Smt. Anupama Malik and Another vs Smt. Sudershan Malhotra and Another

Pradeep Nandrajog, J.—The facts lie within a fairly narrow compass though dispute appears to be gigantic. It is a usual story of the owners

of the property selling different floors to different persons and everybody fighting for common space.

Sudarshan Malhotra owned property No. 1/14 Ramesh Nagar, New Delhi. The property consists of a ground floor, a first floor and a second

floor. A staircase leads up to the floor above from the ground floor and is covered by a mumty. Water tanks are installed on the mumty which

serves the entire building. Sudarshan Malhotra executed an agreement to sell, power of attorney and a will in favour of Anupama Malik and her

husband Chander Mohan Malik pertaining to the second floor of the property. These are the usual documents being executed in Delhi to transfer

rights in immovable property. Recital in the agreement to sell recorded that the staircase and the mumty would be common together with

proportionate rights in the land.

The second floor has a terrace in front. To reach to the roof of the mumty an iron monkey staircase has been installed at the terrace in front of

the second floor. Meaning thereby he who has to access the water tanks at the roof of the mumty has to come up to the staircase and through the

door opening on to the terrace in front of the second floor has to enter the terrace and therefrom use the iron ladder to climb up to the monkey

ladder to reach the roof of the mumty.

Dispute started when a gate was installed cutting access from the floors below to the second floor and the gate/door opening on to the terrace at

the second floor came to be locked by the purchasers of the second floor. Sudarshan Malhotra retaliated by cancelling the agreement to sell,

power of attorney etc.

A suit was filed by Sudarshan Malhotra praying, amongst others, issuance of permanent injunction restraining Anupama Malik and her husband

from affixing any locks on the doors marked ''A'' and ''B'' in the site plan filed along with the plaint. She claimed a mandatory injunction that the

gates marked ''A'' and ''B'' should be permanently removed.

Considering an application under Order 39 Rule 1 and 2 CPC filed by Sudarshan Malhotra, and in view of the sale documents in favour of

Anupama Malik and her husband, learned Trial Judge held that the staircase and the mumty and the right to go to the roof of the mumty was a

common right and hence nobody could lock the gates marked ''A'' and ''B''. A limited injunction has been issued in favour of Sudarshan Malhotra

which reads as under:

Accordingly the application of plaintiff under Order 39 Rules 1 & 2 read with Section 151 CPC is hereby allowed and defendants are

restrained from locking the gates A and B situated on the second floor of property bearing No. 1/14, Ramesh Nagar, New Delhi without providing

plaintiff the duplicate keys of the locks of the said doors and also not to change the locks of the said gates without her consent during the pendency

of the suit.

In view of the title documents relied upon by the respective parties and in view of the admitted position that the staircase and the mumty is

expressly stated to be common areas for use by all occupants of the building as also the fact that water tanks are installed on the roof of the mumty

and access to the water tanks has to be through the terrace in front of the second floor, (even easementry rights flow in favour of Sudarshan

Malhotra) the impugned order cannot be faulted.

I find no merits in the appeal.

The appeal is dismissed.