punning;
b) Painting/whitewashing;
c) Flooring/re-flooring;
d) False ceiling;
e) Temp wall panelling;
f) Electrical wiring;
g) Waterproofing and plumbing works with new fixtures;
h) Re-roofing and and filing of cut out at ground floor
roof level and first floor level in open to sky area;
I) Proposed internal doors and windows;
j) Repainting of external windows from inside; and
k) Repairing of staircase."
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20. It was sought to be canvassed that the aforesaid permission does
not include any permission to carry out repairs or renovation of the
roof/open terrace. The plea is laughable if not unpalatable since it
apparent that the work in the nature of water proofing would involve
repairs of the floor of the roof/open terrace as also inner walls of the
ceiling. There is also permission to repair the staircase leading to the
roof/open terrace. How or why the appellants/defendants would object to
the adjoining owner of the property seeking to carry out repairs and
renovation for better and comfortable enjoyment of their own premises,
is itself not understandable.
21. The long and short of the aforesaid discussion is that the
respondents/plaintiffs are owners and in possession of the suit property
No. E-40 & 41 and as a necessary corollary where the two properties are
have separate structures and are properly demarcated vertically, and
there are openings to have access to the roof/open terrace, the claim of
the respondents/plaintiffs that they are owners and in possession of the
roof/open terrace cannot be discarded at this stage.
22. Before finally drawing the curtains on the instant appeals, in so far
as reliance on the decision in the case of Kishore Kumar Khaitan
(supra) is concerned, it was a case where an interlocutory mandatory
injunction was sought and it was in the said context that it was held that
"such remedy cannot be easily granted and it could only be passed in the
circumstances which are clear and where there are prima facie
materials clearly justifying the findings that the status quo has been
altered by one of the parties to the litigation and the balance of interest
demand that status qua ante be restored".
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23. The decision in the case of Chellathurai (supra) is clearly
distinguishable since it was a case where the plaintiffs were not found to
be in exclusive possession of the property in question, and therefore, a
mere suit for declaration without seeking consequential relief of
possession was held to be not maintainable. The decision in the case of
Nazir Mohamed (supra) was one where the appellants claimed
ownership of the property in their own rights, disputing the claim of the
opposite party that they had been inducted as tenants. It was a decision
which was given after a full-fledged trial on appreciation of evidence led
by the parties. Rather, an interesting observation in law was made, which
goes as under:-
"48. The maxim "possession follows title" is limited on its
application to property, which having regard to its nature does not
admit to actual and exclusive occupation, as in the case of open
spaces accessible to all. The presumption that possession must be
deemed to follow title, arises only where there is no defining proof
of possession by anyone else. In this case, it is admitted that the
applicant-defendant is in possession and not the respondent-
plaintiff."
24. Likewise, in the cited case of Murti Devi (supra) by the learned
counsel for the respondents/plaintiffs, there was a situation where the
appellants/plaintiffs claimed that they had entered into an agreement to
purchase an open space of land in the year 2001 but their attempts to
raise construction thereupon had been foiled by the respondents/
defendants by repeatedly demolishing unauthorized construction raised
upon the land. Observing that the plaint disclosed that possession of the
appellants/plaintiffs was never settled or peaceful, and the
respondents/defendants had been zealously guarding the land, it was held
that "the position with respect to open land is, that the possession there
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of is presumed to be in the person having title thereto. Mere use of open
land of another, also does not amount to dispossession of another." This
Court relying on decision in Rame Gowda v. M. Varadapa Naidu10
held as under:-
"22. Rame Gowda supra, instead of supporting the appellants/
plaintiffs, is against the appellants/plaintiffs. Though it also holds that
a person is settled peaceful possession cannot be dispossessed by the
owner of the property except by due recourse to law, but clarifies, (i)
that mere stray and intermittent acts of trespass do not give such a
right against the owner; (ii) the possession which a trespasser is
entitled to defend against owner must have extended for a sufficiently
long period of time; (iii) a casual act of possession would not have the
effect of interrupting possession of owner; (iv) the owner may re-enter
and reinstate himself without using more force than is necessary; (v)
for possession to be settled, it must be effective, undisturbed and to
the knowledge of the owner."
25. Further in the cited case of Navalram Laxmidas Devmurari
(supra) there was a claim over an open piece of land in front of the
tenancy shops over which the tenants claimed continuous user and
adverse possession and in the said context it was held as under:-
"11. The concept of possession is an abstract one. The ordinary
presumption is that possession follows title. Presumption of
possession over an open land always is deemed to be that of the
owner and not of a trespasser. An open place of land shall be
presumed to be in possession of the owner unless it is proved by
the trespasser that he had done some substantial acts of possession
over the land which may excite the attention of the owner that he
has been dispossessed. As indicated above, an owner of an open
land is ordinarily presumed to be in possession of it and this
presumption becomes strong in his favour when the defendant fails
to establish the ground on which he claims to have come in
possession.
The presumption that possession goes with the title is not limited to
particular kind of cases where proof of actual possession is
impossible on account of nature of the land, such as boundary land,
forest land or submerged land. The presumption applies to all kinds
of lands. Where plaintiff proves his title, but not any act of
10 (2004) 1 SCC 769
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possession and the defendant does not prove possession except
unnoticed user of small part of land, the presumption that
possession follows title will come into play.
26. To sum up the aforesaid discussion, it prima facie appears that
the respondents/plaintiffs are the owners and in occupation of the suit
property No. E-40 & 41 and their claim that they have been in
possession of the roof/open terrace cannot be said to be wrong on facts
and in law. Learned ADJ has rightly found that the
appellants/defendants by their own admission at one place have
asserted that the user of the roof/open terrace has been permissive with
the consent of its owner Mr. Y.N. Gupta, and at this stage of the
matter, there is not an iota of material to show that there has been any
open and hostile declaration by the appellants/defendants to claim
ownership of the roof/open terrace over the suit property by way of
adverse possession and to the total exclusion of the
respondents/plaintiffs. Undoubtedly, the balance of convenience lies
in favour of the respondents/plaintiffs and they have now received
approval from the NDMC for carrying out repairs and renovation vide
letter dated 11.09.2023, which deadline is expiring by 11.03.2024. No
irreparable loss or damage shall be caused to the appellants/defendants
in case the respondents/ plaintiffs are allowed to have access, ingress
and egress to their own property i.e. roof/open terrace so as to carry
out repairs and renovations as per the law. The appellants/respondents
can very well make suitable alternate arrangements to wash their
utensils etc. in connection with their business.
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27. This Court, therefore, finds that the impugned order dated
10.11.2023 does not suffer from any illegality, perversity or incorrect
approach in law. Accordingly, the present appeals are dismissed
upholding the impugned common order dated 10.11.2023 passed by
the learned ADJ. However, nothing contained in this judgment shall
tantamount to an expression of opinion on the merits of the case.
Needless to state that the issues raised by the appellants/defendants in
the counter claim are matter of trial and could only be appreciated
after evidence is led by the parties.
28. The pending applications also stand disposed of.
DHARMESH SHARMA, J.
JANUARY 08, 2024
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