RFA No. 183/2018

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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RFA No. 183/2018

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21^st February, 2018

VIJAY KUMAR

..... Appellant

Through:

Mr. Anil Sapra, Sr. Adv. with

Ms. Madhu Sweta and Ms.

Kanika Tandon, Advocates.

versus

RASHMI SKADEGAARD & ANR.

..... Respondents

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 First Appeal under Section 96 of the Code

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

impugning the judgment of the trial court dated 13.10.2017 by which

the trial court has dismissed the suit for declaration and consequential

relief filed by the appellant/plaintiff against the respondent/defendant.

By the suit the appellant/plaintiff who was the owner of the subject

property being House No. 203, Jor Bagh, New Delhi, and who had

executed a registered Gift Deed of the first floor and barsati of the

property in favour of his sister/respondent no.1/defendant no.1,

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contended that though the Gift Deed was executed, but by this Gift

Deed dated 23.11.2001 the appellant/plaintiff had not given

proportionate rights in the land to the respondent no.1/defendant no.1

and therefore the addition of words to the Gift Deed of “proportionate

land underneath” as found in third last line of page 3 of the Gift Deed

since have been illegally added the same should be held as an illegal

interpolation in the Gift Deed. In sum and substance, the

appellant/plaintiff by the suit contended that though he did execute the

Gift Deed in favour of his sister/respondent no.1/defendant no.1 but by

the Gift Deed it was only intended to give the first floor and barsati

floor to the sister/respondent no.1/defendant no.1 and it was not

intended

to

give

the

sister/respondent

no.1/defendant

no.1

proportionate rights in the land.

2.

The Gift Deed in this case has been proved as Ex.PW1/2.

Pursuant to the Gift Deed dated 23.11.2001 the respondent

no.1/defendant no.1 has transferred her rights received in the subject

property to the defendant no.2 in the suit i.e respondent no.2 herein.

3.

The contention of the respondent no.1/defendant no.1,

who filed the written statement, was that appellant/plaintiff is

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incorrectly pleading that there was an interpolation in third last line of

page 3 of the Gift Deed because this addition of the words

“proportionate land underneath” was made in the office and in

presence of the Sub-Registrar and duly attested by the Sub-Registrar.

It was also pleaded that in law whenever a person acquires any floors

or flats in a property then such a person also automatically acquires

proportionate rights in the land on which the floors/flats are situated.

4.

After pleadings were complete the following issues were

framed by the trial court:-

“1.

Whether the plaintiff is entitled for declaration as prayed for? OPP

2.

Whether the plaintiff is entitled for consequential relief consequent

to declaration? OPP

3.

Whether the plaintiff is entitled for permanent injunction as prayed

for? OPP.

4.

Whether the suit of the plaintiff is bad for non-joinder of the parties

particularly concerned Sub-Registrar? OPD

5.

Relief.”

5.

Evidence was led by the parties and these aspects are

recorded in paras 12 and 13 of the impugned judgment and which read

as under:-

“12.

In evidence, plaintiff examined himself as PW1 vide affidavit

Ex.PW1/A. PW1 relied upon documents Ex.P1 and Ex.P2 as mentioned

above and documents viz., (i) copy of Challan and acknowledgement

issued by L&DO dated 22.12.1999 as Ex.PW1/1: (ii) copy of Gift Deed

dated 23.11.2001 as Ex.PW1/2; (iii)copy of challan for payment of house

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tax dated 08.10.2001, 24.10.2002 and 17.12.2009 as Mark A, Mark B and

Mark C respectively. PW1 was cross-examined.

13. Defendant no