A.K. Jain & Others vs Harmeet Singh Bakshi & Another
2000 Latest Caselaw 731 Del

ORDER

K.S. Gupta, J.

1. This order will govern the disposal of I.As.6616/96 & 7503/96 both filed under Order 39 Rules 1 & 2 read with section 151 CPC by the plaintiffs.

2. Plaintiffs filed the suit for declaration and permanent injunction, inter alia, alleging that under a lease agreement dated 31st May 1980 three bed rooms with attached bath, one side room, kitchen and one side servant quarter on the garage of house No. D-1059, New Friends Colony, New Delhi, were let out on a monthly rent of Rs. 2300/- exclusive of electricity and water charges with effect from 1st June 1980 for a period of three years by Bakshi Samsher Singh to Akesh Kumar Jain, plaintiff No.1 and K.C. Jain. K.C. Jain passed away in December 1984 and upon his death his cy rights devolved on plaintiffs No.1. to 4. Sometime in 1985-86 Bakshi Samsher Singh who was residing with his family on the ground floor of said house, got a room constructed in the open courtyard situated on ground floor along the eastern boundary of the house. With the construction of said additional room the roof thereof became available to the plaintiffs for being put to use. Bakshi Samsher Singh also consented to the plaintiffs' user of the roof on said additional room. The plaintiffs in order to approach the roof of additional room created two steps in concrete outside the windows adjoining the roof. A water tap was also installed on the roof in addition to a drain pipe to drain out the water of roof, by the plaintiffs. The plaintiffs started using the roof of the said room for the purposes of storing household material and for drying of clothes etc. It is stated that Bakshi Samsher Singh passed away towards the end of 1993. His only son who was the father of defendant No.1, pre-deceased him. After the death of Bakshi Samsher Singh the defendant No.1 became the landlord. Electricity meters of the entire house including the tenanted premises of the plaintiffs are installed in the garage which was in occupation of Bakshi Samsher Singh and after his death that of defendant No.1. Bakshi Samsher Singh/defendant No.1 used to open the lock and grant access to the garrage on the request of the plaintiffs to enable electric repairs and for the purpose of taking meter readings by the staff of DESU. It is further stated that Bakshi Shamsher Singh transferred second floor of the said house to Ajit Singh Sahni, tenant in the year 1992. Thereafter, Ajit Singh raised further construction on the second floor. He also separated his water tank by installing a separate tubewell in the backyard of the house. As of now, there are two tubewells. The older tubewell feeds the overhead water tank which cater to the first and ground floors and servant quarter and the other tubewell feeds the overhead tank of Ajit Singh Sahni.

3. It is pleaded that with the rise of property values and rents the defendant No.1 developed illegal designs to evict the plaintiffs from the tenanted premises which are governed by Delhi Rent Control Act, 1958. Defendant No.1 has stopped accepting the rent after November 1995. He has further resorted to placing locks on the door of garage. Defendant No.1 shifted out from the ground floor on or about 3rd February 1996. Thereafter the plaintiffs faced even more difficulties in accessing the electricity meters/MCBs installed in the garage. Because of uncooperative attitude of defendant No.1 the meter reading has not been taken by the meter reader of DESU for the past few months and the plaintiffs have been receiving electricity bills on the basis of minimum charges. It is also alleged that defendant No.2 took over the possession of the ground floor of the house sometime in March 1996. He has verbally informed the plaintiffs that he has purchased that portion from defendant No.1. However, no documents have been shown by defendant No.2 to the plaintiffs nor there has been any intimation in this regard from defendant No.1 to the plaintiffs. It is stated that defendant No.2 sometime in March 1996 broke open the lock installed at the entrance gate of the terrace. Sometime in June 1996 he blocked the sewage pipes of the manhole situated in the open space of courtyard on the ground floor. Despite repeated requests the defendants and their servants refused to allow the plaintiffs to get the sewage cleared. The plaintiffs were, therefore, constrained to report the matter to the local police on 2nd June 1996 but to no avail. Ultimately the blockage was removed by lowering a person into the open space from the first floor. It is pleaded that on 11th July 1996 the defendant No.2 alongwith his wife and 3/4 goondas came to the tenanted premises and demanded the plaintiffs to vacate it. Plaintiffs immediately reported the matter to the police. Defendants and in particular defendant No.2 has thereafter issued verbal threats to the plaintiffs that the next stage of their plain is to prevent the plaintiffs from parking their 4 vehicles in the drive way of the house. Defendant No.2 has also threatened that he will ensure that the plaintiffs' water and electricity supplies are disrupted.

4. In I.A.8255/96 under Order 6 Rule 17 and section 151 CPC which came to be filed on 6th September 1996 after 1-1/2 months of the institution of suit, by the order dated 24th September 1996 the plaintiffs were allowed to substitute the existing para No.23 of the plaint by a new para. In terms of the amendment the plaintiffs have pleaded that the drive way of said house D-1059 has always been used and regarded as common passage and parking area by the occupants of the house since the inception of tenancy. Late Bakshi Samsher Singh had consented to the parking of the vehicles of plaintiffs in the drive way. Late Bakshi Samsher Singh, defendant No.1 and said Ajit Singh Sahni have been using the drive way for parking their vehicles along with those of the plaintiffs. The drive way is large enough to accommodate upto 5/6 cars. It is further alleged that it is the plaintiffs' easementary right to use the drive way for the purposes of parking the vehicles in addition to approaching therefrom to their tenanted premises.

5. In aforesaid I.A.6616/96 which was filed alongwith the suit the relief clause No.8 omitting immaterial portion, reads as under:-

"The plaintiff, therefore, most respectfully prays that this Hon'ble court may be pleased to pass ad-interim ex parte orders of injunction thereby restraining the defendants, their servants, agents, assigns, successors or any other person claiming through them from in any manner:

(i) obstructing the free and un-interrupted ingress and egress of the plaintiff, their agents, relatives, friends etc to and from the tenanted premises situated on 1st floor of premises No.D- 1059, New Friends Colony, New Delhi-110065;

(ii) obstructing, preventing or opposing the plaintiffs from parking/removing their four vehicles from the drive way of property bearing No.D-1059, New Friends Colony, New Delhi-110065;

(iii) obstructing/preventing the plaintiffs, their servants, agents and staff and meter readers of DESU from accessing the electricity meter/MCB's fuses situated in the garrage of property No.D-1059, New Friends Colony, New Delhi-110065; for inspecting, repairing and operating the electricity meter/fuses/switches/Mdis-continuing CBs or for taking meter reading.

(iv) obstructing or blocking the entry of the plaintiffs, their servants and agents to the rear courtyard for the purpose of operating, attending and repairing the tubewell and the water pump (jet pump) situated in the Eastern corner in the backyard of premises No.D-1059, New Friends Colony, New Delhi-110065;

(v) obstructing, dis-continuing or in any other way disrupting the use of the tubewell and the water pump (jet pump) situated in the eastern corner of the backyard of property No.D-1059, New Friends Colony, New Delhi-110065;

(vi) obstructing, interfering with or disrupting the water and electricity supply of the plaintiffs in the tenanted premises in any manner whatsoever;

(vii) obstructing/preventing or interfering with the free access of the plaintiffs, their servants and agents to the overhead water tanks situated on the terrace floor at all reasonable times for the purposes of inspection, maintenance and cleaning of the overhead water tanks.

(viii) interfering with use by the plaintiffs, their servant and agents of the open terrace above the additional room constructed on the ground floor in the courtyard and bounded in RED in the plan Schedule A to the plaint or in any other way removing the belongings or other materials of the plaintiffs placed on the said open terrace;

(ix) carrying out any construction, demolition or alteration in any portion of property No.D-1059, New Friends Colony, New Delhi- 65 without obtaining prior permission from the sanctioning authorities;

(x) blocking or obstructing the sewer lines of the building No.D- 1059, New Friends Colony, New Delhi-65 & particularly servicing the plaintiffs tenanted premises."

Relief sought in aforementioned I.A.7503/96 is reproduced below:-

"The plaintiffs, therefore, most respectfully pray that this Hon'ble court may be pleased to pass ad interim order of injunction thereby directing the defendants to forthwith remove their vehicle being yellow car bearing registration No.PJO-3700 of Nissan make presently parked in the drive way of property No.D- 1059, New Friends Colony to enable the plaintiffs to freely remove and again park their aforesaid four vehicles without let or hinderance. Defendants be further directed not to park their vehicle in the drive way of property No.D-1059, New Friends colony in any way to obstruct the egress and ingress of the plaintiffs or their vehicles into and from property No.D-1059, New Friends Colony, New Delhi."

6. In the written statement filed to amended plaint the defendant No.1, by way of preliminary objections, has alleged that property No.D-1059, New Friends Colony comprises of ground, first and second floors together with terrace. The entire ground floor together with lawn at front portion and rear open space with full car parking, garage, servant quarter on the garage and additional room built in the courtyard, were in occupation of the answering defendant and he vide agreement dated 4th September 1995 sold the said portions to defendant No.2 and also delivered possession thereof to him. Answering defendant also shifted out of the said portion in February 1995. Second floor of the property was earlier sold to the tenant who was occupying it Answering defendant informed the plaintiffs about the sale of said portions of property in February 1996. It is alleged that taking advantage of the shifting of answering defendant from the property, the plaintiffs forcibly constructed steps outside the tenanted premises by jumping through the window which is 4 ft high in order to have access to the roof of additional room constructed in the courtyard. On merits, it is admitted that pursuant to the lease agreement dated 31st May 1980 the possession of drawing-cum-dinning room, three bed rooms with attached baths, one side room, kitchen and one side servant quarter on garage on the first floor of property was taken by the lessees as alleged. However, it is denied that the roof of additional room constructed in the courtyard became available to the plaintiffs for being put to use or that late Bakshi Samsher Singh ever consented to for use of the same by the plaintiffs or that the steps in concrete outside the window over the roof of additional room were constructed with the consent either of late Bakshi Samsher Singh or the answering defendant as alleged. It is further denied that the plaintiffs used the space of roof for drying the clothes or for any other purpose as stated. It is alleged that the roof of additional room is bounded by walls on three sides and was being used by the answering defendant by placing a wooden ladder. It is claimed that the plaintiffs were never allowed to use the roof on additional room till the premises remained in possession of the answering defendant. It is stated that electricity meters of all the floors of the property are installed in the garrage and as and when the meter reading staff of DESU would come to take the meter readings of the answering defendants' meters they would automatically take the meter readings of the meters pertaining to the tenants. It is denied that either late Bakshi Samsher Singh or the answering defendant opened the lock of garage wherein the electricity meters are installed and granted access in the garage to the plaintiffs as alleged. Overhead tank is situated on the terrace floor which supplies water both to the ground floor and the first floor premises. After purchase of the second floor by Ajit Singh Sahni, he installed a separate water tank. It is claimed that since there was common supply of water to the ground floor and first floor from the overhead tank it was the answering defendant who used to get the overhead tank cleaned. It is denied that the answering defendant with a view to evict the plaintiffs from the tenanted premises started adopting illegal methods and stopped accepting the rents. It is stated that driveway was never part and parcel of the tenanted premises nor was it ever used by the plaintiffs as a right appurtenint to tenanted premises nor did the answering defendant ever consent to the plaintiffs for parking their vehicles in the driveway. It is emphatically denied that since the inception of tenancy the plaintiffs have been using the driveway for parking their vehicles or that late Bakshi Samsher Singh or the answering defendant allowed the parking of the vehicles by the plaintiffs in the driveway or that there was no objection from their side as alleged. It is further denied that the driveway of the property has always been treated as a common passage and parking area for the occupants of property since the inception of tenancy as alleged. It is denied that Ajit Singh Sawhney, tenant on the second floor has been using the driveway for parking the vehicle alongwith those of the plaintiffs. The driveway and the garage were in exclusive possession of the answering defendant. The plaintiffs' father did not have any vehicle at the time of creation of tenancy. Four cars alleged to be owned by the plaintiffs being DAC-978, DDA-6046, DL-2CD-8855 and DL-1CE-4190 are not even owned by the plaintiffs. It is asserted that not more than 5 cars bumper to bumper can be parked in the driveway. It is denied that the plaintiffs have any easementary rights with regard to the use of driveway for the purpose of parking their vehicles.

7. In the written statement filed to amended plaint the defendant No.2 has, inter alia, alleged that he under an agreement dated 4th September 1995 has purchased the complete ground floor alongwith lawn at the front and rear open space with full car parking, garage, servant quarter on the garage and the land underneath said property No.D-1059, from defendant No.1. The plaintiffs are fraudulently trying to take advantage of the portions of drive way and roof over the additional room and garage etc which are neither in their tenancy nor in possession and occupation. It is alleged that the driveway is only 7 feet wide and two cars cannot be parked side by side. The garage forms a distinctive and independent part of property purchased by the answering defendant. In case the plaintiffs park their cars as they have mala fide done on the strength of injunction order obtained from this court, then it would tentamount to deprivation of the use of drive way by the answering defendant who alone has the right of parking cars there. The only right that the occupants of the first and second floors can have in the drive way, is of ingress and egress to secure access to their respective portions. Furthermore, if the cars of the plaintiffs are parked in the drive way the answering defendant cannot secure access to the garrage to which admittedly no right, title or interest has been claimed by the plaintiffs. It is stated that the only easementary right of plaintiffs is regarding the use or personal passage by foot and not by means of parking the vehicles. It is further stated that the plaintiffs have recently and after the purchase of ground floor by answering defendant, constructed steps with a view to grabbing the roof of additional room. This fact is also apparent from the report of Local commissioner dated 2nd August, 1996 wherein it has been categorically recorded that there is no ingress or egress available to the roof and that one has to approach the roof of additional room through the windows of first floor. Plaintiffs have no right or interest in the roof of additional room. It is denied that the roof was being used by the plaintiffs for drying clothes, cooking etc. It is stated that there was no attempt by answering defendant to withhold electricity supply or not granting access for repairs/meter reading etc as and when the same is requested. It is denied that sewage pipes on the ground floor were blocked by the answering defendant as alleged or that any incident on 11th July 1996 took place as alleged. It is stated that the answering defendant himself has six cars.

8. In the reply to I.A.6616/96 defendant No.2 has contested the appolication on the grounds identical to those set out in the written statement.

9. As may be noticed from the order dated 9th September 1996 in I.A.7503/96 the counsel for defendant No.2 had stated that in order to facilitate the plaintiffs in taking out one of the three vehicles parked on the drive way, defendant No.2 will take out his car but soon after plaintiffs take out their car he will again park his car on the drive way.

10. Main dispute between the parties is in regard to parking of four vehicles by the plaintiffs on the drive way of said property No.D-1059. It is admitted case of the parties that plaintiff No.1 and K.C. Jain (now deceased), came to occupy first floor portion of the said property as tenant under the lease agreement dated 31st May 1980 for a period of 3 years commencing from 1st June 1980 and this lease deed is unregistered. It was contended by Sh. Kamal Mehta appearing for defendant No.2 that drive way in question is not included in the tenancy of plaintiffs and in that behalf he invited my attention to the clause of said lease agreement dealing with the description of accommodation which had been let out to plaintiff No.1 and said K.C. Jain. According to him though the lease agreement is unregistered, still terms and conditions thereof can be looked into by the court as the plaintiffs themselves have relied upon it in the plaint. Reliance was placed on a decision in Abdul Hamid & ors Vs. Charanjit Lal Mehra & Ors, . While controverting the said submission, on the strength of decision in Mohan Arora Vs. Mrs. M. Panat, 2000 IV AD (Delhi) 140, it was urged by Sh. Vipin Sanghi for plaintiffs that defendant No.2 cannot rely upon any of the clauses of said lease agreement it being unregistered. Mohan Lal Arora's case (supra) is based on a decision of the Supreme Court in M/s. Bajaj Auto Ltd Vs. Bihari Lal Kohli, . I need not, however, go into the controversy whether the clause of the said lease agreement to which my attention had been drawn on behalf of defendant No.2 can be legally looked into or not as from the averments made in amended plaint it can be safely gathered that neither the drive way was included in the tenancy of plaintiffs nor were they permitted in writing to use it for parking their vehicles either by late Bakshi Samsher Singh or defendant No.1. As regards plea that no objection to the user of drive way by the plaintiffs was ever made either by Bakshi Samsher Singh or defendant No.1, suffice it to say that in the written statement filed to amended plaint by defendant No.1 allegations to that effect have been vehemently refuted in addition to asserting that Bakshi Samsher Singh or defendant No.1 never consented to the parking of vehicles by the plaintiffs on the drive way. Assuming for the sake of argument that no such objection was raised by Bakshi Samsher Singh or defendant No.1, the same would not give any legal right to the plaintiffs in the matter of parking their four vehicles on the drive way which can accommodate only 5-6 vehicles and stands sold alongwith other portions of the ground floor of property by defendant No.1 to defendant No.2. Plaintiffs also cannot invoke easementary rights in the driveway for the purpose of parking of their vehicles there. Defendant No.2 alleges that he himself owns six cars. This also covers the prayer made in I.A.7503/96.

11. This brings me to the relief seeking to restrain defendant No.2 from interfering with the use by plaintiffs of the roof on additional room constructed in the courtyard of the ground floor of the said property. Para No.4 of the plaint notices that this room was got constructed by Bakshi Samsher Singh sometime in 1985-86. Obviously, the roof of said additional room could not have been included in the tenancy of plaintiffs as they had come to occupy first floor portion of the property 5-6 years prior to construction of that room. In I.A.6615/96 under Order 26 Rule 9 read with section 151 CPC filed alongwith the suit, by the order dated 23rd July 1996 Sh. Gaurav Duggal, advocate, was appointed as Local commissioner. In the report dated 2nd August 1996 he has noticed that two concrete steps are built on the roof and it is not openly available for ingress/egress as there is a wall measuring 2-1/2 to 3 feet built with large windows. Egress/ingress to the roof is through the said windows. In the written statement filed to the amended plaint the defendant No.1 has alleged that taking advantage of his shifting from the property after sale of ground floor portion to defendant No.2 the plaintiffs illegally constructed steps outside their tenanted portion in order to have access to the roof of additional room. It is denied that Bakshi Samsher Singh ever consented to the user of roof by the plaintiffs or that concrete steps outside the window were constructed either with his consent or that of Bakshi Samsher Singh/ Had Bakshi Samsher Singh or defendant No.1 allowed the plaintiffs to use the roof of additional room the plaintiffs would have installed a door for approaching the roof. Use of the roof, if any, by the plaintiffs by jumping 4 ft high windows is clearly unauthorised and the interim injunction sought for cannot be granted to them.

12. Coming to the prayers listed at (i) and (iii) above in I.A.6616/96 it is not even pleaded that the ingress and egress of the plaintiffs to and from the tenanted premises was ever obstructed. In his written statement defendant No.2 has stated that there was no attempt to withhold electricity supply or grant of access for meter reading etc as and when the same was requested. In my view, no ad interim injunction order need be made as regards prayer (i) and (iii).

13. Adverting to the prayers listed at (iv)(v),(vi) and (vii) above, as may be seen from the order dated 12th February 1999 made on the plaintiff's application being I.A.3496/98 the defendant No.1 in terms of the letter dated 2nd February 1996 have assured the plaintiffs that there would be no shortage of water and adequate water supply to the tenanted premises would be maintained by him. At any rate in view of the said order dated 12th February 1999 above prayers have now been rendered infructuous. As regards prayer at (x) considering the pleadings of the parties the plaintiffs have failed to make out a prima facie case in respect thereto.

14. Lastly, terms of prayer made at (ix) above, the plaintiffs seek the grant of ad interim injunction against the defendants in not interfering in carrying out any construction/demolition or alteration in any portion of the tenanted premises by them. Such an ad-interim injunction cannot be issued against the landlord.

15. For the foregoing discussion, both the applications are dismissed.