*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ IA.NO.1998/2009 in CS(OS) 2167/2008
% Date of decision: 13th October, 2009
MRS RENU SINGH ....Plaintiff
Through: Mr.Rishi Aggarwal with Ms Rehma
Hameed, Advocates.
Versus
SHRI RAJIV RASTOGI & ANR ... Defendants
Through: Mr Sandeep Sethi, Sr Advocate with Mr
Sindhu Sinha, Mr Sachin Midha, Ms Kirti Kumar
and Mr Rajneesh Chopra, Advocates.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may
be allowed to see the judgment? NO
2. To be referred to the reporter or not? NO
3. Whether the judgment should be reported NO
in the Digest?
RAJIV SAHAI ENDLAW, J.
1. The application of the plaintiff under Order 39 Rules 1 and 2 CPC for interim injunction is for consideration.
2. The lis between the parties pertains to the rights of the respective parties with respect to an area admeasuring 450 sq ft., towards rear of property No. E-28, South Extension - II, New Delhi. It is not in dispute that the plaintiff is the owner of the rear ground floor portion of the said property comprising not only of the aforesaid area of 450 sq ft but also of constructed portion of two rooms together with W.C. The entire property E-28, South Extension - II, New Delhi was originally purchased by one Shri Bhagat Saran Bhatnagar from DLF Housing and Construction Pvt Ltd, the Developer of the Colony of South Extension. Shri Bhagat Saran Bhatnagar bequeathed the said property to his son Shri Guru Saran IA1998.09INCS(OS)2167/2008 Page 1 of 12 Bhanagar. Shri Guru Saran Bhatnagar sold the rear portion of the property comprising of two rooms on the ground floor together with WC and area of 450 sq ft aforesaid which was described as covered courtyard and improvised garage, except the portion of the area falling below the staircase, vide sale deed dated 23rd December, 1981 registered on 24th December, 1981 to one Smt Indira Rani. In the said sale deed it is inter alia recorded that though Shri Guru Saran Bhatnagar will have the right to raise construction above the two rooms and WC on the ground floor sold to Smt Indira Rani but he will have no right to raise construction over the covered courtyard and improvised garage admeasuring 450 sq ft which is described in the sale deed as the absolute property of the purchaser Indira Rani. The sale deed does not give any right to the purchaser Smt Indira Rani also to build any further structure over the existing covered courtyard but gave Smt Indira Rani a right to install a water tank, a cooling tower, cooler or an airconditioner in portion admeasuring 138.75 sq.ft. above the courtyard in a designated portion.
3. The plaintiff claims to be the successor-in-interest of the said Smt Indira Rani and through several other purchasers in the interregnum. The defendants claim to be the owners of the first and second floor of the property. The plaintiff, however, contends that the defendants can be the owner of the first and second floor excluding the portion of 450 sq ft above the covered courtyard and improvised garage aforesaid. The defendants challenge even the right of Shri Guru Saran Bhatnagar to, on 24th December, 1981 i.e. date of registration of sale deed, sell/transfer the rights above ground floor level in the aforesaid 450 sq ft area, for the reason of having prior thereto on 23rd December, 1991 sold the said rights to the person whose successor-in-interest the defendants claim to be. IA1998.09INCS(OS)2167/2008 Page 2 of 12 The defendants have also pleaded that the predecessor-in-interest of the plaintiff and the predecessor-in-interest of the defendants had on 10th December, 1993 executed an MoU whereunder the plaintiff's predecessor was permitted to and did make construction at the level of ground floor in place of covered courtyard and improvised garage and of a basement under her portion at the rear of the ground floor including below 450 sq ft aforesaid and had permitted the predecessor-in-interest of the defendants to raise construction above the level of ground floor, where earlier covered courtyard and improvised garage existed. The defendants further claim that the first and second floor above the space of erstwhile improvised garage and courtyard was constructed in 1993-1994 itself; they have also filed certain documents in support of the said plea.
4. The plaintiff on 15th October, 2008 instituted this suit averring that the defendants were threatening to raise construction above the level of ground floor above the erstwhile covered courtyard and improvised garage and for permanent injunction for restraining the defendants from doing so and for the relief of declaration that any construction so made by the defendants was illegal and for demolition thereof. It was the contention of the counsel for the plaintiff that the construction had been commenced just prior to the institution of the suit.
5. The suit alongwith the application under consideration came up first before this court on 17th October, 2008 when the defendants being on caveat also appeared. From the photographs filed by the plaintiff herself, it appeared to the court on that date that the first floor already existed over the portion of 450 sq ft at the rear of the property. The counsel for the plaintiff also admitted that the first floor over the said portion had already been constructed. However, IA1998.09INCS(OS)2167/2008 Page 3 of 12 while the counsel for the defendants contended that the second floor also existed and only repairs were only being carried out, the counsel for the plaintiff denied the same. This court appointed a Court Commissioner to report on the construction existing over the aforesaid 450 sq ft at the rear of the property. The Court Commissioner has filed a report and to which no objections have been filed by either of the parties. The Court Commissioner reported the existences of a first floor as well as of a covered second floor above the said 450 sq ft, though it was reported that the ceiling of the second floor was of a new RCC structure. It was also reported that above the level of second floor there is an open terrace.
5. This court on 17th October, 2008 ordered that the defendants shall not raise any construction above the said 450 sq ft and if any construction/coverage exists, the defendants shall be able to carry out the work of interiors, without however, carrying out any work of structural nature over the said portion.
6. On the next date a dispute arose with respect to the water tank supplying water to the WC on the ground floor portion of the plaintiff. While the counsel for the plaintiff contended that the said water tanks were installed at the first floor level in the portion where predecessor-in-interest of the plaintiff, namely, Smt Indira Rani under the sale deed aforesaid in her favour had been permitted to keep the air conditioner / water tanks etc.; the defendants contended that the water tank supplying water to the WC of the plaintiff were not those found by the court Commissioner at the level of the first floor but those installed on the terrace above the second floor. This court vide order dated 3rd November, 2008 directed the defendants not to disturb even the water tanks lying on the first floor level and to ensure that the water supply to the WC of the plaintiff on the IA1998.09INCS(OS)2167/2008 Page 4 of 12 ground floor is not disturbed for the reason attributable to the defendants.
7. On 6th February, 2009, the contention of the counsel for the plaintiff was that though till earlier supply of water to the WC of the plaintiff was from the water tank on the first floor level but the defendants being in control and possession of the said first floor had directed the said supply from the water tanks on the terrace above the second floor and disconnected the water supply from the water tanks on the first floor level. This court being of the view that since water was admittedly being supplied to the plaintiff from the tanks on the terrace above the second floor, if the water tanks on the first floor were directed to remain as earlier ordered, it would be a waste of valuable commercial space. Accordingly, the defendants were permitted to remove water tanks on the first floor to enable them to utilize the said space but on the condition that the water supply to the plaintiff shall not be disrupted and would continue from the water tanks on the terrace above the second floor.
8. The plaintiff preferred FAO(OS) 91/2009 to the Division Bench of this court against the order aforesaid permitting removal of water tanks from the first floor level. The said appeal was withdrawn on 20th March, 2009 by the plaintiff after arguing at length. Thereafter, controversy arose between the parties with respect to the staircase opening on the side road and leading to the first floor. The plaintiff claimed right to use of the said staircase for the reason of accessing the water tank on the first floor which the predecessor-in-interest of the plaintiff Smt Indira Rani under the sale deed in her favour had been permitted to install. The said staircase is admittedly not in the portion sold to the plaintiff/her predecessor. The defendants wanted to demolish the said staircase, having made an access to the first IA1998.09INCS(OS)2167/2008 Page 5 of 12 floor from the front side of the property. It is the contention of the counsel for the defendants that the said staircase has now no utility and is again waste of valuable commercial space at the level of the ground floor and the space of the said staircase can be utilized by the defendants for commercial purpose.
9. Vide interim order dated 10th February, 2009, it was clarified that the defendants shall not demolish the said staircase till the disposal of the application for interim relief.
10. The aforesaid developments since the institution of the suit would disclose that as far as the interim relief claimed in the application as originally filed of restraining the defendants from making any construction above the portion admeasuring 450 sq ft at the rear of the property is concerned, it is the admitted position that the first floor and the second floor above the said portion exist. Whether the same existed since 1993-1994 and the claim of the plaintiff for demolition thereof is barred by time as contended by the counsel for the defendants or whether the same have been constructed immediately preceding the institution of the suit will be decided at trial. What remains to be adjudicated at this stage is whether the defendants, during the pendency of the suit are to be permitted to raise construction above the second floor on the said portion as contended by the defendants and whether the defendants during the pendency of suit are to be permitted to demolish the staircase.
11. As far as the staircase is concerned, as aforesaid the same is admittedly not in the ownership of the plaintiff. The only right of the plaintiff with respect thereto is for access to the water tank which the plaintiff claims existed till prior to 6th February, 2009. Now, that water tank does not exist and the order permitting removal of water IA1998.09INCS(OS)2167/2008 Page 6 of 12 tank at the level of the first floor has attained finality as aforesaid. The plaintiff now has no occasion for use of the said staircase. The first floor to which the staircase is at present leading is in use of the defendants. The counsel for the plaintiff has contended that the said staircase is necessary for access to the water tanks supplying water to the WC of the plaintiff and installed on the terrace above the second floor. However, the Court Commissioner has reported that the said staircase does not extend up to the terrace above the second floor and culminates on the second floor only. Thus, the staircase cannot serve this purpose also. The counsel for the plaintiff has further contended that the access to the terrace above the second floor from the staircase constructed by the plaintiff in the front portion is inconvenient; it is also contended that the defendants are not even the owners and are only the lessee for nine years in the portion of the ground floor from where the new staircase is ascending. It is argued that in the event of the defendants being evicted from the said portion of the ground floor, there would be no access to the terrace above the second floor if the existing staircase is permitted to be demolished. The defendants, on the contrary, undertake that they will at their cost and risk continue to provide access to the terrace above the second floor and which for the plaintiff in any case is limited, for the purpose of repair and maintenance of the water tank. The senior counsel for the defendants further contends that the access to their valuable first and second floor is from the newly constructed staircase only and it is in their interest also to ensure that they continue to have such access.
12. The decision whether the defendants were entitled to construct above the 450 sq ft or not and if not whether the said construction is IA1998.09INCS(OS)2167/2008 Page 7 of 12 to be demolished is likely to take time. If the existing staircase is permitted to remain during the said time it would tantamount to depriving the defendants from use of the space thereof. On the contrary, as aforesaid till the aforesaid decision, the plaintiff has no use or need for the said staircase. If the plaintiff succeeds in the relief seeking demolition of the construction above 450 sq ft and for which purpose the plaint was allowed to be amended, as a consequence thereof the water tanks would also have to be brought down from the terrace above the second floor to the level of the first floor and at that stage the order directing the defendants to restore the staircase can also be made. However, I feel that till then, the plaintiff shall not suffer any irreparable injury or loss if the staircase is permitted to be demolished and the balance of convenience is also in permitting the staircase to be demolished subject to the aforesaid condition of restoration. Thus, I hold that the defendants shall be entitled to demolish the staircase from which the plaintiff earlier claims access to the water tanks on the first floor, subject to the condition that the defendants shall not encumber the space / area of the said staircase in a manner so as to be disentitled to or that results in them being not in a position to restore the staircase to the position as existing now in the event of failing in their defence or if otherwise so directed by this court at the time of final adjudication of the suit.
13. Though there is some controversy raised by the counsel for the plaintiff as to the space under the staircase but in the sale deed in favour of Smt Indira Rani aforesaid and whose successor in interest plaintiff claims to be, I find it expressly mentioned that the portion of the area falling below the staircase had been excluded from the portion sold to Smt Indira Rani. Even otherwise from the site plans IA1998.09INCS(OS)2167/2008 Page 8 of 12 of the existing position handed over during the hearing, I am unable to decipher any such space existing or the plaintiff having any access thereto. I may notice that though in passing the aforesaid direction I have not discussed the ingredient of prima facie but the same is guided by the discussion herein below while considering the injunction restraining further construction above the level of the second floor on the said 450 sq ft portion.
14. I am prima facie of the opinion that at least the first floor above the 450 sq ft portion existed for some time prior to the institution of the suit. The juxtaposition of the portions of the plaintiff and the defendants is such that not even a brick could have been laid above the said 450 sq ft on the ground floor without the plaintiff immediately coming to know of the same. The plaint as originally filed is vague as to the date when the work of coverage above the 450 sq ft commenced. Objection in this regard was taken in the written statement. The plaintiff in replication has stated that the same commenced immediately prior to the institution of the suit. The suit was instituted on 15th October, 2008 and came up for admission before this court on 17th October, 2008. The commissioner appointed on 17th October, 2008 and who inspected the premises on the same date has reported existence not only of the first floor but also of the second floor. Though second floor RCC slab was stated to be appearing to be new, at this prima facie stage I tend to agree with the defendants that the coverage of the first floor above the 450 sq ft on the ground floor existed since before.
15. Though Smt Indira Rani predecessor-in-interest of the plaintiff was permitted to construct basement under the portion sold to her but without causing any loss or damage to the remaining portion of the property and which tantamounts to the same being not possible IA1998.09INCS(OS)2167/2008 Page 9 of 12 without the consent of the owner of other portion of the property. The basement admittedly has been constructed; according to the defendants pursuant to the MoU dated 10th December, 1993 and according to the plaintiff in exercise of rights under the sale deed in favour of Smt Indira Rani.
16. The plaintiff claims the MoU to be fabricated and has otherwise also poked holes on several other grounds with respect thereto. All that, has to be a matter of trial. However, it does appear that there is a change in the language of the sale deed of the portion of the plaintiff after 1993. In fact, the language of clause regarding the water tank is also different in the subsequent sale deeds from that in the sale deed in favour of Smt Indira Rani and her successor. Reference therein is to "Top terrace". The same lends me to believe that the plaintiff while acquiring the property had acquired only the ground floor and the lower ground floor/basement with right to install a water tank over the "top terrace" which would not necessarily be the terrace immediately above the ground floor. Even otherwise the same consideration regarding irreparable loss and balance of convenience prevail with me qua further construction above the second floor on the said 450 sq ft portion. The plaintiff admittedly has no right to raise construction above the said 450 sq ft. Whether the defendants have such a right or not is to be adjudicated. Till then if construction above level of second floor also is possible, the question of the plaintiff suffering irreparable injury by such construction does not arise. On the contrary, if the defendants are restrained, considering the valuable real estate, the defendants would suffer injury and which cannot be made good to them. Thus, I do not find the plaintiff entitled to restrain the defendants from raising further construction above the second floor IA1998.09INCS(OS)2167/2008 Page 10 of 12 also on the said 450 sq ft portion specially as construction at the level of the first floor and the second floor already exists and the harm, if any, to the plaintiff can be no more by such construction than already caused. Ultimately if the plaintiff succeeds and directions for demolition of first and second floor are passed, the construction above second floor can also be ordered to be demolished.
17. Of course, since the suit is still for adjudication, the said construction shall be subject to the rule of lis pendens enshrined in Section 52 of the Transfer of Property Act. It is expressly also ordered that the defendants shall, till the decision of the suit not encumber the first floor, second floor or the construction, if any, above on the said 450 sq ft portion or deal with the same so as to come in the way of restitution if this court so directs at the time of final adjudication.
18. That bring me to the issue also raised of municipal permissions and capability of the structure to bear further load. The order of this court holding that the plaintiff cannot restrain the defendants from raising construction above second floor cannot be interpreted as permitting the defendants to so raise the construction if they are otherwise not entitled to in law. This court has only rendered a prima facie opinion on the entitlement of the plaintiff to so restrain the defendants and considering the aspect of irreparable loss and balance of convenience.
19. As far as the fear of the plaintiff of the structure being not capable of taking the load, it is nobody's case that with the construction of the first and second floor any damage has been caused to the ground floor and basement in possession of the plaintiff. No technical advice also has been obtained by the plaintiff IA1998.09INCS(OS)2167/2008 Page 11 of 12 in this regard. On the contrary, the defendants have filed certificate of an architect/structural engineer to show that such load can be taken. Again this court is not equipped to adjudicate the said aspect. The municipal authorities and the architect/structural engineer involved in the construction are expected to take the said factors into consideration and if they do not, they shall remain liable to the plaintiff.
With the aforesaid directions the application is disposed of.
RAJIV SAHAI ENDLAW (JUDGE) October 13, 2009 M IA1998.09INCS(OS)2167/2008 Page 12 of 12