Hemant Verma vs Sh. Gulshan Kumar and Others

V.K. Jain, J.—This is an application for restoration of water supply to the portion occupied by the plaintiff in the suit property. The case of the plaintiff is that the water supply to the portion occupied by him was blocked by defendants 1 and 2, which later also removed the water pipe which goes to the first floor and threw it on the door of the plaintiff. The plaintiff has accordingly sought restoration of the water supply to the first floor portion occupied by him in the suit property.

The application has been opposed by defendants 1 and 2. The learned Counsel appearing for defendants 1 and 2 states that the portion occupied unauthorisedly by the plaintiff on the first floor of the suit property never had water supply in it and there is a false averment alleging removal of pipe by defendants 1 and 2. A perusal of the record of the Local Commissioner dated 18th March 2009 shows that the portion found to be in possession of the plaintiff on first floor comprise two rooms, one kitchen, one bathroom, one WC and some open space along with a small balcony in front of rooms. Since the portion occupied by the plaintiff also included kitchen, bathroom, and WC, it is difficult to accept that no water was being consumed in the portion occupied by him.

This is not the case of any party that the plaintiff has some other independent source of supply for water to the portion occupied by him on the first floor of the suit property. The question whether the possession of the plaintiff is illegal or not can be decided only at the time of adjudication of the suit on merits. The case of the plaintiff as setup in the plaint is that he had entered into an agreement with late Sh. Chuni Lal, owner of the suit property for purchase of the entire suit property for a consideration of Rs. 85 lakhs on "as is where is basis" and the liability of getting the premises vacated from the tenant was of the plaintiff though defendant No. 7 was to refiner all help and assistance to him for this purpose. A sum of Rs. 10 lakhs is alleged to have been paid in advance to late Shri Chuni Lal. The plaintiff could also advance a sum upto Rs. 5 lakhs to defendant No. 7 for rendering help in getting the premises vacated from the tenant. Possession of the first floor portion is stated to have been handed over to the plaintiff by defendant No. 7 Smt. Swaran Kanta after getting it vacated from a tenant, who was earlier occupying it. This, however, is disputed by defendants 1 and 2 whose case is that the plaintiff had illegally occupied a portion of the first floor, without any authority of law. However, the fact remains that the plaintiff claims to be a lawful occupant of the portion occupied by him on the first floor of the suit property. Since water is an essential amenity, there is no good reason for depriving the plaintiff of water supply during pendency of the suit. The plaintiff will not be able to adequately utilize the portion occupied by him, if he does not have even water supply to his portion. If it is found on trial that the possession of the plaintiff is lawful, it will not be possible to compensate him in money term, for the loss sustained by him on account of his inability to make adequate use of the portion occupied by him on the first floor, in the absence of water supply to those portion. The contesting defendants, however, will not suffer any loss and not face any serious inconvenience in case the plaintiff obtains supply of water to the portion occupied by him. The learned Counsel for defendants 1 and 2 states that he will prefer the plaintiff to have an independent connection in his own name under the order of Court instead of the plaintiff being allowed to get water through the existing connection in this house, which presently stands in the name of late Sh. Chuni Lal. In these circumstances, the plaintiff is permitted to obtain a water connection in his own name for supplying water to the portion occupied by him on the first floor of the suit property. Obtaining of water connection, however, will not create any equity in favour of the plaintiff and will be without prejudice to the respective rights and contentions of the parties to the suit. The defendants will not create any hurdle in the plaintiff obtaining water connection in his name in terms of this order.

The suit has been contested by defendant Nos. 1 and 2, who have alleged that late Shri Chuni Lal had never agreed to sell the suit property to the plaintiff and that the alleged agreement to sell dated 16th March, 2005 setup by the plaintiff is a forged and fabricated document having been created by the plaintiff in conspiracy with other defendants. It is, however, admitted that the suit property was owned by late Shri Chuni Lal, father of defendants. It is also claimed by defendants 1 and 2 that late Shri Chuni Lal had executed a WILL in their favour and a probate case filed by them is pending before the learned Additional District Judge, Delhi.

Defendant No. 7, however, has admitted the agreement to sell, alleged to have been executed by late Shri Chuni Lal in favour of the plaintiff and receipt of Rs. 10 lakhs by him. She has also admitted that she helped the plaintiff in negotiating with the tenant Shri Avinash Kumar, who vacated the first floor and handed over the possession to the plaintiff. She claims to have received only Rs. 1,75,000/- from the plaintiff for rendering this assistance though she was entitled to a sum of Rs. 5 lakhs in this regard. She has also claimed that the WILL set up by the defendants 1 and 2 is a forged and fabricated document.

The application stands disposed of.

Dasti copies to the parties.

IA No. 16382/2010 (u/O 23 R 3 CPC)

This is a suit for recovery of Statement of counsel for the plaintiff, counsel for defendants 3, 4, 7 and 7 as well as of defendants 3, 4, 7 and 8 recorded.

It transpires during arguments that defendant No. 4 Mr. Darshan Lal had given a statement before the learned Additional District Judge, Delhi on 27th April 2006 in Probate No. 209/2006 stating therein that he has no intention to dispose of the suit property in any manner or to create any third party interest in the first floor of house No. 16/11, Kalkaji, New Delhi.

Under the settlement between the plaintiff and defendants No. 3, 4 7 and 8, a portion of the first floor, which is presently occupied by defendant No. 4 is proposed to be handed over to the plaintiff. Since that would be in violation of the undertaking given by defendant No. 4 to the learned Additional District Judge, Delhi, a decree in terms of the compromise cannot be passed at this stage, so long as the undertaking given to the learned Additional District Judge subsists.

The application stands disposed of.

CS(OS) 435/2009

The plaintiff wants to file replication. Be filed within two weeks, subject to payment of Rs. 5,000/- as cost to be paid to defendants 1 and 2.

List for framing of issues on 21st April 2010.