SH. RAJESHWAR NATH GUPTA & OTHERS vs SH. ASHOK JAIN & OTHERS
$~J
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 29.05.2024
Judgment pronounced on: 17.09.2024
+ CS(OS) 1300/1992, I.A. 155/2020, I.A. 2045/2021, I.A. 13922/2022
SH. RAJESHWAR NATH GUPTA & OTHERS ….. Plaintiffs
Versus
SH. ASHOK JAIN & OTHERS ….. Defendants
+ CS(OS) 2069/1998
ASHOK JAIN AND OTHERS ….. Plaintiffs
Versus
RAJESHWAR NATH GUPTA AND ORS. ….. Defendants
For Rajeshwar Nath Gupta and Ors.: Mr Sameer Vashisht, Ms Harshita Nathrani, Mr Vedansh Vashisht and Mr Aman Singh, Advs.
For Ashok Jain and Ors.: Mr Sanjeev Sindhwani, Sr. Adv. with Ms Sumati Anand and Mr Sandesh Kumar, Advs.
CORAM:
HON’BLE MR. JUSTICE JASMEET SINGH
J U D G M E N T
: JASMEET SINGH, J
1. Since both the suits are interconnected between the same parties and have been consolidated vide order dated 14.10.1997, common evidence has been led and have been heard together; hence, both the suits are being decided by this common judgment.
2. In CS (OS) 1300/1992, plaintiff No. 1 is Rajeshwar Nath Gupta, plaintiff No. 2 is Raghavender Nath Gupta, plaintiff No. 3 is Ravinder Nath Gupta and plaintiff No. 4 is Rajender Nath Gupta. For the sake of convenience, they are collectively referred to as Gupta family. Defendant No. 1 is Ashok Jain, Defendant No. 2 is Smt. Sheelawati and Defendant No. 3 is Smt. Prabha Jain. For the sake of convenience, they are collectively referred to as Jain family.
3. Suit bearing CS(OS) 1300/1992 is filed by the Gupta family, who seeks the following prayers:-
I) declaration that the suit property bearing No. 4, Cavalry Lines, comprising land admeasuring 3504.57 sq. metres, is incapable of being partitioned and, in any case, cannot be partitioned under the terms of perpetual lease of the land underneath the aforesaid entire property.
In the ALTERNATIVE, it may he declared by this Hon’ble Court that there can be no partition of the property in suit by metes and bounds or otherwise unless a partition is effected either with mutual consent or through the court in a suit for partition, if any, filed; and
II) Perpetual injunction restraining the defendants from raising any partition wall or any other construction in the suit property, and from causing any obstruction/ annoyance/ nuisance or mischief in the common use and enjoyment of the aforesaid spaces including ENTRY and EXIT gates, the front lawn, the front verandah, the rear verandah, the rear lawn and driveways/ passages/ pathways and from spoiling and damaging the environment and beauty, nature and character of oneness of the suit property; be passed in favour of plaintiffs and against the defendants.
4. Brief facts as per the plaint (CS(OS) 1300/1992) are set out below:-
5. Mr. John Cecil Roberts was the perpetual lessee of a plot of land bearing No. 4, measuring 3504.57 sq. metres (0.866 acres) situated in Cavalry Lines, Mall Road, Civil Lines, Delhi (suit property) under the President of India through the Military Estate Officer vide a Perpetual Lease Deed dated 15.02.1951 which was duly registered in the Office of the Sub Registrar, Delhi as document No. 1737 entered in Additional Book No. I, Volume No. 186 on pages 161 to 163 on 02.05.1951. Mr Roberts passed away in the year 1956-57 leaving a Will dated 22.06.1949 which was filed with the Probate Registry at the High Court of Justice at London.
6. Subsequently, Smt. Onela Chatterjee was appointed as the Administrator of Mr. Roberts estate by the High Court of Judicature for the State of Punjab, Circuit Bench at New Delhi in Probate Case No. 2-D of 1957. As the appointed Administrator, Smt. Chatterjee was also authorized by the Wills legatees to act as their attorney for the purpose of transferring and conveying the suit property, including any buildings, structures, and outhouses on it.
7. Smt. Onela Chatterjee vide Sale Deed dated 29.11.1960 transferred the suit property alongwith superstructure on it, in favour of Raisahib Pt. Daulat Ram Kalia s/o Late Pandit Bal Mukand Kalia and Mrs. Vidya Rani Kalia w/o Raisahib Pt. Daulat Ram Kalia which was duly registered with the Sub Registrar Delhi vide Document No. 5113 entered in additional book No. l volume No. 563 page 197-208 on 12.12.1960.
8. Smt. Vidya Rani Kalia died intestate on 17.02.1974 leaving behind her husband, two daughters and two sons. On the death of Ms Kalia, the suit property was duly mutated in the name of Pt. Daulat Ram Kalia and the two daughters and two sons in the records of Military Estate Officer, Delhi Circle vide letter dated 09.12.1981. Raisahib Pt. Daulat Ram Kalia also died intestate on 02.12.1981 leaving behind the two sons and two daughters as his legal heirs. Subsequently, the suit property, along with the buildings, structures, and outhouses, was duly mutated in favor of his legal heirs as perpetual lessees in the records of the Military Estate Officer following their application.
9. The following legal heirs/perpetual lessees entered into two Agreements to Sell (ATS) dated 16.09.1983:
A. Mrs. Promila Bakshi w/o Shri B.M. Bakshi r/o 161, Sukhdev Vihar, New Delhi,
B. Mrs. Veena Bhalla w/o Shri I.D. Bhalla r/o 4, Cavalry Lines, Mall Road, Delhi,
C. Shri. Chander Mohan Kalia s/o Late Pt. Daulat Ram Kalia r/o S-51, Greater Kailash I, New Delhi, and
D. Shri Anil Kalia s/o Late Pt. Daulat Ram Kalia r/o 161, Sukhdev Vihar, New Delhi.
They agreed to sell and transfer undivided half share of the suit property to the Gupta family and the remaining undivided half share to the Jain family, each for a consideration of Rs. 6 lakhs respectively. The agreements were executed simultaneously in favor of the Gupta family and the Jain family. Each half share of the suit property was 1752.285 sq. mtrs. (i.e. half of 3504.57sq. mtrs.), which corresponded to the area being sold to both the Gupta family and the Jain family.
10. As the Competent Authority under the Urban Land (Ceiling and Regulation) Act, 1976 (Act of 1976) had held the excess vacant land to the extent of 364.07 sq. metres, it was mentioned in the ATS that the area agreed to be sold to the Gupta family was to the extent of 1752.285 182.035 (half of excess vacant land i.e. 364.07 sq. metres) = 1570.25 sq. metres. Similarly, in the ATS executed in favour of the Jain Family, the land/area agreed to be sold was mentioned as 1752.285 sq. metres 182.035 sq. metres (half of excess vacant land of 364.07 sq. mts.) = 1570.25 sq. mts.
11. The two ATS included that if any excess vacant land, as determined by the Competent Authority under the Act of 1976, was acquired, only half of that land would be deducted from the 1752.285 square meters agreed to be sold to each of the Gupta and Jain families. Additionally, if any such land was exempt under Section 20 of Act of 1976, the vendors/owners would transfer that land to the Gupta and Jain families respectively by way of Deed of Transfer or any other document as might be required by them at no extra cost.
12. On the day when two ATS were executed, the possession of the entire suit property was handed over to the Gupta and Jain families. The owners/vendors also executed a General Power of Attorney (GPA) in favour of Rajeshwar Nath Gupta/plaintiff No. l and Ashok Jain/defendant No. l authorising them to finalize the sale, obtain necessary permissions from the Competent Authority, handle the execution of sale deeds, and represent the parties before municipal and other authorities for property assessment, valuation, and mutation.
13. A Special GPA was executed jointly in favour of the plaintiff No. 1 and defendant No. 1, authorizing them to manage the exemption of 364.07 square meters of excess vacant land under the Act of 1976, pay any related fees or expenses, handle construction or renovation work, and obtain necessary approvals and completion certificates. Additionally, the owners/vendors executed four indemnity bonds in favor of the Gupta and Jain families, promising to cover any claims or losses related to the propertys title.
14. It is further stated that as there was bar against the transfer, mortgage, gift or lease of any excess vacant land under section 10 of Act of 1976, it was agreed that the shares sold to the Gupta family and Jain family would be clearly defined and demarcated only after the Government finalized and took possession of the excess land, without damaging the oneness of the suit property.Top of FormBottom of Form
15. Further, in both the ATS, it was mentioned that the area (part) of the suit property together with buildings constructed thereupon was described in the schedule and delineated in the plan as Annexure-B and marked red in pencil, yet on account of the aforesaid agreement/arrangement/understanding/intention of the parties hereto and the legal bar and impediment under section 10 of the Act of 1976, and due to non-specification/non-determination/non-demarcation of the excess vacant land, no part was and could possibly be delineated in any colour in the plan annexed. So the half undivided share/area agreed to be sold to the Gupta family and to the Jain family respectively was not shown in red in pencil on the plan Annexure B and as such, Annexure-B plans were left out without being marked red in pencil.
16. After taking possession of the suit property on 16.09.1983, the Gupta family occupied approximately half of the constructed area on the South West side for their residence, while the Jain family occupied the North East side. The Gupta family also took possession of the outhouses on the South West side and the Jain family took those on the North East side. Common areas such as gates, driveways, paths, lawns, and verandahs were shared and intended for joint use and enjoyment by both Gupta and Jain families.
17. In both the ATS, no specific portion of the suit property was ever defined or agreed to be sold to either of the families. Such a division cannot happen until the excess vacant land was finally demarcated and acquired by the Competent Authority under section 10 of Act of 1976. Additionally, under the terms of the perpetual lease, the land could not be divided without permission from the Military Estate Officer, which was neither sought nor granted at the time of ATS.
18. The Gupta family and Jain family applied for the mutation of their respective half shares in the suit property with the Military Estate Officer. As per the Gupta family, no mutation was asked for any defined/demarcated portion of the suit property. The Military Estate Officer issued a letter dated 10.06.1985 confirming the mutation of 1752.285 sq. mtrs. of the suit property to each family, without specifying any distinct portions of the suit property. It is also stated that no plan of the suit property whatsoever and not even plans annexed with the ATS were filed with the Defence Estate Officer for the purpose of mutation.
19. A Supplementary Agreement dated 04.03.1989 was executed by the owners/vendors in favour of both the families.
20. Smt. Veena Bhalla executed the Supplementary Agreement on 04.03.1989, Shri Anil Kalia executed the Supplementary Agreement on 24.03.1989, Shri Chander Mohan executed the Supplementary Agreement on 20.06.1989 in favour of the Gupta family in which these vendors specifically mentioned and stated that they had agreed to sell an area of 1752.285 sq. metres 182.035 (half of excess vacant land) = 1570.25 sq. metres from and out of the plot commonly known as 4, Cavalry Lines, Mall Road, Delhi. Smt. Veena Bhalla and so also the other two Vendors namely Shri Chander Mohan and Anil Kalia also executed GPA separately and respectively in favour of the Gupta family on the same date of the execution of the Supplementary Agreement. In GPA, these vendors (1/4th shares each) authorised the plaintiff No. 1 and defendant No. 1 to manage the suit property.
21. From 15.09.1991 till February, 1992, there were numerous acts wherein Jain family tried to construct a wall, and obstruct the peaceful possession of the Gupta family which resulted in numerous complaints and counter complaints.
22. The Jain family filed a Suit for Injunction against the Gupta family in the Court of Civil Judge, Delhi on 18.02.1992 along with an application for grant of interim injunction. The Jain family in the said suit, filed a plan of the suit property falsely showing a portion of the property in red colour alleged to have been sold to him, by tampering and interpolating the plan which was annexed to their ATS dated 16.09.1983 as annexure-B, whereas in the original plans annexed with the ATS in their favour and in favour of the Gupta family, no portion of the suit property was shown in red in pencil or ink.
23. The learned Court of Sub-Judge, Delhi not being satisfied with any prima facie case, refused to grant any ex-parte injunction and issued summons to the Gupta Family in the said suit.
24. As the Jain family were wrongfully, illegally and fraudulently threatening to raise the partition wall in the suit property to effect partition with the assistance of anti-social elements or otherwise, the Gupta family had no other efficacious remedy and hence filed the present suit.
25. Pursuant to the issuance of summons, the Jain Family filed their written statement.
26. In their written statement, it is stated that there is no dispute that two ATS dated 16.09.1983 were executed by the vendors/owners of the suit property, one in favour of the Gupta family and another in favour of the Jain family. During the negotiations, the owners of the suit property had informed both the families that by an order dated 30.08.1979, the Competent Authority under the Act of 1976 had held, inter alia, out of the said total land of 3504.57 sq. mtrs. comprised in the suit property, there was an excess land of 364.07 sq. metres and, thus, only 3140.50 sq. metres of land, together with the existing structures thereon, were within the ceiling limit.
27. Further, during the negotiations, all the parties had further agreed that for a proper, complete and effective use of the space/area shown as lobby in the plan Annexure D-l, the lobby space/area be divided/converted into two rooms, and one room towards the North-Western side be the part of the Gupta familys portion and the other room towards the South-Eastern side be the part of the Jain familys portion. The Jain familys portion was accordingly so delineated in the plan, which was annexed as Annexure-B to the aforesaid ATS dated 16.9.1983. The Gupta family had not placed the plan annexed with the ATS which shows the Jain familys portion in red but the Jains have filed the same with their written statement.
28. A perusal of the plan would show that even the Gupta familys portion stands delineated and shown un-coloured in this plan. Nothing in the suit property was ever intended to be undivided between the Gupta family and the Jain family nor did anything thereof ever remain undivided. The respective portions of the suit property were always intended to be separate, distinct, specific, defined, exclusive and independent, and those portions have always remained as such since 16.09.1983.
29. Pursuant to the ATS dated 16.09.1983, the perpetual lessees/owners-Smt. Promila Bakshi, Smt. Veena Bhalla, Shri Chander Mohan Kalia and Shri Anil Kalia finally assigned, conveyed, transferred and sold all their rights, title and interests in the North-Eastern, half portion of the suit property to the Jain family vide four sale deeds:-
A. Dated 25.1.2000 registered as document No. 384 in Addl. Book No. I, Volume No.16, on pages 103-119,
B. Dated 12.1.2000, document No. 160 in Addl. Book No.l, Volume No.7, on pages 106-121,
C. Dated 8.3.2000, as document No.1282 in Addl. Book No. I, Volume No.50, on pages 57-74 and
D. Dated 18.02.2000, document No.1015 in Addl. Book No.1, Volume No.40, on pages 76-92 on 24.2.2000, all In the office of the Sub Registrar-I, Delhi respectively.
30. It is further averred that the North-Eastern half of the suit property is solely owned by the Jain family, and the previous lessees/owners have no rights to this part. On the other hand, the Jain family has no claim to the South-Western half of the suit property. Both halves are entirely separate and independent from each other. The suit property, therefore, stands fully and finally divided/partitioned into two separate, distinct, specific, defined and independent portions one described as North-Eastern half portion of the suit property and the other described as South-Western half portion of the suit property.
31. The ATS dated 16.09.1983 included clauses related to excess land based on a 1979 order identifying 364.07 sq. mtrs. of excess land. However, this excess land was never seized by the State Government. With the Act of 1976 being repealed by the Urban Land (Ceiling & Regulation) Repeal Act, 1999, all related proceedings stood nullified, and the ATS and sale deeds should be considered as if the 1976 Act never existed.
32. It is further stated that there are two gates in the suit property. One gate falls in the Gupta familys portion and the other gate falls in the Jain familys portion. After both the families took exclusive possession of their respective portions of the suit property, the Gupta family put up a name plate reading as:-
R. N. GUPTA
4
CAVALRY LINES
on their own gate and similarly, the Jain family put up a name plate reading as
ASHOK JAIN
4
CAVALRY LINES
on their own gate.
33. Both the families are in use and occupation of their respective portions and have been carrying out various development including separate electricity and water meters.
34. In the year 1988, the Gupta family, without obtaining the requisite sanctions from the concerned authorities, constructed a room on the first floor of their own portion of the suit property, and they have been exclusively using that room.
35. In early 1991, the Gupta family approached the Jain family and expressed their desire to purchase and possess the Jain familys portion also, but this was not acceptable to the Jain family.
36. In April, 1991, the Gupta family started demolishing the outhouse, which existed in the rear part of their portion of the suit property, and after demolishing, the Gupta family, without obtaining the requisite sanctions from the concerned authorities, constructed a new and about four times bigger building on that land as well as some additional land, which was adjacent to and around that land on all its sides, over a total area of about 3000 sq. feet. The said construction work continued till about the middle of September, 1991.
37. In the meantime, the Jain family, in order to avoid further nuisance and annoyance from the Gupta family and to protect their own privacy and enjoyment of their portion of the suit property, started constructing, in June, 1991, a purdah/boundary wall on the South-Western outer limit of their portion, starting from its South- Eastern end point and terminating at its North-Western end point. However, for some reasons, including the deteriorating health of the father of defendant No.1, the said work had to be suspended somewhere in the second week of July, 1991. By that time, boundary wall had been constructed on the kuchha areas of the front side as well as the rear side of the pucca area of the Jain family portion of the suit property, and demarcation line had also been engraved and filled with black paint. It is clarified that the work of boundary wall including demarcation line was carried by the Jain family in their portion and at their expense. Unfortunately the health of the father of the defendant No.1 did not improve and he ultimately died on 20.07.1991.
38. When the Jain family decided to resume the aforesaid suspended work for completing the said wall, they brought the building material in the early morning hours of 15.09.1991 and stacked the same in their portion of the suit property, another police complaint was lodged with the Police Station Maurice Nagar, Delhi against the Jain family. However, when after some time the labour also arrived at the site, and was about to resume the said work, the Gupta family tried to create obstacles and threatened defendant No.1 with dire consequences to the extent of even killing him.
39. A Kalandra dated 14.11.1991 was filed under sections 107/150 of the Code of Criminal Procedure in the Court of Shri Mauji Khan, Special Executive Magistrate; North District, Civil Lines, Delhi against plaintiffs Nos. 1 and 3 as the First Party and defendant No.1 as the Second Party.
40. The Special Executive Magistrate visited the suit property and, after making his own assessment of the factual position, he conveyed to the plaintiffs there and then to the effect that the plaintiffs should not intrude into the defendants portion of the suit property, and the plaintiffs should respect the boundaries already laid and defined clearly, as inspected by him, and the plaintiffs should use the entrance to their portion from their own gate only. At that time, the Gupta family undertook to abide by the said verbal directions/orders of the Special Executive Magistrate. Peace was, thus restored.
41. Again on breach of assurance, another complaint was made on 25.01.1992 to the Special Executive Magistrate.
42. The Jain family again resumed the left out construction work of the said purdah/boundary wall on 14.02.1992, but the Gupta family again created obstacles in that work and so, no such work could be done even on 14.02.1992. As the completion of the said purdah/boundary wall had by then become a dire and immediate need of the Jain family for their safety and privacy, and further as they needed, inter alia, a safe place to live in, the Jain family were left with no other alternative except to file a civil suit for obtaining necessary and appropriate reliefs against the Gupta family. While the suit filed by the Jain family was pending, the Gupta family filed the present suit.
43. The pleadings in both the suits are almost identical and are not repeated herein for the sake of brevity and to avoid duplication.
44. The prayers in the Suit No. 57 of 1992 which was on transfer renumbered as CS(OS) 2069/1998 filed by the Jain family as noted above reads as under:-
a) To grant a decree of declaration that the plaintiffs are owners in possession of the North Eastern half portion of the suit property bearing No.4 Cavalry Lines, Mall Road, Delhi as shown in red colour in the site plan annexed to this amended plaint, and the suit property stands divided/partitioned by virtue of the sale deeds detailed in para 2A above, and plaintiffs are entitled to deal with the same as such owners including by raising partition wall along the dividing line of the property on the ground floor, open space as also the terrace;
b) to grant a decree of perpetual injunction restraining the defendants, their, agents and employees from creating obstacles and interference in the remaining erection, raising and completion of the boundary/purdah wall over and above the already built up wall which exists in the premises of the plaintiffs and is shown in Sections and marked as AB and EF (in the unbuilt portion on the ground floor) and along and on the Section BC and DE (in the built up portion on the ground floor) along the demarcation line, and along and on the Sections marked BC, CD and DE (as ascertainable) on the terrace floor along the demarcation line shown on the plan annexed at No.4, Cavalry Lines, Mall Road, Delhi.
c) to grant a decree of perpetual injunction restraining the defendants, their agents and employees from entering into and causing annoyance, interference or nuisance and disturbing the peace and tranquility in the premises of the plaintiffs shown ‘red’ on the plan annexed at No.4 Cavalry Lines, Mall Road, Delhi,
45. The said suit was transferred to this Court vide Order dated 14.10.1997 and was renumbered as CS(OS) 2069/1998 and both suits were to be tried together.
ISSUES FRAMED
46. After completion of the pleadings, the following issues were framed in suit CS(OS) 1300/1992 filed by the Gupta family, vide order dated 04.04.2006:-
1)Whether the property bearing No.4, Cavalry Lines comprises land admeasuring 3504.57 sq.metres is incapable of being physically partitioned? OPP
2)Whether the plaintiff is entitled for a decree of declaration as prayed for? OPP
3)Whether the plaintiff is entitled for a decree of perpetual injunction as prayed for? OPP
4)Whether any partition wall was constructed for partitioning the property by metes and bounds, if so to what effect? OPP
The said issue was amended vide order dated 06.10.2006 which reads as:-
Whether any partition wall was constructed for partitioning the property by metes and bounds, if so, to what extent and to what effect? OPD
5)Whether the plaintiffs are estopped from claiming any relief as alleged in the written statement? OPD
6)Whether any specific, defined, distinct and independent portion was not agreed to be sold by the owners to the defendants, if so to what effect? OPP
7)Relief
47. Further in suit CS (OS) 2069/1998 filed by the Jain family, vide order dated 04.04.2006, the following issues were framed:-
1.Whether the plaintiff is entitled for a declaration that he is the lawful owner and in possession of North East half portion as shown in red color in plan annexed with the amended plaint? OPP
2.Whether the plaintiff is entitled for a decree of perpetual injunction as prayed for? OPP
3.Whether the plaintiff has concealed the material facts as alleged by the defendants, if so, to what effect? OPD
4.Whether the suit is bad for mis-joinder of parties? OPD
5.Relief
48. On 06.10.2006, this Court directed that the evidence recorded in CS(OS) 1300/1992 shall also be read in CS (OS) 2069/1998.
EVIDENCE LED BY THE PARTIES
(GUPTA FAMILY)
49. Gupta family examined 2 witnesses to prove their case. PW1 is Rajeshwar Nath Gupta and PW2 is Rajender Nath Gupta.
50. PW1/Shri Rajeshwar Nath Gupta reiterated his stand taken in plaint. He deposed that the suit property was never divided. He further stated that lawns, drive way, exit and entry gate etc. were to be enjoyed in common and jointly by both the families. Jain family in collusion with the erstwhile owners during the pendency of the present suit, have executed four sale deeds dated 12.01.2000. 25.1.2000,18.02.2000.8.03.2000, and further incorporated therein the recitals to the effect that half portion of the suit property in North East conveyed by the owners in favour of the Jain family is separate, distinct, specific, defined and independent.
51. PW2/Rajender Nath Gupta was a witness to the documents of Jains as well as Guptas executed in the year 1983. He categorically in his evidence in para 3 and 4 deposed that the suit property was purchased jointly by the both the families. He also deposed that both the families purchased three other properties jointly at Gole Market, Chandni Chowk and Minerva Cinema. He also deposed that lawns, passages, gates and verandas were the common places to be enjoyed by the parties jointly. He also deposed that he resided in the property from 1984 to 2005.
(JAIN FAMILY)
52. Jain family examined total 6 witnesses to prove their case.
53. DW1 is Ashok Jain, DW2 is S.K. Puri, Advocate, DW3 is Hemant Bhatia, Record Incharge, Office of Sub-Registrar-I, Kashmere Gate, Delhi, DW4 is Narender Kumar, Head Clerk, Building Department, MCD, Civil Lines, Delhi, DW5 is Naveen Ganda, Record Lifter in the Department of Delhi Archives, and DW6 is Shri Rattan Singh, SDO II, Office of Defence Estates Officer, Delhi Circle, Delhi Cantt.
54. DW1/Ashok Jain has deposed in his evidence that they were advised by one Mr V.S. Garg that as the property was very large and the parties to the suit were unable to afford to purchase it individually, it was possible to buy the same in equal half portions as the suit property was easily divisible into equal, separate, distinct, specific, defined and independent portions.
55. He further deposed in his evidence that there is no term and condition in the Perpetual Lease Deed dated 1951 which prohibited division and partition of the suit property by metes and bounds. Further he alleged that the Gupta family constructed new outhouses and extended the same from 800 sq feet to 3000 sq. ft., once the Gupta family were able to complete the construction of their outhouses in 1991, they obstructed the Jain family from raising the boundary wall. Jain family emphasized that his portion of the property was physically partitioned, divided and separated by a demarcated line and was actually a purdah wall.
56. DW2/SK Puri, Senior Advocate appeared to prove a notice Ex DW-1/5 which was issued at the behest of one of the previous co-owners against the Gupta familys.
57. DW3/Hemant Bhatia, In charge, Office of Sub Registrar-1, Kashmiri Gate, Delhi and proved the four sale deeds dated 12.01.2000 which were executed in favour of the Jain family during the pendency of the suit.
58. DW4/Narender Kumar was summoned from the MCD to prove unauthorized constructions made by the Gupta family in the suit property.
59. DW5/Naveen Ganda was a Record Keeper in the Department of Delhi Archives. He produced the sale deed dated 29.11.1960 and the perpetual lease deed dated 15.02.1951. These two documents as already stated above have already been filed by the Gupta family themselves.
60. DW6/Rattan Singh was summoned from the Office of Defense Estate Officer. He brought certain letters with him along with the extracts from the Military Land Register, Cash Books showing the receipt of lease money from the year 1985 to 1992 etc.
DOCUMENTS EXHIBITED DURING THE TRIAL
61. List of documents exhibited by both the families are extracted below:-
S. No.
List of Documents
Exhibit No.
1.
Perpetual Lease Deed dated 15.02.1951
Ex PW-1/10
2.
Sale Deed dated 29.11.1960
Ex PW-1/11
3.
ATS 16.09.1983 in favour of Gupta family
Ex PW-1/1
4.
Site Plan in favour of Gupta
Ex PW-1/3
5.
GPA dated 16.09.1983
Ex PW-1/2
6.
Power of Attorney dated 16.09.1983
Ex P-2
7.
Indemnity Bonds in favour of Gupta
Ex P-3 to Ex P-6
8.
Joint Possession Letter dated 16.09.1983
Ex PW-1/5/ Ex DW-1/P-3
9.
Supplementary Agreements in favour of Gupta
Ex PW-1/4 (also Ex P-7), Ex P-9, Ex P-11
10.
Joint General Power of Attorney by Smt Veena Bhalla.
Ex P-8
11.
Joint General Power of Attorney by Shri Anil Kalia.
Ex P-10
12.
Letter dated 07.12.1994 by DEO
Ex PW-1/12
13.
Copy of Extract from Military Register
Ex PW-1/6
14.
Copy of Statement of Account
Ex DW-1/P-1
15.
Copy of letter dated 03.05.2000 by DEO to defendant No. 1
Ex DW-1/P-2
16.
Mutation letter dated 10.06.1985 in favour of Jain family
Ex DW-1/2
17.
Lease Rent Receipt dated 15.05.2000 by Estate Officer
Ex PW-1/7
18.
Photographs with Negatives
Ex PW-1/8 (Colly) and Ex PW-1/9
19.
Vendors permission to Gupta and Jain family to use telephone
Ex DW-1/P4
20.
Mutation letter dated 10.06.1985 in favour of Gupta family
Ex P-12
21.
Sale Deeds dated 15.11.2000 executed in favour of Gupta family.
Ex PW-1/D1 and Ex PW-1/D2
22.
Greh Pravesh Photograph with Negative
Ex PW-1/D3 and Ex PW-1/D4
23.
DEO letter dated 06.08.1993 for cancellation of mutation to both the family
Ex PW-1/D5
24.
ATS dated 16.09.1983 in favour of Jain family
Ex P-13
25.
Site Plan in favour of Jain
Ex DW-1/1
26.
Indemnity Bonds in favour of Jain
Ex D-1 = Ex DW-1/30 to Ex D-4 = Ex DW-1/33
27.
Supplementary Agreements in favour of Jain
Ex D-5, Ex D-6, Ex DW-1/4
28.
Eight lease rent receipts paid by the Jain family
Ex DW-1/3 (Colly)
29.
Notice dated 10.05.1989 by Advocate S.K. Puri
EX DW-1/5
30.
Certified copies of notices issued by MCD obtained by Jain family under RTI
Ex DW-1/6 to Ex DW-1/13
31.
Photographs
Ex DW-1/14 to Ex DW-1/17
32.
Negatives of the above photographs
Ex DW-1/18 to Ex DW-1/21
33.
Proceedings of Local Commissioner
Ex DW-1/22 and Ex DW-1/23
34.
Site Plan filed with Amended Plaint
Ex DW-1/24
35.
Sale Deed dated 25.01.2000 executed by Promila Bakshi in favour of Jain family
Ex DW-1/25
36.
Sale Deed dated 12.01.2000 executed by Veena Bhalla in favour of Jain family
Ex DW-1/26
37.
Sale Deed dated 08.03.2000 executed by Chander Mohan Kalia in favour of Jain family
Ex DW-1/27
38.
Sale Deed dated 18.02.2000 executed by Anil Kalia in favour of Jain family
Ex DW-1/28
39.
Letter dated 16.09.1991 of Jain family to SHO, Maurice Nagar
Ex DW-1/29
40.
Photographs of Gupta family outhouse
Ex DW-1/14 and Ex DW-1/15
41.
Misalband Register
Ex DW-4/1
42.
Original Perpetual Lease Deed dated 15.02.1951
Ex DW-5/2 (Colly)
43.
Original Sale Deed dated 29.11.1960
Ex DW-5/1
44.
13 documents produced by DEO (DW-6)
Ex DW-6/1
45.
DEOs demand of rent dated 05.05.2000
Ex DW-6/PX-1
46.
Letter of July, 2000 issued by DEO to Gupta family
Ex DW-6/PX-2
SUBMISSIONS ON BEHALF OF JAIN FAMILY
62. Mr Sanjeev Sindhwani, learned senior counsel appearing on behalf of the Jain family states that the genesis of both the suits is the erection of purdah/boundary wall. It was proposed to be constructed for the enjoyment of Jain familys exclusive portion of the suit property. Since the Gupta family prevented the construction of purdah/boundary wall, the Jain family filed suit for Injunction being CS(OS) 2069/1998 (filed on 18.02.1992). In the said suit, Jain family relied upon the ATS dated 16.09.1983 and claimed that they have purchased the North East side of the suit property and referred to the site plan (Ex DW-1/1) annexed with the ATS which forms the integral part of the ATS (Ex P-13). The Gupta family denied the same and stated that no partition had taken place. Since the issue of excess vacant land got settled with the repeal of Act of 1976 in 1999, fresh Sale Deeds were executed in favour of both the families and thereafter the plaint was amended.
The documents: a clear indicator of separate sales
63. Learned senior counsel submits that by virtue of two ATS, separate portions were assigned to both the families. The two portions were occupied by two families, as per the schedule in their respective ATS. Each family occupied a separate part of suit property and continue to do so till date. This, by itself, makes evident the intent to have two separate and independent portions owned and occupied by the two families. If the intention was otherwise, one single agreement would have been executed.
64. Not only this, along with separate agreements (Ex PW-1/1 in favour of Gupta family and Ex P-13 in favour of Jain family), separate Indemnity Bonds (Ex. DW-1/30 to Ex. DW-1/33) were also executed. Two families came to possess the two portions independently including built up as well as open areas, without any interference from each other. This situation continues till date.
65. He submits that the principal document i.e. Perpetual Lease deed dated 15.02.1951 (Ex DW-5/2 (colly)) does not prohibit sub-division of land. The said deed in Clause 8 provides for further assignment of the land or any part thereof. The only requirement is for a mere intimation to the lessor within one month. There is, therefore, no impediment to sub-divide the suit property. Hence, the two separate ATS, have the sanction of the parent document. The ATS are sufficiently indicative of the intent to have a division and separate enjoyment of two specific portions. In addition to numerous clauses, reliance is also placed on Clause QQ, Clause 2, Clause 6 and Schedule.
66. The two ATS make it evident that by their very terms, distinct and specified area of 1752.285 sq. mtrs. was agreed to be conveyed to two families. There is nothing in the suit property which was agreed to be undivided. The respective portions were always separate, specific, independent and exclusive and always remained the same.
67. The General Power of Attorney (Ex PW-1/2) provides for sub-dividing the said property so as to separate the vacant land and make into separate building plots or plots to extend and develop the built up portion of the said land and to develop the vacant land. In fact, the submission of Gupta family that all documents are joint, is flawed, as even the GPA/POA, was executed for sub-division.
68. The execution of separate Indemnity Bonds with specific mention of distinct portions/area in favour of respective families is a clear indicator of separate and distinct sales. The Indemnity Bonds, too, do not anywhere mention any undivided land. Rather, the executant in this document says that I have entered into an agreement for sale one half portion of the said land i.e. land admeasuring about 1570.25 sq. mt. along with building. Supplementary Agreements dated 04.03.1989 were also executed separately in favour of respective families, specifying half area each, out of plot commonly known as 4, Cavalry Lines, Mall Road, Delhi. The language is clear regarding separate sales of independent and distinct areas.
The documents drafting: An informed choice.
69. Learned senior counsel submits that the two ATS were drafted and finalized by reputed legal experts. There is ample evidence to show that the parties were also duly consulted. The very fact that the word undivided has not been mentioned clearly shows that the suit property was divided. This holds true even for the Supplementary Agreements.
70. In this scenario, it is hard to contend that a fact as important as that undivided portions being purchased by the parties could have been missed out. If the intention was to purchase the property jointly, the drafting of documents was bound to be joint. The Gupta family, surely, would not have drafted the ATS, the way the two documents stand. The language, the expressions, the terminologies etc. employed in the documents leave no manner of doubt in this regard.
71. He further submits that the Gupta family contesting that the living areas are separate and open areas are joint is unsupported by any evidence and is contrary to the pleadings.
Separate Mutations
72. He submits that in furtherance thereof, both the families had also obtained separate mutations. The mutation letter dated 10.06.1985 (Ex P-12 and Ex DW-1/2) provides for separate mutations of the respective areas in favour of two families. Both parties made separate applications and filed affidavits dated 16.05.1985 for mutation of their respective separate independent half portions of the suit property in their respective names. The mutation, as such, was also affected separately in favour of each of them for an area measuring 1752.285 sq. mtrs.
73. It is also an admitted fact that after mutation, both families started paying the lease rent separately. The eight original receipts of Jain family, Ex DW-1/3 (Colly) are indicating that the lease rent paid w.e.f. 1985 to 1992. Similarly, the Gupta family also paid its lease money separately for its own half portion. The cash book of DEO produced by DW-6, shows entries of payment separately by two families, i.e. till the year 1992, when litigation started between the parties.
74. This fact further stood confirmed by DEO that the premises stood sub-divided in its letter dated 04.12.1991 (Part of DW-6/1 (Colly)). It is also mentioned in this letter that in terms of Para I (8) of Perpetual Lease Deed dated 15.02.1951 (Ex DW-5/2 (colly)), the vendees had the right to sub-lease/transfer their rights under intimation to the DEO. The construction/existence of wall is also confirmed by this letter.
75. With regard to the mutation being cancelled (Ex PW-1/D5), he submits that the fact this mutation was cancelled subsequently was only for the reason that the parties could not produce the registered Sale Deeds (which, obviously could not be executed for urban land ceiling/excess land issue). In any case, what is important is that both families had approached and obtained the mutation separately. Their intent clearly shows that the two portions in the suit property was distinct. Otherwise there was no reason for making an separate application for mutation.
The Wall
76. Learned senior counsel urges that the part construction of wall is an admitted fact. It is also admitted that the boundary wall is situated within the premises of Jain family and it remains confined to Jain familys own portion and no part of it goes to Gupta familys portion. The Gupta family contends that the wall was constructed not for dividing/demarcating but for the purpose of preventing water flow from the SW portion to NE portion to prevent siltage and erosion of earth/soil.
77. Learned senior counsel submits that to prevent siltage in a lawn, no person would logically conceive construction of a wall right in the middle thereof. The construction of a wall would only mean shifting of siltage from one part of the lawn to the other. The accumulation of silt would thus subsist. The wall cannot, even on a bare logic, prevent accumulation of water. To ease flow of water and prevent siltage, one needs to ensure that water flows out/away and is not blocked (by constructing a wall). This itself is an admission.
78. Still further, the demarcation engraved line filled with black paint on the floor of front and rear verandah and adjoining pucca open area is admitted. There was no complaint of the same by Gupta family despite numerous complaints on other matters, even on trivial ones. Why this black lines was made dividing the suit property, has remained wholly inexplicable. The stand of PW-1 in his evidence that the black engraved lines had been made in my absence and exist even in front of my bedroom is devoid of truth.
79. The existence of the wall, as a partition wall, was also confirmed by the Defence Estate Office. The witness DW-6 exhibited the letter dated 04.12.1991 stating that The sites have already been demarcated on the ground upto plinth level but now Sh. Jain has sought permission to raise a boundary wall upto a reasonable height as permissible under the rule. Even this permission was granted vide letter dated 07.04.1992 stating that
.Shri Ashok Jain, in view of the security and safety involved of his and his family may be permitted to erect the proposed wall…. Hence it is clear that the purdah wall was constructed for partitioning the suit property.
Two Gates : Two separate properties
80. The existence of two separate gates in the suit property is again a clear indicator of the parties having purchased two separate portions. The Jain family in their written statement have categorically stated that there are two gates falling in respective portions of two families. Separate name plates were put on two separate gates.
81. PW1 in this cross examination admitted the photograph Ex PW-l/D3, which he acknowledged to be the photograph taken when he was entering the bungalow in the year 1984. The photograph, fortuitously, captures the separate name plate of R.N. GUPTA. Thus, the existence of separate name plates at the gate in the year 1984 itself stands established.
Outhouses
82. Learned senior counsel submits that the Gupta family demolished and reconstructed the outhouses, falling in their portion. The Gupta family obviously, while carrying out construction, considered the portion/structures belonging to them exclusively. The existing outhouse falling in the portion of Gupta family at the time of purchase in 1983 was 800 sq. ft. and as per the site plan Ex PW-1/3, the dimension of the outhouse is given approximately as 900 sq. ft. After demolition and reconstruction, the Gupta family has increased it to 3000 sq. ft.
83. It is also admitted that Gupta family was booked by MCD for unauthorized construction of his outhouse. In fact, a demolition order was also issued by MCD.
84. The original file from MCD was also summoned by Jain family, through its witness DW-4, Head Clerk, Building Department, MCD. This witness also brought and proved the Misalband Register for bookings of unauthorized construction (Ex DW-4/1), showing unauthorized construction of One Big Hall with RCC columns in 4 Cavalry Line by Sh. R.N.Gupta. This establishes that the MCD recognized the open areas on which Gupta family had made unauthorized construction, to be that of Gupta family and accordingly booked them individually for it.
Registered Sale Deeds
85. After the repeal of Act of 1976 in 1999, the erstwhile owners separately executed four Sale Deeds (Ex DW-1/25 to Ex DW-1/28) in favour of the Jain family, transferring their respective property portions to the Jain family, thereby finalizing their title as per the ATS dated 16.09.1983. These Sale Deeds were also proved by DW-3, the official from the office of Sub- Registrar.
86. The Gupta family registered their Sale Deeds on 15.11.2000 (Ex PW-1/D1 and Ex PW-1/D2), but they executed these deeds themselves based on a Power of Attorney and incorrectly included the phrase 1/2 undivided share which did not align with the ATS. On the other hand, the Sale Deeds executed in favour of Jain family by the erstwhile owners show separate distinct area in possession of the Jain family.
87. Following the execution of the Sale Deeds, the Jain family amended their plaint to reflect their ownership of the North-Eastern portion of the property, as specified in the deeds. These deeds accurately described and conveyed the North-Eastern portion with all associated rights and structures.
88. The Sale Deeds (Ex DW-1/25 to Ex DW-1/28) stipulate that earlier vide ATS dated 16.09.1983, the Jain family were handed over separate, distinct, specific, defined and independent half portion of the suit property.
The site plan
89. The site plan (Ex DW-1/1) is an integral part of ATS. The Gupta family has disputed the site plan propounded by the Jain family. The Gupta family has alleged that there was no red colour in the site plan. The Gupta familys submission in this regard is erroneous as both the ATS contain a specific stipulation that the suit property being conveyed was as delineated in the plan annexed (Annexure ‘B’) hereto and marked red in pencil. Thus the submission of Gupta family is contrary to the documents (even his own ATS).
90. Further, the argument of Gupta family is contrary to Section 91 and 92 of the Indian Evidence Act, 1872 (Act of 1972).
91. The Supplementary Agreement(s) executed in the year 1989, i.e. about 6 years after the ATS(s), confirmed the earlier ATS(s), and still nothing was done to correct the so called error.
92. The site plan of Gupta family (Ex PW-1/3), according to Gupta family, does not show the N-E and S-W sides, nor it show the mark in red pencil. The ATS, however, contains the term of delineation of the portion in red in the site plan. The Gupta familys plan is thus contrary to their own ATS. The Gupta familys answer that demarcation on the plan was to be made after determination of excess vacant land defies logic and remains unsubstantiated. This, in any case, establishes the fact that the properties were indeed sold separately.
93. It remains inexplicable as to how the parties came into possession, occupied and lived for the past 41 years in separate N-E part and S-W part, without there being any delineation on the site plans, as being claimed by the Gupta Family. The parties have been living in their specified portion for the last more than 41 years.
The Concealment
94. The Gupta family has taken a stand that in the suit filed by the Jain family, the material facts have been concealed by not filing the other documents.
95. In this regard, learned senior counsel submits that the suit as originally filed by the Jain family, in the year 1992 was a suit simplicitor for perpetual injunction. For the purpose of such suit, the ATS alone was considered as the relevant document.
Tenant cannot seek partition
96. As regards the partition cannot be claimed by the sub-tenant, sub-lessees, learned senior counsel states that there is no bar on the tenants to divide/partition the tenanted property and the Perpetual Lease itself permits the division of the suit property which is a leasehold property.
97. With these argument, learned senior counsel prays for the dismissal of the suit filed by the Gupta family.
SUBMISSIONS ON BEHALF OF GUPTA FAMILY
98. Mr Sameer Vashishth, learned counsel appearing on behalf of the Gupta family refuting the above submissions advanced by the learned senior counsel appearing for the Jain family argues that the decision on all the material issues (except Issue No 3 in CS (OS) No 2069 of 1998) in both the suits will depend on the outcome of the argument that whether Jain family and Gupta family purchased the suit property on 16.09.1983 as divided, separate, distinct and independent of each others share.
99. He submits that the answer to the said question is in the negative. In support, he states as under:-
A) Restriction in Perpetual Lease Deed dated 15.02.1951
100. The Perpetual Lease Deed (Ex DW-5/2 (Colly)) is the principal document between the parties. The suit property being a leasehold property, both the families are bound by the terms of the said document. Clauses 4 to 8 puts an embargo to erect any construction other than the dwelling house erected without the previous consent of the Officer Commanding in Chief. It also restricts any alteration in the plan or elevation of the dwelling house without any consent of the Lessor.
101. He submits that Clause 8 of the Perpetual Lease cannot be read in isolation. Clauses No. 5, 6, 7 and 8 of the Perpetual Lease Deed are to be read together. Clause 8 cannot be given an interpretation that constructions in the suit property can be raised at any place as per the option/convenience of the lessees. Reliance is placed on Delhi Development Authority vs. Karamdeep Finance and Investment (India Pvt Ltd), (2020) 4 SCC 136 to submit that the document must be scrutinized closely to find out the real intention of the parties.
B) Only super structure can be divided
102. It is submitted that the version of the Jain family that the suit property was purchased as divided and separate is not maintainable as the suit property is a lease hold property and cannot be divided by metes and bounds. The parties are free to divide the superstructure, which was done by both the families. Reference is made to Chiranji Lal & another vs. Bhagwan Das & Others, AIR 1991 Del 325.
103. He further submits that the Jain family has argued that the super structure also includes lawns and open areas. The said argument is incorrect. The meaning of Structure as per Blacks Law Dictionary is any construction, production, or piece of work artificially built up or composed of parts purposefully joined together.
C) Sale Deeds dated 25.01.2000 is inadmissible and even otherwise not proved in accordance with law
104. Jain family during the pendency of the suit via amendment brought the fact on record that the Kalia family had executed Sale Deeds dated 25.01.2000 (Ex DW-1/25), Sale Deed dated 12.01.2000 (Ex DW-1/26), Sale Deed dated 08.03.2000 (Ex DW-1/27) and Sale Deed dated 18.02.2000 (Ex DW-1/28) in their favour. Jain family placed reliance on the recital of the Sale Deed which reads as under:-
AND whereas on 16.09.1983 itself the owners had also handed over possession of the aforesaid entire part of perpetual lease hold land admeasuring 1752.285 sq.mt., including the aforesaid 182.035 sq.mt. of excess vacant land, together with the structure/buildings constructed thereon, which was, and is, the North-Eastern, separate, distinct specific, defined and independent half portion of the said property, (adjacent to 2, Cavalry Lines, Mall Road, Delhi)
105. It is submitted that the abovesaid Sale Deeds are not admissible being executed Post Litem Motam. Reliance is placed on State of Bihar vs. Radha Krishna Singh & Others, (1983) 3 SCC 118.
106. Without prejudice to the above, he submits that the said document was created by the Jain family intentionally and purposefully. They are well aware of the fact that the ATS dated 16.09.1983 was for undivided land and it never contained words separate, distinct, specific, defined and independent half portion. On the basis of said Sale Deeds, the Jain family sought an amendment in the prayer which reads as under:-
To grant a decree of declaration that the plaintiffs are owners in possession of the North Eastern half portion of the suit property bearing No.4 Cavalry Lines, Mall Road, Delhi as shown in red colour in the site plan annexed to this amended plaint, and the suit property stands divided/partitioned by virtue of the sale deeds detailed in para 2A above, and plaintiffs are entitled to deal with the same as such owners including by raising partition wall along the dividing line of the property on the ground floor, open space as also the terrace;
107. Since there were discrepancies in the Sale Deeds and ATS, the burden to proof the contents of the Sale Deed were on the Jain family. Reliance is placed on Jaswant Kaur vs. Amrit Kaur & Others, (1977) 1 SCC 369. The Jain family failed to prove the same and also failed to produce any witness from the vendors to prove the contents of the alleged Sale Deeds.
108. It is submitted that mere proof of handwriting of a document would not tantamount to proof of all contents of facts stated in the document. The truth of the facts or contents so stated would have to be proved by admissible evidence and that is why evidence of the vendors were necessary who could have vouched safely for the truth of facts in issue. Reference is made to Ramsunder Bhagat & Another vs Rambharosi Bhagat, 1956 SCC OnLine Pat 72 and Ramji Dayawala vs Invest Import, (1981) 1 SCC 80, Para 16. Thus, the said Sale Deeds have not been proved in accordance with law and no reliance can be placed upon them.
109. Jain family during arguments submitted that Gupta family got executed in their favour Sale Deeds dated 15.11.2000 which contained the words undivided share. As per Jain family, the word undivided share was no where used in the ATS dated 16.09.1983 the said introduction of the words in the Sale Deeds dated 15.11.2000 is sufficient to draw an inference that the suit property was purchased divided at the time in 1983. The said argument is a misconceived one. It was reiterated that various clauses of Lease Deed clearly suggest that the property was an undivided one and therefore the contents of the Sale Deeds dated 15.11.2000 in favour of Gupta family was correct and proved.
D. Sale Deeds are of Leasehold rights and not absolute rights
110. Learned Counsel submits that the subsequent Sale Deeds (Ex DW-1/25 to Ex DW-1/28) were only regarding lease hold rights of the suit property and cannot be with regard to the absolute rights. Reliance is placed on Delhi Development Authority vs Karamdeep Finance and Investment (India Fvt Ltd), (2020) 4 SCC 136.
E. Nature of Property
111. It is further submitted that the suit property was a Lease hold property. It was always identified as 4, Cavalry Lane, Mall Road, Delhi and was a single bungalow built on land ad-measuring 0.866 acres. The Military Estate also considered the said property always as one and even when the same was leased out to both the families, the same was considered as a single unit. The same is evident from Letter/Order dated 03.05.2000 passed by Military Estate. Post execution of the Sale Deeds, Jain family applied for mutation of their half portion which was rejected by the Military Estate vide Order dated 03.05.2000 (Ex DW-l/P-2).
F. Salient Features of Documents dated 16.09.1983 and 04.03.1989
112. Relying on ATS (Ex PW-1/1) and Supplementary Agreements (Ex PW-1/4, Ex P-9, Ex P-11), he further submits that no where it is mentioned about the sale of any divided, specified separate and independent share, by any of the four vendors in favor of the parties to the present suit. Further the ATS in favour of both the families were executed in respect of two equal undivided half shares. GPA dated 16.09.1983 (Ex PW-1/2) was executed in favour of plaintiff No. l and defendant No. l jointly to deal with the suit property and not for any specified or a separate share.
113. As regards the site plans of Jain family showing their portion in red colour, it is argued that the same is forged and fabricated. Further, the phrase marked in red has been picked up from the Perpetual Lease Deed dated 15.02.1951 (Ex DW-5/2 (Colly)) and Sale Deed of 1960 (Ex DW-5/1).
114. The fact that the suit property was undivided is evident from the fact that the suit property had an excess vacant land of 364 sq. mtrs. which was not divided and no specifications was mentioned in any of the agreements as to which portion of excess vacant land would fall to the share of which party.
115. The nature of the suit property being an undivided one is also established from the fact that there was a tenant/unauthorized occupant in the suit property by the name of Ms. Mallo Devi (Clause TT in both the ATS). Both the families were given a right to seek her eviction from the suit property. Had the property been divided, a specific vendee would have got the tenancy rights.
116. Vide another set of documents i.e. Supplementary Agreement dated 04.03.1989 (Ex PW-1/4 (also Ex P-7), Ex P-9, Ex P-11), of the same day, which were executed by Smt. Veena Bhalla & others, the contents of ATS dated 16.09.1983 were confirmed. Had there been any partition in 1983, it could have been so stated in the Supplementary Agreement.
117. On 16.09.1983, when the suit property was transferred, a possession letter (Ex PW-1/5) was also executed by all four brothers and sisters and the recital of which clearly establishes the version of the Gupta family that the entire possession of the suit property was handed over to the plaintiff No. 1 and defendant No. 1. No such recital appeared or was conveyed by the erstwhile owners that they were handing over separate, specified, specific and divided portions to their respective owners including separate lawns and common spaces.
G. Site Plans attached with Agreements to Sell dated 16.09.1983
118. It is submitted that much of the emphasis was given to the Site Plan (Ex DW-1/1). As per the Jain family, the vendors demarcated their portion in the suit property in colour red on the site plan and this shows that suit property was acquired by Jain family separate and distinct. Further, along with the ATS of Guptas, Site Plan (Ex PW-1/3) was also executed by the vendors. No demarcation of any portion was made in the Site Plan. The said site plan was signed by all the four Vendors.
119. Jain family tried to demonstrate that it is not possible to remove any line or colour from a paper as it will leave marks on rubbing. However, red colour can easily be filled in the site plan. It is not the case of Jain family that the site plan (Ex PW-1/3) was forged and fabricated. Further, all the documents of 1983 were executed simultaneously. Had there been any discrepancy in the documents, Jain family would have immediately pointed the same or at the most in 1989 when the Supplementary Agreements were executed.
H. Brick Wall in the property does not partition the Suit Property
120. Para 10 of the written statement filed by the Gupta family in CS (OS) 2069/1998 reads as under:-
10.
It is submitted that the properties could not be made separate and distinct unless it was determined by the competent authority as to which portion of 4 Cavalry Lines, Mall Road, Delhi, will be taken possession by the Competent Authority as excess land. It is denied that any boundary wall was partly constructed, As a matter of fact, the alleged wall was constructed only in the lawns in order to bring the lawns in one level. It will not be out of place to mention here that the slope of the lawn was towards existing bungalow No. 2 and the water used to accumulate towards North East side. The wall was never constructed with the purpose of laying any dividing line between the property.
121. The suit property was never acquired by both the family in a divided manner in the year 1983. Had it been acquired in a divided manner, the partition wall, if legal, would have been erected then only. Mr. Ashok Jain has admitted in his cross-examination that the said demarcation boundary was constructed later on. This was constructed in the year 1991.
122. Reliance is further placed on para 21 of the plaint filed by the Jain family in CS (OS) 2069 of 1998 which reads as under:-
That the plaintiffs are legally entitled to complete the boundary/purdah wall which, is under completion at present. It is submitted that the said wall is entirely located inside their premises and the defendants have no right or title to and in the ground on which the same exists. Moreover, its completion will cause no harm to the defendants.
123. A perusal of the above para shows that the purdah wall is built inside the portion of Jain family. Thus the entire version of Jain family that the purdah wall divides the suit property is farce and is an incorrect submission.
124. Jain family relied upon a report of Local Commissioner dated 30.01.2008, which stated that a brick wall runs to the middle of the lawn and verandah had a black line running down the middle of floor. Gupta family filed objections to the said report vide I.A No. 5093 of 2008. Vide Order dated 21.11.2008, this Court did not accept the said report on its presentation and permitted Jain family to prove it in evidence and liberty was given to Gupta family to cross-examine the Local Commissioner in evidence. Jain family never proved the said report in evidence.
Argument on Issue No. 3 framed in CS (OS) No. 2069 of 1998: Whether the plaintiff has concealed the material facts as alleged by the defendants. If so to what effect? OPD
125. Mr Vashishth submits that the suit filed by the Jain family be dismissed on the ground of concealment of facts.
126. The reading of the entire plaint would demonstrate that Jain family completely and clearly concealed the principal Perpetual Lease Deed dated 15.02.1951, Sale Deed dated 29.11.1960, GPA dated 16.09.1983, Supplementary Agreements and GPA dated 04.03.1989.
127. Jain family stated that there was no necessity for them to disclose the above said documents as the suit was for injunction only and ATS dated 16.09.1983 would have sufficed for the said issue. Further, the disclosure of facts and documents are to be seen as per the perspective of the plaintiff i.e. Jain family and not as per the Gupta family.
128. He submits that the suit filed by the Jain family was not a simplicitor suit for Permanent Injunction. Jain family had also prayed for the relief of Declaration. Hence it was not correct on the part of Jain family to have argued that they had filed the suit only for seeking relief of injunction.
129. Without prejudice to above, it is submitted that withholding of the vital material fact from the Honble Court amounts to playing fraud with the Court. Reliance is placed on Hillcrest Realty SDN. BHD vs Hotel Queen Road Pvt Ltd, 2009 (3) AD (Delhi) 541 (DB) and K.D. Sharma vs Steel Authority of India Limited & Other, (2008) 12 SCC 481.
130. In view of the submissions advanced, the Gupta family prayed for the dismissal of the suit filed by the Jain family.
ANALYSIS AND FINDINGS
131. I have heard the rival submissions advanced by the learned counsels for the parties and have gone through the documents and evidence of the parties.
132. Before deciding the controversy between the parties issue wise, I shall first decide that whether the suit property is divisible or not. If the answer to the said question is in affirmative, then I shall proceed to decide whether the suit property purchased by both the families on 16.09.1983 was separate, distinct and demarcated and thereafter, the other issues.
133. The fountain head of the rights of both the families emanates from the parent document i.e. Perpetual Lease Deed dated 15.02.1951. The original Perpetual Lease deed was produced by DW5/Naveen Ganda and is exhibited as (Ex DW-5/2 (Colly)). The relevant clauses of the said Perpetual Lease deed are extracted below:-
(1) To pay unto the Lessor the yearly rent hereby reserved on the days and in the manner hereinbefore appointed,
(2) From time to time and at all times to pay and discharge all rates taxes charges and assessments of every description which are now or may at any time hereafter be imposed charges or assessed upon the premises hereby demised or the buildings to be erected thereupon or the landlord or tenant in respect thereof.
(3) Not to cut down any of the timber fruit-trees or other trees now or at any time hereafter growing on the premises hereby demised without the consent in writing of the Military Estates Officer but to preserve the same in good order.
(4) Not to make any excavations in the Land hereby demised or remove any minerals mineral substances of any description sand or clay from the said land without the consent of land in accordance with the terms and condit