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IN THE HIGH COURT OF DELHI AT NEW DELHI
VIPIN SANGHI, J.
JOTINDER SHARMA - Appellant
Versus
SEEMA CHOWDHARY & ANR. - Respondents
RSA 167/2015
Decided On : 14.08.2015
Construction Rights - Property Dispute - Sale Deed, Second Floor Terrace - [CS No.348/2011, Sale Deed dated 29.06.1998] - The court discussed the interpretation of the sale deed and the rights vested in the parties. It held that the right of the plaintiff was limited to the use of a smaller portion of the rear terrace and did not extend to the right to raise construction on any portion of the terrace. The appellant's right was limited to one servant quarter under the overhead water storage tank with common WC on the terrace floor. The court emphasized that the right of use of a smaller portion of the rear terrace pertained to use as a terrace and not for the purpose of occupying the same to the exclusion of others or raising construction thereon.
Fact of the Case:
The case involved a property dispute where the plaintiff sought injunctions to restrain the defendant from carrying out illegal construction over the terrace of a property and to seek a mandatory injunction directing the defendant to remove the illegal construction.
Finding of the Court:
The court found that the defendant had completed construction on the terrace above the second floor and had only user right, not the right of construction. The plaintiff was entitled to a decree of permanent injunction and mandatory injunction for the removal of the existing structure raised by the defendant.
Issues: The issues included the interpretation of the sale deed, the rights of the parties, and whether the plaintiff was entitled to injunctions against the defendant.
Ratio Decidendi: The court's decision was based on the interpretation of the sale deed and the rights vested in the parties. It emphasized that the plaintiff's right was limited to the use of a smaller portion of the rear terrace and did not extend to the right to raise construction on any portion of the terrace. The defendant's right was limited to one servant quarter under the overhead water storage tank with common WC on the terrace floor.
Final Decision: The appeal was dismissed as it did not raise any substantial question of law to be considered by the Court.
VIPIN SANGHI, J.
1. On the last date, arguments were heard in the appeal. At that stage, the parties stated that they wish to explore the possibility of a settlement.
2. Today, it is reported that no settlement could be reached between the parties. Accordingly, I proceed to dispose of the appeal.
3. The present second appeal is directed against the judgment dated 18.12.2014 passed by the learned District & Sessions Judge, South District, Saket in RCA No.37/2013 titled Jotinder Sharma v. Dr Seema Chowdhury & Anr., whereby the First Appellate Court dismissed the first appeal preferred by the appellant/defendant and affirmed the judgment and decree passed by the SCJ-cum-RC, Saket Courts in CS No.348/2011, titled Dr. Seema Chowdhury v. Jotinder Sharma.
4. Respondent no.1, Dr. Seema Chowdhury filed the aforesaid suit against the appellant and the MCD to seek the relief of permanent and mandatory injunction, wherein the plaintiff sought an injunction to restrain the appellant/defendant from carrying out any illegal construction over the terrace of the second floor flat of the property bearing No.E-361, Greater Kailash-II, New Delhi and to seek a mandatory injunction directing the appellant to remove the illegal construction raised by her over the terrace. The plaintiff also sought a direction to the MCD to take appropriate action against the appellant/defendant no.1 for raising illegal construction, as aforestated.
5. The case of the plaintiff is that the property bearing No.E-361, Greater Kailash II was owned by Sh. Gurnam Singh Dhariwal and Shri Ram Singh. The said persons sold their undivided share in the said plot to the builder, namely, M/s Uppal Agencies. The builder raised the construction consisting of ground, first and second floor, and sold the same to different buyers. The first floor was sold to Sh. Vijay Kumar Gupta by a registered sale deed dated 22.05.1998. The second floor was sold to Sh. O.P. Bansal and Smt. Krishna Bansal vide sale deed dated 29.06.1998. The first floor was then sold by Sh. Vijay Kumar Gupta to one Sh. Naveen Malhotra vide registered sale deed dated 19.02.2008, who further sold it to the defendant no.1/appellant vide registered sale deed dated 29.05.2009. Similarly, Sh. O.P. Bansal and Smt. Krishna Bansal sold the second floor of the property and the rights acquired by them under their sale deed to one Sh. Shyam Narayan – the father of the plaintiff vide registered sale deed dated 08.11.2002. Shyam Narayan gifted the second floor and the rights acquired under the aforesaid chain of title documents vide registered gift dated 09.01.2006 in favour of the plaintiff.
6. The case of the plaintiff was that under the sale deed pertaining to the second floor, the purchaser had acquired the entire constructed second floor with one servant quarter under overhead water storage tank with common WC on the second floor terrace. Apart from the aforesaid, the plaintiff also acquired the terrace rights as detailed in clause 4 of the sale deed dated 29.06.1998. Clause 4 of the said sale deed dated 29.06.1998 reads as follows:
“4. That till such time the construction of third floor in the said building becomes permissible, the entire second floor terrace (excluding servant rooms, common W.C, common facilities/amenities and right of access through staircase and passage thereto for the repair/cleaning etc., by the owners/occupants of all the portion of the building) shall be for use by the owners of First and Second Floors, who shall use their respective portion as demarcated in the attached Plan. However, as and when construction of third floor becomes permissible, the SECOND PARTY, only after first getting the plans approved by the concerned authorities, shall have full rights to cause such construction upon the entire second floor terrace (including the portion, which is for use by the owner of first floor and where the servant quarters etc., are built). It is also a condition that as and when construction of such t
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