Delhi District Court
Saket Court Complex vs None For on 26 November, 2013
In the Court of Civil Judge04 (South),
Saket Court Complex, New Delhi
Presided By : Ms. Ritu Singh
CS/564/2011
PAWAN KUMAR JAIN & ORS v. INDU ROHATGI & ORS
26.11.2013
Present: Plaintiff in person.
None for defendants.
Be awaited.
(Ritu Singh)
Civil Judge04/South District/26.11.2013
4.00
Present: None.
ORDER
Vide this order, the court will decide an application under Order 39 Rule 1 and 2 CPC filed by plaintiff for restraining the def. or his agents from creating any obstacle in the ingress or egress or use and enjoyment of the facilities i.e. common toilet and bathroom (attached with servant quarter) located on the terrace shown in yellow color in the site plan, water connection and water overhead tanks on top terrace, lift and its machine on top terrace together with DTH connection on top terrace of property no. 174, Sukhdev Vihar, New Delhi and to remove all hindrances including locks of the door installed at the terrace, doors of common toilet and bathroom of the servants Page 1 of 7 room located at terrace and door of machine room of lift located on the top terrace of suit property.
Brief factual matrix relevant for the determination of the present application is that the plaintiff no.2, 3 and 4 purchased the first floor of property no. 174, Sukhdev Vihar, New Delhi vide registered sale deed dt. 29.4.2005 and plaintiff no.1 and 2 purchased the entire ground floor of the suit property vide registered sale deed dt. 24.9.2009 and have been enjoying uninterrupted and peaceful possession of the same. Def.no.1 and 2 through def.no.3 are stated to have purchased second floor along with terrace rights along with two servant quarters and common facilities on top terrace vide registered sale deed on 22.3.2006. Plaintiffs have averred that since date of occupation of the suit property they have been using the two servant quarters along with common toilet and bathroom on terrace, water connection and water overhead tanks on top terrace being a common facility, common lift installed in the suit property and its machine room along with DTH connection on top terrace and that the def. had not been allowing the operation of the lift since last week of December, 2008 and also interrupted in plaintiff's use of common facilities and disallowed the plaintiff to restart the operation of lift on 1.11.11 and in November, 2011 def. prevented the plaintiff from visiting servants quarters, common toilet and bathroom on the terrace, even to clean and repair the toilet, bathroom, water overhead tanks and DTH connection. Plaintiff has averred that defendants have put their locks on the gate installed at Page 2 of 7 the terrace to prevent the plaintiff from using common facilities.
During the course of arguments on application under Order 39 Rule 1 and 2 CPC, plaintiff has stated that he does not press for his right to use the lift at this stage. Therefore, the interim relief is restricted to use of common toilet and bathroom attached with servant quarters along with water connections and water OHTs located on top terrace along with DTH connection.
Def. no.1 and 2 have contested the present application by filing their separate replies. Defendants have denied that the servant quarter or the attached toilet or bathroom is being used or that there is any water connection on top terrace which are common. Def. no.1 and 2 have denied that the lift is functional and stated that it is not in service since 22.3.2006 and machine room as alleged forms part of illegal lift. Def. no.1 and 2 have denied that they were not allowing operation of the lift since 2008. Def. no.1 and 2 have averred that after the conduct of plaintiff of installing DTH on the terrace, twin pipe connection and other private facilities on terrace without permission of the defendants, def.no.1 and 2 did not want to give permission of free access to the terrace to the plaintiffs.
In their reply to this application, def.no.1 and 2 have admitted that the two disputed servant quarters have been used till date by the plaintiffs as storage. Def. no.1 nad 3 have alleged in their replies that the plaintiffs are enjoying water tanks on alleged illegal and unauthorised construction over terrace.
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Plaintiff has relied on copy of sale deed of the first floor and ground floor of the suit property.
This court has heard the counsels for both the parties and perused the record carefully.
From the site plans and photographs relied upon by the plaintiff, it is clear that terrace is divided into two parts by a wall, wherein the smaller part has direct access through the staircase and it houses three servant quarters along with alleged common toilet and bathroom. The smaller and bigger part of terrace is connected by one door which has been admittedly under lock and key of defendants since purchase of second floor of the property by them and the bigger part which is under the lock and key of the defendants carries the water OHTs, for each of the floor.
Registered sale deed dt. 29.4.2005 of first floor of the property in favour of plaintiff no.2, 3 and 4 of stipulates in Clause 10, therein "That the vendees and the agents shall have right to access the top terrace of the said property for repair/inspection of water OHT and servants quarter."
The registered sale deed dt. 29.4.2005 stipulates that vendor has agreed to sell to the vendees the first floor of the suit property together with 'water connection, water OHTs, servant quarter on the top terrace' as well as 'right to use a common staircase, passage, lift and other facilities/services available thereon'.
Registered sale deed dt 24.9.2009 of ground floor of the property in Page 4 of 7 favour of plaintiff no.1 and 2 also carries stipulation similar to Clause 10 of registered sale deed dt. 29.4.2005. It also stipulates that vendor has agreed to sell to the vendees the ground floor of the suit property together with 'water connection, water OHTs, servant quarter on the top terrace' as well as 'right to use a common staircase, passage, underground water storage tank and other facilities/services available thereon'.
Registered sale deed dt. 22.3.2006 vide which defendant no.1 along with Mr. Aman Rohatgi purchased the second floor of the suit property stipulates transfer of title in respect of second floor of the property with terrace rights except two servant quarters along with common facilities like staircase, common passage, common lift, besides one servant quarter attached with common toilet.
Defendants have raised the objection that the water OHTs are located over the roof of an unauthorised structure and not as per sanctioned plan and are more than 15 meters from the ground floor and in contravention of Master Plan 1990 and 2021. However, admittedly both the plaintiff and the defendants have been using the alleged unauthorised structure over terrace as well as the common toilet attached with servant quarter. Prima facie it appears that the defendants have remained silent regarding the alleged illegality of the structures over the terrace since the time they purchased the second floor of the property and have acquiesced in use of structures by plaintiff. The objection raised by defendants regarding legal status of the structure over the terrace can Page 5 of 7 be decided only upon trial after the evidence has been led by the parties.
Thus, from the perusal of registered sale deeds dt. 29.4.2005 and dt 24.9.2009 of first floor and ground floor of property respectively and registered sale deed dt. 22.3.2006 in favour of defendant no.1 and Mr. Aman Rohatgi, it prima facie appears that the plaintiffs have right to access the top terrace of the suit property for repair and inspection of water OHTs and servant quarter as well as have right to use water connections, water OHTs and servant quarter provided for each floor on top terrace and right to use the common facilities/services. Further, from the registered sale deed dt. 22.3.2006 in favour of defendant no.1 and Mr. Aman Rohatgi, it is clear that bathroom attached with the servant's quarter on terrace is a 'common bathroom' for common use. Thus, plaintiff shown prima facie case in his favour to use of common facilities on the terrace including common bathroom attached with the servant's quarter as shown in the site plan. Moreover, if the interim injunction is refused at this stage, the mischief which is likely to be caused to the plaintiffs is much more as compared to that likely to be caused to the defendants and as such balance of convenience lies in favor of the plaintiffs. Further, plaintiffs will suffer irreparable loss particularly in terms of health concerns, if they are denied right to access the terrace for inspection of water OHTs.
It is also to be borne in mind that defendant no.1 along with Shri Aman Rohatgi (her son) is the owner of the second floor along with the terrace Page 6 of 7 rights (except two servant quarters and common facilities available on top terrace) vide registered sale deed dated 22.3.2006 and therefore, right of the plaintiff to access the terrace for inspection of OHTs and servant quarter and use of attached common bathroom has to be balanced vis a vis right of the defendant no.1 flowing from her title/ownership over the terrace.
Keeping in mind the claims of both the parties and interest of justice, defendants are restrained from causing any unreasonable hindrance in the ingress and egress or use and enjoyment of common toilet and bathroom attached to the servant's quarter on the terrace in smaller area of terrace as shown in the site plan in yellow color and to afford reasonable opportunity to the plaintiffs at their demand to access the terrace for repairs/inspection of water OHTs of plaintiffs and the respective servant quarter on the terrace, during the reasonable hours of the day, till the final disposal of the suit.
In view of the abovesaid observations, application under Order 39 Rule 1 and 2 CPC is disposed off.
Nothing observed herein shall have any bearing on the final decision of the suit.
List for 09.01.2014.
Announced in the Open Court (Ritu Singh)
on 26.11.2013 Civil Judge04/South District/Saket Courts
New Delhi
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