Delhi District Court
Mrs Geeta Yadav vs Gurudev Gupta And Anr on 25 January, 2025
IN THE COURT OF MS AUNRADHA JINDAL, ADDL.
SENIOR CIVIL JUDGE-CUM- JUDGE SMALL CAUSE
COURT-CUM-GUARDIAN JUDGE, DISTRICT: SOUTH,
NEW DELHI
CS SCJ 433/23
CNR No. DLST03-000997-2023
Mrs. Geeta Yadav
W/o Sh. Awdhesh Kumar Yadav
R/o B-303, First Floor, Gautam Nagar,
New Delhi-110049.
...PLAINTIFF
VERSUS
1. Sh. Gurudev Gupta
Satya Narayan Gupta
R/o B-303, Ground Floor & 3rd Floor,
Gautam Nagar, New Delhi-110049.
2. Smt. Ranjana Devi,
W/o Sh. Krishan Chand,
R/o B-303, 2nd Floor,
Gautam Nagar, New Delhi-110049.
.....DEFENDANTS
SUIT FOR PERMANENT AND MANDATORY INJUNCTION
Date of institution : 24.05.2023
Date of reserving judgment : 24.12.2024
Date of pronouncement of judgment : 25.01.2025.
CS SCJ 433/23 MRS GEETA YADAV VS. GURUDEV GUPTA AND ANR PAGE NO.1/34
JUDGMENT
The Case
1. In the facts of the present case, the dispute primarily concerns the installation of a water tank and the utilization of the roof and mumpty areas of the residential property located at B-303, Gautam Nagar, New Delhi. The plaintiff, the owner of the first floor, asserts her right to install a water tank on the roof of the building, claiming that it is a common area and integral to her peaceful enjoyment of the property. She also argues that the documents governing the property explicitly provide for access to common facilities, including the roof, for all flat owners.
2. The defendant, who owns the ground and third floors along with exclusive roof rights, contests these claims. He argues that the plaintiff has no legal right to the roof or terrace, emphasizing that her water tank has always been located inside her flat, as per the original arrangement. The defendant further asserts that the roof and mumpty are his exclusive property, acquired through a registered Sale Deed and GPA. He also raises procedural and legal objections, including the contention that the plaintiff's suit is time- barred.
CS SCJ 433/23 MRS GEETA YADAV VS. GURUDEV GUPTA AND ANR PAGE NO.2/34 The Proceedings: A Chronology
3. The case began on 24.05.2023, when a fresh suit for permanent and mandatory injunction was assigned through e-filing. On 26.05.2023, the court heard the matter and issued summons to the defendants along with a notice for the application under Order 39 Rule 1 and 2 CPC. By 22.07.2023, Defendant No. 1 had filed a written statement (WS), while Defendant No. 2 had been served but did not file any response. Both parties expressed a willingness to explore mediation, and the court referred the matter to the Mediation Center at Saket Court Complex.
4. Subsequently, the case returned from mediation without settlement on 26.10.2023. The plaintiff submitted a replication, and as Defendant No. 2 failed to file his WS within the statutory period, his defense was struck off, and he was proceeded against ex parte. On 23.11.2023, the plaintiff filed the required affidavit for admission and denial of documents, while Defendant No. 1 denied the documents submitted by the plaintiff. After hearing arguments, the court framed issues focusing on the plaintiff's entitlement to the reliefs sought.
5. On 25.01.2024, the plaintiff withdrew the application under Order 39 Rule 1 and 2 CPC, choosing to proceed with evidence. By mutual consent, the court appointed Ms. Amrita Jaiswal as Local Commissioner (LC) to record the plaintiff's evidence. The LC's fee was fixed at Rs. 10,000/-, CS SCJ 433/23 MRS GEETA YADAV VS. GURUDEV GUPTA AND ANR PAGE NO.3/34 to be borne by the plaintiff. The Local Commissioner reported on 05.03.2024 that the plaintiff's evidence had been recorded, and the plaintiff closed his evidence. The case then proceeded to the stage of defendant evidence (DE). On this date, Defendant No. 1 filed an evidence affidavit.
6. On 08.07.2024, the plaintiff alleged that Defendant No. 1 had installed a plastic shed over the common area to interfere with the plaintiff's rights. Defendant No. 1 denied the allegations, asserting that the shed was on his washroom roof. Both parties agreed to inspect the site and file a joint report. By 23.08.2024, the plaintiff conceded that the shed was not on the common area, leading to the dismissal of the application under Order 39 Rule 1 and 2 CPC. Defendant evidence was again directed to be recorded by the Local Commissioner, with fees of Rs. 8,000/- to be borne by the plaintiff.
7. On 26.11.2024, Defendant No. 1 completed his cross- examination and declared that he did not wish to call any additional witnesses. Consequently, his evidence was closed. This court then scheduled the matter for final arguments.
8. This Court has duly considered the final arguments advanced by the learned counsel for the plaintiff. The Court has meticulously examined the entire record, giving careful attention to the pleadings, the evidence presented, and the submissions made on behalf of the plaintiff as well as CS SCJ 433/23 MRS GEETA YADAV VS. GURUDEV GUPTA AND ANR PAGE NO.4/34 written submissions filed on behalf of parties. Each aspect of the case has been analysed in light of the relevant facts and law, ensuring that all material brought before the Court has been fully reviewed and assessed in reaching a fair and just decision.
The Plaint
9. Pleaded case of the plaintiff is that the Plaintiff, is the rightful owner of the property located at B-303, First Floor, Gautam Nagar, New Delhi-110049, by virtue of a Registered General Power of Attorney and Agreement to Sell and Purchase, along with other requisite documents executed and registered on 27th August 2010. The subject property is a residential unit, which the Plaintiff uses and occupies.
10.The Defendant No. 1 owns the ground floor and later acquired ownership of the third floor of the subject property in the years 2015 and 2022, respectively. Defendant No. 2 previously owned the second floor and sold the first floor to the Plaintiff in 2010.
11.Water, an essential commodity and a basic necessity of life, is at the heart of the dispute. The Plaintiff has the legal right to install a water tank on the roof of the subject property, where water tanks of other occupants have been installed, and to connect the water supply from the water tank to the Plaintiff's first-floor unit. Denying the Plaintiff access to CS SCJ 433/23 MRS GEETA YADAV VS. GURUDEV GUPTA AND ANR PAGE NO.5/34 install a water tank on the roof or the stair's mumty constitutes a violation of legal rights and an obstruction to peaceful living. This action hinders the Plaintiff's ability to access water and infringes upon the use of common areas.
12.The Plaintiff alleges that the Defendants, particularly Defendant No. 1, have created continuous and undue hindrances since the Plaintiff's purchase of the first floor in 2010. Defendant No. 1 has obstructed common areas and restricted access to the roof, where the Plaintiff seeks to install a water tank. Despite multiple requests and attempts at resolution, Defendant No. 1 has displayed an adamant and hostile attitude, often engaging in quarrelsome behavior with the Plaintiff and her family members.
13.The Plaintiff asserts that Defendant No. 1 has used coercive tactics, including gathering construction material with the intent to construct an unauthorized fourth floor, in an attempt to pressure the Plaintiff into granting consent for the same. This conduct, according to the Plaintiff, contravenes the governing property laws and agreements and has prompted multiple complaints to the relevant authorities.
14.The registered deed and agreements explicitly grant the Plaintiff the right to install, inspect, and repair water tanks and antennas on the roof of the subject property. These rights are enshrined in the property agreements and supported by provisions under the DDA Regulations, 1968, and Section 32 of the Indian Easements Act, 1882, which CS SCJ 433/23 MRS GEETA YADAV VS. GURUDEV GUPTA AND ANR PAGE NO.6/34 recognize the roof as a "common portion" meant for shared use, including water installations.
15.The Plaintiff further relies on the principles of justice, equity, and good conscience as laid down by the Hon'ble Supreme Court in Madhu Kishwar v. State of Bihar, (1996) 4 SCC 125, asserting that legal protections must be upheld to ensure equal rights and harmonious living.
16.On 1st May 2023, the Plaintiff issued a legal notice to the Defendants, demanding permission to install the water tank on the roof. However, the Defendant No. 1 replied on 13th May 2023, refusing the request. The Plaintiff alleges that Defendant No. 1's defiance stems from a misuse of political connections and muscle power.
17.The cause of action arose when the Defendants unlawfully obstructed the Plaintiff from installing a water tank, leading to severe hardships, including a lack of adequate water storage. The Plaintiff has resorted to using tubs and pots to store water, which is insufficient for maintaining a routine life. Additional complaints were filed with the authorities on 24th April 2023, further escalating the dispute.
18.The subject premises fall within the jurisdiction of the Saket District Court, New Delhi. The suit is valued at Rs. 130/- for each relief, with a total court fee of Rs. 150/- affixed. The Plaintiff prays for the following reliefs:
o Mandatory Injunction: Restraining Defendant No. 1 from obstructing the Plaintiff's installation of a water CS SCJ 433/23 MRS GEETA YADAV VS. GURUDEV GUPTA AND ANR PAGE NO.7/34 tank on the roof and directing Defendant No. 1 to allow the Plaintiff to install and connect the water tank to the water supply system of the subject premises. o Permanent Injunction: Restraining the Defendants, their transferees, assigns, successors, heirs, and agents from altering the common areas, including the stairs, and preventing the Plaintiff from accessing the water tank or television antenna of the subject premises. o Costs: An award for the costs of the suit in favor of the Plaintiff and against the Defendants. o Other Relief: Any other relief deemed just and proper by this Hon'ble Court, given the circumstances of the case.
The Written Statement (Defendant No. 1)
19.The Defendant submits this written statement in response to the Plaintiff's suit, which is based on false claims, misrepresentation, and an apparent intent to harass. The Defendant raises the following preliminary objections and replies to the allegations made by the Plaintiff.
20.The Plaintiff has approached this Court with unclean hands, suppressing material facts, and presenting an incomplete narrative. The suit is frivolous and a gross abuse of the legal process, warranting dismissal with exemplary costs. Furthermore, the Plaintiff has no lawful right to install a water tank on the terrace or mumpty of the property. The absence of any legitimate cause of action renders this suit CS SCJ 433/23 MRS GEETA YADAV VS. GURUDEV GUPTA AND ANR PAGE NO.8/34 untenable under the provisions of Order VII Rule 11 CPC. The Defendant holds exclusive ownership of the terrace of the property, purchased lawfully through a registered sale deed. The Plaintiff's claim to access or utilize the terrace is baseless, as her water tank is already installed within the confines of her first-floor flat. This suit appears to be a deliberate attempt to harass the Defendant, knowing well that the Plaintiff has no rights over the terrace or mumpty. Her claims are also time-barred, as the issues raised pertain to events more than 12 years old. Additionally, the Plaintiff does not reside in the property in question. Instead, her tenant occupies the first-floor flat, further weakening her claims. The Plaintiff's intent appears to be to misuse the legal system to cause unwarranted hardship to the Defendant.
21.The Plaintiff falsely claims to be a law-abiding citizen. She does not reside in the property but has rented it out. The ownership of her flat, as well as her right to use the property, is disputed and must be proven by valid documents. The Defendant, however, holds lawful ownership of the terrace and the third-floor flat. The Plaintiff's demand to install a water tank on the terrace is baseless. Her flat already has a water tank installed on the kitchen roof within the confines of her property. The Plaintiff falsely claims that other residents have water tanks installed on the terrace, while, in reality, all water tanks are within the respective flats' boundaries. The Plaintiff's assertion of common areas or CS SCJ 433/23 MRS GEETA YADAV VS. GURUDEV GUPTA AND ANR PAGE NO.9/34 shared access rights is unsupported by any legal or contractual basis.
22.The allegations of obstruction of common passages or harassment are baseless. The Plaintiff has fabricated complaints to mislead this Court. The Defendant has never interfered with the Plaintiff's peaceful enjoyment of her property. The Plaintiff's claims of hardship due to a lack of water storage are untrue. Her tenant is currently using the water tank installed in the kitchen of the first-floor flat. The Plaintiff's attempt to create a false narrative of difficulty is merely a ploy to pressure the Defendant into granting unauthorized access to the terrace.
23.The Plaintiff's reliance on agreements with Defendant No. 2 or references to DDA regulations is misplaced. The terrace and mumpty belong exclusively to the Defendant, and there are no provisions for common access in the sale deeds or related documents. The property is not governed by DDA regulations applicable to shared facilities in larger housing schemes. The Defendant denies any misuse of political or financial influence. On the contrary, the Plaintiff and her representatives have made baseless allegations to malign the Defendant and coerce him into conceding to her unlawful demands.
24.The Plaintiff has failed to establish any legitimate cause of action. Her claims are frivolous and time-barred, arising long after the events in question. The Plaintiff has also not CS SCJ 433/23 MRS GEETA YADAV VS. GURUDEV GUPTA AND ANR PAGE NO.10/34 paid proper court fees, further rendering this suit procedurally flawed.
25.In view of the above, the Defendant humbly prays to this Court that the suit, being frivolous, false, and devoid of any merit, may kindly be dismissed with exemplary costs. Costs of the suit may also be awarded to the Defendant for the unnecessary harassment caused by this baseless litigation. Additionally, any other relief that this Court deems just and equitable in favor of the Defendant may also kindly be granted.
Replication to the Written Statement of Defendant No. 1
26.The Plaintiff, in response to the written statement filed by Defendant No. 1, asserts that the claims and defenses raised by the Defendant are baseless, devoid of merit, and misconceived. The Plaintiff firmly denies all allegations and contentions raised therein and reiterates the contents of the Plaint, which establish her legal rights and entitlements beyond any doubt.
27.The Plaintiff's rights to the subject property, including the right to install a water tank on the roof and access the common areas, are derived from a series of valid and legally binding registered documents, including the General Power of Attorney and Agreement to Sell, both dated 15.12.1993. These documents explicitly grant the Plaintiff, and all subsequent purchasers, the right to install and maintain essential utilities such as water tanks and antennas, as well CS SCJ 433/23 MRS GEETA YADAV VS. GURUDEV GUPTA AND ANR PAGE NO.11/34 as unrestricted access to common passages, including the roof. These rights are fundamental and necessary for peaceful living, and no subsequent owner, including Defendant No. 1, can infringe upon them.
28.The Defendant's claims to exclusive ownership of the roof are unfounded and contrary to the provisions of the Indian Easements Act, 1882, which recognizes the Plaintiff's easement rights to access and maintain the water tank on the roof. Furthermore, the Defendant's actions, including obstructing the Plaintiff's access to the roof and preventing the installation of a water tank, violate the Plaintiff's fundamental rights under the Indian Constitution, which guarantees access to basic necessities such as water.
29.The Plaintiff categorically denies the allegations in the preliminary objections raised by the Defendant. Contrary to the Defendant's assertions, the Plaintiff has approached this Court with clean hands and in good faith, seeking enforcement of rights explicitly granted under legally binding documents. The Defendant's claim that the suit lacks a cause of action is without basis. The Plaintiff's inability to access essential utilities, such as a water tank, directly results from the Defendant's obstructionist behavior, thereby necessitating judicial intervention.
30.The Defendant's contention that the suit is time-barred is similarly unfounded. The Plaintiff's rights, as outlined in the governing documents, are continuous and cannot be extinguished by mere passage of time. The need for judicial CS SCJ 433/23 MRS GEETA YADAV VS. GURUDEV GUPTA AND ANR PAGE NO.12/34 recourse arose only when the Defendant actively prevented the Plaintiff from exercising her lawful rights. The Defendant's further claim that the Plaintiff's suit is frivolous or intended to harass is baseless, especially when the Defendant's own conduct, blocking access to common areas and interfering with utilities, has caused significant hardship to the Plaintiff.
31.The Plaintiff denies the Defendant's assertion of exclusive ownership over the roof and common areas. The governing documents explicitly recognize these areas as accessible to all residents for purposes such as the installation and maintenance of water tanks. The Defendant's attempt to restrict such access constitutes a violation of these terms.
32.Furthermore, the Defendant's claim that the Plaintiff already has an adequate water tank installed within her premises is misleading and incorrect. The existing arrangement is insufficient to meet the Plaintiff's water needs, especially given the Defendant's ongoing interference with water connections. The Plaintiff has faced significant inconvenience and hardship due to these actions, which have disrupted her access to a consistent and reliable water supply.
33.The Defendant's conduct in entering the Plaintiff's premises without authorization, dismantling household items, and interfering with water connections constitutes criminal trespass and intentional mischief. Such actions CS SCJ 433/23 MRS GEETA YADAV VS. GURUDEV GUPTA AND ANR PAGE NO.13/34 highlight the Defendant's malafide intentions and underscore the need for judicial intervention to protect the Plaintiff's rights.
34.Water is a fundamental necessity of life, recognized as a constitutional right in India. The Defendant's actions, which obstruct the Plaintiff's ability to access and maintain a water tank, violate this fundamental right. The Plaintiff emphasizes that these actions are not only unlawful but also indicative of the Defendant's disregard for basic human rights and the well-being of others.
35.In light of the above, the Plaintiff respectfully submits that the Defendant's claims and defenses are without merit and should be disregarded. The Plaintiff reaffirms her entitlement to the reliefs sought in the Plaint, including the installation of a water tank on the roof, unrestricted access to common areas, and the protection of her fundamental rights. The Plaintiff further seeks the costs of the suit and any additional relief that this Court may deem appropriate in the interest of justice.
Determination of Issue:
36.On the basis of pleadings, the following issues were identified:-
(i) Whether plaintiff is entitled to decree of mandatory injunction as prayed for in prayer clause no. (a)? OPP CS SCJ 433/23 MRS GEETA YADAV VS. GURUDEV GUPTA AND ANR PAGE NO.14/34
(ii) Whether the plaintiff is entitled to decree of permanent injunction as prayed for in prayer clause no. (b)? OPP
(iii) Relief.
Plaintiff's Evidence PW-1/Sh. Atul Yadav, son of the Plaintiff
37.Sh. Atul Yadav, appeared as PW-1 before the court and submitted his evidence affidavit, exhibited as Ex. PW1/A, duly signed by him. He confirmed the affidavit as true and correct. PW-1 relied upon the following documents:-
o Ex. PW1/1 (colly) (OSR) (GPA running into 3 pages, ATS running into 7 pages) :- Registered GPA dated 15.12.1993 and Agreement to sell dated 15.12.1993 (Objected to by the Ld. Counsel for Defendant on the ground of competency of witness) o Ex.PW1/2 :- Site Plan (Objected to by the Ld. Counsel for Defendant on the ground of competency of witness) o Mark A (running into 1 page) (Mentioned as Ex.PW1/4 in Ex. PW1/A) :- Copy of water supply bill (Objected to by the Ld. Counsel for Defendant on the ground of competency of witness and mode of proof with respect to for want of certificate u/s 65B of IEA and the documents being inadmissible in evidence, hence de-
exhibited and marked as Mark A) o Mark B (running into 1 page) (Mentioned as Ex.PW1/5 in Ex. PW1/A) :- Copy of electricity bill (Objected to by the Ld. Couns Defendant on the ground of CS SCJ 433/23 MRS GEETA YADAV VS. GURUDEV GUPTA AND ANR PAGE NO.15/34 competenc witness and mode of proof with respect to for want of certificate u/s 65B of IEA and the documents being inadmissible in evidence, hence de- exhibited and marked as Mark B) o Ex. PW1/3 (colly) (running into 22 pages) (Mentioned as Ex.PW1/6 (colly) in Ex. PW1/A) :- Photographs supported with certificate u/s 65B of IEA (Objected to by the Ld. Counsel for Defendant on the ground of competency of witness and mode of proof with respect to for want of comply the provisions of certificate u/s 65B of IEA and the documents being inadmissible evidence) o Ex. PW1/4 (OSR) (colly) (running into 2 pages) (Mentioned as Ex.PW1/7 (colly) in Ex. PW1/A) :- Copy of complaints dated 24.04.2023 received on 24.04.2023 and 25.04.2023 (Objected to by the Ld. Counsel for Defendant on the ground of competency of witness and that the document is a photocopy of complaint filed in MCD and same should be marked) o Ex. PW1/5 (OSR) (running into 1 pages) (Mentioned as Ex.PW1/8 in Ex. PW1/A) : Copy of Complaint receiving dated 18.05.2022 (Objected to by the Ld. Counsel for Defendant on the ground of that the document namely complaint dated 18.05.2022 is not mentioned in the affidavit and on the competency of witness and that the document is a photocopy of complaint filed in PS and the same should be marked) o Ex. PW1/6 (OSR) (running into 1 page) (Mentioned as Ex.PW1/9 in Ex. PW1/A) :- Copy of Complaint dated CS SCJ 433/23 MRS GEETA YADAV VS. GURUDEV GUPTA AND ANR PAGE NO.16/34 and receiving on 22.05.2022 (Objected to by the Ld. Counsel for Defendant on the ground that the document namely complaint dated 22.05.2022 is not mentioned in the affidavit and on the competency of witness and that the document is a photocopy of complaint filed in PS and the same should be marked) o Ex.PW1/7 (OSR) (colly) (running into 10 pages) (Mentioned as Ex.PW1/10 (colly) in Ex. PW1/A) :- Copy of legal notice dated 01.05.2023 along with postal receipt dated 02.05.2023 and tracking report (Objected to by the Ld. Counsel for Defendant on the ground of competency of witness, and also that the same is not supported with certificate as per the provisions of section 65B of IEA) o Ex. PW1/8 (running into 3 pages) (Mentioned as Ex.PW1/11 in Ex. PW1/A) :- Reply dated 13.05.23 of the legal notice dated 01.05.2023 (Objected to by the Ld. Counsel for Defendant on the ground of competency of witness, and also that the reply dated 13.05.2023 to the legal notice not mentioned in the evidentiary affidavit by the Plaintiff) o Ex. PW1/9 (running into 1 pages) (Mentioned Ex.PW1/12 in Ex. PWI/A):- Certificate u/s 65 B of IEA (Objected to by the Ld. Counsel for as Respondent on the ground of that the certificate is not as per the provisions of section 65B of IEA. It is submitted by the Ld. Counsel for the Plaintiff that during exhibition of the documents, he skipped "Registered GPA dated 27.08.2010" which is shown in evidence affidavit as CS SCJ 433/23 MRS GEETA YADAV VS. GURUDEV GUPTA AND ANR PAGE NO.17/34 Ex. PW1/3. Hence the same may be exhibited in continuation as Ex. PW1/10.
o Ex. PW1/10 (OSR) (running into 19 pages) (Mentioned as Ex. PW1/3 in Ex. PW1/A):- Copy of Registered GPA dated 27.08.2010 (Objected to by the Ld. Counsel for Defendant on the ground of competency of witness, and also that the document is not in accordance with the evidentiary affidavit exhibited as Ex. PW1/3 in Ex. PW1/A) Evidence Affidavit of PW-1
38.PW-1, the son and attorney holder of the Plaintiff, presented his testimony in the capacity of an authorized representative, asserting that he is well-versed in the facts of the case. He explained that the Plaintiff is the rightful owner of the first-floor property located at B-303, Gautam Nagar, New Delhi. This ownership was acquired through a registered General Power of Attorney (GPA) and Agreement to Sell dated August 27, 2010. These documents, registered with the Sub-Registrar's office, confer all rights, including the right to use and occupy the property as a residential premise.
39.PW-1 detailed the property's structure, explaining that Defendant No. 1 owns the ground floor and subsequently acquired the third floor in 2015 and 2022. Defendant No. 2 owns the second floor and sold the first floor to the Plaintiff in 2010. The crux of the dispute lies in the Plaintiff's CS SCJ 433/23 MRS GEETA YADAV VS. GURUDEV GUPTA AND ANR PAGE NO.18/34 attempt to exercise her right to install a water tank on the roof of the subject property, a right allegedly granted under the terms of the registered documents.
40.PW-1highlighted that the registered GPA and Agreement to Sell explicitly allow all parties to access common areas, including the roof, for essential installations such as water tanks and antennas. These rights were established by the original owner and are binding on subsequent purchasers. The terms also prohibit any obstruction to these rights. He supported this claim by referencing the GPA and Agreement to Sell dated December 15, 1993, which he exhibited in court.
41.The testimony further emphasized that water is a basic necessity and a fundamental right. Denying access to install a water tank on the roof contravenes the Indian Easements Act, 1882, and the Plaintiff's constitutional rights. PW-1 stated that the Plaintiff has faced significant hardship due to the Defendant's obstruction, being forced to store water in tubs and pots, which is inadequate for daily needs. Despite obtaining a water connection from the Delhi Jal Board, the Plaintiff has been unable to restore normal water supply due to the Defendant's interference.
42.According to PW-1, Defendant No. 1 has displayed an uncooperative and hostile attitude since the Plaintiff purchased the property. He alleged that the Defendant has obstructed common passages and even attempted to exert pressure on the Plaintiff to consent to the construction of an CS SCJ 433/23 MRS GEETA YADAV VS. GURUDEV GUPTA AND ANR PAGE NO.19/34 illegal fourth floor. The Defendant has also allegedly used construction materials stored on the premises to further intimidate and coerce the Plaintiff.
43.The testimony emphasized that the Plaintiff's rights are supported by DDA Regulations, 1968, which define "common portions" of properties as including land, passages, staircases, and installations for utilities. PW-1 argued that these regulations affirm the Plaintiff's access rights to the roof. He further cited a Supreme Court judgment in Madhu Kishwar v. State of Bihar to underline the principles of justice, equity, and good conscience, which should govern disputes of this nature.
44.PW-1 concluded by detailing the sequence of events leading to the present suit, starting with the Defendant's interference, the filing of complaints, and the issuance of legal notices. The Defendant's consistent non-cooperation and alleged misuse of influence and muscle power prompted the Plaintiff to approach the court for relief.
Cross examination of PW-1
45.During cross-examination, PW-1 acknowledged that he was not the plaintiff in the current suit, clarifying that his mother, the plaintiff, had authorized him to depose in the matter through a GPA. However, when asked to produce evidence of this authorization, PW-1 admitted that no such document was exhibited in his affidavit. This led to further CS SCJ 433/23 MRS GEETA YADAV VS. GURUDEV GUPTA AND ANR PAGE NO.20/34 objections by the Defendant's counsel, questioning the witness's competence to testify.
46.PW-1 confirmed that he was born in 2000 and was not a party to the execution of documents dated 15.12.1993, submitted as Ex. PW1/1. He also admitted that the site plan submitted in evidence was neither prepared by him nor signed by him or his mother. When questioned about the GPA dated 27.08.2010, PW-1 stated that it was a registered document but conceded that he had not filed any evidence to establish the executant's current status.
47.PW-1 identified the Agreement to Sell within Ex. PW1/10 as providing the right to install and inspect a water tank. He also referred to the GPA, which authorized the holder to obtain water and other utility connections for the property. However, when confronted with the terms of the GPA and Will, which specified that the property was acquired without terrace rights, PW-1 conceded the point but maintained that the GPA granted the right to install a water tank.
48.PW-1 was asked whether the Agreement to Sell conferred ownership rights or merely facilitated further documentation. He responded that he did not know, as it was a legal question. Despite acknowledging the absence of explicit terrace rights in some documents, PW-1 insisted that the GPA supported the installation of a water tank and that the plaintiff's claim was legitimate.
CS SCJ 433/23 MRS GEETA YADAV VS. GURUDEV GUPTA AND ANR PAGE NO.21/34
49.Throughout the cross-examination, the Defendant's counsel challenged the validity and interpretation of the documents submitted by PW-1, asserting that they did not confer the rights claimed. PW-1, however, consistently maintained that the plaintiff had the right to install a water tank on the terrace based on the provisions in the Agreement to Sell and GPA.
50.The testimony concluded with PW-1 reiterating that the plaintiff had purchased the property through a registered GPA in 2010 and that the right to install a water tank was inherent in the property's ownership and related documents.
Defendants' Evidence DW-1/Defendnat No. 1, Sh. Gurudev Gupta.
51.DW-1 submitted his affidavit as evidence, exhibited as Ex. DW1/A, bearing his signatures at points A and B. DW-1 confirmed the accuracy of the affidavit and submitted the following documents in support of his testimony:
o Mark A: A copy of the Sale Deed dated 01.04.2022. o Mark B: A copy of the General Power of Attorney (GPA) dated 13.02.2009.
CS SCJ 433/23 MRS GEETA YADAV VS. GURUDEV GUPTA AND ANR PAGE NO.22/34 Evidence Affidavit of DW-1
52.In his evidence affidavit, DW-1, asserts his ownership rights over the third floor and the exclusive roof rights of the said property. He states that he acquired the third floor through a registered Sale Deed dated April 5, 2022, executed by Ms. Nimmi through her attorney, Sh. Veer Bahadur Thapa. The Sale Deed and the accompanying General Power of Attorney (GPA) serve as the foundation of his claim.
53.DW-1 denies that the plaintiff has any rights or title over the roof or terrace of the property. He highlights that the plaintiff's water tank has always been installed inside the kitchen of the first-floor flat, within its four walls. This arrangement, he notes, has existed since the plaintiff purchased the property in 2010 and even before, during the tenure of the previous owner. He categorically rejects the plaintiff's claim to install a water tank on the roof, terrace, or mumpty, asserting that these areas belong exclusively to him as the owner of the third floor.
54.Furthermore, DW-1 argues that the plaintiff's suit is time- barred, as it was filed over 12 years after the purchase of the first-floor flat in 2010. He also emphasizes that no water pipeline exists to connect the plaintiff's flat to the roof or terrace, challenging the practicality and validity of the plaintiff's claims.
CS SCJ 433/23 MRS GEETA YADAV VS. GURUDEV GUPTA AND ANR PAGE NO.23/34
55.In his affidavit, DW-1 underscores that the plaintiff's water tank needs were already accommodated within her flat and insists that her demands for access to the roof or terrace lack legal or practical basis. He maintains that his rights to the roof and terrace are absolute, as per the Sale Deed and GPA under which he acquired the property.
Cross-examination of DW-1
56.During cross examination, DW-1 denied knowledge of complaints filed by the plaintiff but admitted that the water tank was installed on the mumty before he purchased the ground floor (2015) and third floor (2022). He also acknowledged that complaints were lodged against him prior to the filing of the present suit, alleging disputes and issues related to reconstruction.
57.DW-1 claimed to have filed the chain of documents regarding the terms and conditions of the subject property but denied any mention of common rights for flat owners in those documents.
58.DW-1 asserted that the water line extends from the ground floor to the second and third floors, with no connection to the first floor. He denied restraining the plaintiff from installing a water tank on the mumty or obstructing her rights as a first-floor owner.
59.DW-1 claimed the plaintiff's tenant provided him with photographs and denied entering the plaintiff's kitchen to CS SCJ 433/23 MRS GEETA YADAV VS. GURUDEV GUPTA AND ANR PAGE NO.24/34 take them. He described the height of the plaintiff's room as 9 feet, with the water tank installed at 7.5 feet and a height of 14 inches.
60.DW-1 refuted the plaintiff's claims of having bona fide rights to install a water tank on the mumty, asserting that the plaintiff lacked such rights and that he had not obstructed her from doing so.
61.DW-1 admitted to the presence of pre-installed water tanks on the mumty before his ownership of the ground and third floors. He acknowledged the installation of a plastic shed on the roof after the suit was filed. DW-1 denied any knowledge of specific terms in the property documents regarding the plaintiff's right to install a water tank on the mumty. He refuted allegations of obstructing the plaintiff and claimed that all complaints filed against him were false and fabricated.
62.DW-1 maintained that he is the rightful owner of the ground and third floors of the property and that the plaintiff does not have the right to install a water tank on the mumty. He described the allegations against him as baseless and fabricated, asserting that the plaintiff's complaints were intended to harass him. However, he admitted to certain facts, such as the installation of the plastic shed and the pre- existing water tank on the mumty, which may impact the overall defense.
CS SCJ 433/23 MRS GEETA YADAV VS. GURUDEV GUPTA AND ANR PAGE NO.25/34 Final Arguments Submissions on behalf of plaintiff
63.Learned Counsel for the plaintiff argued that the plaintiff, as the lawful owner of the first floor, seeks a mandatory injunction restraining Defendant No. 1 from obstructing her right to install a water tank on the terrace and ensuring access for maintenance and water supply connection. A permanent injunction is also sought to prevent interference with common areas, including the terrace and TV antenna. The chain of title documents, including the registered sale deed, GPA, and Agreement to Sell (15.12.1993), clearly establish the plaintiff's right to access the terrace for essential utilities. Despite this, Defendant No. 1, who owns the ground and third floors, has blocked access, while all other floor owners have installed their water tanks on the Mumty.
64.It was further argued that the Cross-examination reveals Defendant No. 1's failure to prove ownership over the terrace. He admitted that the original owner, Ms. Pavitra Devi, transferred the property with access rights, and he himself installed a shade over the terrace bathroom only after the suit was filed. His obstruction appears motivated, as he allegedly conditioned permission on the plaintiff's no- objection to his fourth-floor construction. Legal provisions, including the DDA Regulations, 1968, and the Indian CS SCJ 433/23 MRS GEETA YADAV VS. GURUDEV GUPTA AND ANR PAGE NO.26/34 Easements Act, 1882, affirm that common portions like staircases and terraces must remain accessible for essential utilities. Denying the plaintiff access violates her fundamental rights.
65.In light of the documentary evidence, legal precedents, and fundamental principles of justice, it is submitted that the suit be decreed in the plaintiff's favor, granting the reliefs sought.
Submissions on behalf of defendant
66.Learned Counsel for the defendnat argued that the plaintiff has no legal right to install a water tank on the terrace or Mumty and that the suit is frivolous and defective. The plaintiff has concealed material facts, particularly that a water tank already exists on the first-floor kitchen and is used by a tenant. As per the case of Union of India v. Ramjas Foundation (2010), a party who suppresses facts cannot seek relief. Moreover, the plaintiff's sale deed does not confer terrace rights, and in the case of Mrs. Umadevi Nambiar v. Thamaresse Roman Chaild, one cannot claim more than what they legally own.
67.Legally, the plaintiff must prove her case independently (Ajit Singh v. Prem Singh, 2011), and similar terrace claims have been dismissed before (Dr. A.P. Singh v. Vipul Jain, RFA 438/2008). Factually, the plaintiff purchased the first floor in 2010, where a water tank was already installed. She CS SCJ 433/23 MRS GEETA YADAV VS. GURUDEV GUPTA AND ANR PAGE NO.27/34 does not reside there, and the defendant, as the registered owner of the third and ground floors, holds lawful rights over the terrace. As the plaintiff has no ownership or legal entitlement to the relief sought, the defendant prays for dismissal of the suit with costs.
Analysis and Findings
68.The issues are adjudicated as under:-
Issue No. (i) Whether plaintiff is entitled to decree of mandatory injunction as prayed for in prayer clause no. (a)? OPP
69.The Onus to prove this issue was upon the plaintiff. The prayer clause no. (a) of the plaint is reproduced hereinbelow:-
"a) Pass a Decree for Mandatory Injunction restraining to the Defendant No. 1 not to restrain to the Plaintiff for installation of water tank on the roof of the subject premises and directed to the Defendant No. 1 to allow the plaintiff to install a water tank on the roof and also to allow the plaintiff to connect water tank for water supply of the subject premises;"
70.The Plaintiff claims ownership over the first floor of the property bearing No. B-303, Gautam Nagar, New Delhi-110049, by virtue of a Registered General Power of Attorney (GPA) and Agreement to Sell dated 27.08.2010. She contends that under the chain of ownership, she is entitled to install, inspect, and repair a water tank on the terrace. In support of her claim, she has relied upon past documents, including a GPA and Agreement to Sell dated CS SCJ 433/23 MRS GEETA YADAV VS. GURUDEV GUPTA AND ANR PAGE NO.28/34 15.12.1993, which purportedly confer rights upon flat owners to install and maintain water tanks on the terrace.
71.On the other hand, Defendant No. 1 asserts that he is the absolute owner of the third floor along with the terrace by virtue of a registered Sale Deed dated 05.04.2022. He categorically denies that the Plaintiff has any rights over the terrace and submits that her claim is untenable in law. The Plaintiff argues that water is a fundamental necessity and that the previous chain of ownership recognized the right of flat owners to install and access overhead water tanks on the terrace. She has referred to specific clauses in the Agreement to Sell, which, according to her, explicitly grant such rights.
72.However, it is a well-settled legal position that an Agreement to Sell, by its very nature, is a contractual document indicating an intention to transfer ownership and does not, in itself, confer any title or proprietary rights. This position has been reaffirmed by the Hon'ble Supreme Court in the case of Suraj Lamp & Industries Pvt. Ltd. v. State of Haryana, (2012) 1 SCC 656., wherein it was categorically held that a GPA and Agreement to Sell do not constitute instruments of ownership over immovable property.
73.The plaintiff has placed reliance on certain clauses of the General Power of Attorney (GPA) Agreement dated 27.08.2010 to substantiate her claim of having the right to install a water tank on the terrace of the suit property.
CS SCJ 433/23 MRS GEETA YADAV VS. GURUDEV GUPTA AND ANR PAGE NO.29/34 However, a careful examination of the GPA Agreement dated 15.12.1993, which forms the foundational document in the plaintiff's purported chain of title, reveals that it does not confer any such right concerning the installation of a water tank on the terrace of the suit property. This discrepancy raises serious questions regarding the basis of the plaintiff's claim.
74.Furthermore, the plaintiff has failed to lead any cogent evidence to establish that the GPA dated 27.08.2010 was validly executed and enforceable in law. Crucially, the original executant of the said GPA has not been produced as a witness to testify to its execution, nor has any independent corroborative evidence been brought on record to establish its authenticity. The absence of the executant's testimony, coupled with the plaintiff's failure to provide any plausible explanation for this omission, significantly undermines the evidentiary value of the document.
75.In light of these circumstances, serious doubts arise as to the validity and enforceability of the GPA dated 27.08.2010, particularly in the absence of primary evidence or independent corroboration. The plaintiff's reliance on this document, therefore, remains unsubstantiated and fails to inspire confidence in its legal efficacy.
76.Additionally, the Plaintiff's key witness, PW1, Atul Yadav, who has deposed on her behalf, is not the Plaintiff herself but her son. The competency of PW1 to depose in the CS SCJ 433/23 MRS GEETA YADAV VS. GURUDEV GUPTA AND ANR PAGE NO.30/34 absence of an exhibited authorization in the judicial record further weakens the evidentiary value of his testimony.
77.Defendant No. 1 strongly opposes the Plaintiff's claim and contends that his Sale Deed of 2022 grants him exclusive ownership over the terrace. He further submits that all water tanks were originally installed within individual flats and that there is no common passage or access route allowing the Plaintiff to reach the terrace. The Defendant also argues that the Plaintiff's claim is barred by limitation, as she purchased the property in 2010 but only instituted the present suit in 2023, after an inordinate and unexplained delay of over a decade.
78.Upon a careful examination of the documents and arguments advanced by both parties, it is evident that the Plaintiff has failed to establish conclusive proof of an enforceable legal right to install a water tank on the terrace. Her reliance on a GPA and Agreement to Sell is legally insufficient. In contrast, the Defendant's ownership claim is based on a registered Sale Deed, which is a legally recognized and conclusive instrument of title. The Plaintiff's contention that she has an easementary right or that the terrace constitutes a common portion under the DDA Regulations, 1968, is equally unpersuasive, as private colonies are not necessarily governed by such regulations.
79.It is a well-settled principle of law that in cases involving mandatory injunctions, the party seeking relief must demonstrate a clear and enforceable legal right. In the CS SCJ 433/23 MRS GEETA YADAV VS. GURUDEV GUPTA AND ANR PAGE NO.31/34 present case, the Plaintiff has not been able to establish a prima facie legal right over the terrace, nor has she shown any irreparable harm that would justify the grant of such relief. In light of these findings, this Court concludes that the Plaintiff is not entitled to a decree of mandatory injunction as prayed for. Accordingly, the claim stands dismissed.
80.This issue is decided against the plaintiff.
Issue No. 2Whether the plaintiff is entitled to decree of permanent injunction as prayed for in prayer clause no. (b)? OPP
81.The Onus to prove this issue was upon the plaintiff. The prayer clause (b) of the plaint is reproduced hereinbelow:-
"b) Pass a Decree for Permanent Injunction In Favour Of The Plaintiff And Restrained To The Defendants And His Transfrors, Assigns, Successors, Heirs Agent From changing The Common Area, Stairs, And Not To Restrain To The Plaintiff For Visit The Water Tank And t.v. Antena Of The Subject Premises;"
82.The Plaintiff seeks a permanent injunction on the ground that she is legally entitled to access these areas for the purpose of maintaining essential utilities. She argues that the property's previous ownership permitted all flat owners to use the common passages and access the terrace for the installation of utilities such as water tanks and TV antennas.
CS SCJ 433/23 MRS GEETA YADAV VS. GURUDEV GUPTA AND ANR PAGE NO.32/34 However, Defendant No. 1 disputes this claim and contends that the Plaintiff never had any such access rights. He asserts that he is the lawful owner of the third floor along with the terrace by virtue of a registered Sale Deed dated 05.04.2022, which does not impose any obligation upon him to allow access to other occupants of the building.
83.The Plaintiff has attempted to rely on a general right of passage to maintain utilities, asserting that she should not be unreasonably prevented from accessing common areas for such purposes. However, a fundamental principle in cases concerning injunctions is that the party seeking relief must establish a legal right that has been violated. This Court has already found while adjudicating issue no. (i) that the plaintiff has not been able to establish a prima facie legal right over the terrace.
84.Another crucial aspect to consider is the necessity of the Plaintiff's claim. The Defendant has argued that the Plaintiff already has a water tank installed within her flat, which sufficiently meets her water storage needs. In the absence of any demonstrable necessity or irreparable harm, the claim for a permanent injunction becomes even weaker. The purpose of granting an injunction is to prevent unlawful interference with a legal right. However, in the present case, the Plaintiff has not established any substantive right that would justify the issuance of such an order. It is a well- settled principle of law that an injunction cannot be granted merely on equitable grounds without the existence of a clear CS SCJ 433/23 MRS GEETA YADAV VS. GURUDEV GUPTA AND ANR PAGE NO.33/34 legal right. The Plaintiff has failed to establish any legal entitlement to access the terrace.
85.In light of the foregoing discussion, this Court finds that the Plaintiff has failed to establish a prima facie case for the grant of a permanent injunction. There is no legally recognized right that would entitle her to unrestricted access to the terrace. Consequently, the relief sought in prayer clause (b) is liable to be denied. Accordingly, the Plaintiff is not entitled to a decree of permanent injunction, as she has failed to prove any legal right over the terrace or access to it.
86.This issue is decided against the plaintiff.
Relief:
87.In view of the foregoing analysis and findings, no relief can be granted to the plaintiff. The suit of the plaintiff is hereby dismissed.
File be consigned to Record Room after due compliance.
Digitally signedANURADHA by ANURADHA JINDAL Announced in the open court JINDAL Date: 2025.01.25 on 25.01.2025. (ANURADHA JINDAL) 17:06:19 +0530 ASCJ-cum-JSCC-CUM-GJ (South) Saket Courts, New Delhi CS SCJ 433/23 MRS GEETA YADAV VS. GURUDEV GUPTA AND ANR PAGE NO.34/34