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2004 DIGILAW 490 (DEL)

SH. K. L. SINGH v. ARCHANA CHATTERJEE

2004-07-12

P.C.JAIN

body2004
R. C. JAIN, J. ( 1 ) THIS order will dispose of an application under Order XXXIX Rules 1 and 2 read with Section 151 CPC filed by the plaintiff seeking an ad-interim injunction to restrain the defendant, her servants, employees, agents, representatives or any one acting through her or on her behalf from interfering in plaintiff s possession, enjoyment of the suit property and premises on fourth floor of property bearing No. K-49-H, Sheikh Sarai, Phase-II, New Delhi and also for restraining them from entering the suit premises. ( 2 ) THE facts and circumstances leading to the filing of the present application in brief are that the plaintiff has filed a suit for declaration and permanent injunction with the averments and allegations that he is the owner and otherwise well and sufficiently entitled to fourth floor of property No. K-49-H, Sheikh Sarai, Phase-II, New Delhi, having purchased the same from a certain Smt. Usha Sharma through a registered agreement to sell and power of attorney both dated 15th December, 1998. The property consisted of two rooms, one drawing-dining, one bathroom, a kitchen and a terrace. The defendant is the owner of the third floor of property bearing No. K.-49-H, IIIrd floor, Sheikh Sarai, Phase-II, New Delhi by virtue of a sale deed dated 4th July, 2000. It is alleged that the defendant after purchasing the suit property started unnecessarily troubling the plaintiff and with mala fide objective filed a civil suit in the Court of Senior Civil Judge, Delhi for restraining the plaintiff from interfering in peaceful ingress and egress of the defendant. However, as no interim orders were granted in her favour, the defendant filed a writ petition being CWP No. 19/2003 alleging that the premises of the plaintiff was unauthorisedly constructed and sought its demolition. The suit property viz. the constructions existing on the fourth floor were demolished by the MCD on 24th April, 2003 without giving any opportunity to the plaintiff. The suit property viz. the constructions existing on the fourth floor were demolished by the MCD on 24th April, 2003 without giving any opportunity to the plaintiff. In the writ petition filed by the defendant, the plaintiff made a statement that he will not obstruct the defendant in her ingress and egress to the terrace of the property for the purpose of common services and taking advantage of the said statement/order, the defendant with mala fide objectives started using the terrace for purposes other than common services and is trying out to carry out some construction on the terrace which was obstructed to by the plaintiff. It is alleged that the defendant has invaded the plaintiff s right to enjoyment of the property and consequently he seeks a declaration that he is the legal and lawful owner of property bearing No. K-49-H, Sheikh Sarai, Phase-II, New Delhi and permanent injunction to the above effect. ( 3 ) ON the request of the plaintiff, DDA was also arrayed as defendant No. 2 in the suit and the DDA has filed a short affidavit with regard to the factual and legal position in respect of the suit property. Defendant No. 1 has filed her written statement and reply to the application thereby raising preliminary objections about the maintainability of the suit and the suit lacking any cause of action. The averments and allegations in regard to the plaintiff being owner of the suit property have been specifically denied. On the other hand, it is stated that the defendant is the owner of the third floor of the property bearing No. K-49-H, IIIrd floor, Sheikh Sarai, Phase-II, New Delhi which she had acquired from Smt. Kaushal Pal Kaur who in turn had acquired it from the original allottee, Bishan Singh. It is denied that Smt. Usha Sharma or for that reason Smt. Kaushal Pal Kaur had any right or authority to sell fourth floor above the flat of the defendant because as per the regulation of the DDA, no fourth floor could be raised on self financed DDA flats. ( 4 ) I have heard Mr. P. S. Bindra, learned counsel representing the plaintiff, Mr. Aman Lekhi, learned counsel representing defendant No. 1 and Ms. Sangeeta Chandra, Advocate on behalf of defendant No. 2/dda and have given my thoughtful consideration to their respective submissions. ( 4 ) I have heard Mr. P. S. Bindra, learned counsel representing the plaintiff, Mr. Aman Lekhi, learned counsel representing defendant No. 1 and Ms. Sangeeta Chandra, Advocate on behalf of defendant No. 2/dda and have given my thoughtful consideration to their respective submissions. ( 5 ) THERE is no denial of the factual position that the matter relates to SFS DDA flat No. K-49-H, IIIrd floor, Sheikh Sarai, Phase-II, New Delhi which was originally allotted to a certain Bishan Singh who sold the same to Smt. Kaushal Pal Kaur whose name was mutated in the record of the DDA and said Smt. Kaushal Pal Kaur in turn had executed a conveyance deed of the flat in question in favour of defendant No. 1 after the property became free-hold. From the sequence of events which can be co-related from the plaint, written statement and reply of defendant No. 1 and the affidavit filed on behalf of the DDA, it is evident that certain constructions, though unauthorised, were raised on the roof of the said flat. It is not yet clear as to who raised the said constructions. The plaintiff claims to have acquired the said construction on the fourth floor including the right to the terrace from a certain Smt. Usha Sharma acting for and on behalf of the previous owner Smt. Kaushal Pal Kaur through a General Power of Attorney. She (Usha Sharma) executed a General Power of Attorney and an agreement to sell describing herself has owner in possession of the flat in question (fourth floor with terrace rights) in favour of the plaintiff. Strangely, no power of attorney purportedly executed by Smt. Kaushal Pal Kaur in favour of Smt. Usha Sharma has been filed on record. Even if such a power of attorney existed, it would have been of no consequence because Smt. Usha Sharma sought to transfer the alleged property in favour of the plaintiff by claiming herself to be owner in possession and not as attorney of Smt. Kaushal Pal Kaur. What independent right Smt. Usha Sharma had to convey the said property in favour of the plaintiff, has not been explained. This would, prima facie, show that the plaintiff has not been able to establish any lawful title or legal right in the suit property, i. e. fourth floor. What independent right Smt. Usha Sharma had to convey the said property in favour of the plaintiff, has not been explained. This would, prima facie, show that the plaintiff has not been able to establish any lawful title or legal right in the suit property, i. e. fourth floor. ( 6 ) IT is also not disputed that defendant No. 1 herein had filed a writ petition bearing No. 19/2003 in regard to the unauthorised structure existing on the roof of the flat in question and the DDA and MCD took a stand that the non-compoundable unauthorised structure was existing and was liable to be demolished which infact was demolished. One application C. M. No. 7231/2003 was moved in the said writ petition and during the course of hearing, the counsel for respondent No. 5 (plaintiff) made a statement that the respondent shall itself remove the malba and clear the terrace within a maximum period of three weeks from 7th July, 2003. The plaintiff also undertook not to obstruct the petitioner (defendant No. 1) from her ingress and egress to the roof for the purpose of common services. ( 7 ) ON the face of the above factual position that whatever constructions existing on the roof of the flat in question which the plaintiff claims belongs to him, stands demolished and even the malba removed by him, whether he can still seek any right in the roof/terrace above the flat No. K-49-H, IIIrd floor, Sheikh Sarai, Phase-II, New Delhi. That question can only be answered after the parties have gone on trial because the plaintiff claims ownership rights in the said roof through the G. P. A. and agreement to sell executed by Smt. Usha Sharma. Prima facie, the roof over the flat in question has not been allotted either to the allottee of flat No. K-49-H, IIIrd floor, Sheikh Sarai, Phase-II, New Delhi or the allottees of the flats below, i. e. those existing on the ground floor, first floor and second floor. However, it could be used by the allottees of those flats for the purpose of common services. In the opinion of this Court, the plaintiff has failed to make out any prima facie case in his favour so as to entitle him for the injunction prayed for by him. ( 8 ) IN the result, this application is dismissed as devoid of any merits. In the opinion of this Court, the plaintiff has failed to make out any prima facie case in his favour so as to entitle him for the injunction prayed for by him. ( 8 ) IN the result, this application is dismissed as devoid of any merits. Observations made hereinabove are only for the purpose of disposal of this application and will not tantamount to the expression of opinion on the merits of the suit.