Mrs Renu Singh vs Shri Rajiv Rastogi & Anr
2009 Latest Caselaw 4133 Del

     *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

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.

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,

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

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

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

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

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

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

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

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

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