A very important question has arisen as to whether the defendants could re-construct the building without plaintiff's consent when he alleged to be a co-owner of the property in question. Law on this point is well settled that a co-owner without the consent of the other owner can not raise construction to the exclusion of the other owner. But as discussed above, the position in the case in hand is not so. The plaintiff has admitted that the partition did take place by oral understanding. The only objection to such partition raised is that the same was not obtained through a decree from the Court. Prima facie the reading of the plan shows that because of mutual understanding the parties divided their properties in equal shares except the portion marked 'A' on the plan. Therefore, legal position that the co-owner can not appropriate the joint land to himself against the consent of the other co-owner does not apply to the facts of this case.
Delhi High Court
Ram Narain vs Ved Prakash on 8 November, 1994
Equivalent citations: 1994 IVAD Delhi 862, 56 (1994) DLT 692
1. Shri Ram Narain has sought for partition of the property situated in Abadi Area/Laldora of Village Mangolpur Kalan, Delhi alleged to be owned jointly by the parties. The facts in brief are that after the death of the father of the plaintiff, the property devolved on the plaintiff and his brother Jai Narain and after Jai Narain's death on his legal heirs (defendants herein). The said property has always been jointly owned. It has not been divided so far. In fact the plaintiff and the defendants have got equal share in the entire properties shown in the plan. The plaintiff is alleged to be in occupation of vacant plot measuring 300 sq. yards, built up property of 750 sq.yards and another built up plot of 550 sq.yards shown as 'B', 'D' and 'E' on the plan. Whereas defendants are shown to be in occupation of the old house measuring 350 sq.yds, built up area measuring 350 sq.yds. built up plot measuring 550 sq.yds. Thus, according to plaintiff, he is in actual physical possession of 1600 sq. yards of built up area whereas the defendants occupies 1250 sq.yds. of built up area. According to the plan, there is a vacant plot measuring 750 sq. yards mark 'E' on the site plan, this plaintiff alleges the defendants are trying to occupy by raising construction by building shops and godown on the same. Part of this plot belongs to plaintiff as it is a joint property and being co-owner without his consent the defendants could not have raised the construction on the same. It is in this back ground that the present application seeking injunction against the defendants had been filed. Ad interim injunction directing the parties to maintain status quo with regard to property marked 'E' shown in the site plan was ordered.
2. By this application, the defendants want the said interim order to be vacated, inter alia, on the grounds that property stood partitioned long back. The said partition was acted upon and therefore, the parties are in actual and physical possession of their respective portions. Moreover, the plot in question marked 'E' on the site plan had all along been in the physical possession of the defendants. Defendants demolished the already existed building and structure in order to rebuilt pacca construction in order to carve out proper shops as has been done by the plaintiff on his adjacent plot marked 'D' on the site plan. It is alleged that the plaintiff has not come to the Court with clean hands. He has wrongly alleged that the plot marked 'E' was lying vacant. In fact, the plaintiff knew all along that on plot 'E' there were built up shops which had been let out by the defendants to different tenants earlier and now they were renovating/ reconstructing the same on the same plot. The partition took place about 30 years ago. It was then agreed between the parties that henceforth the parties could construct building on their plots according to their need. It has been denied that the area under the old house is 350 sq. yards. In fact, as per the Municipal Corporation record, the area is about 200 sq. yards. The father of the defendants constructed the shops and small residential house on the plot mark 'E' way back in the year 1980-81. It is only the old construction which was demolished in the beginning of February, 1994 and the defendants were trying to reconstruct the same. The physical possession of plot has through out been with the defendants. Because of this injunction, irreparable loss has been caused to the defendants, the construction already raised is getting ruined. Only roof is to be laid. Plaintiff contested this application and denied that the partition had already taken place. He being the co-owner without his consent the defendant could not raise construction on the plot. On the date of filing of the suit, plot Marked 'E' in the site plan was vacant and, therefore, was in joint possession. He denied that the partition took place about 30 years ago.
3. I have heard the learned Counsel for the parties and perused the record. In order to get relief of interim injunction, the plaintiff was to satisfy this Court that he has placed all the material facts before the Court, but the perusal of the reply to the application shows that he did not approach this Court with clean hands. In the suit, he took a specific plea that no partition took place and that the plot measuring 750 sq.yards mark 'E' has always been lying vacant. Whereas in reply to the present application, he has admitted that there was an understanding between the parties in respect of the joint properties. What was that understanding he has not explained but this admission is in response to the specific averments that there was oral partition. Hence, the inference that the plaintiff by using the work 'understanding' is admitting oral partition as alleged by the defendants. This find corroboration from the site plan filed by the plaintiff on record, which shows the position at site. Perusal of the plan shows that properties shown in red colour are in possession of the plaintiff, whereas properties shown in green colour are in possession of the defendants. The plot shown in Blue colour marked 'E' is shown vacant. If we analyze this plan, it is apparent that the parties had partitioned their properties. For example, plots marked 'G' and 'F' are of equal size i.e. 550 sq. yards each. Both having shops. One is in possession of the plaintiff and the other possessed by the defendants. Similarly, plot marked 'B' and 'C' of the same size --one is in possession of the plaintiff and the other with the defendants. Plots marked 'D' and 'E' are having the same area i.e. 750 sq. yards. The plot shown in red colour on which shops are built is in possession of the plaintiff and the portion marked 'E' of the same size with the defendants. Mark 'A' is the old house which according to the plaintiff is 350 sq. yards whereas according to the defendants, 200 sq. yards. Be that as it may, the fact remains that all other properties except 'A' are equally apportioned. Hence, the admission of the plaintiff in reply that there was an understanding with regard to properties lend support to the version of the defendants that parties had in fact divided their joint properties and had been acting upon the same, otherwise parties could not have been in possession of almost equal shares. Moreover, reading of para 4 of the reply filed by the plaintiff shows that at the time of partition, there was some understanding regarding compensating the plaintiff for extra 200 sq. yards of land given to the defendants i.e. of old house marked 'A'. From that assertion of the plaintiff, it is clear that it was with regard to the area underneath the old house which was to be adjusted or compensated. The averment that the defendants have now started raising construction on the plot marked 'E' is nullified from the documentary evidence placed on record, namely, the Lal Dora Certificate of the Sub Divisional Magistrate, Kotwali and the electricity bill paid, the house tax certificates and bills paid and the list of tenants occupying the erstwhile built up area on portion mark 'E'. Earlier there existed shops on this plot and were let out to different tenants. They had been paying rent to the defendants, It was only after demolition that re-construction started by the defendants. Therefore, prima facie it cannot be said in view of the documentary evidence that plot marked 'E' was lying vacant or that on this vacant plot defendants for the first time started construction. As a matter of fact from the documentary evidence placed on record, it is prima facie established that the defendants were in the exclusive enjoyment of this plot and the construction earlier existed on the same. Moreover, the plaintiff has not denied the partition, though gave the name as 'Understanding'. His only objection to the partition is that it was not by a decree from the Court. In his words "that joint properties having not been partitioned by metes and bounds or through a decree of Court and the parties were having some understanding (under lining is mine). This shows that partition admitted, but it was not obtained through a decree of Court and, therefore, has been denied by the plaintiff. From the reading of this reply, it can be inferred that there was a partition by metes and bounds by oral understanding between the parties and they acted upon the same though the said partition was not through decree of the Court. But that will not make any difference. The assertion of the plaintiff that plot marked 'E' was lying vacant for the last so many years is belied from the house tax receipts issued by M.C.D. as well as rent receipts regarding rent received from the tenants. The house tax on the constructed building on plot marked 'E' was paid way back in 1983-84 in the individual name of the defendant. Therefore, I am prima facie of the view that the plot marked 'E' has been a built up plot since 1981-82. It had been in the exclusive possession of the defendants. After demolishing of the already existing structure, the defendants have started raising new construction on the same. Construction has been raised up to the roof level as on the date of filing of the suit. Therefore, prima facie it cannot be said that plot mark 'E' was a vacant piece of land.
4. A very important question has arisen as to whether the defendants could re-construct the building without plaintiff's consent when he alleged to be a co-owner of the property in question. Law on this point is well settled that a co-owner without the consent of the other owner can not raise construction to the exclusion of the other owner. But as discussed above, the position in the case in hand is not so. The plaintiff has admitted that the partition did take place by oral understanding. The only objection to such partition raised is that the same was not obtained through a decree from the Court. Prima facie the reading of the plan shows that because of mutual understanding the parties divided their properties in equal shares except the portion marked 'A' on the plan. Therefore, legal position that the co-owner can not appropriate the joint land to himself against the consent of the other co-owner does not apply to the facts of this case. From the averments of the plaintiff in reply to this application, the only disputes raised is with regard to an area of 200 sq. yards i.e. of old house. Mr. Mukul Rohtagi, Senior Advocate appearing for the defendant contended that the area underneath the old house mark 'A' is about 200 sq.yard. This was to be divided between the parties or the plaintiff could have been compensated for the same. But it was never agreed that against the old house area, the plaintiff would be entitled to 200 sq. yards of land out of plot mark 'E'. If that had been so, the defendant would not have been allowed to raise construction of his shops and residential accommodation on this plot marked 'E' wayback in 1980-81. It is a fact that this plot mark 'E' had all along been in exclusive possession of the defendants and the defendants had raised construction on the same and were receiving rent to the exclusion of the plaintiff. This finding is supported from the documentary evidence namely, house tax/property receipts issued by M.C.D., rent receipts, Lal Dora certificate etc. properties B, C, D, E, F and G are partitioned in equal proportion and have been in respective possession of the parties, which is clear from the property tax paid by the parties in their individual names regarding their respective properties. There appears to be force in the submission of Mr. Rohtagi that this mutual understanding admitted by the plaintiff is nothing but the oral partition alleged by the defendants. The plaintiff when filed the suit concealed the factum of mutual understanding which perforce he had to admit in response to this application. Because of this suppression of material fact, to my mind, the plaintiff is not entitled to the discretionary relief. In the plaint nowhere it has been mentioned that there was a mutual understanding which culminated into the partition though not through the Court. On the contrary, in the plaint the factum of mutual understanding resulting into their respective separate share is completely missing. This is nothing but suppression of material facts. The very admission of "mutual understanding" in reply to the defendants application shows the contradictory stand of the plaintiff. Moreover, the plaintiff has indicated that the plot mark 'E' has always been lying vacant, whereas the documents placed on record show otherwise, The Municipal numbers given to these properties are RZ-107, RZ-108, RZ-112, RZ-113 . Each party is individually paying the house tax for their respective portions. Documents annexure P.10 is the house tax regarding property RZ-113 which is marked 'G' on the plan. This property has been assessed in the name of Daya Nand i.e. the father and grand-father of the defendants. Similarly, house tax annexure P.12 pertains to property No. RZ-107 i.e. mark 'D'. Portion 'D' belongs to the plaintiff and the property is assessed in the name of the plaintiff. House tax for the year, 1983-84 regarding property No. RZ-108 i.e. mark 'E' on the plan was paid by Ved Parkash i.e. defendant No. 1, son of the deceased Jai Narain. The house tax on this property was paid on 1st April, 1983. For the same period and for the same properties, defendants have also filed list of tenants which is Annexure P. 17. These documents clearly rebut the assertion of the plaintiff that the property marked 'E' was lying vacant for the last so many years. Having not come to the Court with clean hands, the plaintiff is not entitled to the discretionary relief. Plaintiff in rejoinder admitted that there was construction on the plot mark 'E'. This shows plaintiff admits oral partition of the properties and their exclusive possession. From the discussion made above, it is clear that all the properties except mark 'A' shown in the plan were divided and possessed by the respective parties. They had been enjoying the same exclusively and were assessed individually. Therefore, I am prima facie of the view that plot Mark 'E' was neither lying vacant nor joint. It was in the exclusive possession of the defendants. Hence, the plaintiff has no prima facie right to seek restraining order against the defendants. On the other hand if the injunction is confirmed, the defendants would suffer irreparable loss because the construction which has already reached up to roof level will be completely ruined, whereas as per plaintiff's own claim, he is asking for compensation for the adjustment of the excess land. If ultimately he succeeds, he can be compensated as claimed by him in reply to the application. Therefore, balance of convenience is also not in favor of the plaintiff, rather he suppressed the material facts and, therefore, not entitled to discretionary relief. Hence, the status quo order already granted is hereby vacated,
5. Lastly Bawa Shiv Charan Singh, Counsel for the plaintiff contended that the construction of this building is against the building bye laws of the M.C.D. Since the property is situated within the extended Lal Dora hence covered by D.M.C. Act, therefore, building bye laws are violated by the defendants. The plaintiff, a neighbour being aggrieved on construction being raised can ask this Court to stop this unauthorised construction. Admittedly a neighborer who is aggrieved by any illegal activities can file a suit. But that is not the relief sought in this suit, A relief which is beyond the prayer cannot be granted. In these proceedings, he can not ask for that relief, therefore, this argument is also of no avail because that is not the case set by the plaintiff in the plaint. His grievance was that this being a joint property and he being a co-owner has a right in the property, which Prima facie I have held otherwise, Hence, on this ground also no relief can be granted.
For the reasons stated above, the application is allowed and the interim relief already granted is hereby vacated.
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