Mahabir Singh (Deceased) and Others vs Smt. Sarti Devi and Others

N.K. Kapoor, J.—This is plaintiff appeal against the judgment and decree of Additional District Judge, Gurgaon, reversing in appeal the judgment and decree of the trial court dated 23.5.1977.

Plaintiff filed a suit for permanent injunction restraining the defendants from obstructing the construction by the plaintiff over the suit property otherwise then in due course of law. Brief facts leading to the filing of the suit are as under:-

One Gopi was owner of the properties now owned by the plaintiff and defendants No. 2 to 9. Vide gift dated Exhibit PW 3/1 dated 27.5 1960, he transferred the ownership of the house in favour of Dhani Ram deceased, p:edecessor-in-interest of defendants No. 2 to 9. Another house owned by Gopi Ram was situate adjoining the house transferred to Dhani Ram towards North. This house was in possession of the plaintiff Mahabir and others at the time of execution of raft deed. Gopi Ram bequeathed his remaining property including the property in dispute by means of will Exhibit PW3/2 dated 12.10.1963 in favour of Deep Chand. Deep Chand sold this house to Mahabir etc. vide sale deed dated 15.3.1965, Exhibit P-l. The area of the house, as per sale deed Exhibit P-1 was 33-1/2'' x 33-1/2'' and it; comprised of two rooms,; Dalan and Chowk. Towards the north of this house was a plot of land measuring 14'' x 33-1/2''. It is this site which is subject matter of dispute between the parties. Plaintiff laid claim to this plot on the ground that earlier he sought permission from the Notified Area Committee, defendant No.1, for reconstruction and the site plan was approved. However, as per case set up by the defendants, the disputed plot forms part of public street and so plaintiff has no right to construct the same.

On the pleadings of the. parties following issues were framed

Whether the plan of the plaintiff has been sanctioned by the Municipal Committee ? If so, to what effect ? OPP

Whether the plan was got sanctioned by plaintiff, by fraud and misrepresentation? If so, to what effect ? OPD.

Whether the suit is not maintainable in the present from ? OPD.

Whether the suit is bad for non-joinder of necessary parties ? OPD.

Whether the disputed property is a part of public street ? if so, to what effect? OPD

Whether sanction in question has been revoked ? If so, to what effect? OPD.

Relief.

The trial Court vide its judgment held that the site plan was got sanctioned by fraud i.e. by suppressing material facts and by misrepresentation, in fact, he had purchased a plot measuring 33-1/2'' x 33-1/2'' whereas the plan which was got sanctioned (Exhibit PW4/11) was in respect of the site measuring 33-1/2'' x 46'' and so permission to construct the plot has rightly been revoked. However, under Issue No. 5, the trial court held that though neither the plaintiff nor defendants have any claim over the suit; property, but all the same the same does not form part of public street and so this way defendants have no right to restrain the plaintiff from raising construction over the site in dispute and it is only the true owner, namely, Deep Chand, who could restrain the plaintiff from raising construction upon the site in dispute.

Feeling aggrieved by the judgment and decree of the trial court, defendants preferred an appeal. Findings of the trial court in respect of issues No. 3 and 7 were assailed. Issue No. 3 pertains to maintainability of the suit in the present form. The lower appellate Court once again examined the matter on facts and came to the conclusion that the appeal deserves to be allowed. The court relied upon the sale deed -basis of claim set up by the plaintiff - and held that only the area measuring 33-1/2'' x 33-1/2'' was sold to ,the plaintiff and as such plaintiff is not owner of the site in dispute and so has no right to raise-construction over the same thereby blocking the entrance and exit to and from the house of Dhani Ram.

Challenging the judgment and decree of the lower appellate court, the, appellant has termed it to be wholly unwarranted and otherwise unsustainable in law. According to the appellant, the Court below has erred in interpreting the document of title along with other documents i.e. Exhibit PW3/1 gift deed which was got executed by Gopi Ram in favour of Dhani Ram and Will Exhibit PW3/2 in favour of peep Chand - predecessor-in interest of the plaintiff-appellant. Had the Court examined these documents i.e. Exhibit PW3/1, Exhibit PW3/2 and Exhibit P-1 collectively and severally, the boundaries of these properties would have become clear to the Court. In fact, on minutely reading these documents, one can come to the conclusion that, in fact, there is no public street and so the plea advanced by the defendants to prevent the plaintiff from raising construction over his own property is merely a figment of imagination. Counsel for the appellant argued that at best the Notified Area Committee could prefer an appeal, if so aggrieved (assuming but not conceding that site in dispute is a public street), and since the Notified Area Committee did not choose to prefer an appeal, the lower appellate Court erred in law in reversing the judgment of the trial court.

Before examining the pleas advanced by the counsel for the appellant, it would be appropriate to make reference to the order of this Court dated 20.9:1979 which reads, "Notice of motion for 29.10.1979 to find out if the plea of the appellant that whole of the land in dispute is covered by the sale deed Exhibit P-l, if the boundaries are taken into consideration as opposed to the area mentioned therein."

The trial Court took up issues No. 1, 2 and 5 together. Under issue No. 1, the court came to the conclusion that the plan submitted by the plaintiff was sanctioned by the defendant Vide resolution No. 19 dated 13.16.1973. However, under issue No. 2, the trial Court held that this plan was got sanctioned by supressing certain material facts i.e. whereas plaintiff had purchased an area measuring 33-1/2'' x ,33-1/2 whereas plan which was sanctioned was in respect of site measuring 33-1/2'' x 46''. Accordingly, issue No.2 was decided in favour of defendants. Under issue No. 5, it was held that there is no clear evidence on record that the site in dispute from part of public street. Accordingly, this issue was decided against the defendants. Admittedly, no grievance has been made by the present appellant regarding finding of the trial. Court in respect of issue No.2 wherein it has been held that the plan was got sanctioned by practising fraud and misrepresentation. Under issue No.6, the Court held that the defendant committee by revoking the sanction has rectified its mistake. Accordingly, this issue too was decided in favour of the defendants. It is worth noticing that the findings recorded by the trial court in respect of issues No. 1, 2, 4 and 6 were not assailed by the appellant and the matter was mainly agitated in respect of issues Nos. 3 and 7. According to the learned counsel for the appellant, Notified Area Committee possibly could not raise any objection to the construction intended to be raised as it had no right in the property and perhaps for this reason did not file appeal against the judgment and decree of the trial Court. This being so, defendants could not raise any objection regarding construction which was intended to be raised upon the property owned by plaintiff. This way, the court below has erred in holding that the suit is not maintainable in the present form. According to the counsel, an owner has unfettered power to utilise his property in a manner he likes and the other party can only object if he has any such right and not otherwise. Since the defendants primarily laid claim to the property being part of public street which claim has been negatived by the court below, the appellate Court erred in accepting the appeal thereby dismissing the suit.

Having heard learned counsel for the appellant and after going through the judgments of the courts below and some of the documents referred to by the counsel for the appellant, I am of the view that the appeal being devoid of merit deserves to be dismissed. As per allegation in the plaint, plaintiff claimed to be owner in possession of the plot shown in red colour and marked ABCD in the site plan attached with the plaint. It is in respect of this plot that he applied for sanctioning of plan to the Notified Areas Committee. This plan was approved on 13.10.1973 and revoked on 21.10.1973. The site plan annexed with the plaint gives the measurement of the plot as 46'' x 33-1/2''. As per sale deed Exhibit P-1, the area purchased by the plaintiff measures 33-1/2'' x 33-1/2''. Even the boundaries given in the sale deed do not tally with the site plan annexed with the plaint and obviously so as there is difference in the measurement of the plot i.e. one shown in the sale deed and the other depicted in the site plan. Precisely for this reason, the ''contesting defendants as well as Notified Area Committee resisted the claim set up by the plaintiff. The claim of the Notified Area Committee that the site measuring 46'' x 33-1/2'' form part of a public street has not been accepted by the courts below. Yet it is to be determined whether plaintiff can be permitted to raise construction with the help of court upon the land which is not owned by him. Unhesitatingly, it can be taken that the court cannot be privy to such a situation and, on the other hand, it is duty bound to restrain any activity which is being committed by a party illegally or unauthorisedly.

Chapter VIII of the Specific Relief Act, 1963, deals with the subject of perpetual injunctions. u/s 38 of the Act, perpetual injunction is to be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication. It is a discretionary relief The court in such cases has to consider as to whether plaintiffs legal rights have been infringed and that he ought to be granted an injunction as a proper and appropriate remedy for such an infringement. The court in a given case is not bound to grant such relief merely because it is lawful to do so. In the present case, plaintiff has been unable to substantiate the claim regarding ownership of an area measuring 46'' x 33-1/2'' as shown in the site plan annexed with the plaint by adducing any documentary evidence. The only document i.e. sale, deed Exhibit P-1, which is basis of the claim of the plaintiff gives the measurement of the property to-be 33-1/2'' x 33-1/2''. Precisely for this reason, the Notified Area Committee reconsidered the decision and revoked the earlier order of sanctioning of site plan/The site plan also shows the disputed portion to be a vacant land and so possession of such a piece of land is to be deemed to be that of the true owner. The plaintiff having failed to establish ownership over this piece of land has rightly not been permitted to raise construction over the same. Whether such an area forms part of public street or is being used unauthorisedly by both the parties or not is a question not germane to the issue raised. This, I need not dilate upon the same. The judgment of the lower appellate court does not suffer from any legal or factual infirmity. I find no merit in this appeal and so dismiss the same. No costs.