PRAFULLA KUMAR BARIK Vs. K NATHAN

JUDGEMENT

(1.) PLAINTIFF has filed the present suit for permanent and mandatory injunction.

(2.) BY the present application filed under Order XXXIX Rules 1 and 2 CPC the plaintiff prays for removal of the iron staircase, which is a security hazard to the plaintiff and also prays that defendant be restrained from encroaching in any manner from occupying and/or using the roof terrace on the first floor above the ground floor of the defendant's flat.

(3.) LEARNED senior counsel for the plaintiff submits that complaint of the plaintiff is that after the suit property was purchased by the plaintiff, in the year 2006 the defendant has unlawfully, without the obtaining prior permission of the concerned authorities including DDA, covered the open courtyards in front and back on the ground floor thereby increasing the covered area on the ground floor. The said roof terrace on construction of courtyard is adjacent and upto the level of the first floor, which is the property of the plaintiff. Senior counsel further submits that the roof terrace is in possession of the plaintiff and the plaintiff has all rights to use the said terrace as per guidelines in respect of DDA flats. Senior counsel next submits that defendant is forcibly trying to take possession and occupy the said roof terrace for claiming his absolute right over the same. The defendant has fixed an iron bar ladder to go to the said roof terrace in front as well as in the back, from ground floor, which is illegal, unauthorized, besides amounting to trespass in the plaintiff's area and causes a great security risk to the plaintiff and his family. Senior counsel also submits that defendant is also entering upon the terrace of the plaintiff by using the said ladder on the pretext of inspecting the roof or putting clothes there to dry on the area upon which he has no legal right. The defendant is also trying to encroach upon the space under the stairs, which belongs to the plaintiff, leading to the second floor from the first floor by which he has fixed an iron door.