Delhi High Court
Sh. Keshav Aggarwal vs Sh. Sudarshan Kumar Banga & Ors. on 20 October, 2010
Author: V.B.Gupta
* HIGH COURT OF DELHI: NEW DELHI
CM (M) No. 941/2010 & CM No. 13032/2010
& CM No. 16435/2010
% Judgment reserved on: 23rd September, 2010
Judgment delivered on: 20th October, 2010
Sh. Keshav Aggarwal
Son of Sh. M. R. Aggarwal,
R/o B-365, Third Floor,
Chitranjan Park,
New Delh-110019. ....Petitioner.
Through: Mr. Sandeep Sharma, Adv.
Versus
1. Sh. Sudarshan Kumar Banga,
S/o Sh. Jiwan Mal Banga,
R/o B-365, Ground Floor,
Chitranjan Park,
New Delhi-110019.
2. Smt. Aradhana Banga,
Wife of Sh. Sudarshan Kumar Banga,
R/o B-365, Ground Floor,
Chitranjan Park,
New Delhi-110019.
3. Sh. P.P. Sharma,
R/o T-23, Khirki Extn.,
Malviya Nagar,
Delhi-110017. ....Respondents
Through: Mr. Saurabh Trivedi, Adv. for
Respondents no. 1 and 2.
Respondent no. 2 in person.
CM (M) No. 941/2010 Page 1 of 8
CORAM:
HON'BLE MR. JUSTICE V.B. GUPTA
1. Whether the Reporters of local papers may
be allowed to see the judgment? Yes
2. To be referred to Reporter or not? No
3. Whether the judgment should be reported
in the Digest? No
V.B.Gupta, J.
Present petition under Article 227 of the Constitution of India
has been filed by the appellant against order dated 22nd May, 2010
passed by Additional District Judge, New Delhi, whereby appeal filed
by the respondents against order dated 11th February, 2010 passed by
Judge Small Cause Court was allowed.
2. Brief facts of this case are that petitioner and his wife are the
joint owner of the entire third floor of property bearing no. B-365,
Chitranjan Park, New Delhi. Respondent nos. 1 and 2 are the owners
of the ground floor. On the ground floor, there is a front setback, east
side common passage and rear setback for common usage of the
occupants so as to facilitate the common facilities. There are water
pumps installed for each floor adjacent to the underground water tank.
Respondent nos. 1 and 2 in violation of the terms and conditions
contained in the sale deed, have debarred the petitioner and other
occupants from operating, maintaining and cleaning the water pump as
well as groundwater tank. Aggrieved by their illegal action, petitioner
filed a suit seeking permanent injunction against the respondents.
Trial court after considering the pleadings, allowed the application of
the petitioner under Order 39 rule 1 and 2 of the Code of Civil
Procedure (for short as „Code‟), vide order dated 11th February, 2010.
3. Aggrieved by the trial court‟s order, respondents preferred an
appeal. First Appellate Court, vide order dated 18th March, 2010,
stayed the operation of order dated 11th February, 2010 of the trial
court.
4. Being aggrieved, petitioner filed CM (M) No. 497/2010 in this
Court, but the same was dismissed on 16th April, 2010 with following
observations;
"Since petitioner has already approached the
Appellate Court for vacation of the ex parte order
of stay, there is no need for this Court to interefere
with the matter."
5. There after, petitioner filed an application under Order 39 rule 4
of the Code for vacation of the ex parte stay granted by the First
Appellate Court. First Appellate Court, set aside order dated 11th
February, 2010 passed by the trial court and allowed the appeal of the
respondents, vide impugned order.
6. It is contended by learned counsel for petitioner that First
Appellate Court erred in holding that the respondents have full
proprietary rights including the rear side of the ground floor where the
water pumps and tanks are installed, despite the fact that trial court
has given a finding that the sale deed of the respondents does not
mention anything of the common passage on the rear side of the
ground floor as under absolute ownership of the respondents. The
common passage includes rear side back, entry, exit, stairs and lift and
no one exclusively owns the said common facilities.
7. On the other hand, it is contended by learned counsel for the
respondents that petitioner has limited right to have access to the rear
court yard only for purposes of repairing and maintenance of the
water tank and booster pumps at reasonable times and after notice to
the respondents. The rear portion is in continuous and exclusive
possession of the respondents.
8. It is also contended that respondents are not creating any
hindrance for the petitioner or any other occupants of the flat.
Petitioner or any other occupants do not have unrestricted access or
right to reach their water tank and pump. They have got only limited
right and that can be used only after giving proper notice to the
respondents.
9. Respondents in the written statement does not dispute this fact
that petitioner has right to access to the rear court yard for the purpose
of repair or maintenance of water tank and booster pump etc.
However, the same is a limited right. Relevant portions of the written
statement read as under;
"The plaintiff alongwith owners of the upper floors
of the building in question are only entitled to have
right to entry from the front gate, the passage to
the stairs/lift leading to their respective portions.
They further have a limited right to have access to
the rear court yard only for the purposes of
repair/maintenance of the water tanks and booster
pumps of the owners of the upper floors at all
reasonable times and after notice to the answering
defendants. Similarly, the answering defendants
have right to access to the top terrace for
repair/inspection/maintenance of their overhead
tanks, cable TV connection and dist antenna etc."
10. Trial court in this regard observed;
"It is admitted stand of parties that they have a
limited right to access for repairing/maintenance of
water tanks and booster pumps. From the
documents, defendant no. 1 and 2 have failed to
show the alleged common passage at rear side of
ground floor, having under their exclusive
ownership. Having failed to show as such,
defendant no. 1 and 2 have no right to forcibly
install or construct any iron gate/obstacle in any
manner in the said common passage, which the
defendant no. 1 and 2 have installed.
It is an admitted case of the parties that all
the water pipe lines connections and motor pumps
are being separately connected at all the floors
including the basement and it is provided by the
builder/defendant no. 3 from the rear setback
common passage of ground floor.
In view of the titled documents relied upon
by the parties and in view of the recital in Sale
Deeds and also admitted by parties, the said rear
setback is common, to be used by all the occupants
and which cannot be blocked in any manner and
the access to the water tank has to be through the
common rear setback passage. Prima facie
therefore plaintiff has been able to establish a case
in her favour. The balance of convenience also lies
in favour of plaintiff. It is the plaintiff who shall
suffer irreparable loss in view of the circumstances
stated above, if the relief is not granted, as due to
the gate being locked by defendant no. 1 and 2,
plaintiff apart from other occupants would be
facing difficulty in access to the rear setback
common passage."
11. On the other hand, the First Appellate Court in the impugned
order observed that though the staircase and other amenities are for
the common use of all the occupants and the fact that the water tanks
of the other occupants are installed within the court yard of
respondent nos. 1 and 2, no doubt leaves the occupants at their mercy,
but if petitioner is aggrieved by the same, he should make alternate
arrangements, he cannot insist that he be permitted to barge in the
respondent nos. 1 and 2 property on the pretext of getting the water
tanks cleaned.
12. Since First Appellate Court has also held that staircase and
other amenities are for common of all occupants and the water tank of
petitioner is installed in the courtyard of the ground floor and no doubt
it leave the occupants at the mercy of respondent nos. 1 and 2, then by
no stretch of imagination it can be said that respondent nos. 1 and 2
have full proprietary rights of the entire ground floor of the premises.
Under these circumstances, petitioner cannot be denied access to his
water tank and water pumps situated on the ground floor.
13. Thus, the findings of the First Appellate Court are totally
perverse and against the pleadings of the parties.
14. Petitioner has a prima facie case in its favour and balance of
convenience also lies in his favour and it is the petitioner who will
suffer irreparable loss if injunction prayed for, is not granted.
15. Accordingly, impugned order passed by First Appellate Court is
set aside and order dated 11th February, 2010 of the trial court is
restored.
16. Present petition stands disposed of accordingly.
17. Parties shall bear their own costs.
18. All pending applications also stand disposed of.
October 20, 2010 V.B.GUPTA, J.
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