Delhi District Court
Sh. Pravin Midha vs Smt. Manju Choudhary on 6 June, 2019
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IN THE COURT OF SH. BHARAT AGGARWAL, CIVIL JUDGE, DELHI
(WEST)02
SUIT NO.612064/16
Sh. Pravin Midha
S/o Sh. Dharam Chand Midha
House No.J3/89, First Floor,
Rajouri Garden, New Delhi
..........................PLAINTIFF
VERSUS
1. Smt. Manju Choudhary
W/o Sh. Ramesh Choudhary
2. Sh. Ramesh Choudhary
Both R/o J3/89, Third Floor, Rajouri Garden, New Delhi 110027
.....................DEFENDANTS
Suit filed on - 10/12/2015
Judgment reserved on - 06/06/2019
Date of decision - 06/06/2019
SUIT FOR MANDATORY AND PERMANENT INJUNCTION
JUDGMENT: By this judgment, I shall dispose off a suit for mandatory and permanent injunction filed by the plaintiff against the defendants. Before adjudicating upon the issues framed in the present suit, I feel it necessary to dwell upon the plethora of pleadings in the present suit.
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Pleadings of the plaintiff :
1. This is a suit for mandatory and permanent injunction filed by the plaintiff against the defendants seeking a decree of permanent/perpetual/mandatory injunction against the defendants thereby restraining the defendants not to interfere with the plaintiff and allow the plaintiff to inspect the water tank at the terrace of the building at reasonable time. It is the case of the plaintiff that plaintiff has purchased the property bearing No.J3/89, First Floor, Rajouri Garden, New Delhi110027 vide a registered sale deed dt.20/08/2014. The plaintiff and his family shifted to the said property on 22/08/2014, however, upon shifting the plaintiff found that there is no water supply in the house and when he went to inspect the water tanks at the terrace, the defendant no.1 restrained him from entering the terrace and due to indifferent behaviour of the defendants, the plaintiff had to face a lot of embarrassment during the Grih Parvesh Pooja held by the plaintiff on 29/08/2014. It is further submitted by the plaintiff that despite repeated requests of the plaintiff, the defendants have not allowed the plaintiff to enter the roof/terrace for getting the water tank cleaned or for putting up of antennae, etc. Plaintiff has relied upon Clause10 of the sale deed dt.20/08/2014 to submit that the water tanks for each floor are installed on the roof of the top floor and the plaintiff is entitled to go to the top floor for installation, maintenance and repair of his TV/dish antennae and over head water tank during reasonable hours.
It is further submitted by the plaintiff that plaintiff has a basic and fundamental right to avail water which is being denied by the defendants. As the parents of the plaintiff are senior citizens about the age of 82 years, plaintiff has to face a lot of hardship at the instance of the defendants. It is further stated that plaintiff sent a legal notice on 26/03/2015 to the defendants which was duly replied by the defendant on 10/04/2015 wherein defendants have denied the rights of the plaintiff and stated that defendants have full roof and terrace rights Suit No.612064/16 Page2/12 3 and the plaintiff cannot be allowed to inspect the water tanks. Plaintiff has further submitted that irreparable loss and injury would be caused to the plaintiff which cannot be compensated in terms of money if he is not allowed to maintain the water tank and in these circumstances, the present suit came to be filed.
Pleadings of the Defendants :
2. In the written statement filed on behalf defendants it is submitted by the defendants that there is neither any water tank of the plaintiff on the top floor nor there is any stairs to reach the terrace. Plaintiff is neither the owner nor in possession of the roof top of the suit property. It is further submitted that defendant no.1 had purchased the third floor alongwith terrace rights from the owner in the year 1992 and since then defendants are enjoying peaceful possession of the third floor and the roof without any objection from anyone. The defendants have relied upon the sale deed dt.22/04/1992 executed by the erstwhile owner in favour of the defendant no.1 to state that the other occupants shall not have any right to carry out construction on the roof and that electric water meters are separate for the fourth floor and the defendants can use it in any manner. It is further submitted that water tanks for all the floors are installed on the wall of back side of the property since the last many years and two water tanks of 500 lts. each for the use of the defendants are installed on the roof of the third floor and another/third tank is lying unutilized for many years. That the plaintiff has no easementry right to visit the roof of the top floor and if the plaintiff want to go to the top floor they would have to go through the property of the defendants which will violate the right to privacy of the defendants and would cause grave inconvenience and hardship to the defendants. It is further submitted that as the plaintiff is using a separate water tank installed on the wall of his own floor, there is no requirement for the plaintiff to visit the roof.
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3. Replication was filed by the plaintiff to the WS filed by the defendants. In its replication, the plaintiff has submitted that defendants have carried out construction on the roof of the suit property in the form of removing the water tank which was installed at the roof of the suit property as same labours were called and they were asked to remove the water tank and its connection from the roof of the property by the defendants.
Issues :
4. From the pleadings of the parties, the following issues were framed vide order dt.26/05/2016 :
(a) Whether the plaintiff is entitled for the decree of permanent injunction as prayed for? OPP
(b) Whether the present suit is not maintainable in the present form and nature? OPD
(c) Relief.
5. In order to prove his case plaintiff got examined only one witness i.e. himself as PW1 and he led his evidence by way of affidavit which is Ext. P1 wherein he reiterated the averments made in the plaint and also relied upon certain documents which are as under : Identification Mark Description Ex. PW1/1 Sale deed dt.20/08/2014.
Ex. PW1/2 Legal notice dt.26/03/2015.
Ex. PW1/3 Reply dt.10/04/2015 to the legal notice.
Ex. PW1/4 Photocopy of driving license of the plaintiff.
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Plaintiff/PW1 essentially reiterated the contents of the plaint in his evidence affidavit. He further submitted that subsequent to filing of the suit, the defendants have removed the water tank installed on the roof of the top floor with ulterior motive and for the purpose of defeating the present suit filed by the plaintiff.
PW1 was crossexamined by the counsel for defendants. In his crossexamination the PW1/plaintiff has admitted that the water tank of the ground floor is installed at the side wall of the ground floor, however, he further stated that second connection for the said floor is also at the roof top. He further stated that the first floor and the second floor also have water tank on the side wall. PW1 further stated that to enter the roof top he has to enter from the house of the defendants.
6. On the other hand, defendants also got examined only one witness i.e. defendant no.1, Ms. Manju Chaudhary as DW1 who led her evidence by way of affidavit Ext. DW1/A wherein she reiterated the averments made in the WS and also relied upon certain documents which are as under : Identification Mark Description Ex. DW1/1 (Colly) Photographs (five in number) Ex. DW1/2 (OSR) Photocopy of sale deed dt.22/04/1992 in favour of defendant no.1.
DW1 was crossexamined by the counsel for plaintiff at length. In her crossexamination, DW1 has admitted that all the rights in the suit property enjoyed by the defendants are those which are given to them by the erstwhile owners. Defendant no.1/DW1 deposed to the fact that there are two water tanks installed at the roof top for their own personal use. She further stated that there are three water tanks at the roof and all three belongs to the defendants and two Suit No.612064/16 Page5/12 6 of them are being used and the other one is lying unused. During the cross examination of DW1, counsel for plaintiff showed certain photographs I.e. Ex. DW1/P2 to DW1/P4 to DW1 where the impression of another water tank is visible and defendant/DW1 admitted that there is impression of a water tank between the other water tanks. Another document being sale deed dt.16/04/1992 was put by counsel for plaintiff to DW and was marked as Mark DW1/P1.
When the DW1 was asked about any reference of overhead tank in the sale deed Ex. DW1/2 dt.22/04/1992, she stated that she is not aware of the contents mentioned in the sale deed. No other witness was examined by the defendants.
7. The arguments have been heard and the record has been carefully perused. Now, I shall give my issue wise findings which are as under : First, I shall take up the issue no.(b) and decide the same.
8. ISSUE NO.(b) Whether the present suit is not maintainable in the present form and nature? OPD The onus to prove this issue was upon the defendants.
The defendants have failed to lead any evidence to prove as to how the suit is not maintainable in its present form and nature. The present suit has been filed by the plaintiff seeking the decree of mandatory and permanent injunction against the defendants as defendants have not been allowing the plaintiff to use the water tank and, therefore, plaintiff is facing extreme hardship due to the acts of the defendants. Even otherwise, no arguments were advanced on behalf of the defendants qua this issue and be that as it may, the comprehensive reading of the plaint would reveal that the suit is maintainable in its present form and nature.
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Hence, issue no.(b) is decided in favor of plaintiff and against the defendants.
9. ISSUE NO.(a) Whether the plaintiff is entitled for the decree of permanent injunction as prayed for? OPP The onus to prove this issue was upon the plaintiff.
The Primary grievance of the plaintiff is that the defendants are not allowing him to inspect the overhead water tank and use the same, so much so that the defendants have removed the water tank from the roof top after filing of the present suit so as to render the present suit infructuous. The plaintiff has submitted that his essential and fundamental right to avail water is being denied due to the acts of the defendants and despite repeated requests and service of legal notice, the defendants are not letting the plaintiff use or install the water tank at the roof top even at reasonable times.
The most pivotal and crucial documents from which the rights of plaintiff in the property can be ascertained are the title documents placed on record by the plaintiff I.e. the registered sale deed dt.20/08/2014 Ex. PW1/1 in favour of the plaintiff executed by the erstwhile owner. For the purpose of the present suit, Clause9 and Clause10 of the said deed are of primary importance. Clause9 and Clause10 of the sale deed dt.20/08/2014 Ex. PW1/1 are reproduced herein below : "Clause9 - That the separate electricity meters, water meters/connections for each floor are installed on Ground Floor of the building and the owners/occupants of Ground Floor shall allow all other occupants to go the particular space to inspect/get inspected, repair and maintain the same, during reasonable hours.
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Clause10 - That the separate/individual water tanks for each floor are installed on roof of top floor of the building and the vendee can go to the roof of top floor of the building for installation, maintenance and repair of his TV/dish Antennae and over head water tank, etc. during reasonable hours." The contents of the sale deed Ex. PW1/1 or its genuineness has not been disputed by the defendants. In fact, the defendants have admitted the existence of the said Clause9 and 10 in the sale deed Ex. PW1/1 executed in favour of the plaintiff. Clause10 of the sale deed Ex. PW1/1 expressly provides that separate or individual water tank for each floor of the building has been installed at the roof of the top floor and the buyer I.e. the plaintiff in the present case has been granted rights to visit the roof of the top floor of the building during reasonable hours for the purpose of installation, maintenance, repair of TV/Dish Antennae and overhead water tank.
Plaintiff also relied upon Mark DW1/P1, I.e. sale deed dt.16/04/1992 executed in favour of previous owner of first floor. Clause 7 & 8 of the said deed Mark DW1/P1 are reproduced herein below : "7. That the vendee is fully entitled to go on top floor for repair of overhead tank and installation of T.V. Antennae etc. and the vendor and owner of top floor shall have no claim and objection therein.
8. That electric, water meter on ground floor and overhead water tank are separate for the said first floor and the vendee is fully entitled to use the same in any manner she may like." The contentions of the defendants is that since the plaintiff has installed separate water tank on his floor and that other residents of the building are also not allowed to visit the roof top of the building, therefore, the suit of the plaintiff must be dismissed. It has been further submitted by the defendants that since the access to the roof of the top floor goes through the property of the Suit No.612064/16 Page8/12 9 defendants, therefore, the privacy of the defendants would be violated if the plaintiff is allowed to visit the roof top. The defendants have further relied upon the sale deed dt.22/04/1992 Ex. DW1/2 executed in their favour, more specifically Para6,7 & 8 to submit that plaintiff has no right on the roof. The said Para6,7 & 8 are reproduced here under : "6. That the passages, staircase etc. as shown in the map shall be taken and used in common with other occupants of the said building, that the vendors/other occupants shall not have any right to carryout construction on the roof.
7. That the charges incurred for the repairs of tubewell/water tank etc. used in common with the other occupants shall be equally shared by all the occupants/vendee.
8. That electric, water meters on ground floor and over head water tank are separate for the said fourth floor and the vendee is fully entitled to use the same in any matter she may like." Perusal of the said clauses of the sale deed Ex. DW1/2 executed in favour of the defendant would reveal that such clauses do not in any manner deny the claim of the plaintiff. In fact, perusal of Clause7 of the sale deed dt.22/04/1992 Ex. DW1/2 would reveal that repair of tubewell/water tank used in common by the other occupants shall be equally shared by all the occupants. Thus, even on the literal interpretation of the said clause, it is quite apparent that separate water tanks were in existence for each floor at the roof top of the premises and rights of the plaintiff to inspect the water tank during reasonable hours cannot be denied by the defendants/owners of the top floor.
Even though in the present situation, the plaintiff has been procuring water from the water tank installed by him on the first floor, but it does not tantamount to extinguishment of all the rights of the plaintiff granted to him in the sale deed executed in his favour I.e. Ex. PW1/1.
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It has also been admitted by the defendants that there are two water tanks for the use of the defendants of 500 lts. each at the top floor for their own personal use. Hence, in these circumstances, it appears quite unjust to deprive the occupants of the first floor from using even a single water tank at the terrace. The plaintiff has also led convincing evidence to show that the water tank for the use of the plaintiff was existing on the roof of the top floor and was subsequently removed. The defendant/DW1 in her crossexamination also admitted that impression of the water tank which are evident from the photographs Ex. PW 1/D2 to PW1/D4 shown by the counsel for the plaintiff to witness DW1. Therefore, the conduct of the defendants is quite unreasoable. The defendants have not been able to establish through arguments or through the evidence in the present case as to how the plaintiff is not entitled to get the water tank installed at the roof of the top floor and inspect the same at reasonable hours. Perusal of sale deed Ex. PW1/1 and Mark DW1/P1 especially the clauses reproduced abvoe would go on to show that plaintiff and erstwhile owners of first floor were granted rights to inspect water tank at terrace.
The present suit pertains to the rights of the plaintiff to live peacefully and obtain the basic facilities of life i.e. regular flow of water which has also been observed to be the fundamental right under the Indian Constitution.
The defendants have argued that there is no stairs from the third floor leading to the terrace of the property and the way to the terrace/roof of the property would go through the property of the defendant which would violate the right of privacy of the defendants and cause great hardship to them. It has been further submitted that since the ownership of the third floor exclusively vests in the defendant, plaintiff has no right to enter the defendant's property and then go to the roof.Said arguments of the defendants does not hold any water as the court has to adjudicate the balancing rights of the parties. On one hand, the plaintiff has not been able to access water and is facing hardship and is being denied his Suit No.612064/16 Page10/12 11 fundamental rights and on the other hand the defendants submit that their right of privacy would be violated if the plaintiff is allowed to inspect the water tank. Uninterrupted supply of water can be said to be one of the very basic amenity required for comfortable human living and for a dignified life and breach of which cannot be compensated in terms of money. From the perusal of pleadings and documents placed on record, it is apparent that the balance of convenience lies in favour of the plaintiff and defendants would not suffer irreparable harm or injury if the plaintiff is allowed to inspect the water tank at the roof top of the premises during reasonable hours of the day. The argument of defendant that as there is no water tank and suit is infructuous also is not sustainable as the plaintiff has made out the case of mandatory and permanent injunction from the pleading and evidence on record and in the interest of justice to avoid multiplicity of litigation, it would not be proper to drive the plaintiff to file another suit.
Considering the aforesaid discussion and material on record, the plaintiff is held entitled to install new water tank over the roof of the top floor without any obstruction and undue interference from the defendants and plaintiff is further entitled to inspect the water tank installed by the plaintiff during reasonable hours.
Accordingly, this issue is decided in favour of plaintiff and against the defendants.
10. ISSUE NO.(c) RELIEF - In view of the findings given on issues no.
(a) & (b), documents placed on record, pleadings of the parties and evidence led by the parties, the suit of the plaintiff is decreed and following reliefs are awarded to the plaintiff :
1. A decree of mandatory injunction in favour of plaintiff and against the defendants thereby directing the defendants to allow the plaintiff to install a new Suit No.612064/16 Page11/12 12 water tank of reasonable capacity and according to the feasibility of installation as per rules over the top floor of suit premises bearing No.J3/89, First Floor, Rajouri Garden, New Delhi110027 without any obstruction or undue interference from the defendants, their agents, representatives, legal heirs, etc.
2. A decree of permanent injunction in favour of plaintiff and against the defendants thereby restraining the defendants, their agents, representatives and legal heirs etc. from creating any unlawful obstruction and interference in the right of the plaintiff to use the overhead water tank on the terrace as well as from creating any unlawful hindrance or obstruction in the way of plaintiff leading to the the terrace of suit premises bearing No.J3/89, First Floor, Rajouri Garden, New Delhi110027, for the purposes of maintenance of water tank on the terrace floor, during reasonable hours of the day.
3. Costs of the suit.
Decree sheet be prepared accordingly. File be consigned to record Digitally signed room after completing the necessary formalities. BHARAT by BHARAT AGGARWAL AGGARWAL Date: 2019.06.07 13:59:32 +0530 (BHARAT AGGARWAL) Civil Judge, Delhi (West)02 Announced in the open court on 06/06/2019.
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