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2007 DIGILAW 1576 (DEL)

ROHIT GUPTA v. ANAND PRAKASH GUPTA

2007-08-07

SANJAY KISHAN KAUL

body2007
SANJAY KISHAN KAUL, J. ( 1 ) A suit for permanent and mandatory injunction has been filed by the plaintiff claiming to be the owner/occupant of the portion of the ground floor of property no. 99-A, Kamla Nagar, Delhi-110 007. A site plan has been filed in which the portion of the ground floor owned by the plaintiff is demarcated in 'blue' while the common area is demarcated in 'red'. The defendant is the owner of the remaining portion of the property. Such remaining portion consists of balance portion on the ground floor, first floor and the second floor of the property. ( 2 ) THE occasion to file the suit arose as, according to the plaintiff, the defendant had represented that he wanted to demolish the ground floor portion purchased by him, including the common portion shown in 'red' besides the upper floor, with a view to raise massive constructions consisting of the basement and three-storied structure thereon and to convert the property into a commercial market. The plaintiff was objecting to the same as the building is stated to be more than 60 years old. The plaintiff also states that the defendant ought to apply for necessary sanction/permission for raising new construction. Not only that, the plaintiff claims that the defendant can have no right to construct any portion marked in 'red', that being the common area. ( 3 ) THE plaintiff has made the following prayers in the suit: "a. Pass a decree for permanent injunction in favour of the plaintiff and against the defendant thereby restraining the defendant, his agents, employees, officials, representatives, assigns, attorneys or any person acting on his behalf from demolishing and/or raising any illegal and unathorised construction in any portion, of the Property bearing No. 99-A, Kamla Nagar, Delhi-110 007 including in common portion comprising of open courtyard, path, latrine and bath, staircases etc more specifically shown in the RED in the site plan attached as Annexure-A to the plaint. B. Pass a decree for mandatory injunction in favour of the plaintiff and against the defendant, his agents, employees, officials, representatives, assigns, attorneys or any person acting on his behalf from in any way interfering in the ingress and egress and use and enjoyment of portion shown in blue comprising of two rooms, verandah, kitchen and site beneath and adjoining staircase and common portion comprising of open courtyard, path, latrine, bath, staircase etc shown in RED in the site plan attached to the plaint as Annexure-A and situated on the ground floor of property No. 99-A, Kamla Nagar, Delhi-110 007. C. That the cost of the proceedings be also awarded to the plaintiff as against the defendant. " ( 4 ) THE defendant has filed a written statement disputing the averments made in the plaint. It is stated that there is no question of the defendant constructing anything which has not been sanctioned by the competent authority nor has the defendant any intent to encroach upon the common areas. Learned counsel for the defendant states that insofar as the reliefs claimed in the suit are concerned, in view of the aforesaid statement, nothing really survives. However, there is a dispute about what constitutes common area. ( 5 ) THE plaintiff filed a plan other than the plan originally filed with the suit, which is marked as Mark " 'a'. The defendant has filed a plan in Court, which is marked as Mark " 'b'. There is some minor difference in measurements which are not material for determination of the present suit. The controversy relates to the staircase which goes up to the second floor, which the plaintiff seeks to include in the common area, while the defendant seeks to exclude that from the common area. ( 6 ) LEARNED counsel for the plaintiff contends that the plan submitted by the plaintiff is in accordance with the decree passed whereby this property was divided originally amongst the owners and the parties to the present suit have derived their title from the same. Learned counsel for the defendant states that it is the same decree which is also relied upon by the defendant. Since the document is undisputed, the same is exhibited as Ex. 'x'. ( 7 ) RELEVANT portion of the decree dated 30. 3. 1980 (Ex. Learned counsel for the defendant states that it is the same decree which is also relied upon by the defendant. Since the document is undisputed, the same is exhibited as Ex. 'x'. ( 7 ) RELEVANT portion of the decree dated 30. 3. 1980 (Ex. 'x') is as under: "claim for decree of declaration of partition of a three storeyed Pacca house on plot 99 Block A in Kamla Nagar Delhi bounded as: east : House on plot 100 A belonging to Manohar Lal etc. West: House on Plot 98-A named Gita Bhawan north: Public street south : Public road and of a plot 300 Yards in area in V. Matan Hail tehsil Jhajjar Distt. Rohtak. Plaint presented on 22. 2. 80. This suit coming on this day for final disposal before me (Sh. B. K. Gupta hcs) Sub Judge Ist Class, Jhajjar Distt. Rohtak in the presence of Sh. Bishambhar dayal counsel for plaintiffs and Sh. Parbhu Dayal counsel for defendants. It is ordered that in view of statements of parties counsels the suit of plaintiffs for declaration is decreed declaring:- that in three storeyed pacca house 99a Kamla Nagar, Delhi the plaintiffs are owners in possession of portions comprised of room F, store room G with varanda F in front and kitchen room H on the ground floor shown yellow in plan and of portions comprised of rooms F and G with site H, kitchen room H, Bath room G and latrine F with Veranda and open roof H. G. F. upto Q. R. on second floor shown yellow in plan. They are also owners in possession of plot in Matan Hail. That defendant no. 1 is owner in possession of portions comprised of rooms A and b, kitchen rooms 'a and b', store room 'b' on ground floor shown red in plan and of portions comprised of rooms A and B, store rooms 'a and b", kitchen rooms 'a and b' and latrine 'b' along with veranda AB on first floor shown red in plan; that defendant no. 1 is also owner in possession of Miani rooms A and B between ground floor and first floor shown red in plan and defendant no. 1 is also owner in possession of Miani rooms A and B between ground floor and first floor shown red in plan and defendant no. 2 is owner in possession of portions comprised of room G, store room D with veranda C in front kitchen room E and site C beneath and adjacent to stair case on ground floor shown green in plan and of portions comprised of rooms C, D and E, veranda D, kitchen room C, Bath room C and latrine D along with roof and terrace CDE on this portion on first floor shown green in the plan. That open court yard X and path XI leading from and to it remain joint of parties; that latrine and Bath N on ground floor also remain joint of parties for use of occupants of ground floor only and that stair cases are joint for use to the extent as they lead to respective portions. It is further ordered that parties are left to bear their own costs. " ( 8 ) A perusal of the decree shows that the open courtyard and bath leading from and to it are to remain joint of the parties; the latrine and bath on the ground floor to also remain joint of parties for use of occupants of the ground floor while the staircase are joint for the use to the extent they lead to their respective portions. It is, thus, clear that when there is commonality of interest in respect of the courtyard, such commonality of interest for the latrine and bathroom on the ground floor is restricted to the occupants of the ground floor and similarly the staircases are joint for use to the extent as they lead to respective portions. Thus, the staircases are joint only for purposes of the occupants of the respective portions. ( 9 ) IT is not in dispute that the plaintiff does not claim any right over either the first floor or second floor nor is the plaintiff in occupation of any part thereof. The staircase, thus, is joint only for the benefit of the defendant and not for the plaintiff. ( 9 ) IT is not in dispute that the plaintiff does not claim any right over either the first floor or second floor nor is the plaintiff in occupation of any part thereof. The staircase, thus, is joint only for the benefit of the defendant and not for the plaintiff. ( 10 ) LEARNED counsel for the plaintiff states he claims no right in the staircase but seeks access to a water tank on the second floor (roof of the first floor) which is common for various occupants and such access should be available to ensure continued water supply. Learned counsel for the defendant, on instructions, states that in case of any problem, the plaintiff can contact the defendant, who would remedy the position failing which, the plaintiff can visit the water tank to get the same cleaned. ( 11 ) THE statements made by the parties are taken on record and in view thereof, learned counsel for the parties state that the suit may be disposed of. Ordered accordingly. IA 2536/2007 (O. 39 R. 1 and 2 CPC) in view of the disposal of the suit, the application does not survive for consideration and is disposed of.