RAJ KISHAN DASS Vs. KUSUM SANGHI

JUDGEMENT

(1.) The plaintiff has filed the suit for mandatory and permanent injunction against the defendants. The dispute relates to the ground floor and the basement of premises bearing No. 9. Western Avenue, Maharani Bagh, New Delhi. The case of the plaintiff is that with reference to the land, a perpetual lease deed was executed in favour of the plaintiff by the Society in which the plaintiff was a member on 11.01.1982. The plaintiff is residing at No. 3, Pusa Road, New Delhi. The defendant No. 1 is the elder sister of the plaintiff. The defendant No. 1 was residing in No. 4, Ring Road, Kilokri, New Delhi, which is very near to the suit land. Husband of the first defendant died in 1982. After the death of her husband the first defendant started living with her daughter Mrs. Priya Gupta who was married in 1994 at E-279, East of Kailash, New Delhi. The plaintiff applied for sanctioning of the plan and the plan was sanctioned on 28.10.1994. The plaintiff started construction as per the plan sanctioned by the authority in or about November/December 1994. A basement, ground floor, first floor and Barsati floor had been put up. The C form was granted on 23.09.1995 and D form was granted on 09.10.1995. As the suit property is situated nearest to ring road, the plaintiff was getting help from the first defendant in supervising the work and keys of the premises were left with the first defendant by the persons who were entrusted with the construction of the work.

(2.) On 18.12.1995, when the plaintiff went to the premises and he wanted the keys from the first defendant the first defendant refused to hand over the keys stating that she had occupied the ground floor and the basement. The plaintiff, therefore, had to file the suit for injunction.

(3.) The first defendant Mrs. Kusum Sanghi filed her written statement on 14.03.1996. In the preliminary submissions the first defendant stated thus: Para 7. In the year 1981-82 late Mr. O.P. Sanghi, the husband of the defendant herein mentioned to Shri Jai Kishan Das that an opportunity is available to invest to a residential plot of land at Maharani Bagh, New Delhi. In para 8 it is stated thus: 8. Shri Jai Kishan Das then expressed his desire that the plot of land be acquired partly for the benefit of his son, the plaintiff herein and partly for the benefit of the children of the defendant herein to vest in them when they attain majority. In paras 9, 10, 11 and 14 it is stated thus: 9. Pursuant to the above, a plot of land being 9 Western Avenue, Maharani Bagh was applied for in the name of the plaintiff herein with an understanding that Shri Jai Kishan Das will designate one of the children of the defendant to be the beneficiary of 1`/2 share in the said property and balance 1/2 share to go to the benefit of the plaintiff herein. 10. The plaintiff was, therefore, a trustee of the property being Plot No. 9 Western Avenue, Maharani Bagh, New Delhi, acquired in 1982 in his name to the effect that 1/2 share in the property would be given by the plaintiff to the children of the defendant as Shri Jai Kishan Das may designate. 11. In connection with the above the defendant herein arranged to pay Rs. 8000.00 to Shri Jai Kishan Das out of the money belonging to her daughter Ms. Priya Sanghi (now Ms. Priya Gupta) (hereinafter referred to as Ms `Priya') who was a minor at that time. 14. Ms. Priya daughter, of the defendant, became a major on 27.01.1988. At a family gathering immediately after 27.01.1988 Shri Jai Kishan Das and the plaintiff herein, in the presence of other near relatives, declared that 1/2 share in the property at 9 Western Avenue, Maharani Bagh, New Delhi, is being held in Trust by plaintiff herein and the same shall thereafter continue to be held in Trust for the benefit of Ms. Priya . The plaintiff and the said Jai Kishan Das also declared that Ms. Priya will be entitled to construct a residential building first against her share and thereafter the plaintiff herein may construct the residential building against his share. In paras 16, 19 and 22 it is stated thus: 16. Thereafter on or about July 1988 Ms. Priya approached Messrs H.V. Mahendru of M/s Designs Atelier, Architects, for drawing up the plans of the residential building on the said property. Messrs H.V. Mahendru duly drew a building plan for construction on the ground floor of the plot of land as per the requirement of Ms. Priya. All expenses in connection with the above were paid and discharged by Ms. Priya. 19. After obtaining the sanction of building plans in October 1991 Ms. Priya appointed Messrs Gannon Dunkerly & Co. for undertaking the construction of the residential units falling to her share. Messrs Gannon Dunkerly & Co. duly carried out the construction of the building. The liability of Ms. Priya for the total cost of the construction of the structure of the basement and ground floor worked out to Rs. 3,39,864.00 . In addition to the above Ms. Priya incurred a liability of Rs. 3,57,459 towards Electrical plumbing, woodwork, flooring and other material for the basement and ground floor in the property. The plaintiff did not incur any expenses in connection with the construction or for any other purposes in the building on the basement and ground floor. 22. On or about 25.11.1995 Priya moved into the property and began living with her husband in the basement and ground floor. After shifting to the above said property Ms. Priya has obtained for herself a ration card which was issued to her on 18.12.1995 by the Ration Office, Okhla, New Delhi. A domestic Gas connection was also installed in the house by Ms. Veena Gas Service, New Delhi. Ms. Priya further got the basement and the ground floor of the building insured at a premium of Rs. 1069.00 against policy No. 4831170102621 dated 5.12.1995 issued by the New India Assurance Co. Ltd. New Delhi. A telephone being No. 6917434 was installed by Mahanagar Telephone Nigam Ltd. for Ms. Priya in the said house. Ms. Priya has been continously living in the said premises and is in possession and occupation of the said portion of the property. The plaintiff is fully aware of the said fact and he has concealed the abovesaid fact from this Hon'ble Court.