K.NATHAN Vs. PRAFULLA KUMAR BARIK

JUDGEMENT

(1.) THIS appeal has been filed against the order dated 16.03.2012 passed by a learned Single Judge of this Court in I.A No. 1300/2010. This application was filed under Order XXXIX Rules 1 and 2 CPC by the plaintiff / respondent for removal of the iron staircase, which, according to the respondent, was a security hazard. The respondent / plaintiff also prayed that the appellant / defendant be restrained from encroaching in any manner and from occupying or using the roof/ terrace on the first floor above the ground floor of the respondent's / defendant's flat. The properties in question are DDA flats bearing Nos. 46 B and 46 D in Block H, Malviya Nagar Extension, Saket, New Delhi. The appellant / defendant is in occupation and is the owner of the ground floor being flat No. 46 B. The respondent / defendant is the owner of the first floor being flat No. 46 D. It may be relevant to note that the first floor flat is a duplex unit.

(2.) THE appellant / defendant has covered the courtyards both at the front and at the rear of the property in question. The whole issue is as to whether the appellant / defendant can utilize the roof of the covered portions for his benefit. What has happened is that the appellant / defendant has placed water tanks as well as air conditioning units on the said roof above the covered courtyard. The respondent / plaintiff filed a suit seeking mandatory injunction for removal of the said water tanks and the air conditioning units as also the removal of the iron staircase which has been put up by the appellant / defendant to access the roof of the covered courtyard.

(3.) THE learned counsel for the appellant founded his case on the above mentioned sub paragraph 3 to state that the plaintiff has no right of construction on the roof of the covered courtyard. The learned counsel for the appellant states that the respondent / plaintiff would also have no right to use the roof of the built up courtyard.