Nitin Garg v. Ratna Kapoor

1 The petitioner is aggrieved by the impugned order dated 26.02.2013 which had resented the finding of the Civil judge dated 08.6.2012 on the application filed by the respondents along with his statement-cum-counter claim under Section 39 Rule 1 and 2 of the Code of Civil Procedure (hereinafter refeired to as the Code). CM(M) Nos.379/2013 & 380/2013 Page 1 of[8]

2 Record shows thatthe present suithasbeen filed by the petitioner seeking peipetual and mandatoiy injunction against the respondents. Petitioner is the legal owner ofthe second floor with the tenace right in propeity No.856, Block-D, New Friends Colony. He had purchased it fiom Meena Seth vide a registered sake deed dated 03.8.2006. Respondent/defendant no. 1 is the owner and in possession of the first floor of the same propeity also having purchased it from the same erstwhile owner vide registered sale deed dated 02.01.2006.

3 Suit was accordingly filed. The prayer m the plaint was that the respondents should be resti'ained from encroaching any pait of the teiTace in the second floor of the aforenoted propeity by affixing any fixture. This suit had been filed as the plaintiff was under appreliension that a solar water heater was proposed to be installed by the respondents; this is clear from the avennents made in the plaint. 4 A. written statement-cum-counter claim along with an application under Order 39 Rale 1 & 2 of the Code had been filed. The submission of the respondent is that the installation of the water tank would be in the common area which is available to both the paities being the top teiTace of the propeity which is distmct from the teiTace. Even othei-wise the water tanks and the geysers of the respective paities also fonn pait of the first floor; right of construction is available to the petitioner to constnict onthe tenace floor but in tenns of Clause 18 and Clause 19 of the sale deeds of the respective paities in such an eventuality' where consfruction is canied out by the petitioner it would CM(M)Nos.379/2013 &380/2013 Page 2of[8] be incumbent upon him, at his own cost and expenses to remove the water tanks and geyser to the top teiTace; the top teiTace would remain open to the sky and having in area of more than 11 metres, the respondent should be pennitted to install his solar heater which would not be more than 2.[5] meti'es. To support this submission on the dimension of the solar heater report of "Seema Solar Enteiprises" has been placed on record.

5 Arguments have been addressed at length by the learned counsel for the parties. On behalf of the petitioner, it is pointed out that the impugned order suffers j&'om a clear illegality as the discretion exercised by the Civil Judge is fair and reasonable; the Appellate Court could not have substituted its own factual view upon the view of the Civil judge as an appeal in such cii-cumstances is limited in its scope. Counsel for the petitioner has placed reliance upon AIR 2005 SC 1444 Metro Marins & Anr. Vs. Bonus Waich Co. Pvt. Ltd. as also AAIR 2002 Delhi 501 ^ Daulat Singh Vs. Delhi Golf Club Ltd. to support, his submission that where an interim injunction of the nature as has been granted by the impugned order is passed, it would amount to the decreeing of the suit itself; such an injunction being in the mandatoiy fonn would in fact encompass the prayer which has been made in the plaint and such a relief is not pennissible.

6 Arguments have been countered. Learned counsel for the respondent points out that in no manner does the impugned order suffer from any infinnity. He has drawn attention of this court to the CM(M)Nos.379/2013 & 380/2013 photographs of the teixace floor; it is pointed out that it is an admitted position that the geyser and water tank of the patties are fitted on this teiiace floor and the tiial courthas interpreted Clause 18ofthe saledeed of the petitioner in its coirect perspective; the top teiTace floor is distinct fi-om the teiTace floor and even presuming that the right of consti'uction is available to the petitioner at the teirace floor, in such a situation it would still be incumbent upon the petitioner to remove the amenities which were being enjoyed by the respondent at his own cost and shift them to the top teiTace floor. The impugned order has drawn the fine distinction between the tenace floor and top teiTace floor in its conect perspective. Impugned order calls for no interference. Reliance has been placed upon (2006) 8 SCC 367 M. Gurudas and Ors. Vs. Rasarnian and Ors. to substantiate a submission that a prima facie view is a finding of fact and where the triple test of an injunction has been satisfied as it was so in this case, no interference is called for.

7 Arguments have been heard. Record has been pemsed. This appears to be a contentious litigation between two paities who are admittedly puichasers of the first floor and second floor of the same propeity. They have httle choice between themselves but to live as haimoniousl^' as possible in the background of their respective grievances.

8 The plaint shows that the petitioner was under an apprehension that the respondents would be installing a water heater on the tenace floor which is a portion where admittedly the geysers and water tanks CM(M) Nos.379/2013 &380/2013 Page 4of[8] ofthe parties ai'e already installed. The sale deed by viitue ofwhich the petitioner has pui'chased the second floor and its teuace right is a registered deed dated 03.8.2006. Clause 18 of this sale deed which is the bone of contention and which has been inteipreted differently by the two courts below is relevant for the conti'oversy in hand. It reads as under: "That the entire terrace rights over and above the Second Floor shall remain the exclusive property of the VENDEES, who shall have full right of further construction on it, as and when permitted bvM.C.D. infiitureand insuch event, the VENDEES shall shift the lift room, overhead water tanks and other common facilities and amenities so provided to the other owners/occupants of the said building (ofthe same size and same location) on thenewly built top terrace at their own cost and expenses and shall ensure that during the course of construction no damage is caused to the existing structure of the building and the normal water supply is maintained".

9 By viitue of this clause the entire terrace rights over and above the second floor are owned by the petitioner with additional right of fuither constiiiction as and when peraiitted by the MCD. In such an eventuality the petitioner would shift the lift room, overhead water tanlcs and other facilities and amenities which the paities were enjoyuig till thento the top teiTace floor and this would at the cost and expense to be borne by the petitioner. This clause also specifies the size and location of the said amenities (which have been described as the lift room and overhead water tank) will remain the same. Noraial water supply also had to be ensured by the petitioner to the respondents.

10 Relevant would it be to state that Clause 19 of the sale deed (dated 02.8.2006) of the respondents also spells out this same right CM(M)Nos.379/2013 &380/2013 Page 5of[8] which has been given to thepetitioner. Relevant would it be to extract Clause 19 ofthe sale deed as well; it reads herein as under: "19. That the VENDEE(S) shall have no ownership/usage rights of the terrace above the secondfloor of the saidproperty, and the owner of thatportion shallhave full right to raise fiirther construction on it, as and when permitted by Municipal Corporation of Delhi infuture and in such event, theparty doing the construction shall shift the lift room, overhead water tanks and other coinmon facilities and amenities so provided to the other owners/occupants of the said building (of the same size and same location) on the newly built top terrace at his/her own cost and expenses and shall ensure that during the course of construction no damage is caused to the existing structure of the building and the normal water supply is maintained to the occupants ofthe said building."

11 This document states that the respondents would have no ownership or user right of the tenace above the secondfloor and it will be the sole right of the petitioner to raise a construction upon it as and when pennitted by the local bye-laws. Rider attached is that as and when this construction is canied out the lift room and overhead water tanks as also the other facilities being occupied by the other occupants ofthe same building (including the respondents) would be shifted to the top teiTace floor at the expense of the petitioner. Noimal water supply was to be maintained by the petitioner. Emphasis is laid on the same size and s?^me location of the shifting of the said amenities to the top tenace floor.

12 Intent of the vendor and vendee can be well gathered fiom the aforenoted documents. The prima facie finding returned'by the Civil Judge in this context appears to be the correct finding. The sale deed of both the paities confer ownership of entire ten-ace right over and above CM(M) Nos.379/2013 &380/2013 Page 6of[8] the second floor to the petitioner and the respondents only have a limited access to clean the overhead tanks, repair them and to install their TV antenna and water tanks etc. This find mention in Clause 13 of the sale deed of the petitioner. The over emphasis on the word "etc." is misplaced as 'etc." is appealing after the installation of the TV antenna and has to be read ejusdem generis. to the preceding words; it cannot be given a wider meaning which the learned counsel for the respondent insists i.e. his right to place 2.[5] meti'e solar heater in this propeity of the petitioner. Distinction between the 'top teiTace' and 'teiTace' is also not prima facie made out to enable the respondents to exercise any fmther rights than those which had already been granted to them in tenns of their sale deed.

13 Impugned order has committed a patent illegality; it has inteipreted Clause 18 of the sale deed of the petitioner in a pen'erse manner. It has given an inteipretation to the clause which is neither pennissible nor contained ni the language of the various clauses of the respective sale deeds of the two paities all of which have to be read together. A specific queiy has also been put to the leamed counsel for the respondents which is to the effect that a solai" heater would nonnally be required only in the winter months, the present being the summer season; a suggestion was given that the trial can be directed to be expedited in order that the tial can well be over before the winter months approach. Leamed counsel for the respondents is however not agreeable to this proposal.