V M GUPTA Vs. SHASHI GUPTA

JUDGEMENT

(1.) This is a suit for declaration and permanent injunction. Late Smt. Kamla Wati, mother of plaintiff No.1, mother-in-law of plaintiff No.2 and grandmother of plaintiff Nos.3 and 4 was the recorded lessee in respect of plot No.16, School Lane, Babar Road, New Delhi. She expired on 21st December, 1984. In her lifetime, she had executed aregistered Will dated 09th August, 1994, bequeathing the aforesaid property to her sons, namely, Radhey Mohan Gupta, Inder Mohan Gupta and Virender Mohan Gupta and given ownership rights in respect of different constructed portions of the property individually to them. All the three sons of late Smt. Kamla Wati entered into an agreement/settlement on 22nd January, 1985, with respect to the division of the property on the basis of the Will of their mother. The first floor, verandah, living room and dining room, bed room, kitchen and toilet, barsati toilet and the terrace on the top floor, shown in green in the plan annexed to the Will fell to the share of Shri Radhey Mohan Gupta, who was the husband of defendant No.1 Shashi Gupta and the father of defendant No.2 Smt.Namita Gupta and defendant No.3 Kavita Gupta. The back portion of the ground floor consisting of two bed rooms, one bath room, toilet, rear gate and open area in the rear portion, as also a portion of the first floor consisting of three bed rooms with loft on rear bed room, toilet, passage and half of open terrace fell to the share of Inder Mohan Gupta, husband of plaintiff No.2 and father of plaintiff Nos. 3 and 4. He was also permitted to use the loft by putting a wooden staircase in the courtyard and the portion bequeathed to him was shown in yellow in the site plan, annexed to the Will. The ground floor portion consisting of open lawn, covered verandah, the loft, drawing and dining room, two bed rooms, open courtyard WC and bath and one store and verandah on the top floor and terrace, including biggest loft upon the bed room of the ground floor, were bequeathed to plaintiff No.1 Virender Mohan Gupta and was shown in red colour in the site plan, annexed to the Will. Inder Mohan Gupta expired on 09th October, 1991, whereas Shri Inder Mohan Gupta expired on 25th March, 2000. It is alleged in the plaint that defendants 1 to 3 have converted certain windows, shown at points 'A' and 'B', in the site plans, into doors and thereby they have access to certain areas in the form of open courtyard and terrace which otherwise vests in the plaintiffs. It has further been alleged that defendants 1 to 3 vacated the portion occupied by them on 30th August, 2002 after informing the plaintiffs that they had sold their rights in favour of a builder, who was to use that portion or was to give the same on rent for commercial purpose. They also informed the plaintiffs that the purchaser would also make some additional construction on their portion on the first floor terrace and convert it into a multistoried building. According to the plaintiffs, since property in question is a lease hold property and no sub-division and sale or transfer of any portion is permissible, the defendants could not have sold, alienated or agreed to purchase only a portion of the property in a lawful manner. They also apprehend an imminent threat of breach of the lease deed by defendants by using the property for non-residential purpose and by raising unauthorized construction therein. They have sought a decree for declaration, declaring that the sale or transfer made by defendants 1 to 3 in favour of defendants 5 and 6, pursuant to the agreement to sell, General Power of Attorney and possession letter dated 06th September, 2002 is illegal and void. They also want permanent injunction, restraining the defendants from using any portion of the property for non-residential purpose and from making unauthorized construction therein. They also want an injunction, restraining them from disturbing the use and occupation of the plaintiffs, in respect of the portion occupied by them. They also want an injunction against mortgage of the property or creation of any charge or third party interest therein.

(2.) The suit has been contested by the defendants. In their written statement, defendants 1 to 3 have taken a preliminary objection that the suit has not been properly valued for the purpose of Court Fee and jurisdiction and is bad for misjoinder to defendant No.4. On merits, it has been alleged that the plaintiffs have no locus standi to challenge the agreement to sell executed by them in favour of defendant No.6. They have also alleged that the plaintiffs themselves have carried out unauthorized construction in the property and have misused it by carrying out commercial activities there. They claim that they have not violated any term of the lease and have neither carried out any unauthorized construction nor have they ever misused the property. They have also denied having converted the windows at point 'A' and 'B' of site plant into doors. According to them, the door exists since 1971 when defendant No.1 got married. They have admitted that they had entered into an agreement to sell their portion to defendant No.6 on 06th September, 2002 and have handed over the vacant possession of that portion to it. They have also admitted execution of General Power of Attorney in favour of defendant No.5. They have, however, denied having threatened commercial use of the property or unauthorized construction therein.

(3.) Defendant Nos. 5 and 6, in their written statement, have taken similar preliminary objections and have admitted that defendants No.1 to 3 had handed over vacant possession of their portion to defendant No.6 and had executed a General Power of Attorney in favour of defendant No.5. It has also been admitted that the portion of the defendants 1 to 3 is now in occupation of defendant No.6.