Delhi District Court
Smt. Pooja Maggo vs Smt. Shobha Gupta on 20 February, 2016
IN THE COURT OF SH. TARUN YOGESH
SCJ/RC (CENTRAL), THC/DELHI
RCA No. 22/14
Unique ID No. : 02401C0528692014
1. Smt. Pooja Maggo,
W/o Sh. Sonu Maggo,
R/o 2475, Punjabi Basti,
Roshanara Road,Subzi Mandi,
Delhi - 110 007.
2. Smt. Sita Rani Maggo,
W/o Sh. Suresh Kumar Maggo,
R/o 2475, Punjabi Basti,
Roshanara Road,Subzi Mandi,
Delhi - 110 007. ......Appellants
Versus
Smt. Shobha Gupta,
W/o Sh. Ved Prakash Gupta,
R/o 538, Mukimpura, Subzi Mandi,
Delhi - 110 007. .......Respondent
Date of institution of appeal : 28.10.2014
Date on which judgment was reserved : 20.02.2016
Date on which judgment was pronounced : 20.02.2016
JUDGMENT
1. Appellants Smt. Pooja Maggo and Smt. Sita Rani Maggo (hereinafter referred as plaintiffs) have filed appeal for assailing judgment and decree dated 20.09.2014 passed by Ld. Civil Judge, Central Smt. Pooja Maggo & Anr. Vs. Smt. Shobha Gupta Page 1 of 7 District, Tis Hazari Courts, Delhi dismissing their suit for permanent injunction filed against defendant Smt. Shobha Gupta.
2. Precisely stated, facts giving rise to filing of appeal against impugned judgment and decree are discussed as under : 2.1 Plaintiffs filed their suit for permanent injunction for restraining defendant from obstructing their passage through stairs leading from ground floor to the second floor of building and for directing defendant to remove any obstruction to their passage on the first floor. 2.2 As gleaned from their plaint, plaintiffs are owners in possession of second floor of property bearing municipal no. 538, Ward no. XII situated in Mukimpura, Subzi Mandi by virtue of sale deed dated 26 th May, 2008. Defendant is stated to be occupying the first floor of the building and there is one single staircase from ground floor upto plaintiff's property on the second floor and roof above.
2.3 Defendant is averred to have raised unauthorized construction completely blocking plaintiffs' passage on the first floor without any sanction from MCD as a result of which they cannot go to their property on the second floor and is further alleged to have refused to demolish the unauthorized construction which resulted in filing their suit for permanent injunction in court.
3. Defendant Smt. Shobha Gupta was served with summons and filed her written statement for seeking dismissal of plaintiff's suit for want of cause of action and concealment of material facts. On merits, plaintiff's averment about one single staircase from ground floor upto roof of second floor was denied by defendant by alluding to one iron staircase which could Smt. Pooja Maggo & Anr. Vs. Smt. Shobha Gupta Page 2 of 7 be used by plaintiffs for reaching their property on second floor of building besides denial of plaintiff's allegation about unauthorized construction.
4. Issues were settled after completion of pleadings and plaintiffs and defendant tendered their affidavits in evidence in support of their respective contentions.
5. After hearing submissions addressed by ld. counsels and on the basis of evidence led on judicial record, Ld. Trial Court decided the issues against plaintiffs for dismissing their suit.
6. Impugned judgment and decree dated 20.09.2014 has been assailed by appellants inter alia upon following grounds : 6.1 That judgment and decree of Ld. Trial Court dismissing their suit is against fact and law.
6.2 That Ld. Trial Court has failed to appreciate para no. 3 of registered sale deed dated 23.04.2005 in favour of defendant (respondent) wherein it is mentioned "And whereas the vendor for his bonafide need and legal requirements has agreed to sell the above mentioned entire first floor (with roof rights) of property no. XII/538, situated at Mukimpura, Subzi Mandi, Delhi (Stair case common)..".
which amply demonstrates that staircase in the building is common facility and defendant has no right to obstruct their passage upto the second floor of the building.
Smt. Pooja Maggo & Anr. Vs. Smt. Shobha Gupta Page 3 of 76.3 That Ld. Trial Court has failed to appreciate that iron staircase was fixed after filing of suit as defendant had refused to allow them to use the common staircase and such temporary arrangement did not mean that plaintiffs had no right to use the common staircase. 6.4 That Ld. Trial Court has failed to appreciate the fact that iron staircase is not permitted in law and plaintiffs were challaned by MCD for installing the iron staircase.
6.5 That Ld. Trial Court has wrongly concluded that common use of staircase was limited between erstwhile owner Sh. Krishan Dutt Sharma and defendant and plaintiffs were not entitled to use the common staircase which observation is vague, unspecific and against the document on record. 6.6 That Ld. Trial Court has failed to appreciate the fact that obstruction in passage was raised by defendant to prevent them from using the staircase as a result of which they were not able to live and occupy their property on the second floor of building resulting in infringement of their rights as temporary iron staircase could not be treated as permanent solution. 6.7 That Ld. Trial Court ought to have decreed their suit besides initiating contempt proceedings against defendant on the basis of their application filed under Order XXXIX Rule 2A of CPC. 6.8 That real intention of defendant is to force the plaintiffs to sell their property at throw away price as plaintiffs were not residing in the suit property and dismissal of their suit has resulted in grave injustice to the plaintiffs.
7. Advocate Sh. U. K. Shandilya for appellants and Sh. Atul Kumar Gupta for respondent have addressed their arguments and matter is listed for clarification and order.
Smt. Pooja Maggo & Anr. Vs. Smt. Shobha Gupta Page 4 of 78. Having heard their submissions, it would be apt to allude to the observation and conclusion of Ld. Trial Court upon issue no.1 viz : "Whether the plaintiff has the right through staircase to the second floor as shown in the site plan MarkA by the plaintiff ? OPP
9. Ld. Trial Court has adverted to crossexaminations of both plaintiffs wherein they have admitted of not residing in suit premises, nonetheless, claimed to be frequently visiting their property besides admitting about iron staircase leading from first floor to second floor. Ld. Trial Court has also observed that there was no whisper of any iron staircase either in the plaint or in their affdavits tendered in evidence even assuming that the iron staircase was constructed after the filing of suit.
10. It would, therefore, apt to allude to their sale deeds in order to decide plaintiffs' right through staircase leading from first floor to second floor of the property. Plaintiffs' sale deed dated 26.05.2008 executed by Sh. Sunil Dutt Sharma and Ms. Ruchi Sharma proved as Ex. PW1/1 is in respect of entire second floor with roof rights of free hold property bearing no. 538, Ward no.XII, land area measuring 53.47 sq. mtrs situated at Mukimpura, Subzi mandi, Delhi100 007, but there is no reference about common facility of staircase. Whereas, the other sale deed dated 21.04.2005 executed by Sh. Krishna Dutt Sharma in favour of defendant mentions common staircase.
11. Adv. Sh. U. K. Shandilya for appellant has stoutly argued against impugned judgment and decree by alluding to word "staircase Smt. Pooja Maggo & Anr. Vs. Smt. Shobha Gupta Page 5 of 7 common" mentioned in sale deed dated 21.04.2005 executed in favour of defendant for contending that common facility of staircase was open to the occupant of second floor and the restrictive meaning given by Ld. Trial Court as between defendant and erstwhile owner Sh. Krishan Dutt Sharma was fallacious.
12. Adv. Sh. A. K. Sharma for respondent, per contra, has defended the judgment and decree dismissing plaintiffs' suit by submitting that previous owner alone was entitled to use the common staircase whereas subsequent purchaser of second floor with roof rights has one separate iron staircase through gali outside the premises for reaching his property. He has also alluded to testimonies of witnesses examined on record in support of his contention about existence of separate iron staircase.
13. Having considered their rival submissions, it is pertinent to note that besides their admission of not residing in suit premises, plaintiffs have also failed to disclose about existence of iron staircase leading to the second floor of property either in their plaint or in their affidavits for testifying as PW01 and PW02. Further, except her averment in affidavit proved as Ex. PW1/A, plaintiffs have not deposed about the nature of obstruction as averred in their plaint and subsequently in their application filed under Order XXXIX Rule2A of CPC for alleging breach of court's order.
14. In the absence of any description of common facility of staircase mentioned in their sale deed dated 26.05.2008 coupled with existence of separate and exclusive iron staircase from ground floor to their Smt. Pooja Maggo & Anr. Vs. Smt. Shobha Gupta Page 6 of 7 property on second floor of building, plaintiffs should seek declaration of their right in staircase as per section 34 of Specific Relief Act, 1963 along with their relief for permanent and mandatory injunction.
15. Therefore, in my considered opinion, in the absence of evidence for verifying any obstruction on the first floor coupled with the fact of absence of common facility of staircase in the sale deed executed in their favour, plaintiffs' suit for permanent injunction was rightly dismissed by Ld. Trial Court. Hence, in the absence of any infirmity or illegality, present appeal against impugned judgment and decree dated 20.09.2014 is accordingly dismissed without any cost. Decree sheet be prepared accordingly.
TCR be sent back alongwith copy of judgment. Appeal file be consigned to Record Room after due compliance.
Announced in open court (Tarun Yogesh) on 20th February, 2016. SCJ/RC (Central),THC/Delhi Smt. Pooja Maggo & Anr. Vs. Smt. Shobha Gupta Page 7 of 7