(1.) This order will dispose of the application of the plaintiff under Order 39, Rules 1 & 2, Civil Procedure Code for an injunction restraining the defendants from in any manner preventing/ obstructing or hindering the plaintiff, his family members or his servants and agents to the peaceful use and occupation of the suit premises on the top floor above the second floor of the property bearing No. D-296, Sarovdaya Enclave, New Delhi, as shown in the plan. The facts in brief are:
(2.) . That the plaintiff was the owner of the plot bearing No. D-296, Sarvodaya Enclave, New Delhi; to re-develop the building on the said plot of land, the plaintiff entered into an agreement on September 9,1992 with M/s. Ranjeet Combine; in terms of the agreement the Developer was to build the residential dwelling units on the ground, first and second floor and the basement of the building with servant quarters as per the sanctioned plan of the Municipal Corporation of Delhi. That in consideration of re-developing the said property the plaintiff was to sell, transfer and convey to the Developers or their nominees rights on the first and second floors of the property with proportionate land rights. It is further stated in the plaint that subsequent to the construction of the building the Developer sold the first and second floors of the property to defendants 2 and 3 respectively and the plaintiff was a confirming party thereto. That dispute arose between the parties in respect of the user of the terrace above the second floor. While the case of the plaintiff is that none of the defendants have any right on the terrace above the second floor of the property as defendants have rights only on the floors which have been sold to them, the case of the defendants is that after the transfer of the first and second floor of the property by the plaintiff he divested himself of all rights above the ground floor and the terrace was exclusively meant for the use and enjoyment of the occupants of the first and second floor.
(3.) . To appreciate the rival contentions of the parties one may have to look to two agreements, namely, (1) the agreement entered into between the Owner and the Builder; and (2) the Agreement of Sale entered into between the Builder and the defendants. Some of the terms of the Agreement dated 9.9.1992 entered into between the plaintiff and the Builder were as under: