Delhi District Court
Also At vs Smt. Pritpal Kaur on 7 June, 2023
Ankur Gulati v. Pritpal Kaur
CS SCJ No.952/2019
IN THE COURT OF MS. NEHA PRIYA
ACJ-cum-CCJ-cum-ARC, SOUTH
SAKET COURTS, DELHI.
In the matter of:
Civil Suit No. 952/2019
CNR No. DLST03-001545-2019
Ankur Gulati
S/o Sh. Dharamvir Gulati
R/o B-4/156, Second Floor,
Krishna Nagar,
Safdarjung Enclave
New Delhi - 110029
Also at:
Flat No. 90, First Floor
Sarojini Nagar Market
New Delhi - 110023
...............Plaintiff
Versus
Smt. Pritpal Kaur
W/o late Sh. Virender Singh
R/o B-4/156, Ground Floor
Krishna Nagar
Safdarjung Enclave
New Delhi - 110029
..............Defendant
Date of Institution : 23.09.2019
Date of Pronouncement : 07.06.2023
Decision : Decreed
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Ankur Gulati v. Pritpal Kaur
CS SCJ No.952/2019
SUIT FOR PERMANENT AND MANDATORY
INJUNCTION
Present: None
JUDGMENT
1. This is a suit for permanent and mandatory injunction, filed by the plaintiff against the defendant seeking to restrain her from installing a 3,000 liters water tank (in addition to the existing cemented water tank) on the terrace; direct her to unlock/unbolt the wooden door installed at the ground floor in the common staircase/passage; direct her to remove the staircase built by the defendant from ground floor to first floor by demolishing the internal walls of the shaft from inside her house; direct her to reconstruct the wall of the shaft demolished by her; restrain her from obstructing the plaintiff from getting GI pipes and CI pipes etc. repaired and maintained, in the shaft area, of property bearing no. B-4/156, Krishna Nagar, Safdarjung Enclave, New Delhi - 110029 (hereinafter referred as "Suit Property").
Averments in the Plaint
2. The case of plaintiff is that plaintiff is co-owner of second and third floor (with exclusive terrace rights) of property bearing no. B-4/156, Krishna Nagar, Safdarjung Enclave, New Delhi. The parents of plaintiff are senior citizens and are residing on second floor of Suit Property. His brother alongwith his family is residing on the third floor of the Suit Property. The defendant alongwith her daughter and two sons is residing on ground floor 2 of 9 Ankur Gulati v. Pritpal Kaur CS SCJ No.952/2019 of Suit Property, and she is unauthorized occupant of first floor of Suit Property.
3. The entire building is constructed in such a manner that a shaft measuring 6' X 5' runs from ground floor to terrace. Similarly there is a common staircase from ground floor till terrace with wooden door installed at the ground floor in the common area. Said wooden door provides the passage for ingress and egress for residents of all the floors. Defendant has built/made a staircase in place of existing shaft by demolishing the internal walls of shaft from inside of her house from ground floor to first floor.
4. Defendant has got the plaintiff's CI & GI pipes cemented and as a consequence of the same plaintiff is unable to get his water pipes maintained and repaired. Defendant has further endangered the safety of entire building. Despite the fact that 1000 liters cemented water tank is installed on the terrace of the Suit Property for the exclusive use of defendant, she is adamant to install a 3000 liter water tank on terrace. In order to pressurize the plaintiff, defendant has deliberately kept the huge water tank at the place where plaintiff's father has been parking his car for last several years, and when plaintiff and his parents objected the same, defendant abused them and threatened to get them implicated in false criminal cases.
5. Defendant is causing harassment to parents of plaintiff for last several months by locking the wooden door of common 3 of 9 Ankur Gulati v. Pritpal Kaur CS SCJ No.952/2019 staircase/passage from inside, thereby not allowing the occupants of second and third floor to reach their flats. Despite complaint to the police, no action has been taken against defendant. Defendant is not permitting the plaintiff to install CCTV cameras in common staircase area, shaft and area where electricity meters are installed. Feeling aggrieved, present suit has been filed by the plaintiff against defendant seeking relief of permanent injunction and mandatory injunction.
Written Statement
6. By virtue of the written statement, defendant submits that she is the absolute owner of the first floor and ground floor of the Suit Property. She has a power of attorney executed by the seller in her husband's name with common terrace rights. She did not get CI and GI pipes of plaintiff cemented such that he is unable to use his water pipes. The existing water tank installed since inception of the Suit Property, is old and completely unhygienic due to which she and her family members are facing medical issues. That is why it needs to be replaced.
7. She has common terrace rights. She never locked the wooden door of common staircase/passage from inside as there is no key lock in the said door. She has not done any illegal construction in the Suit Property. Plaintiff never approached her for installing CCTV cameras. Thus, suit is meritless and the same be dismissed.
4 of 9 Ankur Gulati v. Pritpal Kaur CS SCJ No.952/2019 Replication
8. By virtue of the replication, contents of the written statement were denied, and contents of the plaint were reiterated.
Issues
9. Upon completion of pleadings, following issues were framed vide order dated 24.11.2021:-
1. Whether the plaintiff is entitled for the permanent and mandatory injunction as prayed for? OPP
2. Whether the suit is not maintainable in the present form and nature as the defendant is having common terrace right? OPD
3. Relief.
Plaintiff's Evidence
10. In order to prove the case, plaintiff examined himself as PW-1 and tendered his evidence by way of affidavit i.e. Ex. PW1/A. He relied upon original site plan of Suit Property, Ex.PW1/1; copy of sale deed dated 05.03.2001, Ex.PW1/2; copy of gift deed, Ex.PW1/3; photographs of Suit Property, Ex.PW1/4; copy of his aadhar card, Ex.PW1/5; and certificate u/s 65 B of the Indian Evidence Act, Ex.PW1/6.
11. Despite opportunity, defendant did not come forward for cross-examination of PW-1. Vide order dated 20.01.2023, opportunity of cross-examination was closed.
5 of 9 Ankur Gulati v. Pritpal Kaur CS SCJ No.952/2019 Defendant's Evidence
12. Despite opportunity, defendant did not come forward to lead evidence and vide order dated 07.02.2023, opportunity to lead defendant's evidence stood closed.
Findings
13. Final arguments were heard on behalf of the plaintiff. Despite opportunity, final arguments were not advanced on behalf of the defendant. I have gone through the entire case record as well as prevailing law in this regard. My issue-wise findings are as under:
ISSUE No. 1Whether the plaintiff is entitled for the permanent and mandatory injunction as prayed for? OPP
14. Onus to prove this issue is on the plaintiff. Plaintiff deposed as per pleadings. He relied on sale deed Ex.PW1/2 and gift deed Ex.PW1/3 to establish his ownership over the Suit Property as well as exclusive terrace rights in the building.
15. He relied on site plan Ex.PW1/1 and photographs Ex.PW1/4 (colly) to assert that a staircase had been unauthorizedly constructed by the defendant from ground floor to first floor in the shaft area; the common staircase/passage is being blocked by the defendant by putting a lock/bolt on the wooden door installed at the ground floor, and obstructing access to the second and third floor of the Suit Property; due to the unauthorized construction in the shaft area, plaintiff is unable to 6 of 9 Ankur Gulati v. Pritpal Kaur CS SCJ No.952/2019 get his GI pipes, CI pipes etc. repaired; the defendant is installing a 3000 liter water tank above the existing cemented water tank at the terrace of the Suit Property; and defendant is not allowing the plaintiff to get CCTV cameras installed at the entrance of the common staircase area, shaft area and the area where electricity meters are installed.
16. The testimony of the PW-1 has gone unchallenged, uncontroverted and unrebutted in the absence of any cross- examination by the defendant.
17. It was for the defendant to put forth evidence to shatter or atleast question the evidence put forth by the plaintiff. However, the defendant failed to do so. Defendant did not step into the witness box to lead evidence in his defence. In the written statement, defendant has denied that he has carried out any unauthorized construction anywhere in the Suit Property; he has denied that he is locking the wooden door leading to the common staircase/passage; he has denied that any pipes of the plaintiff fall within the shaft area of the defendant; and he has asserted common terrace rights in the Suit Property. However, no evidence to this effect was led by her which leads to an adverse inference against her.
18. In this view of the matter, there is no reason for the court to doubt the testimony of the plaintiff or the authenticity of the documents/site plan/photographs placed on record. Thus, the plaintiff is entitled for relief from this court to the effect that (i) 7 of 9 Ankur Gulati v. Pritpal Kaur CS SCJ No.952/2019 the staircase in the shaft area be removed by the defendant; (ii) no additional water tank be placed by the defendant at the terrace; (iii) the common passage/staircase not be blocked by locking the door thereat; (iv) no hindrance be caused to the plaintiff in repairing the pipes in the shaft area; and (v) the shaft area be repaired by the defendant after removing the staircase for the consequential damage.
19. As far as relief qua CCTV cameras is concerned, plaintiff cannot be permitted to install these in the common area without the consent of the defendant and other residents of the Suit Property, keeping in view their right to privacy.
This issue is, accordingly, decided in favour of the plaintiff.
ISSUE No. 2Whether the suit is not maintainable in the present form and nature as the defendant is having common terrace right? OPD
20. Onus to prove this issue is on the defendant but the defendant did not lead any evidence to discharge this onus. In the written statement, defendant has claimed that the suit is not maintainable and that she has common terrace rights but the same is not supported by any evidence on record. In the absence of the same, there is no basis for the court to hold that any such common terrace rights exist in favour of the defendant. Defendant has miserably failed to discharge his burden.
This issue is, accordingly, decided against the defendant.
8 of 9 Ankur Gulati v. Pritpal Kaur CS SCJ No.952/2019 ISSUE No. 3 Relief.
21. In view of my findings on the aforesaid issues, suit of the plaintiff is decreed as follows:
a) a decree of mandatory injunction is passed against the defendant directing him to demolish/remove the staircase running from ground floor to first floor from the shaft of property bearing no. B-4/156, Krishna Nagar, Safdarjung Enclave, New Delhi -
110029, and also make repairs for the resultant damage caused in the shaft;
b) a decree of permanent injunction is passed against the defendant restraining her from blocking the common staircase by locking the door of the staircase; from obstructing the plaintiff in repairing pipes in the shaft; and from placing any additional water tank on the terrace qua property bearing no. B-4/156, Krishna Nagar, Safdarjung Enclave, New Delhi - 110029; and
c) Costs of the suit are also awarded to the plaintiff.
22. Decree sheet be drawn accordingly. File be consigned to record room after due compliance.
NEHA Digitally signed
by NEHA PRIYA
Date: 2023.06.07
PRIYA 16:53:13 +0530
Announced in the open Court (NEHA PRIYA)
on 07.06.2023 ACJ-CCJ-ARC(South)
Saket Courts/Delhi
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