K L SINGH Vs. ARCHANA CHATTERJEE

JUDGEMENT

(1.) This order will dispose of an application under Order XXXIX Rules 1 & 2 read with Section 151 CPC filed by the plaintiff seeking an ad-interim injunction to restrain the defendant, her servants, employees, agents, representatives or any one acting through her or on her behalf from interfering in plaintiff's possession, enjoyment of the suit property and premises on fourth floor of property bearing No.K-49-H, Sheikh Sarai, Phase-II, New Delhi and also for restraining them from entering the suit premises.

(2.) The facts and circumstances leading to the filing of the present application in brief are that the plaintiff has filed a suit for declaration and permanent injunction with the averments and allegations that he is the owner and otherwise well and sufficiently entitled to fourth floor of property No.K-49-H, Sheikh Sarai, Phase-II, New Delhi, having purchased the same from a certain Smt.Usha Sharma through a registered agreement to sell and power of attorney both dated 15th December, 1998. The property consisted of two rooms, one drawing-dining, one bathroom, a kitchen and a terrace. The defendant is the owner of the third floor of property bearing No.K.-49-H, IIIrd floor, Sheikh Sarai, Phase-II, New Delhi by virtue of a sale deed dated 4th July, 2000. It is alleged that the defendant after purchasing the suit property started unnecessarily troubling the plaintiff and with mala fide objective filed a civil suit in the Court of Senior Civil Judge, Delhi for restraining the plaintiff from interfering in peaceful ingress and egress of the defendant. However, as no interim orders were granted in her favour, the defendant filed a writ petition being CWP No.19/2003 alleging that the premises of the plaintiff was unauthorisedly constructed and sought its demolition. The suit property viz. the constructions existing on the fourth floor were demolished by the MCD on 24th April, 2003 without giving any opportunity to the plaintiff. In the writ petition filed by the defendant, the plaintiff made a statement that he will not obstruct the defendant in her ingress and egress to the terrace of the property for the purpose of common services and taking advantage of the said statement/order, the defendant with mala fide objectives started using the terrace for purposes other than common services and is trying out to carry out some construction on the terrace which was obstructed to by the plaintiff. It is alleged that the defendant has invaded the plaintiff's right to enjoyment of the property and consequently he seeks a declaration that he is the legal and lawful owner of property bearing No.K-49-H, Sheikh Sarai, Phase-II, New Delhi and permanent injunction to the above effect.

(3.) On the request of the plaintiff, DDA was also arrayed as defendant No.2 in the suit and the DDA has filed a short affidavit with regard to the factual and legal position in respect of the suit property. Defendant No.1 has filed her written statement and reply to the application thereby raising preliminary objections about the maintainability of the suit and the suit lacking any cause of action. The averments and allegations in regard to the plaintiff being owner of the suit property have been specifically denied. On the other hand, it is stated that the defendant is the owner of the third floor of the property bearing No.K-49-H, IIIrd floor, Sheikh Sarai, Phase-II, New Delhi which she had acquired from Smt.Kaushal Pal Kaur who in turn had acquired it from the original allottee, Bishan Singh. It is denied that Smt.Usha Sharma or for that reason Smt.Kaushal Pal Kaur had any right or authority to sell fourth floor above the flat of the defendant because as per the regulation of the DDA, no fourth floor could be raised on self financed DDA flats.