Goldy And Anr. vs Rekha Vohra Bhalla
2011 Latest Caselaw 4719 Del

         THE HIGH COURT OF DELHI AT NEW DELHI
%                        Judgment Pronounced on: 23.09.2011

CS(OS) 292/2009 & CS(O) 1485/2005

+ CS(OS) 292/2009

MRS. REKHA VOHRA BHALLA                   ..... Plaintiff
                 Through : Ms. C.M.Chopra, Sr. Adv.
                           with Mr.Rajeshwar Singh,
                           Adv.
              versus

SHRI KULDEEP KUMAR PATIL & ORS          ..... Defendants
                 Through : Mr. G.L.Rawal, Sr. Adv. with
                           Mr.Kuljit Rawal, Adv.
+ CS(OS) 1485/2005

GOLDY AND ANR.                                     ..... Plaintiffs
                            Through : Mr. G.L.Rawal, Sr. Adv. with
                                      Mr.Kuljit Rawal, Adv.
                         versus

REKHA VOHRA BHALLA                     ..... Defendant
                Through : Ms. C.M.Chopra, Sr. Adv.
                          with Mr.Rajeshwar Singh,
                          Adv.
CORAM:-
HON'BLE MR JUSTICE V.K. JAIN

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 Digest?

V.K. JAIN, J. (ORAL)

IA 2089/2009(O.39 R.1 & 2 CPC) in CS(OS) 292/2009

1. After arguments, it has been agreed between the

parties to the suit that the defendants will not create any

third party interest in respect of the terrace of the second

floor of the suit property.

It is made clear that even if first and second floor is

transferred by the defendants, they would not be entitled to

transfer the roof of the second floor.

The application stands disposed of in terms of this

order.

CS(OS) 292/2009 & CS(O) 1485/2005

2. In CS(OS) 1485/2005, which is the previously

instituted suit, the plaintiffs, i.e. Shri Goldy and Kuldeep

Kumar are seeking injunction restraining Mrs. Rekha Vohra

Bhalla, the defendant in the suit, from taking possession of

the roof of the second floor of House No.I-1, Jangpura(B),

New Delhi and from raising any construction on it. They are

also seeking injunction restraining the defendant from

climbing up or using the stairs leading from ground floor to

the top floor of property No. I-1, Jangpura(B), New Delhi,

from gate-A or otherwise. Another relief claimed by the

plaintiffs in this suit is an injunction restraining the

defendants from causing any disturbance, hindrance etc. in

their ingress and egress through gate at point A shown in

the site plan and storing anything on that point. The

plaintiffs in this suit have also claimed an injunction

restraining the defendant in the suit from obstructing gate-

C and parking their vehicles on the ground floor. They have

also sought a mandatory injunction directing the defendant

to remove the bricks and other building materials alleged to

have been thrown by her on the roof of the second floor of

the property.

3. In CS(OS) 292/2009, the plaintiff - Mrs. Rekha

Vohra Bhalla has sought a declaration that she is the

exclusive owner of the roof of the second floor of property

No. I-1, Jangpura(B), New Delhi. She has also sought

possession of the aforesaid roof besides an injunction

restraining the defendants from using the sale deed dated

30.08.2003 in any manner.

4. Thus, the title and possession of the roof of the

second floor is a common dispute in both the suits. The

parties to CS(OS) 1485/2005 are also the parties to CS(OS)

292/2009. Hence, it would only be appropriate that both

the suits are heard and decided together so as to avoid any

conflicting decision particularly with respect to the roof of

the second floor. Hence, both the suits are consolidated.

CS(OS) 292/2009 which refers to the larger issue would be

treated as the main suit. The issues common to both the

suits will be framed and the evidence will be recorded in

CS(OS) 292/2009 but will be read for the purpose of both

the suits.

IA 11632/2009 (O.39 R.1 & 2 CPC) in CS(OS) 1485/2005

5. I have perused the site plans and the photographs

filed by the plaintiffs. A perusal of these documents would

show that there are three gates marked as gates A, B & C in

property No. I-1, Jangpura(B), New Delhi. Gate-A opens in

the drive way but is just opposite the staircase leading to

the upper floors. This gate has admittedly been locked by

the defendant in the suit. Prima facie, it appears to me that

the occupants of the upper floors are also entitled to use

this gate since it is situated in front of the staircase leading

to the upper floors. The defendant is, therefore, directed to

provide one key of the lock which she has put on gate- A to

the plaintiffs in this suit within three weeks. As regard

gate-B, the learned counsel for the plaintiffs very fairly

concedes that this gate seems to be intended for the use of

the occupants of the ground floor and basement. As

regards gate-C, which opens in the drive way, I notice that

in the sale deed executed in favour of the plaintiffs in this

suit, no right for parking of vehicles has been given to the

purchaser. Therefore, prima facie, I am of the view that the

plaintiffs in this suit are not entitled to use this gate. The

learned counsel appearing for the plaintiffs states that the

plaintiffs have proportionate rights in the land on which this

building has been constructed and in fact have has been

using the drive way for parking of the cars till the year 2005

when this gate was locked by the defendant. This, however,

is disputed by the learned counsel for the defendant.

6. At this stage, when admittedly no vehicle of the

plaintiffs is being parked in the drive way, I see no reason to

permit parking of the vehicles of the plaintiffs in the drive

way which is likely to be necessary consequence in case the

key of the lock of gate-C is provided to them.

7. Two boards have been put up by the defendant on

the suit property. The writing on boards indicates that the

plaintiffs in this suit have no rights in property No. I-1,

Jangpura(B), New Delhi. Since the case of the plaintiffs is

that they are the owners of not only the first and second

floor but also of the terrace on the second floor and it is the

case of the defendant in this suit that she had transferred

the first and second floor to Smt. Sadhna, it would not be

appropriate for the defendant to display a sign board of this

nature, though there can be no objection to a board stating

that the issue regarding ownership of this property is

pending before this Court in these two suits. The defendant

in this suit, is, therefore, directed to replace the

abovereferred two sign boards by an appropriate sign board

in terms of this order, within three weeks.

8. The application stands disposed of.

CS(OS) 292/2009 & CS(O) 1485/2005

9. Admission/denial of documents has been carried

out in CS(OS) 1485/2005 but has not been carried out in

CS(OS) 292/2009.

10. The parties will carry out admission/denial of

documents as well before the Joint Registrar on

21st November, 2011.

11. The matter be listed before the Court on

30th March, 2012 for framing of issues and disposal of

pending applications.

(V.K. JAIN) JUDGE SEPTEMBER 23, 2011/'sn'