Narinder Pal Kaur Chawla vs Setia Builwell Pvt Ltd. & Anr. on 11 November, 2008

i.1

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                            CMI 5/2008


%                                       Date of order: 11.11.2008

      NARINDER PAL KAUR CHAWLA               ..... Petitioner
               Through: Mr. M.C.Dhingra, Adv. with
                        Petitioner in person


                             versus


      SETIA BUILDWELL PVT LTD & ANR        ..... Respondents
                Through: Mr. Ehtesham Hashmi, Adv. for
                         Mr. Saleem Ahmed, Adv. for R-2

      CORAM:
      HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
      HON'BLE MR. JUSTICE J.R.MIDHA


1.    Whether reporters of local papers may be allowed
      to see the judgment?

2.    To be referred to the Reporter or not?

3.    Whether judgment should be reported in Digest?

: PRADEEP NANDRAJOG, J.(Oral)

1.         Heard learned counsel for the petitioner.

2.         On 4.11.2008 Trial Court Record was requisitioned

through a special messenger.

3.         The Trial Court Record is available and the same has

been perused by us.

4.         It is urged by learned counsel for the petitioner that

the petitioner challenges the impugned judgment and decree

                                                          Page 1 of 7
 dated 15.7.2007 limited to the relief of injunction granted

against the petitioner restraining her from blocking the passage

leading to the first floor of property bearing No.A-447, Defence

Colony, New Delhi and the terrace of the second floor above.

5.         Learned counsel for the petitioner concedes that the

petitioner is not in possession of the said portion of the property

in question in respect whereof injunction has been issued

against her, but states that after the plaintiff obtained an interim

injunction in the suit on 14.11.2007, under the garb of the

interim order, the plaintiff dispossessed the petitioner from the

portions of the property in question in respect whereof

injunction has been granted against her.

6.         It is urged by learned counsel for the petitioner that

the petitioner was in possession of the entire first floor as also

the terrace of the second floor of property No.A-447, Defence

Colony, New Delhi when the suit was filed by respondent No.1.

7.         Relevant facts are that property No.A-447, Defence

Colony, New Delhi was a plot of land owned by the L & DO.

Perpetual lease hold rights were granted by L & DO in favour of

one Prem Chander Chawla who sold the same to Gurbachan

Singh Chawla vide sale deed dated 7.12.1958. Pursuant to the

sale deed, mutation was effected in the record of L & DO

recording that perpetual lease hold rights were transferred in

favour of Gurbachan Singh Chawla. Gurbachan Singh Chawla is


                                                            Page 2 of 7
 none else other than the late father-in-law of the petitioner.

8.          The petitioner is the second wife of the son of

Gurbachan Singh Chawla and his wife Joginder Kaur.

9.          The petitioner and the son of Joginder Kaur and Late

Gurbachan Singh Chawla are involved in a matrimonial litigation

which appears to be extremely emotive and acrimonious.

10.         On the death of Gurbachan Singh Chawla, his legal

heirs i.e. his wife, his son and two daughters joined in an action

before the L & DO which resulted in L & DO accepting Joginder

Kaur to be the surviving legal heir of the deceased under a will

dated 28.4.1973 stated to have been executed by Gurbachan

Singh Chawla.

11.         Vide sale deed Ex.PW-1/2 dated 16.5.2007, Joginder

Kaur sold the property in question to respondent No.1 i.e. the

plaintiff of the suit, recording therein that a two and a half

storey building was constructed on the plot and that physical

possession of the garage on the ground floor, the first floor and

the terrace on the second floor was handed over to the

purchaser i.e. the plaintiff.

12.         Suit was filed by the purchaser as plaintiff, who, after

narrating the aforesaid facts in the plaint, pleaded that the

petitioner was occupying the second floor of the property in

question and she attempted to obstruct the egress and ingress

of its tenant by locking the common passage where-from entry


                                                            Page 3 of 7
 was effected into the first floor of the property as also the

terrace of the second floor.

13.        A decree of injunction was prayed for to restrain the

petitioner from putting a lock on the common passage leading

to the first floor and the terrace of the second floor.

14.        The petitioner filed a written statement stating that

she was in occupation of the first floor as also the terrace on the

second floor. She alleged that the sale of the property by her

mother-in-law was a deep-rooted conspiracy.

15.        On the pleadings of the parties various issues were

framed; the main issue being whether the petitioner had a right

to lock the common passage and prevent/block ingress of the

plaintiff to the suit property. Other issues were technical issues

and in respect thereof learned counsel for the petitioner has not

questioned the legality of the decree against the petitioner.

16.        In view of the fact that Gurbachan Singh Chawla had

title to the suit property under the sale deed dated 7.12.1958

and the fact that on his death his legal heirs consented to his

wife being accepted as the perpetual lessee by L & DO, the

obvious finding had to be that Joginder Kaur W/o Late

Gurbachan Singh Chawla was competent to execute the sale

deed Ex.PW-1/2. We note that the petitioner did not seriously

question the execution of the sale deed and fought the battle on

the issue of possession of the first floor and the terrace of the


                                                           Page 4 of 7
 second floor.

17.        On the evidence on record the learned Trial Judge

has returned a finding in favour of the plaintiff.

18.        The evidence of the plaintiff on the issue of

possession was the testimony of Mr. Surender Kumar Setia a

Director of the plaintiff. The evidence of the petitioner was her

testimony and the testimony of Narender Vats, Ahlmad from the

Court of a learned Metropolitan Magistrate in Delhi and the

evidence of a police official pertaining to DD Entry No.23-A

dated 9.7.2007.

19.        The evidence of the witness of the plaintiff and that

of the petitioner is nothing but a word of mouth versus a word of

mouth. Each reiterating their version.

20.        The record of learned Metropolitan Magistrate and

DD Entry aforenoted merely shows a dispute on possession and

hence nothing of substance turns on the said evidence.

21.        But, what breaks the deadlock in favour of the

respondent i.e. the plaintiff and against the petitioner is an order

dated 21.4.2004 (at page No.741-743 of the Trial Court Record)

passed by Hon'ble Supreme Court in Civil Appeal No.2606/2004

recording as under:-

      "As the legal right of the second wife to claim
      maintenance under the Act and its quantum are hotly
      contested issues in the main case, we refrain from
      expressing any opinion on merit of the claims and
      contentions of the parties. For the purpose of fixing
      appropriate amount of interim maintenance, we may

                                                            Page 5 of 7
       assume that the financial position of husband is such
      that he can easily pay a sum of Rs.1,500/- per month
      as interim maintenance without disturbing the right of
      separate residence provided to the wife at the second
      floor of the husband's premises.

      The appeal, therefore, is partly allowed by increasing
      the amount of interim maintenance to Rs.1,500/- per
      month which shall be payable at the above rate from
      the month of May, 2004 until decision of the main case
      pending under the Act on the original side of the High
      Court. It is made clear that the High Court shall decide
      the main case on merits uninfluenced by orders passed
      for fixing interim maintenance."

22.        The order afore noted clearly records the admitted

position that towards her right of residence, the petitioner was

in occupation of the second floor of the husband's premises. We

note that the husband's premises referred to his none else other

than property No.A-447, Defence Colony, New Delhi. The same

has been broadly referred to as the husband's premises though

really speaking the same belongs to the mother of the husband

of the petitioner.

23.        No worthwhile contention has been urged at the

hearing today. We note that repeatedly learned counsel for the

petitioner is being hampered by the petitioner in making

submissions because the petitioner keeps on speaking and

insisting that the sale was an act of fraud to defeat her rights.

In this connection we may note that the learned Trial Judge has

taken the precaution to direct the plaintiff not to eject the

petitioner or take possession of the second floor of the property

from her without following the due process of law.

                                                          Page 6 of 7
 24.     We find no merits in the appeal.

25.     The appeal is dismissed.

26.     No costs.


                              PRADEEP NANDRAJOG, J.

J.R.MIDHA, J.

NOVEMBER 11, 2008
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