Indian Kanoon - Search engine for Indian Law

On these grounds, the Plaintiff is claiming a declaration that the roof/terrace of the building is common to all residents and for permanent and mandatory injunction against the Defendants thereby restraining them from taking control of common roof/terrace and barring ingress and egress of residents and for restraining the Defendants from carrying out construction on the terrace. It is also prayed that Defendants be restrained from interfering with the lawful car parking area of residents and for restraining the Defendants from dispossessing the residents from servant quarters. Hence, this suit.

3. Written statement has also been filed on behalf of defendant no. 3 who has stated that by virtue of an agreement executed by the defendants on 17.07.1992, the defendants had mutually agreed to join together and hold their respective lands for the purpose of development and constructions of a multi-stories flats, in accordance with approved plans, to be sold to individual flats buyers. It is stated that consequent to the development agreement, constructions were carried out on the three plots on which basement, ground floor, first, second and third floors were constructed and 16 flats were constructed of which 5 belonged to each defendants and one flat remaining common. It is stated that at no time there was any intention of including terrace in the common area or as part of the flats allotted by the defendants. It is stated that upon construction of flats, a partition deed was executed on 18.04.1996 and in its recital, it was mentioned that possession had been given except terrace rights of the said property. It is submitted that as per the terms of partition deed, the defendant no 3 got a portion of the terrace which she enjoyed to the exclusion of other defendants and the parties to the partition deed had a right to enjoy peaceful possession over the said portion of the terrace/basement without any interference. It is stated that the sale deed executed by the defendants with individual buyers were for respective flats without fittings, fixtures and without floorings, wood work and with only white wash with proportionate undivided, indivisible and imparatible ownership right of the land underneath and no terrace and basement rights were included in the sale deed so as to give the purchaser any right to claim a share in the terrace or to claim that the terrace constituted a common area for the benefit of all occupants. It is stated that the status regarding the possession continued as of today to the exclusion of others qua her portion of the suit property. It is further stated that the defendant no. 3 in order to protect her property on the terrace and for her privacy installed two iron gates which are under the lock and key of hers' at all times and the same was necessary as the defendant no. 3 was residing in Ludhiana for all practical purposes, though she was still the owner of flat no. 6 on the second floor of the suit premises. It is further stated in the written statement that on February, 2011, information had been received that the office bearers and the members of the plaintiff had forcibly broken and removed the gates from the terrace which amounts to theft and misappropriation of gates including criminal trespass. It is stated that the defendant sent a legal notice to the plaintiff through her counsel dated 02.04.2011 and in a meeting was held between the son and husband of defendant no.3 and the plaintiff, the plaintiff admitted theft of gates and trespass and sought four days time to rectify the same. It is stated that a reply dated 07.04.2011 was received by the plaintiff denying all the contents of legal notice and on 08.04.2011, the son of the plaintiff filed a complaint with SHO PS Fatehpur Beri, New Delhi which was registered vide DD no. 38B. It is stated further that on 08.04.2011, the answering Defendant reinstalled four gates on the terrace to protect her one- third portion of the terrace and not on the other two-third portion of the terrace. It is stated further that on 25.04.2011, a reminder was sent to SHO requesting for registration of an FIR and on behest of police, the matter was sought to be settled. It is stated that the suit was not maintainable in terms of the provision of Specific Relief Act, 1963 and there is no right which existed in favour of the plaintiff in relation to the roof/terrace on the basis of which the plaintiff sought relief. It is prayed that the suit be dismissed.

10. On completion of defence evidence, final arguments were heard on behalf of all the parties.

11. The Ld. Counsel for the plaintiff has argued that the plaintiff is a Registered Society under Societies Registration Act 1860 and the building was a four storey building consisting of 16 flats above ground floor level, 16 servant quarters with two extra quarters, one for the purpose of generator room and other being used as guard room, a covered parking area at the ground floor where all the residence park their car, a drive way, a common terrace which is used for providing water supply, rain water drainage system and installation of T.v. antenna by all residents and also an emergency exit in case of fire or any other emergency situation. It was argued that the defendants were involved in unauthorized construction over the roof/terrace which the society has objected at several instances and Defendants have encroached upon the common area water tanks, pipe lines and dish antennas of the flats by placing iron gates at entry points. The plaintiff further seeks declaration that the roof and terrace be declared common area for all the residents and also seek a decree of permanent injunction restraining the defendants from taking over control on roof, terrace and undertaking any illegal construction on roof/terrace. The plaintiff further seeks a decree of mandatory injunction seeking directions to the defendant to demolish any illegal constructions undertaken by the defendants.

13. Arguments heard. Record perused. Considered.

14. Issues wise finding are as under:

1. Whether the plaintiff has any share rights and interest in the full terrace of the suit property? OPP 14.1 The onus to prove this issue was on the plaintiff. It has been argued on behalf of the plaintiff that the terrace was a common area by virtue of the Delhi Apartment Ownership Act 1986, wherein as per Clause 3(j) roof is defined within the meaning of common area of building. It is further the case of the plaintiff that there was no requirement nor any necessity to mention the roof/terrace to be a common area of building. It is further the case of the plaintiff that there was no requirement of necessity to specifically enlist the terrace to be a common area in the recital of the sale deed of the individual buyers and the residents of the building had a right to enjoy the area of roof/terrace as a common area. It has further been argued that the partition deed, Ex. DW1/3 relied upon by the defendant in support of the case is neither stamped nor properly registered and therefore the same was inadmissible in evidence.