Delhi District Court
Ratna Kapur & Anr vs Sh. Nitin Garg on 26 February, 2013
IN THE COURT OF SHRI BALWANT RAI BANSAL
ADDITIONAL SENIOR CIVIL JUDGE
SAKET COURTS, NEW DELHI
MCA NO. 22/12 & 23/12
Ratna Kapur & Anr.
D856, New Friends Colony,
First Floor, New Delhi
..... Appellant
Vs.
1. Sh. Nitin Garg
S/o Sh. Ravender Garg
D856, New Friends Colony,
First Floor, New Delhi
2. Smt. Babita Garg
W/o Sh. Nitin Garg
D856, New Friends Colony,
First Floor, New Delhi
..... Respondents
JUDGMENT
1. Vide this common judgment, I propose to decide two appeals filed by the appellants against the respondents against the impugned order dated 08.06.2012 passed by Ms. Archana Beniwal, Civil MCA No. 22//12 & 23/12 Page 1 of 16 Judge (South), Saket Courts, New Delhi by which application U/o 39 Rule 1 & 2 moved by the respondents was allowed and the application U/o 39 Rule 1 & 2 moved by the appellant in the counter claim to the suit filed by the respondents was dismissed.
2. Brief facts as borne out from the Trial Court record are that the respondents filed a suit for perpetual and mandatory injunction against the appellants contending that the respondents are the owners and are in possession of second floor along with terrace rights in the property bearing No. 856, Block D, New Friends Colony, New Delhi. The appellant no. 1 is the owner of the first floor of the aforesaid property and the appellant no. 2 is residing with the appellant no. 1. As per the terms and conditions of the sale deed, certain things are to be jointly shared by the respondents and the appellant no. 1 qua the use of certain area. As per the clauses of 13, 15 and 17 of the Sale Deed, all the owners/occupants of the aforesaid property have a right to access through staircase to top terrace of the said property at all reasonable times and to get the overhead tank repaired, cleaned etc. and to install TV antenna. As per clause 1 & 8 of the Sale Deed, the respondents have been granted the right to construct floors on the terrace and subsequent terraces and the entire terrace rights over and above the second floor has MCA No. 22//12 & 23/12 Page 2 of 16 been conferred upon the respondents. The respondents contended that the appellant no. 1 has brought some plumber in the building and also installed pipe lines and geysers without any right to do so. Appellant no. 1 also brought some heavy material for installation of a big solar water heater on the suit property. Therefore, the respondents prayed for grant of perpetual injunction to restrain the appellants from encroaching any part of terrace of second floor of property No. 856, Block D, New Friends or from fixing any fixtures, raising any construction or placing any material or creating any nuisance on the said property and also prayed for a decree of mandatory injunction to direct the appellants to remove the water pipe line and geysers recently installed as shown in yellow colour in the site plan of the suit property i.e. terrace of second floor.
3. Along with the suit, the respondents also filed an application U/o 39 Rule 1 & 2 CPC praying for exparte injunction restraining the appellants from encroaching any part of terrace of second floor of property No. 856, Block D, New Friends or from fixing any fixtures, raising any construction or placing any material or creating any nuisance on the said property during the pendency of the suit.
MCA No. 22//12 & 23/12 Page 3 of 16
4. The appellants filed the written statement and reply to interim application contending that under the sale deed they have right to install the solar water heater in the common area i.e. on the top terrace where the water tanks are kept. They have a right to access through the staircase to the top terrace of the property and top terrace of the property being a common area, they have every right to have access to the same and to install the solar water heater. It was also contended that the respondents are the exclusive owners of the terrace floor only but in terms of the sale deed the top terrace floor is a common area in which the respondents do not have exclusive right and the appellants have prayed for dismissal of the suit and of the interim application.
5. The appellants also filed counter claim for prohibitory and mandatory injunction against the respondents along with an application U/o 39 Rule 1 & 2 CPC in which it was prayed that the respondents be restrained from blocking access to the common areas and facilities and/or locking the access door to the top terrace and to direct the respondents to provide immediate uninterrupted access to the common areas/facilities including the top terrace of the property bearing No.856, BlockD, New Friends Colony, New Delhi.
6. Respondents filed the written statement and reply to the MCA No. 22//12 & 23/12 Page 4 of 16 application and prayed for dismissal of the same.
7. Vide impugned order dated 08.06.2012, Ld. Civil Judge allowed the application U/o 39 Rule 1 & 2 CPC moved by the respondents by which the appellants were restrained from raising any construction or installing any fixtures or placing any material or creating any nuisance on the said property till the disposal of the suit. The application of the appellants U/o 39 Rule 1 & 2 CPC in the counter claim was dismissed by the Ld. Civil Judge vide impugned order with the observations that in the connected matter since the injunction has been granted to the respondents and against the appellants, therefore the prayer no. (a) and (b) in the application U/o 39 Rule 1 & 2 CPC of the counter claim are the same and if the same is allowed, it would amount to rendering the injunction order passed in the connected matter i.e. suit filed by the respondents against the appellants as invalid and accordingly the application of the appellants was dismissed.
8. Aggrieved by the impugned order, the appellants have preferred these two appeals in which it is contended that the Ld. Civil Judge has misconstrued the terms of the title documents. The Trial Court has proceeded under the wrong premise that the common area on the terrace of the building belongs exclusively to the respondents. The MCA No. 22//12 & 23/12 Page 5 of 16 Trial Court has erred in giving a finding that the top terrace of the building is a part of terrace. The ownership of the respondents with respect to the terrace cannot be construed to deprive the other occupants of the building to have a right to access the common facilities including access to the top terrace over which no one has exclusive title. The Trial Court has passed the order beyond the scope of the suit as the scope of the suit was with respect to terrace of the building, however injunction has been granted in respect of the entire building taking away the rights of the appellants as enshrined in the title documents. The Trial Court has erred in wrongly interpreting the word 'etc' by equating with installing of small objects and ignored the rules of ejusdem generis. It is stated that the Trial Court has wrongly observed that the photographs filed by plaintiffs/ respondents and in fact same were filed by the appellants to demonstrate that there is sufficient space on the terrace of the building for installation of solar water heater. The appellants have prayed for setting aside the impugned order.
9. I have heard the Ld. Counsel for parties and perused the record. I have also gone through the written submissions filed by the appellants. Trial Court record was also summoned and I have also perused the same.
MCA No. 22//12 & 23/12 Page 6 of 16
10. The Ld. Counsel for respondents has argued that the respondents are owners of the second floor with the terrace right and, therefore, the appellants have no locus standi to claim any right over the terrace above the second floor. Ld. Counsel for respondents has further argued that the respondents are not hindering in the rights of the appellant to avail the common facilities as envisaged in the sale deed, but the appellant has no right to install a solar water heater at the terrace of the suit property. He further argued that top terrace also includes the terrace and vice versa which is owned by the respondents and, therefore, appellants cannot claim any ownership over the top terrace except the right to use the common facilities which is not disputed by the respondents. He submitted that impugned order is well reasoned and calls for no interference and prayed for dismissal of the appeal.
11. It is not in dispute that the appellants are the owners of the first floor of the property bearing No 856, D Block, New Friends Colony, New Delhi and the respondents are owners of the second floor with terrace rights over and above the second floor of the aforesaid property. The appellants and the respondents have purchased their respective portion in the aforesaid property from the same vendor Smt. Meena Seth vide registered sale deeds. The appellants have purchased MCA No. 22//12 & 23/12 Page 7 of 16 the first floor of the aforesaid property vide registered sale deed dated 02.01.2006 and the respondents have purchased the second floor with terrace rights over the second floor vide sale deed dated 03.08.2006. It is also apparent that there is also a top terrace in the aforesaid property where the common facilities are situated which is available to all the owners/occupants of the said building.
12. The relevant clause of sale deed dated 02.01.2006 in favour of appellants are reproduced as under: Clause 14:
"That all the owners/occupants of the said property including the present Vendee(s) shall have full right of access through staircase to the top terrace of the said property at all reasonable times, to get the overhead tank repaired/cleaned etc. and to install T.V. Antenna etc. That similar condition shall apply to the underground water tank and booster pump etc. The present Vendor has also assured the Vendee(s) that the other portions of the said property have been sold to other occupants on the same conditions and other portions will be sold in future on the same conditions."
Clause 15: "That the Vendee(s) shall have, as a matter of right, right to use all entrances, passages, staircases and other common facilities as are available in the said building."
Clause 17: "That the Vendee(s) shall have a right to use common entrances, passage, staircase and other common facilities as are available in the said building.
MCA No. 22//12 & 23/12 Page 8 of 16
13. Similar clause regarding the use of common facilities at top terrace also find mentioned in the subsequent sale deed dated 03.08.2006 executed by same vendor namely Smt. Meena Seth in favour of the respondents in respect of the second floor which is reproduced as under: Clause 13: "That all the owners/occupants of the said property shall have full right of access through staircase to the top terrace of the said property at all reasonable times, to get the overhead tank repaired/cleaned etc. and to install T.V. antenna. That similar condition shall apply to the underground water tank and booster pump etc."
Clause 15: "That the stairs, borewell, jet pump, overhead and underground water tank, passage and other common services in the said property shall remain common. The Vendee shall use and enjoy these services and shall also proportionately share the expenses incurred from time to time for the maintenance of the said common services with the other owners/occupants of the said building."
Clause 18: "That the entire terrace rights over and above the second floor shall remain the exclusive property of the Vendees, who shall have full right of further construction on it, as and when permitted by MCD in future and in such event, the Vendees shall shift the lift room, overhead water tanks and other common facilities and amenities so provided to the other owners/occupants of the said building (of the same size and same location) on the newly built top terrace at their own cost and expenses MCA No. 22//12 & 23/12 Page 9 of 16 and shall ensure that during the course of construction no damage is caused to the existing structure of the building and the normal water supply is maintained.
14. As such, it is evident that the vendor of the aforesaid property who sold the first and second floor of the aforesaid property to the appellants and respondents respectively is the same and terms and conditions regarding the use of common facilities at the top terrace are also identical.
15. In the present case, the bone of contention between the parties is as to whether the respondents have exclusive right over the top terrace and the top terrace is also a part of terrace which falls in the share of respondents and the appellants have only limited right over the top terrace.
16. As per the respondents, the appellants cannot be allowed to install the solar water heater in the top terrace and they have only a right of access to the top terrace to get the water tanks repaired, cleaned etc. or can install TV antenna, but the installation of solar water heater is not permissible as per the terms and conditions of the sale deed.
17. On the other hand, appellants have contended that top terrace is not a part of terrace under the ownership of the respondents and the top terrace is a common area where the facilities have been MCA No. 22//12 & 23/12 Page 10 of 16 provided to all the occupants of the said building.
18. The Ld. Civil Judge vide impugned order found that top terrace is also a part of terrace and the respondents being exclusive owners of the terrace above the second floor are within their rights to restrain the appellants from installing the solar water heater on the top terrace. The Ld. Civil Judge also found the contention of the parties whether or not the appellants are entitled to install a solar water heater on the top terrace as a triable issue.
19. The appellants have impugned the aforesaid findings of the Ld. Civil Judge by way of present appeal. The appellants do not claim any ownership right over the terrace above the second floor and have admitted the exclusive ownership of the respondents on the terrace over and above the second floor. However, the contention of the appellants is that top terrace is a common area and is different from the terrace under the ownership of the respondents and the appellants who are also owner of the first floor in the aforesaid property have every right to the top terrace where common facilities have been provided to the owners/occupants of the said building.
20. In view of the terms and conditions of the sale deeds, prima facie I find considerable force in the argument of the Ld. Counsel for MCA No. 22//12 & 23/12 Page 11 of 16 appellants that top terrace is different from the terrace under the ownership of the respondents and the respondents cannot claim the exclusive ownership rights over the top terrace. The contention of respondents that top terrace is also a part of terrace under their ownership prima facie does not appear to be correct position in view of the clause 18 of the sale deed dated 03.08.2006 in favour of the respondents.
21. Though, by virtue of Clause 18, the respondents have been allowed to raise further construction over the terrace of the property, but in that eventuality, the respondents are liable to shift the common facilities at the upper floors. It suggests that top terrace does not come under the exclusive ownership of anybody and the top terrace is the common area and no one can claim exclusive ownership over the top terrace. The respondents are only entitled to raise further construction at the terrace of the second floor but in that eventuality they are under obligation to raise one more floor in which all the common facilities shall be shifted. This goes to show that the respondents are not the sole and exclusive owners of the top terrace.
22. In the present case, the appellants intend to install a solar water heater on the top terrace. The Ld. Civil Judge vide impugned MCA No. 22//12 & 23/12 Page 12 of 16 order returned a finding that the sale deed confers the entire terrace right over and above the second floor as the exclusive property of the respondents and the other occupants of the said property including the appellants only have a limited right to access the staircase and the terrace for the limited purpose of repairing/cleaning overhead tanks, water tanks and installing TV antenna etc. and the word 'etc.' cannot be stretched to imply an installation of any kind of object under the sun. The Ld. Civil Judge has also observed that installing a solar water heater is not the same as installing a TV antenna and if same is installed it shall occupy much larger space as compared to a TV antenna and therefore, the appellants cannot be allowed to install a solar water heater on the top terrace.
23. However, I am not in agreement with the aforesaid observations of the Ld. Civil Judge. It is admitted position that occupants of the building have installed water tanks as well as geysers on the top terrace which is evident from the photographs placed on record by the appellants, though the Ld. Civil Judge has taken the same to be filed by the respondents. It is also evident from the photographs that water tanks and geysers occupy larger space than the solar water heater. The solar water heater sought to be installed by the appellants on MCA No. 22//12 & 23/12 Page 13 of 16 the top terrace is not of bigger size as compared to the water tanks and geysers installed on the top terrace. Furthermore, the appellants have placed on record the report/certificate issued by Seema Solar Enterprises, Authorized Representatives of TATABP Solar Water heaters in Delhi which suggests that solar water heater does not occupy much space and even three solar water heaters can be installed in one stand and to be fitted diagonally and it would occupy less space.
24. The appellants seek to install only one solar water heater on the top terrace. It is a common knowledge that solar water heater is such an article which cannot be installed in the inner place of the building and same has to be installed open to sky. Moreover, the solar water heater sought to be installed by the appellants is not such an article that it cannot be removed later on. In case the respondents succeeds in proving their case that the top terrace also comes under their exclusive ownership and the appellants have no right to install the solar water heater on the top terrace in terms of the sale deeds, the same can be removed at any time. Therefore, it cannot be said that respondents shall suffer irreparable loss and injury if the appellants are allowed to install the solar water heater on the top terrace.
25. Though, the Ld. Civil Judge vide impugned order has MCA No. 22//12 & 23/12 Page 14 of 16 observed that whether or not the defendants (appellants herein) are entitled to install a solar water heater on the top terrace and what is the extent of their 'common right' over the terrace can only be adjudicated after the evidence is taken from both the sides. It may be a triable issue, but not a serious question to deny the appellants from installing the solar water heater on the top terrace as no irreparable loss and injury is going to be caused to the respondents. Rather balance of convenience lies in favour of the appellants because in case the solar water heater is not allowed to be installed, the appellants shall be deprived of a facility which is being promoted and encouraged even by the Government.
26. So far the apprehensions of the respondents that appellants are trying to raise construction on the top terrace is concerned, the appellants have submitted that they do not intend to raise any construction on the top terrace and they only intend to install a solar water heater. Therefore, no prejudice is going to be caused to the respondents in case the appellants are allowed to install the solar water heater on the top floor.
27. For the aforesaid reasons, the impugned order dated 08.06.2012 cannot be sustained and is liable to be modified to the extent that appellants are allowed to install the solar water heater on the top MCA No. 22//12 & 23/12 Page 15 of 16 terrace without causing any damage to the top terrace and no inconvenience or obstruction shall be caused to the other occupants of the building in the enjoyment of common facilities at the top terrace by virtue of installation of solar water heater subject to outcome of the case before the trial court. Further the appellants shall not raise any construction on the top terrace where the common facilities are located and available to all the occupiers of the building .
28. With these observations, the present appeals are disposed of. Copy of this judgment be also placed in the connected matter.
Appeal file be consigned to Record Room.
Trial Court Record be sent to the concerned court along with copy of this judgment.
Announced in Open Court (Balwant Rai Bansal)
on 26th February, 2013 Additional Senior Civil Judge (South)
Saket Courts, New Delhi
MCA No. 22//12 & 23/12 Page 16 of 16
MCA No. 22/12 & 23/12
26.02.2013
Present: None.
Vide my separate judgment of even date dictated and announced in the open court, the appeal filed by the appellant is allowed.
Appeal file be consigned to Record Room.
TCR be sent back to the trial court along with copy of judgment.
(Balwant Rai Bansal) JSCC/ASCJ(South) Saket Courts, New Delhi 26.02.2013 MCA No. 22//12 & 23/12 Page 17 of 16