ARCHANA GAUR & ANR Vs. SUNNY GUPTA

JUDGEMENT

(1.) These petitions arise out of the proceedings relating to civil suit (suit no.967/2014) which was filed by the petitioners against the respondent, it being presently pending in the court of the Civil Judge05, Central District. The subject matter of the civil suit is property described as S-248, Greater Kailash, Part-1, New Delhi. The property was originally owned by Ram Lal Gakar upon whose death it devolved upon his legal representatives Ram Gakar and Pushpa Gakar who entered into a collaboration agreement with a builder M/s Sai Developers on 08.05.1983. The builder raised a new structure on the said property and, as per the terms and conditions of the collaboration agreement, it (the builder) was entitled to the right, title and interest in the basement and ground floor portion, the first and second floor falling to the share of the owners. The plaintiffs claim to have purchased the right, title and interest in the ground floor portion of the subject property, by sale deed dated 16.09.1999, from Gautam Kaul and Siddharth Kaul who, in turn, had purchased the said portion from the builder by sale deed dated 08.05.1985.

(2.) On the other hand, the respondent (defendant) is the owner in occupation of the first floor portion, he having purchased it from the owners of the property by sale deed dated 17.11.1994. The controversy surrounds the parking space on the premises of the property, the plaintiffs claiming exclusive rights thereto, the respondent / defendant, on the other hand, asserting his right to a portion of its use.

(3.) The suit was dismissed by the trial Court by judgment dated 201.2012. The petitioners took out appeal (RCA 1/2012) which was allowed by the first appellate Court by judgment dated 19.11.201 It may be mentioned here that alongwith the said appeal, the petitioners had also moved an application under Order XLI Rule 27 read with Section 151 of the Code of Civil Procedure, 1908 (CPC) seeking liberty to adduce additional evidence. The request of the petitioners for additional evidence was not granted. But, the first appellate court found the judgment dismissing the suit suffering from infirmities and not based on proper appraisal of the evidence which was available. It allowed the appeal setting aside the judgment and decree remanding the matter to the trial court, though with observations that, if required, the trial court could take further evidence as may be necessary at its discretion.