Delhi District Court
Cs No. 1191/18 Smt. Pavitra Bhandari & ... vs . Sh. Avinish Pandey And Anr. Page No. 1 Of ... on 2 April, 2019
IN THE COURT OF MS. MONA TARDI KERKETTA, ADDL. SENIOR
CIVIL JUDGE-CUM- JUDGE SMALL CAUSE COURT-CUM-
GUARDIAN JUDGE, DISTRICT: SOUTH, NEW DELHI.
CS No. 1191/18
CNR No.DLST03-001977-2018
IN THE MATTER OF:-
1. Ms. Pavitra Bhandari,
D/o Sh. Ram Prasad Bhandari,
R/o Flat No. 2, 3rd Floor,
Property No. 890/8, Ward No. 8
Mehrauli Village, Delhi-110030
2. Sh. Vilal Ahmed,
S/o Sh. Kamal Ahmed,
R/o 1st Floor,
Property No. 890/8, Ward No. 8,
Mehrauli Village, Delhi-110030
3. Smt. Babra Mushtaq,
W/o Sh. Mohammad Umar,
Flat No. 2, 2nd Floor,
Property No. 890/8, Ward No. 8,
Mehrauli Village, Delhi-110030
4. Sh. Zainul Hassan Rizvi,
S/o Late Sh. Syed Ahmed Hasan,
R/o Flat No. 1, 2nd Floor,
Property No. 890/8, Ward No. 8,
Mehrauli Village, Delhi-110030.
5. Ms. Manorama Gupta (Vikash),
R/o Flat No. E-2, Top Floor,
Property No. 890/8, Ward No. 8
Mehrauli Village, Delhi-110030.
CS No. 1191/18 Smt. Pavitra Bhandari & Ors. Vs. Sh. Avinish Pandey and Anr. Page No. 1 of 7
6. Ms. Rakhi Raj,
R/o Entire Second Floor,
Property No. 890/8, Ward No. 8,
Mehrauli Village, Delhi-110030.
7. Ms. Seema Rani,
R/o Flat No. 2, Upper Ground Floor,
Property No. 890/8, Ward No. 8,
Mehrauli Village, Delhi-110030.
......Plaintiffs
Versus
1. Avinish Pandey,
R/o Flat No. E-1, Top Floor,
Property No. 890/8, Ward No. 8,
Mehrauli Village, Delhi-110030.
2. The SHO,
PS Mehrauli, (Name deleted vide order dated 17.12.2018)
Mehruali, New Delhi.
......Defendants
DATE OF INSTITUTION : 17.12.2018
DATE OF FINAL ARGUMENTS : 02.04.2019
DATE OF JUDGEMENT : 02.04.2019
FINAL DECISION : SUIT DECREED
LD. COUNSEL FOR PLAINTIFF: SH. MANOJ KUMAR
AND SH. IMRAN ALAM.
DEFENDANT IS EX-PARTE.
JUDGMENT (EX-PARTE)
1. This is a suit for declaration of roof right, permanent and mandatory injunction thereby restraining the defendant from covering the common space of roof constructed on the property bearing no. 890/8, Ward No. 8, Village Mehrauli, Delhi-110030 (hereinafter referred to as CS No. 1191/18 Smt. Pavitra Bhandari & Ors. Vs. Sh. Avinish Pandey and Anr. Page No. 2 of 7 "Suit Property").
2. Brief facts for disposal of the present case are that plaintiffs are owner and residents of their respective flats which are constructed on the plot area ad-measuring approx. 340 sq. yards. M/S Shree Keshav Buildtech Pvt. Ltd. (hereinafter referred as builder) after acquiring a plot area ad-measuring 340 sq. yds property bearing no. 890, Ward No. 8, in Khasra no. 1151/3 situated in the abadi of Lal Dora of village Mehrauli, Tehsil Hauz Khas (Mehrauli), New Delhi-110030, had developed a society namely Sky Way Apartment comprising basement for car parking and four floors and a common roof.
3. After developing the society, the builder sold the flats to the respective plaintiffs who are residing in the said flats at present. There are seven flats in the said society all having common car parking space and common roof rights and one common stair to reach all flats and the roof. Apart from it, two flats each having one room set, have also been constructed on the roof. Defendant is the resident of one of them. The remaining free space is a common terrace which belongs to all the residents including defendant having unambiguous and unequivocal right to use and enjoy the common terrace. There is specific clause in the sale agreement of all the flat owners that the common terrace belongs to all and shall be used by the residents of the society for all common purposes.
4. Defendant, a media person is having flat on the terrace. He is covering the whole area of common terrace with shades by fixing iron rods and pipes etc. for his private use due to which other residents are being deprived off using the common terrace for their common purposes e.g. access of water tank, electricity connections and other related CS No. 1191/18 Smt. Pavitra Bhandari & Ors. Vs. Sh. Avinish Pandey and Anr. Page No. 3 of 7 benefits whereas the common terrace was left open by the builder for the benefits of all members of the society. Plaintiffs several times requested defendant to remove the building materials and other equipment from the roof and stop illegal and unauthorized construction but all in vain. When plaintiffs objected the acts and misdeed of defendant, he started misbehaving with them and threatened them to defame by circulating fake videos and with dire consequences in case the plaintiffs persistently objected.
5. Defendant is hand in gloves with the concerned police officials as well as media persons. Police is intentionally avoiding taking any action against the defendant despite the repeated approach of plaintiffs. Defendant no. 1 has been carrying out illegal activities in the roof of suit property in full swing despite the knowledge and information of the police. In case defendant succeeds in his aforesaid illegal design of unauthorized covering of free space/roof of suit property, it shall cause great threats to human life. An FIR bearing no. 0719/2018 dated 06.11.2018 has got registered with PS Mehruali by plaintiff no. 1 against defendant .
6. The common roof right has been given to all the members of the society for their common enjoyment and benefits and covering the roof space and bringing into private use by defendant is a violation of law and natural justice. The common areas in housing block/society like terrace or parking space cannot be under the exclusive control of just one flat owner. Once a person agrees to the sale/purchase of a floor in property, he binds himself to joint access to the common areas, its use and enjoyment by way of such an agreement. Any obstruction caused that results into deprivation of essential amenities i.e. water, electricity CS No. 1191/18 Smt. Pavitra Bhandari & Ors. Vs. Sh. Avinish Pandey and Anr. Page No. 4 of 7 etc. cannot be permitted and requires immediate intervention to rectify the situation as they have direct bearing on the right to life of a human. Hence, the present suit.
7. Plaintiffs have prayed to pass the following reliefs in their favour and against defendant:
(i) A decree of permanent thereby restraining defendant from constructing and covering the free space of the roof and / or;
(ii) A decree of declaration of the roof right in favour of plaintiff.
(iii) Such other further order as the Hon'ble Court deems fit and proper.
8. The defendant did not appear to contest the present suit despite service and he was proceeded ex-parte vide order dated 14.02.2019.
9. Subsequent thereto, the matter was fixed for ex-parte plaintiffs' evidence. To support the case, plaintiffs examined three witnesses. Plaintiff no. 1 tendered her ex-part evidence by way of affidavit exhibited as Ex.PW-1/A bearing her signatures at point A and B and also relied upon the following documents:
(1) Mark A: Copy of sale deed of flat in the name of plaintiff no.1.
(2) Mark B (Colly): Photographs; (3) Mark C: Copy of FIR no. 719/2018 dated 06.11.2018.
Plaintiff no. 2 examined himself as PW-2 and tendered his CS No. 1191/18 Smt. Pavitra Bhandari & Ors. Vs. Sh. Avinish Pandey and Anr. Page No. 5 of 7 ex-parte evidence by way of affidavit Ex.PW-2/A bearing his signatures at point A and B and also relied upon documents i.e. Mark B (Colly) and Mark-C already exhibited in the testimony of PW-1.
Sh. Mohammad Umar who is husband of plaintiff no. 3 examined as PW-3 and tendered ex-parte evidence by way of affidavit Ex.PW-3/A bearing his signatures at point A and B and also relied upon the document Ex. PW-3/1 i.e. sale deed executed between M/S Kehsav Buildtech Pvt. Ltd and Mrs. Babra Mushtaq, W/o Mohammad Umar.
10. The ex-parte PE was closed on 20.03.2019. Subsequent thereto the matter was fixed for ex-parte final arguments which were conclusively heard on 02.04.2019. After hearing the final arguments, the matter was fixed for pronouncement of judgment.
11. In order to prove the case, the PWs deposed in consonance with the contents of the plaint and brought on record all the relevant documents as mentioned in para no.9. On the perusal of the sale deeds Mark-A and Ex.PW-3/1, it is transpired that all the Vendees/ residents of the suit property have common facilities like staircase, common passage, common roof right, common water and MCD connection and all other common facilities/ amenities and full rights to access on the terrace of the suit property to repair, maintain the overhead water tank and TV antena with or without workman at any time.
12. Defendant did not contest the present suit by joining the proceedings despite having notice of the contents of the plaint, therefore, the version of the plaintiff stands proved being unrebutted and unchallenged. The documents on record and also the oral deposition of the plaintiffs are as such believable. The plaintiffs have successfully discharged the onus to prove their case, thus, are entitled to the decree of CS No. 1191/18 Smt. Pavitra Bhandari & Ors. Vs. Sh. Avinish Pandey and Anr. Page No. 6 of 7 permanent injunction forthwith. No decree of declaration is required to be passed in favour of plaintiffs and against defendants regarding the roof right of plaintiffs as the same is already granted by virtue of respective sale deeds.
RELIEF
13. In view of the above-stated discussion, the suit of plaintiffs is decreed in their favour and against defendant thereby directing defendant not to raise any construction that covers the free space of the roof of the suit property i.e. bearing no. 890/8, Ward No. 8, Village Mehrauli, Delhi- 110030.
14. Decree sheet be prepared accordingly.
15. File be consigned to Record Room, after due compliance.
(Mona Tardi Kerketta) JSCC-cum-ASCJ-cum-GJ South District, Saket Courts, New Delhi.
Announced in the open Court today i.e 02.04.2019 MONA TARDI KERKETTA Digitally signed by MONA TARDI KERKETTA Date: 2019.04.04 15:41:31 +0530 CS No. 1191/18 Smt. Pavitra Bhandari & Ors. Vs. Sh. Avinish Pandey and Anr. Page No. 7 of 7