ASHA RANI GUPTA Vs. RAJENDER KUMAR

JUDGEMENT

(1.) IA No. 2233/2012, IA No. 3383/2012 (O. 39 R. 1&2 CPC), and IA No. 4380/2012 (O. 39 R. 4 CPC)

(2.) It has been alleged in the plaint that on 30.04.2010, defendant No. 1 broke the backside wall of the open space in his occupation and placed a heavy drycleaning machine in the common verandah and also installed water treatment plant in the open space in his occupation and a complaint dated 30.04.2010, was lodged with the police in this regard. It has also been alleged that defendant No. 1, without permission of the plaintiff also built a wire cage on the ground floor which has height of about 15 feet and covers the first floor. It has also been alleged that recently in August, 2011 when the plaintiff renovated the shop shown in green colour in the site plan, it was discovered that defendant No. 1 had illegally closed the door abutting in the verandah and had also closed the doors of the toilet leading from the open space which is in possession of the plaintiff and has been shown in purple colour in the site plan. Thereby, defendant No. 1 has locked the use of the toilet by the other occupants of ground floor and the occupants of the first floor. IA No. 2233/2012 was filed by the plaintiff, seeking interim relief, restraining the defendants from creating any hindrance in peaceful enjoyment of the common toilet and common verandah. A mandatory injunction has also been sought, directing the defendants to remove any hindrance in the peaceful enjoyment of the common toilet and common verandah shown in orange colour in the site plant. IA No. 3383/2012 has been filed by the plaintiff, seeking removal of the wall, alleged to have been built in the common area behind the door of the shop in green colour.

(3.) The suit has been contested by defendant No. 1. It is alleged in the written statement that after about 2 _1/2 years of letting out of the shop shown in red colour, entire back portion which include verandah toilet and open space were let out to father of defendant No. 1 at the rent of Rs 85 per month and since then this is being used for shop of dry-cleaning with the verandah and open space is being used for carrying out the process of dry-cleaning, ironing, etc. It is also alleged that though the user of DCM shop was having no right to use the toilet, the defendant occasionally permitted them to use the same by using the entrance through open space, marked in blue (purple) colour on humanitarian grounds keeping in mind cordial relations. It is further alleged that there is no opening from the shop shown in green colour towards the verandah and there was a brick wall from the toilet when verandah and open space was let out to the father of defendant No. 1 way back in the year 1959.