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The instant suit for declaration, mandatory injunction and permanent injunction has been filed by the plaintiff against the defendants and alongwith the suit the plaintiff has also moved the present application for grant of interim injunction.

As per plaint, the plaintiff and defendants are the legal heirs of Late Sh. Ram Avtar Parwanda i.e plaintiff and defendant No.1 to 4 are the sons and defendant No.5 is the daughter of Late Sh. Ram Avtar Parwanda. The defendants No.1 to 4 are the real brothers & defendant No.5 is the real sister of the plaintiff. The defendant No.5 is married and living with her family at the aforesaid address. The father of the plaintiff and defendants Sh. Ram Avtar Parwanda was the exclusive owner in respect of entire property alongwith construction bearing No.K­3­B, Kalkaji New Delhi measuring 900 sq. ft. appprox. consisting of ground floor, first floor and second floor. The plaintiff has been in possession of the said property alongwith the father and mother. The father of the Sh. Vipen Kumar Parwanda & Ors. Vs. Sh. Ashok Kumar Parwanda & Ors. (Suit No.81/09) Page No. 2 of pages 22 plaintiff Sh. R. A. Parwanda wanted to distribute the suit property amongst his legal heirs during his lifetime and accordingly a family settlement was arrived amongst the father of the plaintiff Sh. Ram Avtar, plaintiff and defendants. In view of the family settlement the value of the entire property was agreed at Rs.13,00,000/­. The defendant No.6 voluntarily relinquished her share in the said property. Accordingly the th plaintiff and defendants No.1 to 4 got 1/5 share each in the suit property i.e Rs.2,60,000/­ each. However the value of the respective floor was agreed as under:­ Ground floor Rs. 5,50,000/­ First floor Rs. 4,50,000/­ Second floor Rs. 3,00,000/­ Rs.13,00,000/­ The terms and conditions of the family settlement were duly settled amongst the family members and were duly reduced in writing which is duly signed by the father of the plaintiff Sh. Ram Avtar Parwanda, plaintiff as well as defendants whereby agreed/admitted/ accepted the terms and conditions of the partition deed dated 27.06.1989.

It is further contended that it was agreed that the suit property shall not be sold to any outsider and same shall be purchased by the Sh. Vipen Kumar Parwanda & Ors. Vs. Sh. Ashok Kumar Parwanda & Ors. (Suit No.81/09) Page No. 3 of pages 22 family members by paying amount to other sharer/family member. Accordingly in terms of partition deed dated 27.06.1989 the respective floor was opted and purchased by the plaintiff and defendant No.1 and 2 whereas the defendant No.3 and 4 opted to forgo their right in the suit property and agreed to take their respective share of Rs. 2,60,000/­ each. Further in terms of partition deed it was agreed that defendant No. 4 after receipt of his share will move out and shift from the first floor of the suit property. It was agreed that the parents of the parties i.e father Sh. R.A.Parwanda and mother Smt. Satya Devi Parwanda will have right to reside on the ground floor of suit property and the defendant No.1 will occupy the first floor of suit property till the parents of the parties occupy the ground floor of the suit property. It was agreed that after vacation of ground floor of suit property by the parents of the parties, the defendant No.1 shall shift to ground floor of the suit property and the plaintiff will occupy the first floor being the owners thereof. Unfortunately, the parents of the parties have already expired and in terms of partition deed the defendant No. 1 shifted to the ground floor of suit property and the plaintiff has occupied the first floor being the owner thereof. The plaintiff has let out the first floor of the suit property to his tenant who is paying the rent to the plaintiff till today and as such the plaintiff is in possession of the first floor through his tenant and has all Sh. Vipen Kumar Parwanda & Ors. Vs. Sh. Ashok Kumar Parwanda & Ors. (Suit No.81/09) Page No. 4 of pages 22 right to deal with the first floor being the exclusive owner thereof and no one including the defendants have any right, title or interest whatsoever of any nature in respect of the first floor of property No. K­3­B, Kalkaji, New Delhi. It is claimed that in terms of partition deed, the plaintiff has right to use the front/ back courtyard on ground floor of suit property for parking his vehicles and the defendants have no right to interfere in the enjoyment of said right of plaintiff i.e. enjoying the first floor being the owner thereof and using the front/back courtyard for parking the vehicles. However, the intention of defendants have become dishonest and they have started claiming right in the first floor as well as threatened to obstruct the plaintiff to use the front/back courtyard though they have no right in any manner to interfere in any manner, yet the defendant no.1 reduced the area of front courtyard thereby increasing the area of portion belonging to defendant no.1. It is important to note that there a wall of room of defendant no.1 towards front courtyard marked as X­X1 duly shown in the site plan attached with the plaint and front courtyard was duly marked A, B, C, D, E & F and the defendant no.1 has removed the wall X­X1 and illegally constructed a wall at E­E1, thereby illegally increased the area of his room and reduced the area of front courtyard. Not only that, the defendant no.1 came to the first floor and threated the tenant of plaintiff that he will take forcible possession of Sh. Vipen Kumar Parwanda & Ors. Vs. Sh. Ashok Kumar Parwanda & Ors. (Suit No.81/09) Page No. 5 of pages 22 first floor.

Sh. Vipen Kumar Parwanda & Ors. Vs. Sh. Ashok Kumar Parwanda & Ors. (Suit No.81/09) Page No. 7 of pages 22 In reply to the second application, it is claimed by defendant no.1 that the same is the misuse of the procedure of law. The defendant no.1 is not making and/or carrying out any addition, alteration or any new constructions in the front and back portion of the ground floor of the property. Moreover, the plaintiff has not filed any documentary proof such as photographs and/or police report in support of his application. Hence, application is not maintainable. The application is delay oriented and has been filed with the sole intention to create the multiplicity of the proceedings. There is no parking space available in front of the property in question and if any such parking space is created by the order of Court by misrepresentation, it violate the rules of M.C.D. In fact, the plaintiffs have obtained the exparte injunction order against the defendant no.1 but he has not completed the compliance of order XXXIX Rule 3 as he has not sent the copies of application alongwith the copy of order passed by this Court within prescribed limit, which is mandatory in nature. Hence, the injunction granted by the Court in favour of plaintiffs is liable to be vacated. The plaintiff is not residing in the suit premises and defendant no.1, who is residing at ground floor has better right due to the reasons being residing at ground floor he has to take care of the safety of the building. The plaintiff no.1, who has rented out his floor to his tenant has placed a separate gate in between Sh. Vipen Kumar Parwanda & Ors. Vs. Sh. Ashok Kumar Parwanda & Ors. (Suit No.81/09) Page No. 8 of pages 22 the ground floor and first floor and has protected his floor. The plaintiffs have no case at all, what to talk about the prima facie case. Balance of convenience also not in favour of plaintiff and no prejudice is likely to cause to the plaintiffs by withholding the relief sought.

As regards to the first relief, I find that the plaintiffs have shown sufficient prima facie material for granting of said relief to the plaintiffs. Admittedly, they are in the possession of the first floor of the suit property through their tenants. Further, it is also an undisputed fact that the plaintiff is one of the LRs of deceased Late Sh. Ram Avtar Sh. Vipen Kumar Parwanda & Ors. Vs. Sh. Ashok Kumar Parwanda & Ors. (Suit No.81/09) Page No. 19 of pages 22 Parwanda and he is entitled for his share in the suit property and also the factum of execution of the partition deed dated 27.06.1989 has also not been disputed/denied. The defendant no.1 has admitted that the plaintiffs are in the possession of the first floor of the suit property and he never intended nor has any intention to create any obstruction in the possession of the plaintiff qua the first floor of the suit property. Balance of convenience also lies in favour of the plaintiffs for grant of interim relief to that extent in favour of the plaintiff and plaintiffs are likely to suffer irreparable loss in case the defendants are not restrained from interfering in any manner in the possession of the plaintiffs of the first floor of the suit property. However, as regards to the other reliefs, the plaintiffs, at this stage, have been failed to show that all the necessary ingredients for grant of said interim reliefs are present in their favour. Admittedly, the plaintiffs themselves are not residing in the suit property, rather, the same has been rented out to the tenants and the possession of the defendant no.1 qua the ground floor is also an undisputed fact. The bare perusal of the report submitted by the Local Commissioner does not support the allegation regarding raising of any construction, addition/alteration as alleged by the plaintiff, rather, the defendant no.1 has himself submitted in his reply that a construction of wall was carried out a long back and plaintiff no.1 never objected to the same. Further Sh. Vipen Kumar Parwanda & Ors. Vs. Sh. Ashok Kumar Parwanda & Ors. (Suit No.81/09) Page No. 20 of pages 22 the allegations regarding creation of obstructions in the use of the parking space by the plaintiffs or their agents has remained merely a bald assertion as the same is neither supported by the factual details like dates etc. nor supported by any documentary material like police complaint etc. Further as per the partition deed executed by the father of the parties to this suit and duly signed and admitted by all the parties, the front portion of the ground floor of the property could be used only for parking the motorcycle, scooter, bicycle etc. and the report of Local Commissioner also indicates that there is no space in front/back courtyard of the premises to park the car and other vehicles and in case the relief sought by the plaintiff regarding use of parking is allowed it will cause unnecessary obstruction/hindrance to the rights of other defendants in respect of their ingress and egress to their portion.