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Judgment
V.K. Jain, J.
IA 2089/2009(O.39 Rule 1 and 2 Code of Civil Procedure) in CS(OS) 292/2009
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 and CS(O) 1485/2005
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.
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.
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 Rule 1 and 2 Code of Civil Procedure) in CS(OS) 1485/2005
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 and 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.
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.
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 above referred two sign boards by an appropriate sign board in terms of this order, within three weeks.
The application stands disposed of.
CS(OS) 292/2009 and CS(O) 1485/2005
Admission/denial of documents has been carried out in CS(OS) 1485/2005 but has not been carried out in CS(OS) 292/2009.
The parties will carry out admission/denial of documents as well before the Joint Registrar on 21st November, 2011.
The matter be listed before the Court on 30th March, 2012 for framing of issues and disposal of pending applications.