Delhi District Court
Arun Kumar Dewanwala And Ors vs . Ramina Kumar Minocha Page 1/26 on 31 May, 2022
DLSE010000292009
Presented on : 22-01-2009
Registered on : 15-09-2012
Decided on : 31-05-2022
Duration : 13 years, 4 months, 9 days
Date of Institution : 23.01.2009
Date reserved for judgment : 11.05.2022
Date of announcement of judgment : 31.05.2022
Decision : main suit Decreed/
counter claim partly decreed
IN THE COURT OF SHRI MUNISH MARKAN
ADDITIONAL DISTRICT JUDGE (ADJ02) SOUTH EAST,
DISTRICT COURTS, SAKET, NEW DELHI
CS DJ/207411/2016
& Counter Claim CSDJ No.380/2022
1. Sh.Arun Kumar Dewanwala
S/o Late Sh.R.P. Dewanwala
R/o Flat No.101, E-492, Greater Kailash -II,
New Delhi
2. Smt. Neeta Jalan,
W/o Sh.N. K. Jalan,
R/o Flat No.202, E-492, Greater Kailash -II,
New Delhi
CS DJ 207411/2016 & Counter Claim CSDJ No.380/2022
Arun Kumar Dewanwala and Ors Vs. Ramina Kumar Minocha Page 1/26
3. Sh.Raj Kishan Gupta
S/o Late Sh.D. R. Gupta
R/o Flat No.001, E-492, Greater Kailash-II,
New Delhi .....Plaintiffs.
VERSUS
Smt. RAMINA KUMAR MINOCHA
W/o Sh.Rajeev Minocha
R/o Flat No.S-351, Greater Kailash -II,
New Delhi
At present: Flat No.301, E-492, Greater Kailash-II,
New Delhi ..... Defendant.
JUDGMENT:
1. The three plaintiffs, occupants of different floors in the same building, (having a graded landscape) are aggrieved by the installation of grills and iron gate fixed by the defendant no.1, the occupant of top/third floor thereby creating hindrance in the use of common facilities by the plaintiffs and other occupants of the building and restricting their access to the terrace in front of the flat of defendant no.1.
2. Plaintiffs are seeking decree of declaration that except for the portion of flats of the plaintiffs and the defendant no.1, the remaining portion in the suit property i.e. E492, Greater Kailash II, New Delhi i.e. common services, drive way, staircase, common passage, facilities, terrace at the second floor and at the top of the flat of defendant no.1 is common for all the occupants of the property and none of them have any sole and CS DJ 207411/2016 & Counter Claim CSDJ No.380/2022 Arun Kumar Dewanwala and Ors Vs. Ramina Kumar Minocha Page 2/26 exclusive right in the same. Plaintiffs have also sought declaration that fixing of such grill and iron gate by defendant no. 1 is interference in the use of such common facilities. Plaintiffs also sought permanent injunction to restrain defendant (no.1) or anybody on her behalf from encroaching upon the said common portion and from putting Malba, garbage in the common portion or creating any nuisance in the use of the said common facilities particularly the terrace at the second floor and terrace at the top of flat of defendant. The plaintiffs have also sought the mandatory injunction to direct the defendant to remove the iron grills and gate fixed by defendant on the common staircase and common area of the suit property and to remove the garbage and Malba kept on the terrace in front of her flat.
3. The defendant, apart denying the stand of the plaintiffs, has filed counter claim and claimed exclusive rights over terrace in front of her flat, sought injunction to direct plaintiffs to remove locks from the servant quarter at the said terrace, and blockage of the rear set back at the ground floor, removal of tailor sitting at the rear setback, restraint against remove of the said grills and gate, and restraint against plaintiffs from creating any kind of nuisance at the said terrace in front of the flat of the counter claimant.
CASE OF THE PLAINTIFFS
4. The case of the plaintiffs is that suit property bearing No.E 492, Greater KailashII, New Delhi admeasures approximately 550 Sqr.
CS DJ 207411/2016 & Counter Claim CSDJ No.380/2022 Arun Kumar Dewanwala and Ors Vs. Ramina Kumar Minocha Page 3/26 Yards and Smt. Kusum Khanna the erstwhile owner of the said plot had sold the plot to M/s Pal and Paul Builders Ltd. The plot having a slant shape, open on two sides, facing main roads on both sides, but on account of its peculiar tilted position, the builder built 4 flats on one side (Northern side) and because of slant, 2 flats (plus servant quarters on ground floor), were built on the Southern side, with common stairs in the middle of the two portions. The 4 flats on the Northern side bears No.001, 101, 201 and 301 and on the southern side, apart from servant quarters on the ground floor, there are flat no.101 and 201. Plaintiff no.3 is the owner and in occupation of the flat no.001 at the ground floor, plaintiff no.1 is owner in occupation of the flat no.101, plaintiff no.2 is owner and in possession of flat no.201 and on the top floor flat, the defendant is owner and in possession of flat no.301.
5. It is further stated that the plaintiff no.1 is in possession of his portion for the last 11 years (The suit was filed on 23.01.2009) and his predecessor in interest occupied the said flat for more than 12 years. The plaintiff no.2 is in occupation of his portion i.e. flat no.201 for the last 22 years and plaintiff no.3 for the last 6 years.
6. It is further stated that plaintiff no.3 has also been provided with a servant quarter at the terrace on flat no.202(southern side). There is a common staircase in the middle of the said property and the terrace above the flat no.202 (southern side) opens at the level of flat no.301, the flat of defendant no.1. All the occupants of the building have been using the CS DJ 207411/2016 & Counter Claim CSDJ No.380/2022 Arun Kumar Dewanwala and Ors Vs. Ramina Kumar Minocha Page 4/26 common services and common portions of the property i.e. staircase, driveway, terrace and toilets at the second floor and on the top of the flat of defendant no.1 without any hindrance and interference and living harmoniously. Defendant took the possession of her flat in April 2006 and started causing mischief and nuisance to the other residents of the building by closing the stop cock of the overhead water tanks on the terrace. Defendant also fixed iron grill by welding the same at the staircase passage leading to the top of the terrace in order to prevent the occupants of the building including the plaintiffs to have access to the common terrace and the common facilities.
7. Plaintiffs further stated that predecessor in interest of the defendant namely Sh.S. N. Dutta Chaudhary, along with other occupants of the building had written letters to the MCD in the year 1999 objecting to raising of further constructions at the open terrace situated above the second floor of the property on the ground that the terrace is for common use of the occupants and none of the occupants have sole or exclusive title or interest over the terrace at the second floor and on these grounds, MCD had rejected the building plan submitted by the builder and Smt. Kusum Khanna for raising further construction at the terrace situated above the second floor. Hence the suit.
8. Defendant no.1 filed the counter claim as well as written statement, wherein though she admitted that plaintiff no.1, 2 & 3 are owners and in possession of flat bearing No.001, 101 and 201 CS DJ 207411/2016 & Counter Claim CSDJ No.380/2022 Arun Kumar Dewanwala and Ors Vs. Ramina Kumar Minocha Page 5/26 respectively. However, she denied that the plaintiffs or other occupants have any right title or interest in the terrace above flat no.202 which is in front of flat of defendant. She stated that terrace in front of her flat is not a common area as contemplated u/s 2(j) of The Delhi Apartment Ownership Act, 1986 and the terrace adjoining to the flat of defendant is limited common area as per Section 2 (q) of the said Act, which was reserved for the use of defendant in the facts and circumstances considering the topography of the area. The sale deeds of plaintiffs and other owners/their predecessors in interest do not describe this terrace as a common area. She alleged that plaintiffs are not entitled to allow their servants to loiter on the terrace and other flat owners are not entitled to hold picnic parties in front of her flat. She is a Teacher having two young children and her husband is working in Bangalore. Further, the suit is bad for non joinder of the necessary parties as the other occupants of the other flats have not been arrayed as party though the rights have been claimed in the alleged common areas. The sale deeds in favour of plaintiff no.1 &3 do not convey any right for plaintiffs regarding its terrace and the transferors of the plaintiffs could not transfer to the plaintiffs more than what was sold to them by the original owners. Clause in the sale deeds of the plaintiff no.1 and 3 are contrary to the registered sale deeds in favour of the original purchaser.
9. Defendant no.1 further stated that plaintiff no. 1 purchased his flat from Smt. Nirmala Khanna who in turn purchased the flat from Paul CS DJ 207411/2016 & Counter Claim CSDJ No.380/2022 Arun Kumar Dewanwala and Ors Vs. Ramina Kumar Minocha Page 6/26 & Pal and Smt. Nirmala Khanna did not have any right in terrace. Therefore the same could not be transferred by her to plaintiff no.1.
10. Similarly, the plaintiff no.3 did not have any right in the terrace. However, plaintiff no.3 manipulated the conveyance deed in his favour wrongly claimed rights in the terrace. Defendant no.1 admitted that she purchased flat no.301 alongwith her husband vide registered sale deed dated 02.05.2006 and she has rights in the proportionate undivided area of the total plot of land measuring 550 sq. yards i.e. about 69.50 sq. yards. Defendant no.1 gets the light and air to her flat from the said terrace and has the access to the same for all practical purposes and she is using terrace exclusively. Defendant further stated that flat no. 001 situated in basement of the plot, is in occupation of plaintiff no.3 and plaintiff no.3 is using the said flat against building bylaws and sanctioned building plan as the said basement can be used only for domestic storage and not for residence. Plaintiff no.3 has blocked the common setback measuring about 600 sq. fts. next to the entrance of his flat in the basement for all the flat owners which was objected by defendant. Plaintiff no.3 has also got a Tailor permanently placed in the said portion against the permitted use of the residential property. She admitted that she purchased her flat no.301 from Shri S.N. Dutta Chaudhary who in turn purchased the same from Smt. Kusum Khanna vide registered sale deed dated 07.11.1986. The seller had a right to park one car in the common parking area inside the premises and the same has been transferred by him to the defendant CS DJ 207411/2016 & Counter Claim CSDJ No.380/2022 Arun Kumar Dewanwala and Ors Vs. Ramina Kumar Minocha Page 7/26 having purchased the same from Shri S.N. Dutta Chaudhary. The flat owners including her have been provided a servant quarter in the basement of the building but the plaintiffs in connivance with each other have not allowed defendant to use the said servant quarter in the basement and therefore defendant used the temporary shed/structure left by the builder for her servant next to her flat on the second floor of the building as shown in red in the site plan. Despite having their separate servant quarters in the basement, the plaintiffs are sending their servants to the terrace in front of the flat of defendant for sleeping, bathing in the open, who have been making snide remarks on the family.
11. She denied that the plaintiff no.3 has been provided a servant quarter at her terrace. She admitted that she got affixed a gate outside her flat on 12.01.2009. She denied that there is any servant quarter of the plaintiff no.3 on the terrace. The open toilet on the terrace is not for the use of any other flat owner except defendant. No water tank or antenna is placed on the terrace and common staircases are being used for all the flat owners only for access to the common water tank built with concrete and the fixing of antenna which are placed on top of the flat of defendant and defendant never stopped the plaintiffs from accessing their water tank and antennae on the top of defendant's flat but in the garb of checking the water tanks, the plaintiffs are having sending their servants on terrace and making nuisance on top floor of defendant. It is alleged that plaintiff no.3 had blocked the driveway on the ground floor by erecting a wall for which CS DJ 207411/2016 & Counter Claim CSDJ No.380/2022 Arun Kumar Dewanwala and Ors Vs. Ramina Kumar Minocha Page 8/26 the defendant no.1/ counter claimant had sought mandatory injunction to direct plaintiff no.3 to remove the said wall. It is alleged that plaintiffs want to collectively grab the property of defendant and harassing her. She denied that she ever closed the stop cock to close the water tank and instead blamed plaintiffs for wrong parking, blocking the gate and alleged that plaintiff no.2 renovated her flat and dumped the malba on the terrace and has caused the seepage in the flat of defendant by changing the pipeline from the inner water tank to her flat. She has stated that plaintiffs have no right to access on the top of flat of defendant or to have any parties, other than for repair of water tank and antenna which the defendant never denied. She alleged that the water tanks in the building are more than 2 decades old but no repair has been got done by the flat owners causing leakage. Defendant alleged that the plaintiffs are trying to illegally grab the terrace.
12. Defendant prayed for dismissal of the suit of the plaintiffs and prayed for a decree of declaration to the effect that the plaintiffs do not have any exclusive rights in the terrace in front of her flat and the said terrace is not the common area. She further prayed to direct the plaintiffs to remove the locks from the servant quarter on the terrace in front of the flat of defendant/counter claimant and to remove any blockage of rear setback on the ground floor of the property, with further directions to remove the tailor or any other person carrying out commercial activity and further to restrain the plaintiffs from removing the iron gate and grill from CS DJ 207411/2016 & Counter Claim CSDJ No.380/2022 Arun Kumar Dewanwala and Ors Vs. Ramina Kumar Minocha Page 9/26 the passage of the counter claimant's flat and to restrain them from causing any nuisance in front of her flat by holding parties or by other acts of their servants.
13. Plaintiff filed the replication/reply, wherein, they reiterated their stand as stated in the plaint and controverted the stand taken by the defendant/counter claimant. Similar was the stand in the replications.
14. From the pleadings of the parties, following issues were framed:
ISSUES:
1. Whether the plaintiff is entitled to the decree of declaration as prayed for? OPP
2. Whether the plaintiff is entitled to the decree of permanent injunction as prayed for? OPP
3. Whether the plaintiff is entitled to the decree of mandatory injunction as prayed for? OPP
4. Whether the plaintiff and other occupants of the building has any right, title and interest over the terrace in front of the flat of defendant no.1? OPD
5. Whether the suit of the plaintiff is bad for misjoinder and non joinder of the parties? OPD
6. Whether defendant no.1 is entitled to the counter claim as prayed for? OPD
7. Relief.
15. During plaintiff evidence, plaintiff examined PW1 Shri Raj Krishan Gupta who tendered his affidavit as Ex.PW1/A and relied upon the documents Ex. PW1/1 to Ex. PW1/6.
CS DJ 207411/2016 & Counter Claim CSDJ No.380/2022 Arun Kumar Dewanwala and Ors Vs. Ramina Kumar Minocha Page 10/26
16. Defendant/counter claimant examined herself as DW1 and tendered her affidavit as Ex. DW1/A. She relied upon the documents Ex. DW1/1 to Ex. DW1/20 i.e. 1. Copy of sale deed Ex. DW1/1 dated 02.05.2006 2. Copy of Sale deed Ex. DW1/2 dated 07.11.1986
3. Site Plan Ex. PW1/D1
4. Photographs filed Ex. DW1/4 and Ex. DW1/17 (colly) by the plaintiff 5. Complaint dated Ex. DW1/5 04.06.2008 6. Sale deed dated Ex. DW1/7 07.11.1986 7. Complaint dated Ex. DW1/18 12.01.2009 8. Complaint dated Ex.DW1/19 13.01.2009
9. Complaint dated Ex..DW1/20 11.02.2009
10. Copy of Sale deed Mark A 22.09.1986
11. Copy of Mark B Completion Certificate
12. Photographs Mark C to Mark G 13. Copy Sale deed Ex. DW1/9 Dated 20.12.2002
14. Copy of sale deed Ex.DW1/12 CS DJ 207411/2016 & Counter Claim CSDJ No.380/2022 Arun Kumar Dewanwala and Ors Vs. Ramina Kumar Minocha Page 11/26 dated 02.08.1989
15. Copy of sale deed Ex. DW1/13 dated 27.08.1997
17. Defendant no. 2 concerned SHO was deleted from the array of parties intially vide order dated 07.03.2009.
18. I have heard Ld. Counsel for the parties and have gone through the record carefully.
Issue wise findings of the court are as under:
ISSUE No.4 Whether the plaintiff and other occupants of the building has any right, title and interest over the terrace in front of the flat of defendant no.1? OPD
19. At the outset, ld. Counsel for the plaintiffs argued that none of the documents relied upon by any of the parties are disputed. First of all, structure of the suit property needs to be understood and appreciated. The plot No.E492, Greater Kailash, New Delhi belonged to one Smt. Kusum Khanna, measuring 550 sqr. Yards and is two sides open, facing main road on both sides. However, the plot is at a slant/gradient becase of rocky terrain. Smt. Kusum Khanna entered a Collaboration Agreement with M/s Pal and Paul Builders Ltd. The builder built 4 flats in the Northern side bearing No.001 at the ground (now occupied by plaintiff no.3), flat no.101, first floor (occupied by plaintiff no.1), flat no.201 second floor CS DJ 207411/2016 & Counter Claim CSDJ No.380/2022 Arun Kumar Dewanwala and Ors Vs. Ramina Kumar Minocha Page 12/26 (occupied by plaintiff no.2, the third floor No.301 owned and occupied by defendant no.1. In the middle of the building, there is a common staircase and on the Southern side, since there is a slant, only three floors could be built, with the ground floor having servant quarters and the first floor having flat no.102 and second floor flat bearing no.202. Because of the slight tilt in the landscape, the terrace of the flat no.202 (southern side) and the flat no.301 belonging to the defendant are at the same level because of which the whole dispute arose. Defendant is a later entrant in the building, having purchased the flat no.301 vide Sale Deed dated 02.05.2006 Ex.DW1/1 from Sh.S. N. Dutta Chaudhary.
20. The said Sale Deed Ex.DW1/1 at page 4 specifically stated that the builder M/s Pal and Paul Builders Ltd sold the flat no.301 on the second floor having approximately area of 1365 sqr. Feet (covered plus common facilities) consisting of one drawing/dining, two bed rooms, two toilets, one kitchen and one car parking rights within the building premises, along with proportionate undivided area of total plot of land measuring550 sqr. Yards, given to the vendor Sh.S. N. Dutta Chaudhary. Further, page 5 of the Sale Deed Ex.DW1/1 states that the vendor is selling, transferring and conveying the premises with the car parking rights and all other rights, latent and patent. Further, perusal of the Sale Deed dated 07.11.1986 executed by M/s Pal and Paul Builders Ltd in favour of Sh.S. N. Dutta Chaudhary reflects that subject matter of the Sale is flat no.301 on the second floor in the building having total covered CS DJ 207411/2016 & Counter Claim CSDJ No.380/2022 Arun Kumar Dewanwala and Ors Vs. Ramina Kumar Minocha Page 13/26 (super) area of approximately 1365 sqr. Feet including proportionate area under common facilities, including the area of a servant quarter in the basement as per plan annexed and proportionate covered area of common services. Therefore, it is clear from the title documents in favour of the defendant that she purchased the flat no.301 and got rights in the proportionate covered area of common services /facilities. There is nothing on record which suggest that defendant has any right, title or interest in the terrace above the flat no.202 which is situated in front of her flat or the one above her flat.
21. On the part of the plaintiffs, they themselves do not claim any exclusive right, title or interest in the terrace above the flat no.202 or the one in front of the flat no. 301. In fact, the 3 plaintiffs, occupants of different flats in the building have also sought declaration to the effect that except the portion of the flats of the plaintiffs and the defendant no.1, remaining portion of the property no.E492, Greater Kailash -II, New Delhi i.e. common services, drive way, staircase, common passage, facilities, the terrace at the second floor and at the top of flat of defendant is common for all the owners/ occupants of the property and none of them have any sole and exclusive right in the same. Since, it is not the claim of the plaintiffs that they have any right, title or interest in the terrace at the second floor but the defendant claimed exclusive rights thereto particularly the terrace in front of her flat being above flat no.202.
22. Ex.PW1/2 is the Sale Deed dated 27.08.1997 in favour of CS DJ 207411/2016 & Counter Claim CSDJ No.380/2022 Arun Kumar Dewanwala and Ors Vs. Ramina Kumar Minocha Page 14/26 plaintiff no.1 Sh.Arun Dewan Wala and page 5 thereof reflects that flat no.101 on the ground floor having covered area approximately 1795 sqr.feet including servant quarter in the basement as per plan annexed and proportionate covered area of common services, one car parking inside the building along with 91.5 sqr. Yards of the said property with all rights, title, interest, easement, privileges and appurtenant thereto along with proportionate, undivided, individual and marginable ownership rights underneath the said building was sold. Therefore, the Sale Deed in favour of plaintiff no.1 clearly acknowledges area of common services. Ex.PW 1/3 is the Sale Deed dated 02.08.1989 in favour of plaintiff no.2, also find mention about common facilities. Ex.PW1/4 is the Sale Deed in favour of plaintiff no.3 (along with his wife) which also mentions area under the common facilities of 1800 Sqr. Yards. Further, Ex PW1/4 states that one servant quarter with common toilet on the terrace above the second floor has been sold to them including the proportionate area under common facilities of 1800 sqr. Feet. The said Sale Deed also states at page 14 that the purchaser shall have full right of access through staircase etc. to the top terrace at all reasonable times to get the overhead tank repair, cleaned etc. to install TV antenna and for the usage of their servant quarter with common toilet.
23. Therefore, it is clear from the title documents that the defendant does not have any exclusive right, title or interest in the common areas. The plaintiffs, on their part, do not claim any exclusive rights therein. The CS DJ 207411/2016 & Counter Claim CSDJ No.380/2022 Arun Kumar Dewanwala and Ors Vs. Ramina Kumar Minocha Page 15/26 bone of contention between the parties, particularly, is the terrace on the second floor which is in front of the flat of the defendant..
24. In my considered opinion, the defendant being a later entrant in the building and there is nothing on record which suggests that either the plaintiffs or the defendants have any exclusive right, title or interest in the terrace of the second floor in front of the flat of the defendant. It is a common area for all the occupants of the building including the defendant and plaintiff no.3 have been provided with one servant quarter along with use of the common toilet at the terrace of the second floor. Therefore, this issue is decided in favour of plaintiffs and against the defendant.
ISSUE No.1 and 5Whether the plaintiff is entitled to the decree of declaration as prayed? OPP Whether the suit of the plaintiff is bad for misjoinder and nonjoinder of the parties? OPD
25. The plaintiffs have sought the decree of declaration against the defendant declaring that except for the portion of flats of plaintiffs and the defendant no.1, the remaining portion of the property no.E492, Greater KailashII, New Delhi i.e. common services, driveway, staircase, common passages, facilities, terrace above the second floor (southern side) and at the top of the flat of defendant are common for all the owners and CS DJ 207411/2016 & Counter Claim CSDJ No.380/2022 Arun Kumar Dewanwala and Ors Vs. Ramina Kumar Minocha Page 16/26 occupants of the property and none of them have any sole and exclusive rights in the same. Further, plaintiffs have also sought declaration that the iron grill and iron gate fixed by the defendant constitutes interference and hindrance in the use of the common facilities by the plaintiffs and other occupants.
26. As per the site plan, there are six flats but in the present suit, the owners/ occupants of only 4 flats have been impleaded. The occupants of flat no.102 and 202 have not been impleaded by the plaintiffs. Ld. Counsel for defendant have argued that suit is bad for non joinder of necessary parties as the other occupants of the building i.e. occupants of flat no.102 and flat no.202 have not been impleaded though declaration has been sought to declare the common area which cannot be done in the absence of the remaining occupants being made as a party.
27. On the other hand, Ld. Counsel for plaintiffs has justified the non impleadment of the other occupants submitting that it is the plaintiffs who are primarily aggrieved by the interference caused by the defendant by installion of grills at the common landing which opens towards the terrace above the second floor in front of flat of defendant. Therefore, he submits that there is no requirement of impleading the other occupants so as to unnecessarily drag them as a party. The nature of the declaration sought by the plaintiffs is that they seek a declaration regarding the common areas. more particularly, the terrace above the second floor and at the top of flat of defendant to be common for all the owners and occupants CS DJ 207411/2016 & Counter Claim CSDJ No.380/2022 Arun Kumar Dewanwala and Ors Vs. Ramina Kumar Minocha Page 17/26 of the property. This is a judgment in persona and not a judgment in rem. The plaintiffs are aggrieved by interference caused by defendant by obstructing the access to the common terrace above the second floor opening in front of the flat of the defendant.
28. Nature of the declaration sought is not a judgment in rem so as to bind the world at large or the persons who are not a party to the lis. It is interse dispute between the plaintiffs and the defendants. The plaintiffs themselves have not claimed any exclusive rights in the common services, drive way, staircase, common passage/ facilities, terrace at the second floor and at the top of the flat of defendant. In the absence of impleading the owners/ occupants of flat no.101 and 201, the plaintiffs cannot seek the declaration in the nature of in rem to be binding upon all the other occupants of the property.
29. Nonetheless, nothing prevents the plaintiffs to seek the declaration regarding these common areas so as to bind the parties to the suit. The title documents of the defendant as well as of 3 plaintiffs do not permit them to have any exclusive rights over these common areas, drive way, staircase, common passage/ facilities, terrace at the second floor and at the top of flat of defendant.
30. On their part, the plaintiffs themselves do not claim any such right. The defendant has failed to place on record any document in support of her claim over the terrace in front of her flat. The contention of the defendant that the terrace in front of her property as well as on the top of CS DJ 207411/2016 & Counter Claim CSDJ No.380/2022 Arun Kumar Dewanwala and Ors Vs. Ramina Kumar Minocha Page 18/26 her portion is though not a common area but a limited common area. However , this contention is misplaced.
31. Admittedly, the defendant's flat no.301 was sold to her by Sh.S. N. Dutta Chaudhary vide registered Sale Deed dated 02.05.2006. Sh.S. N. Dutta Chaudhary himself purchased the said portion vide registered Sale Deed dated 07.11.1986 from Smt. Kusum Khanna and as per the said Sale Deed in favour of Sh.S. N. Dutta Chaudhary, there is a specific mention of the proportionate area under common facilities of 1365 sqr. Feet which was sold. The plaintiffs had also sought to place on record the letter written by Sh.S. N. Dutta Chaudhary along with other occupants to the police as well as MCD stating that builder has no right over the terrace and terrace is common for 3 occupants.
Since the original of said document were not available having been destroyed being old record as reflected from the report filed by SHO PS: C. R. Park, New Delhi, therefore, the ground having been laid for leading secondary evidence I.e. photocopy of the said record can be looked into. There is copy of the letter dated 31.08.1999 written by plaintiff no.1, plaintiff no.2 and Sh.S. N. Dutta Chaudhary to SHO PS: C. R. Park, New Delhi wherein they have stated that terrace rights, if any, belong jointly to the flat owners. Therefore, from the documents on record, it appears that except for the portion of the flats occupied by the plaintiffs and defendant no.1 and other occupants, none of them CS DJ 207411/2016 & Counter Claim CSDJ No.380/2022 Arun Kumar Dewanwala and Ors Vs. Ramina Kumar Minocha Page 19/26 have any exclusive rights over the common services, driveway, staircase, common passage/ facilities, terrace at the second floor and at the top of the flat of defendant. Therefore, the plaintiff is entitled to decree of declaration to this effect.
ISSUE No.2 and 3Whether the plaintiff is entitled to the decree of permanent injunction as prayed? OPP Whether the plaintiff is entitled to the decree of mandatory injunction as prayed? OPP
32. Perusal of the photographs filed by the Local Commissioner and the report clearly shows that it is the defendant who has installed iron grills and gate at the second floor landing. It also shows that unfixed iron grills, almirah are lying on the second floor staircase landing. The photographs also show that waste construction material is lying on the terrace of the second floor in front of the flat of defendant. Defendant had disowned this construction material and malba on the terrace on the second floor. Photo Ex.DW1/D2 is Dishantenna belonging to plaintiff no.3 at the terrace of the third floor i.e. above the flat of defendant which is also indicative of the fact that the terrace above the third floor of the defendant is also common area and is being used as such.
33. Therefore, in the given facts and circumstances, fixing of iron grills and iron gate by defendant no.1 at the landing of the staircase of CS DJ 207411/2016 & Counter Claim CSDJ No.380/2022 Arun Kumar Dewanwala and Ors Vs. Ramina Kumar Minocha Page 20/26 the second floor is clearly a hindrance and obstruction in the use of the common facilities by other occupants of the building and is declared as illegal. Since the terrace in front of the flat of defendant and the terrace above the flat of defendant are held common areas, therefore, in the given facts and circumstances, defendant or anybody on her behalf are restrained from encroaching upon the said common portion/terrace at the second floor or from putting any Malba or garbage there and also prevented from causing any nuisance/hindrance in any manner in the use of the said common facilities including the staircase, terrace at the second floor and at the top of flat of defendant in the suit property and consequently, defendant is also restrained from raising any construction, erecting any fittings and fixtures in the common portion of the said property.
34. In view of the above, defendant is directed to remove the iron grill and gate fixed by her on the common staircase and common area of the suit property. Since defendant has denied that said garbage and malba has been littered by her on the terrace, plaintiffs are at liberty to remove the said garbage/ malba. Defendant shall not cause any interference in removing such garbage and malba from the said terrace. Issue no.3 is decided in favour of the plaintiffs and against the defendant.
CS DJ 207411/2016 & Counter Claim CSDJ No.380/2022 Arun Kumar Dewanwala and Ors Vs. Ramina Kumar Minocha Page 21/26 COUNTER CLAIM:
35. Coming to the counter claim of the defendant, defendant has sought the decree of declaration that the plaintiffs do not have any exclusive rights in the terrace in front of her flat and also sought the declaration that said terrace is not a common area.
In view of the findings given in issues above in the main suit, this issue is decided against the counter clamant/ defendant.
36. The counter claimant/defendnat has sought the mandatory injunction to direct the plaintiffs to remove the locks from the servant quarter on the terrace in front of her flat and remove articles put by plaintiffs in the temporary shack and to remove the blockage of rear setback on the ground floor of the property.
37. So far as the Sale Deed of counter claimant/ defendant is concerned, it does not show that the defendant/counter claimant has any right, title or interest on the said servant quarter.
38. On the other hand, Sale Deed Ex.PW1/4 dated 20.12.2012 executed by Ms.Usha Chaddha in favour of plaintiff no.3 and his wife at page 7 reflects that along with flat no.001 on lower ground floor, one sevant quarter with common toilet on terrace above the second floor was sold to them. This Sale Deed is of the year 2002. The contention raised by the defendant that Smt. Usha Chaddha herself did not have any right title or interest in the said servant quarter is misplaced as this Sale Deed CS DJ 207411/2016 & Counter Claim CSDJ No.380/2022 Arun Kumar Dewanwala and Ors Vs. Ramina Kumar Minocha Page 22/26 Ex.PW1/4 is has not been sought to be declared as null and void and I suspect, if the same can be done now at such belated stage. The defendant being a later entrant in the building simply steps into the shoes of her predecessor in interest.
39. Therefore, the counter claim cannot claim any right in the servant quarter on the terrace in front of her flat and no such relief of injunction regarding said servant quarter can can be granted to her. There is nothing on record which suggest that counter claimant is affected in any manner by the rear setback on the ground floor. It does not cause any obstruction to the defendant in any manner. Therefore, no such decree of mandatory injunction can be granted to the counter claimant regarding the said setback.
40. The counter claimant also sought mandatory injunction to remove the tailor or any other person put up by the plaintiff no. 3 on the rear set back of the ground floor and from carrying out any commercial activities. There is no doubt that this is a residential building and PW1 Sh.Raj Krishan Gupta had admitted during his cross examination that there is a tailor employed by the defendant who operates from the premises and stated that he sit on the lower ground floor in this building. He had also stated that his daughter carries a boutique from the said premises.
41. In my considered opinion, in a residential building, a tailor cannot be made to sit to run commercial activities and it in itself is a CS DJ 207411/2016 & Counter Claim CSDJ No.380/2022 Arun Kumar Dewanwala and Ors Vs. Ramina Kumar Minocha Page 23/26 nuisance. Therefore, it is directed that plaintiff no.3 shall remove the said tailor and shall not induct any other person to run any commercial activities from the suit premises. The counter claimant is entitled to mandatory injunction in this regard.
42. The counter claimant has sought the permanent injunction to restrain the plaintiffs from removing iron gate and grills from passage of the flat of the counter claimant. In view of the findings given above in the other issues, no such relief can be granted to the counter claimant.
43. Further, the counter claimant/ defendant has claimed the relief of permanent injunction to restrain the plaintiffs or any one on their behalf from causing nuisance on the terrace in front of flat of the counter claimant by holding any noisy parties or any other kind of nuisance created by a domestic help.
44. Though the counter claimant has failed to prove that any such nuisance was caused by any of such servant. However, considering the fact that this is a common area to be used by all the residents of the building for enjoyment of common facilities, it is directed that neither the plaintiffs nor the defendant or anybody on their behalf shall cause any kind of nuisance at the terrace above the second floor in front of flat of the counter clamant/ defendant.
RELIEF:
45. In view of the same, suit of the plaintiffs is decreed and counter CS DJ 207411/2016 & Counter Claim CSDJ No.380/2022 Arun Kumar Dewanwala and Ors Vs. Ramina Kumar Minocha Page 24/26 claimant is also partly decreed as under:
(a) Plaintiffs are entitled to declaration to the effect that except for the portion of the flats occupied by the plaintiffs and defendant and other occupants, none of them have any exclusive rights over the common services, driveway, staircase, common passage/ facilities, terrace at the second floor and at the top of the flat of defendant.
(b) Declaration is given to the effect that fixing of iron grills and iron gate by defendant at the landing of the staircase of the second floor is a hindrance and obstruction in the use of the common facilities by other occupants of the building and therefore is declared as illegal.
(c). Defendant or anybody on her behalf are restrained from encroaching upon the common portion/terrace at the second floor or from putting any Malba or garbage there and also prevented from causing any nuisance/hindrance in any manner in the use of the said common facilities including the staircase, terrace at the second floor and at the top of flat of defendant in the suit property and consequently, defendant is also restrained from raising any construction, erecting any fittings and fixtures in the common portion of the suit property.
(d) Defendant is directed to remove the iron grill and gate fixed by her on the common staircase and common area of the suit property.
CS DJ 207411/2016 & Counter Claim CSDJ No.380/2022 Arun Kumar Dewanwala and Ors Vs. Ramina Kumar Minocha Page 25/26 Plaintiffs are at liberty to remove the said garbage/ malba from the terrace of the second floor in front of the flat of the defendant. Defendant shall not cause any interference in removing such garbage and malba by the plaintiffs from the said terrace.
(e) Counter claim of defendant is partly decreed to extent that it is directed that plaintiff no.3 shall remove the tailor in the suit premises and shall not induct any other person to run any commercial activities from the suit premises.
(f) Further, it is directed that neither the plaintiffs nor the defendant or anybody on their behalf shall cause any kind of nuisance at the terrace above the second floor in front of flat of the counter clamant/ defendant. Other prayers of counter claimant for other declaration/injunctions are declined.
Decree sheet be prepared accordingly.
File be consigned to Record Room.
Announced and dictated in the open court on 31.05.2022 (Munish Markan) Additional District Judge02 (SE), District Courts, Saket, New Delhi pk CS DJ 207411/2016 & Counter Claim CSDJ No.380/2022 Arun Kumar Dewanwala and Ors Vs. Ramina Kumar Minocha Page 26/26