Full Text
HIGH COURT OF DELHI
Date of Decision: 26th NOVEMBER, 2024 IN THE MATTER OF:
RENU CAPRIHAN & ANR ......Plaintiffs
Through: Mr. Mandeep Singh Vinaik, Ms. Anjali Sharma, Mr. Deepak Bashta, Ms. Ragini Vinaik, Ms. Thanglunkim, Mr. Gaikhuanlung, Advocates.
Through: Mr. Aman Nandrajog, Ms. Bhawana Mapwal, Advs.
JUDGMENT
1. This is an application on behalf of the Defendant under Order XXXIX Rule 4 CPC for modification/variation of the Order dated 11.03.2024.
2. The present suit has been filed for a decree of partition specified portion of the immovable property which is residential plot of land and building constructed at M-113, Greater Kailash Part II, New Delhi-110048. The Plaintiffs have sought relief regarding basement, terrace and certain other common areas of the property. The Plaintiffs sought to clearly demarcate the land beneath and demarcate the entitlement of the respective parties to the suit properties, i.e., the land rights, the basement, the terrace, and all common areas of the residential property.
3. For the purpose of granting interim injunction, a Local Commissioner was appointed by this Court vide Order dated 25.01.2024 to inspect the suit property and file a detailed report. The Local Commissioner filed its report.
4. The Local Commissioner qua terrace portion had given the following report:-
30. The terrace door is on the left and in front there is a corridor used as a common area:
31. The corridor has four servant's quarters on the right, 3 for the Plaintiff and 1 for the Defendant.
32. The Defendant claims that the fourth quarter was built illegally. At the end of the corridor there is a sink, pantry, and bathroom which are common areas.
33. The terrace is divided into two parts. Roughly the first one third is an open space. This is occupied by the Defendant and is shown below:
34. The remaining two-third portion of the terrace has been fenced off by the Plaintiff who occupied this portion. There is a terrace garden with many plants in that part. There is also a frame on the top.
35. The fence to access this part of the terrace is usually kept locked by the Plaintiff.
36. The fenced off garden area occupied by the Plaintiffs also has another room with 2 doors. The room is full of various items.
37. The Defendant claims this room was illegally constructed by the Plaintiffs. The Plaintiffs claim that this construction was intimated to the Defendant beforehand.
38. The garden area is tiled, the Plaintiffs informs that the tiles are waterproof to ensure that there is no seepage.
39. The Defendant claims that the Plaintiffs' plants at the edge of their balcony create issues as water etc. falls down to their area. A picture of the balcony taken from the terrace is below: ”
5. As far as terrace is concerned, after perusing the report of the Local Commissioner, the following arrangement was made vide Order dated 11.03.2024:-
6. The said order was challenged by Defendant by filing FAO (OS) 39/2024 before the Division Bench. The Division Bench disposed of the said appeal vide Order dated 27.03.2024 by noting the undertaking of the Defendant herein that the Defendant is willing to grant access to the Plaintiff to the underground water tank housed in the rear courtyard at any time of the day. The Division Bench also permitted the Defendant herein to move an application for variation/modification of the Order dated 11.03.2024.
7. The instant application has been filed pursuant to the Order dated 27.03.2024 passed by the Division Bench in FAO (OS) 39/2024.
8. It is the case of the Defendant that the sale deeds which have been executed in favour of the Plaintiffs and the Defendant indicate that the terrace is common to all and the terrace has not been sold to anybody by the original builder of the suit property. It is stated that the Plaintiffs have illegally fenced off an area of about 2/3rd of the entire terrace preventing the Defendant from accessing the same.
9. The Applicant/Defendant has prayed for modification of the Order dated 11.03.2024 wherein it has been stated that the rear courtyard must be kept under a common lock and that the access of the Defendant to the terrace is restricted only for the purpose of access to water tank. The Applicant/Defendant seeks a direction to the Plaintiffs to ensure that the entire terrace is made available for common use to all the residents of the building in question.
10. Learned Counsel for the Plaintiffs states that he has no objection for the modification of the Order dated 11.03.2024 to the extent that the gate in the rear courtyard will be under lock and therefore prayer (a) as prayed for in the present application is granted.
11. As far as prayer (b) is concerned, learned Counsel for the Defendant/Applicant has taken this Court to the sale deeds to state that the terrace is open to all. Learned Counsel for the Plaintiffs very fairly states that he has no problem if the Defendant accesses the terrace at any point of time and the restriction to use the terrace only for the purpose of access to water tank can be modified. He, however, states that there is a small terrace garden of the Plaintiffs and that he would expect that the Defendant, as a neighbour, would not disturb the terrace garden, photographs which have been annexed with the Local Commissioner’s report that there is a terrace garden maintained by the Plaintiffs.
12. The Defendant is the owner of the ground floor. First and second floor of the property are owned by the Plaintiffs. Since the Order dated 11.03.2024 only makes an interim arrangement, this Court is of the opinion that as far as terrace is concerned, the Order dated 11.03.2024 is modified to the extent that the Defendant can use the terrace without causing any disturbance to the Plaintiffs but at the same time should not disturb the terrace garden which is being maintained by the Plaintiffs during the interregnum of the suit. The Defendant is also directed not to enter the terrace garden. The Plaintiffs should not increase the area of terrace garden.
13. The application is disposed of with the modification of the Order dated 11.03.2024. I.A. 630/2024
1. This is an application under Order XXXIX Rule 4 CPC filed by the Defendant for setting aside the Order dated 06.11.2023 whereby this Court has directed to maintain status quo qua the title and possession of the basement and the terrace above the second floor of the property in question, i.e., M-113, Greater Kailash Part II, New Delhi.
2. On 06.11.2023, this Court passed the following order:-
basement and the terrace above the second floor of the aforesaid property, in which both the plaintiffs as also the defendants have shares. The balance of convenience is also in favour of the plaintiffs, who claim to be residing in the said property. Furthermore,. grave and irreparable prejudice will he caused to the plaintiffs, in case the defendant proceeds to create any third party rights qua the basement and terrace above the second floor of the suit property, where plaintiffs alongwith the defendant have a proportionate undivided share.
11. It is, accordingly, directed that till the next date, all the parties will maintain status quo qua the title and possession of the basement and the terrace above the second floor of the suit property i.e. M-113, Greater Kailash Part II, New Delhi.
12. Provisions of Order XXXIX Rule 3 be complied within three days from today.”
3. The present application came up for hearing on 11.01.2024 wherein a Local Commissioner was appointed by this Court. Local Commissioner gave a report and as far as the basement is concerned, the Local Commissioner has given the following report:- “I began by inspecting the basement. There are stairs behind the car parked inside the gate which lead to the basement. A photograph of the stairs is below along with the illustration of the site plan of the basement taken from page 45 of the plaint, [Important Note: The Defendant claimed during the commission that this site plan is not to perfect scale]
6. The basement is divided into different sections. The left portion (marked in pink) has 2 rooms which are occupied by the Plaintiffs. This wooden door on the left leads to these 2 rooms which are being used for the Plaintiffs' clinic:
7. This is the Plaintiffs' first room in their occupied part of the basement:
8. The first room has a door at the end which leads to the second room. This is the Plaintiffs' second room in the basement:
9. Importantly, the second room in the Plaintiffs' clinic has a door. That door leads to a passage to the water tank at the back of the basement. This is the door:
10. This door is locked from the other side by the Defendant. However, if this door was not locked, it would open to a long and narrow passage which leads to the back area where the water tank is situated. This is a picture of the locked door and passage from the other side:
11. Importantly, the Plaintiffs claim that the passage and water tank area are both common areas, and that they should have a right to access to the water tank. This is controverted by the Defendant who claims that the passage and water tank area at the back are both exclusively theirs and as such the Plaintiffs cannot have unfettered access to this part of the property. The Defendant claims that they give the Plaintiffs 'reasonable access' whenever asked and also maintain a written record of this. The Plaintiffs claim that as the Defendant does not reside in the property, it usually takes about 2 hours before the Plaintiffs actually get access to the water tank area which is causing them great difficulty.
12. The right portion of the basement is occupied by the Defendant. There is a white door on the right side at the bottom of the flight of stairs in the driveway which leads into the Defendant's section:
13. This door leads into one large room occupied by the Defendant, though currently empty:
14. At the end of this room, there is a small corridor on the left which leads to the following area. This section can also be reached by the following staircase which leads up to the inside of the Defendant's living room on the ground floor of the property.
15. This is the view from the bottom of the staircase from the Defendant's portion of the basement up to the Defendant's ground floor:
16. From this section at the base of the stairs, one can enter two rooms {hereinafter 'Room 1 'and 'Room 2') in front and a small puja room on the left, all occupied by the Defendant though mostly empty.
17. Photographs of the 2 rooms in the Defendant's part of the basement, i.e. Room 1 and Room 2 are below: Defendant's Room 1 Defendant's Room 2 Defendant's Small Puja Room
18. Room 1 has a large glass window overlooking the back area with the water tank.
19. The back water tank area can be accessed from Room 2. There is a brown wooden door which leads directly there.
20. Apart from this door inside the Defendant's Room 2 in the basement, and the door in the Plaintiffs' clinic, the only other way to access the back water tank area is from the service alley behind the door at the back of the house. This is kept locked by the Defendant from inside. This is a picture of the service alley door taken from the back of the house:
21. The following picture best explains the 3 ways to access the back water tank area. The brown wooden door on the left is from the Defendant's Room 2 in the basement, the black metal door on the right leads to the service alley at the back and if one went straight ahead and turned left at the end of the white wall, they would enter the passage which reaches the door inside the Plaintiffs' clinic.
22. The Defendant had privacy concerns about leaving the door to the passage unlocked and explained that this window in the passage looks into the Defendant's Room 2 in the basement:
23. Similarly, the water tank area has a clear view into the Defendant's Room 1 in the basement, leading to similar privacy concerns:
24. This concluded the inspection of the basement area.”
4. The Appendix-F of the plaint provides for the site plan of the basement, which reads as under:-
5. The yellow portion is occupied by the Defendant, the Pink portion is in occupation of the Plaintiffs and the green portion is the common passage. The Defendant by way of this application is praying for a modification of the Order dated 06.11.2024 permitting the Defendant to lease out the portion of the property which is in occupation of the Defendant which will amount to a variation of the status quo order by which both sides have been directed to maintain status quo regarding the title and possession of the basement and terrace above the second floor of the property in question.
6. It is stated that various portions of the property have been purchased by the Plaintiffs and the Defendants through separate sale deeds and there is no dispute regarding the titles of the portions which have been purchased. The dispute is primarily regarding the common areas.
7. It is stated that the Defendant wants to lease the property on rent. This Court is of the opinion that permitting the Defendant to put the property on rent will not have any effect on the prayers in its plaint.
8. It is stated by the Plaintiff that the Plaintiff is running an ultrasound clinic and that the Defendant wants to rent out her portion of the property is a hindrance.
9. There is nothing in the plaint wherein the Plaintiffs have prayed for an injunction restraining the Defendant from using the property purchased by them which would include the property being given on rent.
10. This Court is of the opinion that the interim order regarding status quo possession can be modified permitting the Defendant to give the property on rent.
11. Needless to state that as a good neighbour, the Defendant will ensure that the ultrasound clinic which is being operated by the Plaintiff would not be hindered. The Order dated 06.11.2023 is therefore modified permitting the Defendant to lease out the property on rent.
12. The application is disposed of.
SUBRAMONIUM PRASAD, J NOVEMBER 26, 2024