Smt. Amarjit Kaur vs Sh. Saurabh Sikka on 4 July, 2012

[Cites 5, Cited by 0]

Delhi District Court

Smt. Amarjit Kaur vs Sh. Saurabh Sikka on 4 July, 2012

     IN THE COURT OF MS. ANJANI MAHAJAN, CIIVL JUDGE02 (NORTH)
                                     TIS  HAZARI COURTS, DELHI
                                                  SUIT NO. 46/09
Unique ID No. 02401C0039412008
MEMO OF PARTIES


Smt. Amarjit Kaur
W/o Shri Gurdeep Singh Grover
R/o 869, Gali No. 7,
Gobindpuri, Kalkaji
New Delhi                                                                                               ...........Plaintiff
                                                       VERSUS
Sh. Saurabh Sikka
S/o Shri Rajinder Sikka
R/o 869, FF, Gali No. 7, 
Gobindpuri, Kalkaji
New 
Delhi                                                                                                    ..........Defendant

Date of institution of the Suit:                                              15.01.2008
Date on which judgment was reserved:                                          29.05.2012
Date of announcement of Judgment:                                             04.07.2012

       SUIT FOR PERMANENT INJUNCTION  AND COUNTER CLAIM OF THE 
           DEFENDANT FOR PERMANENT AND MANDATORY INJUNCTION


JUDGMENT

1. The plaintiff has filed the present suit for permanent injunction seeking to restrain the defendant/ his agents/ servants/ associates from covering the 'iron jaal' (iron grill) into 'pucca' construction on the first floor of the property bearing no. Suit No. 46/09 1 869, Govindpuri, Kalkaji, New Delhi, built on plot measuring 69 sq. yards (hereinafter referred to as 'suit property') and secondly, restraining the defendant from parking his vehicle in front of gate of ground floor of the suit property.

2. Averments in the plaint Briefly, the case of the plaintiff is that the plaintiff is the owner and in possession of the ground floor and second floor of the suit property while the defendant is in possession of the first floor of the suit property. It is stated that there is an iron jaal from the first floor to above in the aforesaid property from which the plaintiff and defendant get light and air. Further, since the length of the property is 45 feet, it requires ventilation and plaintiff being an old lady suffering from Asthma and other oldage ailments, fresh air and light are required. It is alleged that defendant has tried to cover the iron jaal many times for which various complaints were lodged but no action was taken by the police. On 13.01.2008 the defendant parked his vehicle in front of the house of the plaintiff at the ground floor of the suit property causing darkness and when plaintiff requested defendant not to park his vehicle there, the defendant threatened to not only park his vehicle at the house of the plaintiff but also cover the iron jaal (grill) into pucca construction. Thus, having no other efficacious remedy, plaintiff filed the present suit.

3. Issuance of summons and appearance of the defendant On the first date itself, in addition to praying for issuance of summons to the defendant, ld. counsel for plaintiff also prayed for appointment of local commissioner to inspect the suit property and file report regarding the existence of iron jaal. The Suit No. 46/09 2 prayer was allowed and report was filed by the Ld. Local Commissioner on 18/01/2008 who stated in his report that there existed an iron jaal each in the passage of the first and second floors and roof of the suit property.

Summons to the suit were served upon the defendant who appeared in court and admitted the existence of the iron jaal.

4. Averments in the Written Statement Certain preliminary objections were taken by the defendant which are enumerated as follows

a) Plaintiff has not approached the court with clean hands and has suppressed the material fact of harassment caused by the plaintiff's family members on the second floor of the suit property,

b) Bar of section 41 (h) and (i) of the Specific Relief Act, 1963

c) Instead of coming to an amicable solution, the plaintiff has filed the present suit with malafide intention at the instance of her sons and suit has been filed to cause further harassment and torture to the family of the defendant and therefore the defendant also claims to be entitled to compensatory cost under section 35A C.P.C.

On merits it is claimed that defendant is the owner of the first floor of the suit property and the claims and allegations of the plaintiff are denied. It is stated that in fact, the iron jaal on the roof of the first floor is causing harassment and torture to the family of the defendant and complaints had also been made by the defendant in this regard. It was submitted that defendant had the right to park his vehicle in the main Suit No. 46/09 3 'gali' (street) on the ground floor and defendant had never parked his vehicle before the gate as alleged in the plaint as he did not want to cause any hardship to the plaintiff. Defendant denied making any threat to the plaintiff that not only would he park his vehicle at the house of the plaintiff but would also cover the iron jaal with pucca construction. The defendant thus prayed for dismissal of the suit.

5. Replication Plaintiff filed replication to the written statement of the defendant denying the contents thereof and reiterating and reaffirming the contents of the plaint. Additional plea was also taken that since the defendant had not replied to paragraphs 10 to 12 of the plaint, the same were to be deemed admitted.

6. Counter claim of the defendant and Reply to the counter claim by the Plaintiff On 02/06/2008, counterclaim was filed by the defendant seeking the following reliefs against the plaintiff/respondent "Mandatory injunction

a) directing the respondent, her agents, servants, family members, successors, assigns and representatives etc. to remove the door from staircase leading to terrace floor and to install the door for the second floor ahead of the staircase and also give one key of the lock put on the staircase door,

b) To remove the plastic coloured sheet already put on the iron jaal of terrace floor and to bring similarities of size of iron jaal and to raise necessary atleast three feet high wall surrounding the iron jaal on second floor of the suit Suit No. 46/09 4 property no. 869, Gali no. 7, Gobindpuri Kalkaji, New Delhi19.

1. To install the door on second floor and terrace floor in the same position as it was at the initial stage in the suit property no. 869, Gali no. 7, Gobindpuri Kalkaji, New Delhi19.

Permanent injunction

a) Pass a decree of permanent injunction in favour of the claimant and against the respondent, her agents, servants, family members, relatives and representatives etc. from creating hindrances and obstructions in parking of motor cycle in the gate in front of suit premises, from washing the second floor, sitting and leering from the iron jaal of second floor and from creating obstructions in the use of common staircase from the second floor to the terrace of the suit property no. 869, Gali no. 7, Gobindpuri Kalkaji, New Delhi19 in the interest of justice.

b) Any other or further reliefs which this Hon'ble Court may deem fit and proper in view of above facts and submissions may kindly also be awarded in favour of the plaintiff and against the defendants, in the interest of justice."

It was the case of the defendant/counterclaimant in the counter claim that he purchased the first floor of the suit property vide a registered sale deed dated 17.01.2008 and as per the terms of the sale deed, the counter claimant had purchased the entire first floor with parking space of motor cycle at the main gate, with separate water and electricity connections/meter, overhead tank alongwith proportionate, undivided, indivisible and impartible freehold rights in the land underneath with all the rights, title and interests, easements, privileges and Suit No. 46/09 5 appurtenances thereof, connections, structures therein. It was averred that the iron jaal affixed on the first floor measures 3'x3', that on the second floor is 6'x3' and on the terrace floor is 6'x3'. It was alleged that plaintiff/respondent has claimed that the iron jaal is for passage of air and light, but the respondent/plaintiff has herself covered the iron jaal at the terrace of the suit property with a thick plastic coloured sheet and has thereby stopped the sunlight and air from entering the property. Further, the difference in the size of the jaals has become a permanent source of hardship and nuisance for the counterclaimant as the huge size of the iron jaal fixed on the second floor had destroyed the privacy of the claimant as the respondent or her family members used to sit around it and keep leering through the big jaal and when the plaintiff/ respondent or her family members would wash the floor or their clothes, the water would come and spread on the first floor and create dust.

It is stressed and alleged by the counterclaimant that vide registered sale deed, he has been permitted to park his motor cycle at the gate, but for ease of the respondent as well as her family members, counterclaimant/defendant has been parking his motorcycle alongside the front wall. It was further the case of the defendant/ counterclaimant that the respondent/plaintiff removed the overhead water tank and after long persuasion, the counterclaimant could reinstall the overhead water tank at the terrace but even though the staircase from the second floor to the terrace is common but the respondent has affixed a door there and is creating obstruction in the use of the same and would also raise quarrel with the counterclaimant and call the police when he wanted to check the overhead water Suit No. 46/09 6 tank. Counterclaimant alleges that the harassment is being done by the respondent to grab the property of the counterclaimant. Thus the present counterclaim was filed.

Reply to the counterclaim was filed by the respondent/plaintiff. Preliminary objections were taken as follows

a) The counterclaim was not maintainable and liable to be rejected under order 7 rule 11 CPC as being without cause of action.

b) It was a counterblast to the present suit and just filed to harass the respondent who was a senior citizen.

        c)      Suppression of material facts by the counterclaimant. 

        d)      No   locus   standi   of   the   counterclaimant   to   seek   permanent   and/or

mandatory injunction against the respondent with respect to the second floor and roof rights as the respondent was the owner of the same.

On merits, the respondent/plaintiff denied the allegations made in the counterclaim which were contrary to the facts as alleged in the plaint or those which were a matter of record.

Importantly, while the respondent/claimant submitted that defendant/counterclaimant had no right over the roof of the second floor i.e. the terrace, yet admitted that the defendant/counterclaimant had the right to maintain the overhead tank thereon. It was further stated that the counterclaimant could go to the roof of the second floor without the permission of the respondent and thus no mandatory injunction could be passed against the respondent. It was denied that the iron jaal on the second floor had become a permanent source of hardship and Suit No. 46/09 7 nuisance for the counterclaimant or that the privacy of the counterclaimant had been destroyed. It was further submitted that the said jaal had been in existence prior to the purchase of the first floor of the suit property by the counterclaimant and the position of the same has been the same as it was then. At the time of purchase, the counterclaimant had not raised any objection about the jaal and was now estopped from doing so. It was stated that on this ground alone, the claim of the counterclaimant thus deserves rejection. Further, it was claimed that the counterclaimant had no right to park his vehicle in front of the gate of the respondent at the ground floor or in any manner obstruct the air and light of the respondent at the ground floor. It was also denied that the staircase from the second floor to the terrace was common and it was alleged that the same belonged to the respondent. It was submitted that the counterclaimant had no right to make any claim of right over it and could not even enter the said stairs without the permission of the respondent.

Thus the defendant/counterclaimant prayed for dismissal of the counterclaim.

7. Issues Vide order dated 30/11/10, the counterclaim was ordered to be registered separately and the following issues were framed in the suit and the counterclaim

1. Whether on the basis of plaint allegations, plaintiff is entitled for a decree of permanent injunction as prayed for? OPP

2. Whether the suit of the plaintiff is not maintainable u/s 41 (f) of Specific Relief Act? OPD Suit No. 46/09 8

3. Any other relief which the plaintiff may be entitled for? OPP Issues in counterclaim

1. Whether the counterclaimant is entitled to a decree of mandatory injunction as prayed for? OPCC

2. Whether the plaintiff is entitled to a decree of permanent injunction as prayed for? OPCC

3. Whether the suit is bad for want of cause of action? OPD

4. Relief to which counterclaimant is entitled for?

8. Evidence Evidence was led by both the parties in the suit as well as the counterclaim. Plaintiff examined herself as PW1, and relied on her evidence by way of affidavit as Ex. PW1/A and Mark A (Colly) photographs, Ex. PW1/1A Complaint and Ex. PW1/1B Complaint, Ex.PW1/2 MOU, EX.PW1/3GPA, Ex.PW1/4 Will, Ex. PW1/5 Special Power of Attorney, Ex. PW1/6(Colly) Affidavits, Ex.PW1/7 Indemnity Bond, Ex. PW1/8 Agreement to appoint Arbitrator, Ex. PW1/9 (Colly) Receipts and Ex. PW1/10 Possession Letter. Thereafter defendant led DE/evidence in counterclaim and examined himself as CW1 and relied on his evidence by way of affidavit i.e. Ex. CW1/A, Ex. CW1/1 Site plan, Ex. CW1/2 Sale Deed and Mark A Photograph. Ex. CW1/From the record, it is seen that the evidence led by the parties as PW1 and DW1 was adopted by them in the counterclaim.

9. Arguments were advanced by ld. Counsel for both the parties. I have heard the arguments and carefully perused the record. By way of the present common Suit No. 46/09 9 judgment, I give my issuewise findings as under

10. Issue wise findings in the Suit Issue no. 1 Whether on the basis of plaint allegations, plaintiff is entitled for a decree of permanent injunction as prayed for? OPP and Issue no. 2 Whether the suit of the plaintiff is not maintainable u/s 41 (f) of Specific Relief Act? OPD Both the issues being interconnected are taken up together. The onus to prove issue no. 1 was on the plaintiff while the onus to prove issue no. 2 was on the defendant.

Plaintiff has sought two reliefs of permanent injunction i.e. one, to restrain the defendant/ his agents/ servants/ associates from covering the 'iron jaal' (iron grill) into 'pucca' construction on the first floor of the suit property and second, to restrain the defendant from parking his vehicle in front of gate of ground floor of the suit property.

The onus to prove this issue was on the plaintiff. Plaintiff examined herself and was subjected to crossexamination also. I propose to deal individually with the two reliefs sought by the plaintiff, starting with the first one.

The admitted position is that plaintiff and her family members occupy the ground and the second floor of the suit property. Defendant occupies the first floor. The existence of the iron jaals on the first floor and second floor passageway and terrace are also admitted. No objections have been filed to the report of the local commissioner, and being unrebutted, the same can also be relied upon. It is stated by the plaintiff that the said jaals are required for the purpose of ventilation. The local Suit No. 46/09 10 commissioner too in his report stated that the jaals were situated in the 'gali' (passage) of each floor for the purpose of light, air and ventilation. The defendant's plea is that if the iron jaals are for the purpose of passage of light and air then certainly they should remain open, but the plaintiff has herself covered the iron jaal on the terrace with a thick plastic green coloured sheet. During cross examination, plaintiff admitted to there being a green sheet alongwith tripal on the iron jaal of the terrace floor however, she also stated further in her crossexamination that the green plastic sheet was lying in a loose condition but sometimes bricks were kept on it to prevent it from flying off. It was also volunteered by her that when the rainy season was over, the sheet and tripal were removed. She denied the suggestion that the green plastic sheet was not removed in any season and was permanently fixed with iron and cement structure. The defendant could thus, not demolish the case of the plaintiff and the onus then shifted on him to produce cogent evidence to prove that the plastic sheet was covered with cement and iron. In fact, this plea of the plastic sheet being covered with iron and cement was never even pleaded in either the written statement or even the counterclaim.

Further, it is the plaintiff's plea that the green sheet was only placed on the terrace due to the defendant's complaint regarding rain water troubling him. If the evidence of the defendant is looked at, then it will be seen that he admits as correct the fact that if the sheet is removed, then rain water would enter his floor and the ground floor. He further said that there would be more rain water entering his floor and would be very less on the ground floor. On a preponderance of probabilities, the Suit No. 46/09 11 case of the plaintiff is more reliable and trustworthy with respect to the iron jaal and the green sheet covering the jaal being only a temporary arrangement for the rainy season. Even the tarpaulin (referred to in its vernacular form as 'tripal' in the evidence) covering the green sheet is only a waterproof cloth which is again a temporary sort of arrangement and not, by its nature, a permanent fixture.

An extract from Katiyar's "Easements and Licences, XI Edition, 159 which in turn refers to several leading Rulings, may be usefully referred to as follows "Every owner or occupier of land has a natural right to receive and enjoy so much light and air as come vertically thereto and to open doors and windows in his own wall which adjoins another's land, unless he is under a legal obligation not to do so. Light and air are publici juris. Every man is free, in the lawful enjoyment of his own property, to take and use so much light and air as come thereto."

The existence of the iron jaals is admitted. The Local commissioner's report corroborates the plaintiff's case that the jaals are for the purpose of ventilation, air and light, and stands unrebutted. The plaintiff's plea that the green sheet and tarpaulin on the jaal on the roof are only for the rainy season inspires confidence and defendant has neither pleaded nor proved that the jaal on the roof is covered by a pucca construction.

Section 41 (f) of the Specific Relief Act, 1963 provides as under "41. Injunction when refused. An injunction cannot be granted ... (f) to prevent, on the ground of nuisance, an act of which it is not Suit No. 46/09 12 reasonably clear that it will be a nuisance;"

This is a case of the plaintiff's right to vertical right and air being under threat of being infringed by the defendant if the defendant covers the iron jaal in the passage on his floor with pucca construction. The defendant has not been able to discharge the onus placed on him with respect to issue no. 2 in this regard, on the contrary, from the facts, evidence and the law on the subject, it is crystal clear that if the iron jaal is covered by the defendant, it shall be a nuisance inasmuch as the plaintiff's right to air and light shall be infringed. In such a situation, it is the duty of the court to protect the right of the plaintiff to air and light.

In view of the aforesaid discussion, I hold that the plaintiff is entitled to the relief of permanent injunction against the defendant, restraining the defendant/ his agents/ servants/ associates from covering the 'iron jaal' (iron grill) into 'pucca' construction on the first floor of the suit property.

Coming now to the second relief sought by the plaintiff, i.e. permanent injunction to restrain the defendant from parking his vehicle in front of gate of ground floor of the suit property, the plaintiff has made bald averments that parking of vehicle by the defendant in front of the house of the plaintiff, has caused darkness on the ground floor. Strangely, in her crossexamination, the plaintiff contradicted herself by denying that she made such a statement in her affidavit. During cross examination of the defendant, the plaintiff confronted the defendant with photographs Ex. CW1/R1 to CW1/R7 which defendant admitted were of the suit Suit No. 46/09 13 property and the motorcycle shown in the photograph was the defendant's motorcycle. On the other hand, the defendant relied on Ex. CW1/1, the original sale deed in defendant's favour (placed in the file pertaining to the counterclaim, photocopy of the same was placed on record of the suit) by which the erstwhile owner of the first floor of the suit property sold to the defendant, alongwith the entire first floor of the suit property, parking space of motor cycle in the main gate. The plaintiff has not challenged the contents and veracity of the aforesaid sale deed Ex. CW1/1 which is a duly registered document and can be safely relied on. No doubt plaintiff has the right to enjoy her property but the defendant who resides on the first floor of the suit property has equal right to enjoy his property and it would be unreasonable on the part of the plaintiff to expect the defendant to park his vehicle somewhere other than the gate of the suit premises, especially in view of the fact that the defendant has the right to park the vehicle at the main gate by virtue of the sale deed Ex. CW1/1. Moreover, it is quite unbelievable that the parking of the motorcycle at the main gate of the suit property would cause darkness on the plaintiff's ground floor. In such a factual situation, the bar of section 41(f) definitely comes into play and through the evidence led in respect of the parking of the motorcycle, the defendant has established that he has a right to park his vehicle in the main gate and it is not reasonably clear that this act of parking of the motorcycle by the defendant in the main gate of the suit property would be a nuisance. The plaintiff has thus failed in establishing her entitlement to the second claim i.e. permanent injunction restraining the defendant from parking his vehicle in front of Suit No. 46/09 14 gate of ground floor of the suit property.

Thus, to sum up, plaintiff is entitled to a decree of permanent injunction to restrain the defendant/ his agents/ servants/ associates from covering the 'iron jaal' (iron grill) into 'pucca' construction on the first floor of the suit property. Plaintiff's claim with respect to the second relief of permanent injunction, to restrain the defendant from parking his vehicle in front of gate of ground floor of the suit property is barred by section 41(f) of the Specific Relief Act, 1963 and even otherwise, in view of the sale deed in favour of the defendant conferring the parking right at the main gate to the defendant, the claim of the plaintiff is not maintainable and is dismissed. Issues no. 1 and 2 decided accordingly.

Issue no. 3 Any other relief which the plaintiff may be entitled for? OPP The onus to prove this issue was on the plaintiff. The plaintiff has not pressed for, or sought any other relief apart from the ones claimed in the plaint. In view of my discussion on issues 1 and 2 above, I hold that the plaintiff is entitled to a decree of permanent injunction restraining the defendant/ his agents/ servants/ associates from covering the 'iron jaal' (iron grill) into 'pucca' construction on the first floor of the suit property. Plaintiff is not entitled to a decree of permanent injunction, to restrain the defendant from parking his vehicle in front of gate of ground floor of the suit property. Suit of the plaintiff is accordingly partly decreed.

11. Issue wise findings in the Counterclaim Issue no. 3 i.e. Whether the suit is bad for want of cause of action? OPD; is Suit No. 46/09 15 being taken up first.

Since this is the counterclaim, the onus was on the plaintiff/respondent to prove that the counterclaim was bad for want of cause of action. It is settled law that for determining whether there exists a cause of action, only the averments in the plaint have to be looked at (in this case, averments in the counterclaim will have to be looked at.) The defendant has levelled certain specific allegations against the plaintiff/respondent. The plaintiff averred in the reply to the counterclaim that the counterclaimant/defendant had no right over the roof of the second floor, of which plaintiff claims to be owner, however she stated that the counterclaimant/defendant had the right to maintain his overhead tank on the roof of the second floor and could go without her permission and thus no mandatory injunction could be passed. However, in the evidence, she took a uturn and admitted to having put a lock on the terrace floor with the object to restrain the defendant from approaching the terrace.

Cause of action consists of bundle of facts, which give cause to enforce the legal right for redress in a court of law. In other words, it is a bundle of facts, which taken with the law applicable to them, gives the allegedly affected party a right to claim relief against the opponent. It must include some act done by the latter since in the absence of such an act no cause of action would possibly accrue or would arise. The counterclaimant/defendant has made specific allegations of certain acts done by the plaintiff/respondent purportedly infringing upon his rights and it cannot be said that the counterclaim is bad for want of cause of action. The plaintiff/respondent has not been able to discharge her onus with respect to this issue.

Suit No. 46/09 16

Thus, Issue no. 3 is decided in favour of the counterclaimant/defendant and against the respondent/plaintiff.

Issue no. 1 Whether the counterclaimant is entitled to a decree of mandatory injunction as prayed for? OPCC The counterclaimant has claimed the following reliefs of mandatory injunction

a) directing the respondent, her agents, servants, family members, successors, assigns and representatives etc. to remove the door from staircase leading to terrace floor and to install the door for the second floor ahead of the staircase and also give one key of the lock put on the staircase door,

b) To remove the plastic coloured sheet already put on the iron jaal of terrace floor and to bring similarities of size of iron jaal and to raise necessary atleast three feet high wall surrounding the iron jaal on second floor of the suit property.

c) To install the door on second floor and terrace floor in the same position as it was at the initial stage in the suit property.

Though not mentioned in the reply to the counterclaim, yet at the stage of arguments, Ld. Counsel for the plaintiff had argued that the counterclaim was not maintainable, having been filed after the filing of the written statement, i.e. after the defendant had delivered his defence. This argument of Ld. Counsel for the plaintiff is legally not sustainable in view of the settled law as laid down by the Hon'ble Apex Court in AIR 1997 SC 3985, wherein it was held that counterclaim is not exfacie barred after filing of written statement.

With respect to the first relief claimed, the counterclaimant has claimed that Suit No. 46/09 17 the respondent/plaintiff removed the overhead water tank and after long persuasion, the counterclaimant could reinstall the overhead water tank at the terrace but even though the staircase from the second floor to the terrace is common, the respondent has affixed a door there and is creating obstruction in the use of the same and would also raise quarrel with the counterclaimant and call the police when he wanted to check the overhead water tank. Counterclaimant alleges that the harassment is being done by the respondent to grab the property of the counterclaimant. To prove his entitlement to the first mandatory injunction he seeks, counterclaimant relied on Ex. CW1/1 i.e. the sale deed in his favour in which it is clearly stated that the counter claimant had purchased the entire first floor with parking space of motor cycle at the main gate, with separate water and electricity connections/meter, overhead tank alongwith proportionate, undivided, indivisible and impartible freehold rights in the land underneath with all the rights, title and interests, easements, privileges and appurtenances thereof, connections, structures therein. The contents and veracity of the said sale deed have not been assailed by the plaintiff/respondent and being duly registered, the same is duly proved and reliable. In fact, in the reply to the counterclaim, the plaintiff had even stated that even though she was the owner of the roof of second floor, however, defendant/counterclaimant had the right to maintain his overhead tank on the roof of the second floor and could go without her permission and thus no mandatory injunction could be passed. However, in the evidence, she took a uturn and admitted to having put a lock on the terrace floor with the object to restrain the defendant from approaching the terrace. Defendant Suit No. 46/09 18 has duly proved his ownership of the first floor of the suit property as well as his entitlement to overhead water tank. As per the Indian Easement Act,1882 even otherwise defendant would have an easementary right to access the water tank on the roof above the second floor assuming plaintiff to be the dominant owner. It is not pleaded by plaintiff that defendant can have access to the water tank above the roof of the second floor through any other means or through any other place, other than what is claimed by the defendant. However, defendant has not made it clear as to why the already existing door from staircase leading to terrace floor be removed and the door be installed for the second floor ahead of the staircase. But, his entitlement to check and access his overhead water tank situated on the roof of the second floor is clear and plaintiff must grant one key of the lock put on the aforesaid door from staircase leading to terrace floor. In view of the aforesaid discussion, the plaintiff is directed to grant one key of the lock put on the door from staircase leading to terrace floor so that defendant may without any obstruction or hindrance access his overhead water tank on the terrace of the suit property.

Regarding relief b) sought by the defendant in the counterclaim, I have already held while deciding the suit of the plaintiff that the plastic sheet is of temporary nature and the plaintiff's plea that the same is only placed on the terrace in rainy season inspires confidence. In such a case, the relief sought regarding the removal of the plastic sheet is baseless and infructuous and is dismissed as such.

The further relief claimed in clauses b) and c) is regarding the bring similarities of size of iron jaal and to raise necessary atleast three feet high wall Suit No. 46/09 19 surrounding the iron jaal on second floor of the suit property as well as to install the door on second floor and terrace floor in the same position as it was at the initial stage in the suit property. The Ld. Counsel for the plaintiff argued that the suit property has been in the same condition as it was prior to the defendant buying the first floor of the same. It was argued that the defendant brought the property after inspecting and considering the structure of the property and could not now seek the aforesaid reliefs. The argument of the plaintiff is quite valid, considering the admission of the defendant in his crossexamination as follows "There is no change in Jaal on 1st floor, 2nd floor and 3rd floor of the property since I purchase of (sic) property. Size of the Jaal was as it is today.."

Thus, by defendant's own admission, it appears there was never even a cause of action to seek these aforesaid reliefs. Even otherwise, mandatory injunction is a discretionary relief, to be granted when there is a clear case of violation of a right being made out, requiring immediate remedial action. Defendant has not been able to prove the basis on which he claims the mandatory injunctions or his entitlement to the reliefs claimed. The prayers seeking reliefs b) and c) are thus dismissed.

Issue no. 2 Whether the plaintiff is entitled to a decree of permanent injunction as prayed for? OPCC It appears that inadvertently this issue reads as 'Whether the plaintiff is entitled to a decree of permanent injunction as prayed for? OPCC. The same is corrected to read as 'Whether the counterclaimant id entitled to a decree of permanent injunction as Suit No. 46/09 20 prayed for? OPCC This is a counterclaim and the issue is whether the defendant/counterclaimant is entitled to the relief of permanent injunction in favour of the claimant and against the respondent, her agents, servants, family members, relatives and representatives etc. from creating hindrances and obstructions in parking of motor cycle in the gate in front of suit premises, from washing the second floor, sitting and leering from the iron jaal of second floor and from creating obstructions in the use of common staircase from the second floor to the terrace of the suit property. With respect to the first part of the relief of permanent injunction claimed by the defendant, as I have already held while deciding the suit that defendant has established his right to park his vehicle at the main gate by virtue of the sale deed Ex. CW1/1, therefore, there is no requirement for further discussion regarding this issue and defendant is as a natural corollary entitled to permanent injunction against the respondent, her agents, servants, family members, relatives and representatives etc. from creating hindrances and obstructions in parking of motor cycle at the main gate of the suit property.

Defendant has also prayed that he be granted permanent injunction against the plaintiff/respondent, her agents etc. from creating obstructions in the use of common staircase from the second floor to the terrace of the suit property. Whether or not the staircase is a common staircase or not, is not a matter within the scope of the present controversy and nothing herein shall be construed as an expression on the said issue either way. As already held by me in the earlier part of this judgment, Suit No. 46/09 21 defendant has duly proved his ownership of the first floor of the suit property as well as his entitlement to overhead water tank. Even otherwise, as per the Indian Easement Act,1882 defendant would have an easementary right to access the water tank on the roof above the second floor assuming plaintiff to be the dominant owner. It is not pleaded by plaintiff that defendant can have access to the water tank above the roof of the second floor through any other means or through any other place, other than what is claimed by the defendant. Therefore, the defendant is entitled to the relief of permanent injunction against the plaintiff/respondent, her agents etc. from creating obstructions in the use of the staircase from the second floor to the terrace of the suit property.

Yet another relief of permanent injunction sought by the defendant/counterclaimant is to restrain the plaintiff, her agents etc. from washing the second floor, sitting and leering from the iron jaal of second floor. The relief sought are barred by section 41 (f) of the Specific Relief Act and the plaintiff and her family members being the admitted occupants of the second floor cannot be restrained from the enjoyment of the property which would include washing the floor of the same. As regards the allegation of plaintiff and her family members sitting and leering from the iron jaal, these remain merely bald allegations, entirely unsupported by evidence and completely baseless, therefore the defendant not having made out a case in this regard, is not entitled to the relief claimed. Issue no. 4 Relief to which counterclaimant is entitled for?

In view of my findings on issues 1, 2 and 3 in the counterclaim, the Suit No. 46/09 22 counterclaimant is entitled to the following reliefs Mandatory injunction directing the plaintiff/respondent to grant one key of the lock put on the door from staircase leading to terrace floor of the suit property;

Permanent injunction against the plaintiff/respondent, her agents etc. from creating obstructions in the use of common staircase from the second floor to the terrace of the suit property; and Permanent injunction against the plaintiff/respondent, her agents, servants, family members, relatives and representatives etc. from creating hindrances and obstructions in parking of motor cycle of the defendant/counterclaimant at the main gate of suit property.

The rest of the reliefs claimed by the defendant/counterclaimant are, for reasons recorded earlier, denied and counterclaim with respect to those reliefs is dismissed. Thus, the counterclaim of the defendant is partly decreed.

Hence, in view of my aforesaid discussion regarding the issues in the suit as well as the counterclaim, the suit of the plaintiff stands partly decreed to the extent that the plaintiff is entitled to a decree of permanent injunction restraining the defendant/ his agents/ servants/ associates from covering the 'iron jaal' (iron grill) into 'pucca' construction on the first floor of the suit property.

Counterclaim of the defendant also stands partly decreed to the extent that defendant is entitled to the following reliefs Mandatory injunction directing the plaintiff/respondent to grant one key of the lock put on the door from staircase leading to terrace floor of the suit property; Permanent injunction against the Suit No. 46/09 23 plaintiff/respondent, her agents etc. from creating obstructions in the use of staircase from the second floor to the terrace of the suit property; and Permanent injunction against the plaintiff/respondent, her agents, servants, family members, relatives and representatives etc. from creating hindrances and obstructions in parking of motor cycle of the defendant/counterclaimant at the main gate of suit property.

Suit and counterclaim decided accordingly. No order as to costs. Separate decree sheets be prepared in both, suit as well as counterclaim. Both files be consigned to Record Room after necessary compliance.

Announced in the open court                                      MS. ANJANI MAHAJAN
On 04.07.2012.                                                   Civil Judge - 02 (North)
                                                                  04.07.2012.




Suit No. 46/09                                                                                       24
 04.07.2012                                                                        Suit No. 46/09

Present:          Counsel for the plaintiff.

Counsel for defendant/counter claimant along with defendant in person. Vide separate judgment of even date the suit of the plaintiff stands partly decreed to the extent that the plaintiff is entitled to a decree of permanent injunction restraining the defendant/ his agents/ servants/ associates from covering the 'iron jaal' (iron grill) into 'pucca' construction on the first floor of the suit property.

Counterclaim of the defendant also stands partly decreed to the extent that defendant is entitled to the following reliefs Mandatory injunction directing the plaintiff/respondent to grant one key of the lock put on the door from staircase leading to terrace floor of the suit property; Permanent injunction against the plaintiff/respondent, her agents etc. restraining them from creating obstruction in the use of staircase from the second floor to the terrace of the suit property; and Permanent injunction against the plaintiff/respondent, her agents, servants, family members, relatives and representatives etc. restraining them from creating hindrances and obstructions in parking of motor cycle of the defendant/counterclaimant at the main gate of suit property.

Suit and counterclaim decided accordingly. No order as to costs. Copy of judgment be placed in counter claim M77/10. Ahlmad is directed to assign suit number to the counter claim. Separate decree sheets be prepared in both, suit as well as counterclaim. Both files be consigned to Record Room after necessary compliance.

MS. ANJANI MAHAJAN Civil Judge - 02 (North) 04.07.2012.

Suit No. 46/09 25 MS. ANJANI MAHAJAN Civil Judge - 02 (North) 04.07.2012.

Suit No. 46/09 26 IN THE COURT OF MS. ANJANI MAHAJAN, CIIVL JUDGE02 (NORTH) TIS HAZARI COURTS, DELHI SUIT NO. M77/10 Unique ID No. 02401C0039412008 MEMO OF PARTIES Smt. Amarjit Kaur W/o Shri Gurdeep Singh Grove R/o 869, Gali No. 7, Gobindpuri, Kalkaji New Delhi ...........Plaintiff VERSUS Sh. Saurabh Sikka S/o Shri Rajinder Sikka R/o 869, FF, Gali No. 7, Gobindpuri, Kalkaji New Delhi ..........Defendant Date of institution of the Suit: 15.01.2008 Date on which judgment was reserved: 29.05.2012 Date of announcement of Judgment: 04.07.2012 SUIT FOR PERMANENT INJUNCTION AND COUNTER CLAIM OF THE DEFENDANT FOR PERMANENT AND MANDATORY INJUNCTION JUDGMENT

1. The plaintiff has filed the present suit for permanent injunction seeking to restrain the defendant/ his agents/ servants/ associates from covering the 'iron jaal' (iron grill) into 'pucca' construction on the first floor of the property bearing no. Suit No. 46/09 27 869, Govindpuri, Kalkaji, New Delhi, built on plot measuring 69 sq. yards (hereinafter referred to as 'suit property') and secondly, restraining the defendant from parking his vehicle in front of gate of ground floor of the suit property.

3. Issuance of summons and appearance of the defendant On the first date itself, in addition to praying for issuance of summons to the defendant, ld. counsel for plaintiff also prayed for appointment of local commissioner to inspect the suit property and file report regarding the existence of iron jaal. The Suit No. 46/09 28 prayer was allowed and report was filed by the Ld. Local Commissioner on 18/01/2008 who stated in his report that there existed an iron jaal each in the passage of the first and second floors and roof of the suit property.

Summons to the suit were served upon the defendant who appeared in court and admitted the existence of the iron jaal.

4. Averments in the Written Statement Certain preliminary objections were taken by the defendant which are enumerated as follows

a) Plaintiff has not approached the court with clean hands and has suppressed the material fact of harassment caused by the plaintiff's family members on the second floor of the suit property,

b) Bar of section 41 (h) and (i) of the Specific Relief Act, 1963

On merits it is claimed that defendant is the owner of the first floor of the suit property and the claims and allegations of the plaintiff are denied. It is stated that in fact, the iron jaal on the roof of the first floor is causing harassment and torture to the family of the defendant and complaints had also been made by the defendant in this regard. It was submitted that defendant had the right to park his vehicle in the main Suit No. 46/09 29 'gali' (street) on the ground floor and defendant had never parked his vehicle before the gate as alleged in the plaint as he did not want to cause any hardship to the plaintiff. Defendant denied making any threat to the plaintiff that not only would he park his vehicle at the house of the plaintiff but would also cover the iron jaal with pucca construction. The defendant thus prayed for dismissal of the suit.

b) To remove the plastic coloured sheet already put on the iron jaal of terrace floor and to bring similarities of size of iron jaal and to raise necessary atleast three feet high wall surrounding the iron jaal on second floor of the suit Suit No. 46/09 30 property no. 869, Gali no. 7, Gobindpuri Kalkaji, New Delhi19.

2. To install the door on second floor and terrace floor in the same position as it was at the initial stage in the suit property no. 869, Gali no. 7, Gobindpuri Kalkaji, New Delhi19.

Permanent injunction

It was the case of the defendant/counterclaimant in the counter claim that he purchased the first floor of the suit property vide a registered sale deed dated 17.01.2008 and as per the terms of the sale deed, the counter claimant had purchased the entire first floor with parking space of motor cycle at the main gate, with separate water and electricity connections/meter, overhead tank alongwith proportionate, undivided, indivisible and impartible freehold rights in the land underneath with all the rights, title and interests, easements, privileges and Suit No. 46/09 31 appurtenances thereof, connections, structures therein. It was averred that the iron jaal affixed on the first floor measures 3'x3', that on the second floor is 6'x3' and on the terrace floor is 6'x3'. It was alleged that plaintiff/respondent has claimed that the iron jaal is for passage of air and light, but the respondent/plaintiff has herself covered the iron jaal at the terrace of the suit property with a thick plastic coloured sheet and has thereby stopped the sunlight and air from entering the property. Further, the difference in the size of the jaals has become a permanent source of hardship and nuisance for the counterclaimant as the huge size of the iron jaal fixed on the second floor had destroyed the privacy of the claimant as the respondent or her family members used to sit around it and keep leering through the big jaal and when the plaintiff/ respondent or her family members would wash the floor or their clothes, the water would come and spread on the first floor and create dust.

It is stressed and alleged by the counterclaimant that vide registered sale deed, he has been permitted to park his motor cycle at the gate, but for ease of the respondent as well as her family members, counterclaimant/defendant has been parking his motorcycle alongside the front wall. It was further the case of the defendant/ counterclaimant that the respondent/plaintiff removed the overhead water tank and after long persuasion, the counterclaimant could reinstall the overhead water tank at the terrace but even though the staircase from the second floor to the terrace is common but the respondent has affixed a door there and is creating obstruction in the use of the same and would also raise quarrel with the counterclaimant and call the police when he wanted to check the overhead water Suit No. 46/09 32 tank. Counterclaimant alleges that the harassment is being done by the respondent to grab the property of the counterclaimant. Thus the present counterclaim was filed.

Reply to the counterclaim was filed by the respondent/plaintiff. Preliminary objections were taken as follows

a) The counterclaim was not maintainable and liable to be rejected under order 7 rule 11 CPC as being without cause of action.

b) It was a counterblast to the present suit and just filed to harass the respondent who was a senior citizen.

        c)      Suppression of material facts by the counterclaimant. 

        d)      No   locus   standi   of   the   counterclaimant   to   seek   permanent   and/or

mandatory injunction against the respondent with respect to the second floor and roof rights as the respondent was the owner of the same.

On merits, the respondent/plaintiff denied the allegations made in the counterclaim which were contrary to the facts as alleged in the plaint or those which were a matter of record.

Importantly, while the respondent/claimant submitted that defendant/counterclaimant had no right over the roof of the second floor i.e. the terrace, yet admitted that the defendant/counterclaimant had the right to maintain the overhead tank thereon. It was further stated that the counterclaimant could go to the roof of the second floor without the permission of the respondent and thus no mandatory injunction could be passed against the respondent. It was denied that the iron jaal on the second floor had become a permanent source of hardship and Suit No. 46/09 33 nuisance for the counterclaimant or that the privacy of the counterclaimant had been destroyed. It was further submitted that the said jaal had been in existence prior to the purchase of the first floor of the suit property by the counterclaimant and the position of the same has been the same as it was then. At the time of purchase, the counterclaimant had not raised any objection about the jaal and was now estopped from doing so. It was stated that on this ground alone, the claim of the counterclaimant thus deserves rejection. Further, it was claimed that the counterclaimant had no right to park his vehicle in front of the gate of the respondent at the ground floor or in any manner obstruct the air and light of the respondent at the ground floor. It was also denied that the staircase from the second floor to the terrace was common and it was alleged that the same belonged to the respondent. It was submitted that the counterclaimant had no right to make any claim of right over it and could not even enter the said stairs without the permission of the respondent.

Thus the defendant/counterclaimant prayed for dismissal of the counterclaim.

7. Issues Vide order dated 30/11/10, the counterclaim was ordered to be registered separately and the following issues were framed in the suit and the counterclaim

1. Whether on the basis of plaint allegations, plaintiff is entitled for a decree of permanent injunction as prayed for? OPP

2. Whether the suit of the plaintiff is not maintainable u/s 41 (f) of Specific Relief Act? OPD Suit No. 46/09 34

3. Any other relief which the plaintiff may be entitled for? OPP Issues in counterclaim

1. Whether the counterclaimant is entitled to a decree of mandatory injunction as prayed for? OPCC

2. Whether the plaintiff is entitled to a decree of permanent injunction as prayed for? OPCC

3. Whether the suit is bad for want of cause of action? OPD

4. Relief to which counterclaimant is entitled for?

9. Arguments were advanced by ld. Counsel for both the parties. I have heard the arguments and carefully perused the record. By way of the present common Suit No. 46/09 35 judgment, I give my issuewise findings as under

The admitted position is that plaintiff and her family members occupy the ground and the second floor of the suit property. Defendant occupies the first floor. The existence of the iron jaals on the first floor and second floor passageway and terrace are also admitted. No objections have been filed to the report of the local commissioner, and being unrebutted, the same can also be relied upon. It is stated by the plaintiff that the said jaals are required for the purpose of ventilation. The local Suit No. 46/09 36 commissioner too in his report stated that the jaals were situated in the 'gali' (passage) of each floor for the purpose of light, air and ventilation. The defendant's plea is that if the iron jaals are for the purpose of passage of light and air then certainly they should remain open, but the plaintiff has herself covered the iron jaal on the terrace with a thick plastic green coloured sheet. During cross examination, plaintiff admitted to there being a green sheet alongwith tripal on the iron jaal of the terrace floor however, she also stated further in her crossexamination that the green plastic sheet was lying in a loose condition but sometimes bricks were kept on it to prevent it from flying off. It was also volunteered by her that when the rainy season was over, the sheet and tripal were removed. She denied the suggestion that the green plastic sheet was not removed in any season and was permanently fixed with iron and cement structure. The defendant could thus, not demolish the case of the plaintiff and the onus then shifted on him to produce cogent evidence to prove that the plastic sheet was covered with cement and iron. In fact, this plea of the plastic sheet being covered with iron and cement was never even pleaded in either the written statement or even the counterclaim.

Further, it is the plaintiff's plea that the green sheet was only placed on the terrace due to the defendant's complaint regarding rain water troubling him. If the evidence of the defendant is looked at, then it will be seen that he admits as correct the fact that if the sheet is removed, then rain water would enter his floor and the ground floor. He further said that there would be more rain water entering his floor and would be very less on the ground floor. On a preponderance of probabilities, the Suit No. 46/09 37 case of the plaintiff is more reliable and trustworthy with respect to the iron jaal and the green sheet covering the jaal being only a temporary arrangement for the rainy season. Even the tarpaulin (referred to in its vernacular form as 'tripal' in the evidence) covering the green sheet is only a waterproof cloth which is again a temporary sort of arrangement and not, by its nature, a permanent fixture.

This is a case of the plaintiff's right to vertical right and air being under threat of being infringed by the defendant if the defendant covers the iron jaal in the passage on his floor with pucca construction. The defendant has not been able to discharge the onus placed on him with respect to issue no. 2 in this regard, on the contrary, from the facts, evidence and the law on the subject, it is crystal clear that if the iron jaal is covered by the defendant, it shall be a nuisance inasmuch as the plaintiff's right to air and light shall be infringed. In such a situation, it is the duty of the court to protect the right of the plaintiff to air and light.

In view of the aforesaid discussion, I hold that the plaintiff is entitled to the relief of permanent injunction against the defendant, restraining the defendant/ his agents/ servants/ associates from covering the 'iron jaal' (iron grill) into 'pucca' construction on the first floor of the suit property.

Coming now to the second relief sought by the plaintiff, i.e. permanent injunction to restrain the defendant from parking his vehicle in front of gate of ground floor of the suit property, the plaintiff has made bald averments that parking of vehicle by the defendant in front of the house of the plaintiff, has caused darkness on the ground floor. Strangely, in her crossexamination, the plaintiff contradicted herself by denying that she made such a statement in her affidavit. During cross examination of the defendant, the plaintiff confronted the defendant with photographs Ex. CW1/R1 to CW1/R7 which defendant admitted were of the suit Suit No. 46/09 39 property and the motorcycle shown in the photograph was the defendant's motorcycle. On the other hand, the defendant relied on Ex. CW1/1, the original sale deed in defendant's favour (placed in the file pertaining to the counterclaim, photocopy of the same was placed on record of the suit) by which the erstwhile owner of the first floor of the suit property sold to the defendant, alongwith the entire first floor of the suit property, parking space of motor cycle in the main gate. The plaintiff has not challenged the contents and veracity of the aforesaid sale deed Ex. CW1/1 which is a duly registered document and can be safely relied on. No doubt plaintiff has the right to enjoy her property but the defendant who resides on the first floor of the suit property has equal right to enjoy his property and it would be unreasonable on the part of the plaintiff to expect the defendant to park his vehicle somewhere other than the gate of the suit premises, especially in view of the fact that the defendant has the right to park the vehicle at the main gate by virtue of the sale deed Ex. CW1/1. Moreover, it is quite unbelievable that the parking of the motorcycle at the main gate of the suit property would cause darkness on the plaintiff's ground floor. In such a factual situation, the bar of section 41(f) definitely comes into play and through the evidence led in respect of the parking of the motorcycle, the defendant has established that he has a right to park his vehicle in the main gate and it is not reasonably clear that this act of parking of the motorcycle by the defendant in the main gate of the suit property would be a nuisance. The plaintiff has thus failed in establishing her entitlement to the second claim i.e. permanent injunction restraining the defendant from parking his vehicle in front of Suit No. 46/09 40 gate of ground floor of the suit property.

Thus, to sum up, plaintiff is entitled to a decree of permanent injunction to restrain the defendant/ his agents/ servants/ associates from covering the 'iron jaal' (iron grill) into 'pucca' construction on the first floor of the suit property. Plaintiff's claim with respect to the second relief of permanent injunction, to restrain the defendant from parking his vehicle in front of gate of ground floor of the suit property is barred by section 41(f) of the Specific Relief Act, 1963 and even otherwise, in view of the sale deed in favour of the defendant conferring the parking right at the main gate to the defendant, the claim of the plaintiff is not maintainable and is dismissed. Issues no. 1 and 2 decided accordingly.

Issue no. 3 Any other relief which the plaintiff may be entitled for? OPP The onus to prove this issue was on the plaintiff. The plaintiff has not pressed for, or sought any other relief apart from the ones claimed in the plaint. In view of my discussion on issues 1 and 2 above, I hold that the plaintiff is entitled to a decree of permanent injunction restraining the defendant/ his agents/ servants/ associates from covering the 'iron jaal' (iron grill) into 'pucca' construction on the first floor of the suit property. Plaintiff is not entitled to a decree of permanent injunction, to restrain the defendant from parking his vehicle in front of gate of ground floor of the suit property. Suit of the plaintiff is accordingly partly decreed.

11. Issue wise findings in the Counterclaim Issue no. 3 i.e. Whether the suit is bad for want of cause of action? OPD; is Suit No. 46/09 41 being taken up first.

Since this is the counterclaim, the onus was on the plaintiff/respondent to prove that the counterclaim was bad for want of cause of action. It is settled law that for determining whether there exists a cause of action, only the averments in the plaint have to be looked at (in this case, averments in the counterclaim will have to be looked at.) The defendant has levelled certain specific allegations against the plaintiff/respondent. The plaintiff averred in the reply to the counterclaim that the counterclaimant/defendant had no right over the roof of the second floor, of which plaintiff claims to be owner, however she stated that the counterclaimant/defendant had the right to maintain his overhead tank on the roof of the second floor and could go without her permission and thus no mandatory injunction could be passed. However, in the evidence, she took a uturn and admitted to having put a lock on the terrace floor with the object to restrain the defendant from approaching the terrace.

Cause of action consists of bundle of facts, which give cause to enforce the legal right for redress in a court of law. In other words, it is a bundle of facts, which taken with the law applicable to them, gives the allegedly affected party a right to claim relief against the opponent. It must include some act done by the latter since in the absence of such an act no cause of action would possibly accrue or would arise. The counterclaimant/defendant has made specific allegations of certain acts done by the plaintiff/respondent purportedly infringing upon his rights and it cannot be said that the counterclaim is bad for want of cause of action. The plaintiff/respondent has not been able to discharge her onus with respect to this issue.

Suit No. 46/09 42

Thus, Issue no. 3 is decided in favour of the counterclaimant/defendant and against the respondent/plaintiff.

Issue no. 1 Whether the counterclaimant is entitled to a decree of mandatory injunction as prayed for? OPCC The counterclaimant has claimed the following reliefs of mandatory injunction

a) directing the respondent, her agents, servants, family members, successors, assigns and representatives etc. to remove the door from staircase leading to terrace floor and to install the door for the second floor ahead of the staircase and also give one key of the lock put on the staircase door,

b) To remove the plastic coloured sheet already put on the iron jaal of terrace floor and to bring similarities of size of iron jaal and to raise necessary atleast three feet high wall surrounding the iron jaal on second floor of the suit property.

c) To install the door on second floor and terrace floor in the same position as it was at the initial stage in the suit property.

With respect to the first relief claimed, the counterclaimant has claimed that Suit No. 46/09 43 the respondent/plaintiff removed the overhead water tank and after long persuasion, the counterclaimant could reinstall the overhead water tank at the terrace but even though the staircase from the second floor to the terrace is common, the respondent has affixed a door there and is creating obstruction in the use of the same and would also raise quarrel with the counterclaimant and call the police when he wanted to check the overhead water tank. Counterclaimant alleges that the harassment is being done by the respondent to grab the property of the counterclaimant. To prove his entitlement to the first mandatory injunction he seeks, counterclaimant relied on Ex. CW1/1 i.e. the sale deed in his favour in which it is clearly stated that the counter claimant had purchased the entire first floor with parking space of motor cycle at the main gate, with separate water and electricity connections/meter, overhead tank alongwith proportionate, undivided, indivisible and impartible freehold rights in the land underneath with all the rights, title and interests, easements, privileges and appurtenances thereof, connections, structures therein. The contents and veracity of the said sale deed have not been assailed by the plaintiff/respondent and being duly registered, the same is duly proved and reliable. In fact, in the reply to the counterclaim, the plaintiff had even stated that even though she was the owner of the roof of second floor, however, defendant/counterclaimant had the right to maintain his overhead tank on the roof of the second floor and could go without her permission and thus no mandatory injunction could be passed. However, in the evidence, she took a uturn and admitted to having put a lock on the terrace floor with the object to restrain the defendant from approaching the terrace. Defendant Suit No. 46/09 44 has duly proved his ownership of the first floor of the suit property as well as his entitlement to overhead water tank. As per the Indian Easement Act,1882 even otherwise defendant would have an easementary right to access the water tank on the roof above the second floor assuming plaintiff to be the dominant owner. It is not pleaded by plaintiff that defendant can have access to the water tank above the roof of the second floor through any other means or through any other place, other than what is claimed by the defendant. However, defendant has not made it clear as to why the already existing door from staircase leading to terrace floor be removed and the door be installed for the second floor ahead of the staircase. But, his entitlement to check and access his overhead water tank situated on the roof of the second floor is clear and plaintiff must grant one key of the lock put on the aforesaid door from staircase leading to terrace floor. In view of the aforesaid discussion, the plaintiff is directed to grant one key of the lock put on the door from staircase leading to terrace floor so that defendant may without any obstruction or hindrance access his overhead water tank on the terrace of the suit property.

The further relief claimed in clauses b) and c) is regarding the bring similarities of size of iron jaal and to raise necessary atleast three feet high wall Suit No. 46/09 45 surrounding the iron jaal on second floor of the suit property as well as to install the door on second floor and terrace floor in the same position as it was at the initial stage in the suit property. The Ld. Counsel for the plaintiff argued that the suit property has been in the same condition as it was prior to the defendant buying the first floor of the same. It was argued that the defendant brought the property after inspecting and considering the structure of the property and could not now seek the aforesaid reliefs. The argument of the plaintiff is quite valid, considering the admission of the defendant in his crossexamination as follows "There is no change in Jaal on 1st floor, 2nd floor and 3rd floor of the property since I purchase of (sic) property. Size of the Jaal was as it is today.."

Issue no. 2 Whether the plaintiff is entitled to a decree of permanent injunction as prayed for? OPCC It appears that inadvertently this issue reads as 'Whether the plaintiff is entitled to a decree of permanent injunction as prayed for? OPCC. The same is corrected to read as 'Whether the counterclaimant id entitled to a decree of permanent injunction as Suit No. 46/09 46 prayed for? OPCC This is a counterclaim and the issue is whether the defendant/counterclaimant is entitled to the relief of permanent injunction in favour of the claimant and against the respondent, her agents, servants, family members, relatives and representatives etc. from creating hindrances and obstructions in parking of motor cycle in the gate in front of suit premises, from washing the second floor, sitting and leering from the iron jaal of second floor and from creating obstructions in the use of common staircase from the second floor to the terrace of the suit property. With respect to the first part of the relief of permanent injunction claimed by the defendant, as I have already held while deciding the suit that defendant has established his right to park his vehicle at the main gate by virtue of the sale deed Ex. CW1/1, therefore, there is no requirement for further discussion regarding this issue and defendant is as a natural corollary entitled to permanent injunction against the respondent, her agents, servants, family members, relatives and representatives etc. from creating hindrances and obstructions in parking of motor cycle at the main gate of the suit property.

Defendant has also prayed that he be granted permanent injunction against the plaintiff/respondent, her agents etc. from creating obstructions in the use of common staircase from the second floor to the terrace of the suit property. Whether or not the staircase is a common staircase or not, is not a matter within the scope of the present controversy and nothing herein shall be construed as an expression on the said issue either way. As already held by me in the earlier part of this judgment, Suit No. 46/09 47 defendant has duly proved his ownership of the first floor of the suit property as well as his entitlement to overhead water tank. Even otherwise, as per the Indian Easement Act,1882 defendant would have an easementary right to access the water tank on the roof above the second floor assuming plaintiff to be the dominant owner. It is not pleaded by plaintiff that defendant can have access to the water tank above the roof of the second floor through any other means or through any other place, other than what is claimed by the defendant. Therefore, the defendant is entitled to the relief of permanent injunction against the plaintiff/respondent, her agents etc. from creating obstructions in the use of the staircase from the second floor to the terrace of the suit property.

In view of my findings on issues 1, 2 and 3 in the counterclaim, the Suit No. 46/09 48 counterclaimant is entitled to the following reliefs Mandatory injunction directing the plaintiff/respondent to grant one key of the lock put on the door from staircase leading to terrace floor of the suit property;

Counterclaim of the defendant also stands partly decreed to the extent that defendant is entitled to the following reliefs Mandatory injunction directing the plaintiff/respondent to grant one key of the lock put on the door from staircase leading to terrace floor of the suit property; Permanent injunction against the Suit No. 46/09 49 plaintiff/respondent, her agents etc. restraining them from creating obstructions in the use of staircase from the second floor to the terrace of the suit property; and Permanent injunction against the plaintiff/respondent, her agents, servants, family members, relatives and representatives etc. restraining them from creating hindrances and obstructions in parking of motor cycle of the defendant/counterclaimant at the main gate of suit property.

Announced in the open court                                      MS. ANJANI MAHAJAN
On 04.07.2012.                                                   Civil Judge - 02 (North)
                                                                  04.07.2012.




Suit No. 46/09                                                                                       50
 04.07.2012                                                                        Suit No. M77/10

Present:          Counsel for the plaintiff.

Counterclaim of the defendant also stands partly decreed to the extent that defendant is entitled to the following reliefs Mandatory injunction directing the plaintiff/respondent to grant one key of the lock put on the door from staircase leading to terrace floor of the suit property; Permanent injunction against the plaintiff/respondent, her agents etc. restraining them from creating obstruction in the use of staircase from the second floor to the terrace of the suit property; and Permanent injunction against the plaintiff/respondent, her agents, servants, family members, relatives and representatives etc. restraining them from creating hindrances and obstructions in parking of motor cycle of the defendant/counterclaimant at the main gate of suit property.

MS. ANJANI MAHAJAN Civil Judge - 02 (North) 04.07.2012.





Suit No. 46/09                                                                                                   51
 04.07.2012                                                                        Suit No. (M77/10) 58/12

Present:          Counsel for the plaintiff.

Counterclaim of the defendant also stands partly decreed to the extent that defendant is entitled to the following reliefs Mandatory injunction directing the plaintiff/respondent to grant one key of the lock put on the door from staircase leading to terrace floor of the suit property; Permanent injunction against the plaintiff/respondent, her agents etc. restraining them from creating obstruction in the use of staircase from the second floor to the terrace of the suit property; and Permanent injunction against the plaintiff/respondent, her agents, servants, family members, relatives and representatives etc. restraining them from creating hindrances and obstructions in parking of motor cycle of the defendant/counterclaimant at the main gate of suit property.

MS. ANJANI MAHAJAN Civil Judge - 02 (North) 04.07.2012.

Suit No. 46/09 52 04.07.2012 Suit No. 46/09

Present: Counsel for the plaintiff.

Counterclaim of the defendant also stands partly decreed to the extent that defendant is entitled to the following reliefs Mandatory injunction directing the plaintiff/respondent to grant one key of the lock put on the door from staircase leading to terrace floor of the suit property; Permanent injunction against the plaintiff/respondent, her agents etc. restraining them from creating obstruction in the use of staircase from the second floor to the terrace of the suit property; and Permanent injunction against the plaintiff/respondent, her agents, servants, family members, relatives and representatives etc. restraining them from creating hindrances and obstructions in parking of motor cycle of the defendant/counterclaimant at the main gate of suit property.

MS. ANJANI MAHAJAN Civil Judge - 02 (North) 04.07.2012.

Suit No. 46/09 53

Legal Document View

Unlock Advanced Research with PRISMAI

Delhi District Court

Smt. Amarjit Kaur vs Sh. Saurabh Sikka on 4 July, 2012