ANIL NIGAM Vs. ASHOK SINHA

JUDGEMENT

(1.) THIS is an appeal under Order XLIII Rule 1 of Civil Procedure Code, 1908 challenging the impugned order dated 14.09.2011 passed by the learned ADJ, South District, New Delhi whereby the injunction application under Order 39 Rule 1 and 2 of CPC moved by the appellant/plaintiff has been dismissed. The appellant herein i.e. plaintiff before the learned trial court has filed a suit for permanent and mandatory injunction alleging therein that he is the owner of entire ground floor portion of property bearing no. 111, Sunder Nagar, New Delhi by virtue of 'Will' dated 9th July, 2002 of his mother. The property in question comprises of ground floor and first floor and the same was originally owned by his mother. His mother had left a will dated 09.07.2002 wherein the entire ground floor portion was bequeathed in favour of the appellant/plaintiff while the first floor of the property in question was given to his sister i.e., Dr. Madhuri Nigam. Appellant/plaintiff is settled in USA and most of the time the ground floor that is owned by him mostly remains in possession of tenant. When his sister was alive, she used to reside on the first floor along with her family members i.e., her husband and son i.e., the defendants before the trial court. It is alleged that so long as his sister was alive, there was no problem from having free access to the ground floor from the main entrance provided from the porch which is adjacent to the drive way. The said entry on the ground floor from the porch was being utilized by the appellant/plaintiff and his tenants for having access to the ground floor. It is stated that in addition to said entry, there is a sliding door made available on the front portion of the ground floor which provides access to the front lawn. The sliding door cannot be locked from outside and the same is purely made available on the ground floor portion with the purpose to have access to the front lawn only.

(2.) IT is alleged that after the death of sister of the appellant/plaintiff, the respondent and his father i.e., the defendants before the trial court had been resisting their entry to ground floor from the porch entrance. The appellant has alleged that his relationship with his brother -in -law i.e. defendant no.1 was never cordial and the same had deteriorated further after the death of his sister. It is alleged that whichever tenant comes to reside on the ground floor, they are not able to enjoy the property freely due to free access not being provided by the defendants from the porch entrance. The appellant/plaintiff has given the names of tenants who had occupied the ground floor on different dates and the difficulty being faced by them due to no access being given to them from the porch entry and the appellant/plaintiff has prayed for a decree of permanent injunction in his favour as well as the occupants of the ground floor. Along with the said suit, an application under Order 39 Rules 1 and 2 CPC was filed seek ad interim injunction restraining the defendants their associates from creating any obstacle to the appellant, his servant, lawful tenants from entering access to the ground floor portion from main entry from the porch in the property in question.

(3.) AFTER hearing both the parties, the learned trial court dismissed the ad interim injunction application by holding that granting of relief under Order 39 Rules 1 and 2 CPC shall result in virtually decreeing the suit of the appellant without adjudicating on the rights of the appellant to use the entry from the porch side.