Sanjay Arora & Anr. v. Surender Singh & Ors.

1. This Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) is filed by the plaintiffs in the suit impugning the Judgment of the trial court dated 15.12.2017 by which the trial court has dismissed the suit for possession and mesne profits filed by the appellants/plaintiffs with respect to the two flats on the east side and west side on the 4th floor of the property/building No. 15- 2018:DHC:7093 A, Jangpura Lane, Bhogal, New Delhi. The suit was dismissed despite the fact that the appellants/plaintiffs led evidence and proved their case and the respondents/defendants had led no evidence as their right to lead evidence was closed.

2. The facts of the case are that the appellants/plaintiffs pleaded that in terms of the usual documents being the Agreement to Sell, Power of Attorney, Will etc., dated 20.11.2000, they purchased the rights in the two flats on the 4th floor on the east side and west side of the suit building from the builder/collaborator Smt. Krishna Saini. The builder, Smt. Krishna Saini, had entered into a Collaboration Agreement dated 30.12.1999 with the respondents/defendants, and as per this collaboration agreement, the rights to the basement, the second floor with the terrace and the rights over the third floor fell to the share of the builder, Smt. Krishna Saini, and the rights to the ground floor, first floor and third floor without roof rights fell to the share of the respondent nos. 1 and 2/defendant nos.[1] and 2/owners. Simultaneous to the entering into of the collaboration agreement, the respondent nos. 1 and 2/defendant nos.[1] and 2/owners executed a General Power of Attorney in favour of the builder, Smt. Krishna Saini. The appellants/plaintiffs pleaded that on the execution of the documents dated 20.11.2000 they received the possession of the 4th floor, and were in possession thereof till 18.06.2009, and when it was found that the respondents/defendants had taken illegal possession of the subject property at 4th floor and had also stolen all the articles lying therein including sofa-set, kitchen appliances, gas, stove, cylinder, almirah, cooler, fan etc of the value of Rs. 1,00,000/-. The appellants/plaintiffs consequently registered an FIR No. 286/2009 with Police Station Hazrat Nizamuddin against the respondents/defendants on 10.07.2009. In the criminal proceedings, the respondents/defendants had applied for anticipatory bail as also regular bail and wherein they stated that they had rented out the suit premises. Accordingly, the subject suit for possession and mesne profits was filed.

3. The respondents/defendants filed their joint written statement and pleaded that respondent no. 1/defendant no.1 and his brother Sh. Harbhajan Singh are the owners of the suit property with respect to which the other brothers had executed in their favour a registered Relinquishment Deed on 29.10.1998. It was admitted that on 30.12.1999 the respondent no. 1/defendant no.1 and his brother Sh. Harbhajan Singh had entered into a collaboration agreement with the builder Smt. Krishna Saini. It was also admitted that the builder Smt. Krishna Saini was entitled to basement, second floor and roof rights over the third floor, whereas respondent no. 1/defendant no.1 and his brother, Sh. Harbhajan Singh, were entitled to ground floor, first floor and third floor without roof rights to the property. It was further pleaded by the respondents/defendants that the builder left the construction incomplete and it was the respondent no. 1/defendant no.1 and his brother who made remaining construction above the third floor and fourth floor from their own funds and since then they are in possession of these floors. The suit was hence prayed to be dismissed.

4. The trial court framed issues and appellants/plaintiffs led evidence, and these aspects are recorded in paras 5 to 5.[2] of the impugned judgment, which read as under:-

5. The trial court by the impugned judgment has dismissed the suit by observing that the 4th floor is an illegal floor as per the Municipal Bye-laws, and therefore appellants/plaintiffs cannot claim any right in the same.

6. In my opinion, the trial court has grossly erred in dismissing the suit because if there was any illegal construction then whether the same has to be demolished or it has to continue to exist will be upon the Municipal Corporation of Delhi and the relevant laws as applicable, but that would not mean that the legal ownership of an illegal property would not vest with a person who has ownership of the same. The appellants/plaintiffs have proved in the trial court the entire set of documents executed in their favour as Ex.PW1/A- Ex.PW1/O and Ex.PW2/A(Colly). Both the appellants/plaintiffs stepped into the witness box and proved their cases. It is seen that out of the documents which have been proved by the appellants/plaintiffs one document which is proved is the Bail Application dated 25.8.2000/ Ex.PW1/J, and the respondent no. 1/defendant no. 1 in his bail application has clearly stated that it was the builder, Smt. Krishna Saini, who had constructed up to the 5th floor illegally and that 4th floor, being the suit floor/property, was with the respondent NO. 1/defendant no. 1. These paras, therefore, show that the case set up by the respondents/defendants in the written statement that the building was only constructed by Smt. Krishna Saini only up till the second floor, is a false case and that in fact there did exist the 4th floor and which was sold in terms of the usual documentation dated 20.11.2000 by the builder, Smt. Krishna Saini, to the appellants/plaintiffs. The relevant paras of the Bail Application dated 25.08.2000/Ex.PW1/J are paras 3-5 and these paras read as under:-

7. As already stated above, the respondents/defendants have led no evidence. Once the appellants/plaintiffs proved their case, and the respondents/defendants had led no evidence and hence failed to prove their case, the appellants/plaintiffs are bound to succeed and the trial court has therefore seriously erred in dismissing the subject suit for possession and mesne profits.

8. Counsel for the appellants/plaintiffs at this stage states that the concern of the appellants/plaintiffs is really to get back possession of their valuable property and the appellants/plaintiffs do not press for the relief of mesne profits.