DHRUBA DASGUPTA Vs. SURJENDU SHEKHAR GHOSH

JUDGEMENT

(1.) THE challenge by means of this first appeal under Order XLIII Rule 1 of the Code of Civil Procedure, 1908 (CPC), is to those portions of the impugned orders dated 13.10.2010 and 26.11.2010, which have restrained the appellants/defendants from constructing a lift to the third floor of the suit premises.

(2.) THE only issue which arises for determination is as to whether the plaintiffs/respondents have any right title or interest in the area where the lift is being constructed by the appellants/defendants. If the respondents/plaintiffs have any right to the area where the lift is being constructed, then the appellants/defendants cannot construct the lift. If, however, there is no right of the respondents/plaintiffs in the area where the lift is being constructed, the appellants can construct the lift, subject of course to the necessary permissions as required in law being obtained.

(3.) COMING to the question as to whether the plaintiff has established or not a prima facie case in its favor, this Court finds that the plaintiff is claiming its ownership rights in the terrace in question on the basis of the provisions of Delhi Apartment ownership Act, 1986. Section 3(j) of the said Act defines "common areas and facilities" and Sub-clause (ii) thereof covers the "roofs" also within the definition of common areas. It is contended that Section 4 of the Act lays down that every person who becomes entitled to the ownership and possession of an Apartment under Section 4 (1) or (2)of the Act is entitled to such percentage of undivided interest in the "common areas and facilities" as may be specified in the Deed of Apartment. Sub-clause (4) of Section 4 further says that such percentage of undivided interest of each apartment owner in the common areas and facilities shall have a permanent character and shall not be altered without the written consent of all the apartment owners. It is asserted that the plaintiff who is an owner of one of the apartments in the building in question is vested with undivided interest in the roof in question on which proposed tower is coming up. The defendants on the other hand contend that although Section 3(j) of the Act covers the "roofs" also within the definition of "common areas and facilities" in relation to a multi storeyed building Sub-clause(3) to Section 4 of the Act categorically says that an apartment owner is entitled to only such percentage of undivided interest in common areas and facilities as may be specified in the Deed of Apartment. It is submitted that the Act does not envisage any automatic interest in favor of a flat owner in a common area for the reason that in every building there are numerous common areas like roofs, halls, corridors, lobbies, stairway etc. which may or may not be made available to every apartment owner. The promoter/ owner of building may keep some of the areas for his Own use or may plan equitable distribution and division of common areas between different occupants. Every apartment, therefore, owner cannot claim an undivided interest in every part of common area in a building. It is argued that in a multi-storeyed building the promoter or builder of the building may provide different common areas to different segments of Apartment owners so that they may use those areas without interference from others. If it is not done and everybody is allowed to claim interest in every part of common area in the building multifarious problems and disputes may arise between the flat owners themselves and for this reason Section 4 of the Act specifically says that a person who becomes entitled to the ownership and possession of an apartment in terms of Sub-section (1) or Sub-section (2) of Section 4 shall be entitled to undivided interest in only those common areas and facilities which may be specified in the Deed of Apartment in his favor. It is also submitted that in a multi storeyed building, which is not fully constructed or in which the builder or promoters expects chances of further constructions on the terrace or any open area, he may specifically reserve his ownership rights over such area so that in case he gets permission from the concerned authorities he may raise further constructions as per the building byelaws. It is pointed out that Section 4(3) of the Act does not confer any automatic right in favor of all the Apartment owners in respect of all the common areas defined in Section 3(j) of the Act and as such one has to look to the Agreement between the parties to find out as to in which common area or facility an apartment owner has undivided interest.