RIPU DAMAN HARYAL Vs. GEETA CHOPRA

JUDGEMENT

(1.) THIS order shall dispose of an application bearing No. 4821/2009 filed by the defendants under Order VII Rule 11 CPC for rejection of the plaint.

(2.) BRIEF facts of the case are that the plaintiffs filed the present suit for declaration possession and injunction on 12.02.2009 which came up before the Court for the first time on 13.02.2009. It was alleged in the plaint that the plot bearing no. S-106, Panchsheel Park, New Delhi measuring 505.90 sq. yards was owned by one Late Shri Joginder Nath Bharadwaj. It was allotted to him for and on behalf of the President of India by the DDA by way of perpetual sub lease deed dated 18.12.1968. A copy of the lease deed has been filed on record and is admitted by the parties, which is marked as Ex.P-1. It has been alleged that Smt. Geeta Chopra is the widow of Late Shri Joginder Nath Bharadwaj and Rajesh Bharadwaj is the son. Both of them are defendant nos.1 and 2 respectively. It has been stated that the plaintiff no.1 and the defendants as well as Late Shri Joginder Nath Bharadwaj were known to each other as they were living in the same colony. They also used to meet at the Panchsheel Club of which they were members. It has been stated that Late Shri Joginder Nath Bharadwaj in order to generate funds to settle his son/defendant no.2 in some business sold the terrace rights of the first floor i.e. second floor and half of the terrace of the second floor that is Third floor of the suit property bearing no. S-106, Panchsheel Park, New Delhi for a total sale consideration of Rs.9,50,000/- to the plaintiffs and their mother Smt. Krishna Haryal. The deceased Joginder Nath Bharadwaj is stated to have received the entire Sale consideration and executed not only the agreement to sell but also Receipt, WILL and the General Power of Attorney in favour of the plaintiffs on 11.6.1996 and got them duly registered with the Sub Registrar. The case of the plaintiffs is that the possession of the terrace of the first floor of the suit property was also handed over to them and they had put their locks and one guard named Shishu Pal to look after the said property. Joginder Nath Bharadwaj died on 02.04.1999, and therefore, it is stated that the title of the plaintiffs was perfected by operation of the registered WILL dated 11.06.1996. It is stated that the plaintiffs did not raise any construction on the second floor i.e. terrace of the first floor on the ground that Delhi building Bye-laws were under consideration for being amended for permitting construction of the entire second floor as well as the third floor of the properties in Delhi, and therefore, the plaintiffs preferred to wait for the modified building bye-laws to be notified. It has been stated that since the relations between the plaintiffs and the defendants were cordial and there was absolutely no problem and the plaintiffs allegedly continued to be in possession of the premises sold to them through their guard. However, it is stated that a key of the terrace floor was given to the defendant in order to see their overhead water tanks. It has been stated that on 02.01.2009 when the plaintiff no. 1 visited the suit property he found that the air conditioners of the first floor where tenant was living, had been dismantled and house hold goods of the tenant were lying in a packed condition. The plaintiff no. 1 went to the suit property that is the terrace of the first floor and after locking the same came down to the ground floor and met defendant no.1. It is alleged that he was further surprised to see that even the goods of the defendant no. 1 were lying packed. On enquiry, the defendant no. 1 had stated that she is going to Dubai and the tenant of the first floor was vacating the property. On enquiring about defendant no. 2, the defendant no. 1 stated that he is shifting to Gurgaon. It has been further alleged that on the evening of 02.1.2009 at about 6.45 P.M. the plaintiff no. 1 along with his wife and son Viraj went to meet the defendant no. 1 at her residence while the plaintiff no. 1s wife and son went inside the residence of the defendant no. 1, the plaintiff no. 1 went to the terrace of the first floor and to his surprise, found one person removing the handle and lock on the entrance door of the terrace of the first floor and was trying to put lock of larger size then that of the plaintiff. The plaintiff no. 1 and his family members intimated the PCR but the police is stated to have not taken any action, as they were alleged to be in league with the defendants, whereupon he lodged a report with the ACP of the area that he was dispossessed from the terrace of the first floor which was sold to him by Late Shri Joginder Nath Bharadwaj. The plaintiffs have further stated that they have learnt in the year 2009 that the defendants made a false statement to the DDA that they are the only legal heirs of Late Shri Joginder Nath Bharadwaj without disclosing the factum of sale of the terrace of the first floor of the suit property and without disclosing that the deceased had made a WILL in respect of the said terrace floor of the first floor in favour of the present plaintiffs and applied for conversion of lease hold rights into freehold. This request of conversion by the defendants was permitted by the DDA and a conveyance deed dated 30.06.2008 has been executed and registered in their favour. The plaintiffs further states that on the basis of these averments, the terrace of the first floor and half of the terrace of the second floor having been sold to the plaintiffs for a consideration of Rs.9,50,000/- with the 1/3rd right in the land underneath, they are entitled to a declaration that they are the owners of the entire terrace of the first floor etc. The plaintiffs have also stated that they are entitled to the possession of the aforesaid portion of the suit property. Apart from this, the plaintiffs have also claimed the mandatory injunction against the defendants. It is stated in the plaint that the cause of action accrued to file the suit on 29.3.1996 and 11.06.1996 when the documents were executed in their favour and in any case it also accrued on 02.04.1999 on account of the death of Shri Joginder Nath Bharadwaj. It further arose on 2.1.2009 till which date the plaintiffs remained in possession and when they found the defendants changing the locks of the terrace floor and finally on 5.2.2009 when the plaintiff found that the defendants were puncturing the terrace floor and trying to sell the suit property. Along with the suit, an application under Order 39 Rules 1 and 2 CPC has been filed.

(3.) THE defendants have contested the claim of the plaintiffs both on the question of maintainability as well as on merits. However, it is not necessary to advert to the same while considering the application filed by the defendants u/O 7 Rule 11 (d) CPC for rejection of the plaint. THE only thing to be seen by the Court is as to what are the averments made in the plaint and their effect in the light of the legal position.