JAYSHREE OZA Vs. RAKESH MOHAN

JUDGEMENT

(1.) The plaintiff seeks an injunction in this suit. It is alleged that she is the owner of the premises on the second floor of property No. B-107, Defence Colony, New Delhi which she purchased from defendant No. 3 by means of an agreement to sell dated 31.10.1997 for a consideration of Rs. 15 lakhs which was paid by her at the time of the agreement, she has occupied the premises and is using the same for her residence; that at the time of the agreement defendant No. 3 had represented and assured her that the property was free from all kinds of encumberances and that the construction had been raised after obtaining sanction according to law; that on 23.3.1998 servant quarter on the roof top has been was sealed in pursuance of an order of sealing on the ground of certain deviations in construction against sanctioned plan. It is alleged that this order of sealing is illegal and void as no notice before sealing or other show cause notice has been served upon her; she being in possession and owner for consideration was entitled to such notice and thus procedure established by law was not followed which is against the Delhi Municipal Corporation Act, 1957 (for short 'the Act'). The action is malafide also and for ulterior motives. Authority of defendant No. 1 to issue such notice is also disputed. The plaintiff has sought permanent injunction restraining the defendants from interfering in her peaceful use and enjoyment of the premises in question and from taking any action for sealing the same and/or to direct the defendant No. 3 to rectify all the violations at his costs and to compensate her for the loss.

(2.) I have heard learned counsel for the plaintiff at the preliminary stage about the maintainability of the suit. First point is whether the plaintiff has locus standi to file the present suit. Plaintiff claims to have purchased the premises by means of agreement to sell dated 31.10.1997 from defendant No. 3. The agreement to sell recites that one Naveen Gupta son of Shri N.D. Gupta is the lessee of the land bearing plot No. 2, Block-B site No. 8, Defence Colony, New Delhi (which now is B-107) by means of a registered lease deed dated 25.1.1996 and that the defendant No. 3 had purchased the said plot of land from the aforesaid Naveen Gupta by means of an agreement to sell dated 22.2.96 and after having so purchased defendant No. 3 has constructed a building thereon. The portion of the property agreed to be sold to the plaintiff is second floor with one servant quarter on the terrace. Consideration of Rs. 15 lakhs is acknowledged to have been received and possession given to her.

(3.) Under Section 54 of the Transfer of Property Act, mere agreement to sell does not create any interest in the property in favour of the proposed vendee. Defendant No. 3 himself had entered into an agreement to sell with the owner, Naveen Gupta and had no transferable interest in the property. He could not transfer the interest which he did not have. Plaintiff thus has acquired no interest in the property. And Naveen Gupta continues to be the owner of the property being owner of leasehold rights in the land. Any construction raised on the land thus had been made by the said owner or at his instance.