MADHUKAR RAO PIMPALAPURE Vs. MEENA PIMPALAPURE

JUDGEMENT

(1.) THIS petition under Article 227 of the Constitution of India has been preferred by the plaintiff in the suit before the trial court and against the order dated 24th October, 2007 of the trial court allowing the application of the respondent/defendant No. 1 in the suit, under Order 6 Rule 17 of the CPC.

(2.) THE petitioner/plaintiff had instituted the suit from which this petition arises pleading that he is the purchaser of a plot of land measuring 2403 sq. yds. situated at 5a, Metcalf Road, Civil Lines, Delhi-6; that he had constructed a ground floor, first floor and second floor thereon after obtaining the sanction from the MCD impleaded as defendant no. 2 in the suit; that the petitioner/plaintiff by a gift deed dated 21st August, 1974 transferred the first and second floor of the said property to the respondent/defendant No. 1 who is the wife of the brother of the petitioner/plaintiff; that the petitioner/plaintiff however continued to be the exclusive owner of the entire land ad measuring 2403 sq. yds. and the ground floor constructed thereon; that the respondent/defendant no. 1 had however been intending to erect additional construction on the open terrace of the first floor. This suit was, therefore, filed to restrain the respondent/defendant No. 1 from raising any additional construction and/or to restrain the MCD from permitting the same.

(3.) THE respondent/defendant No. 1 contested the suit by filing a written statement. In response to paras 2and3 of the plaint, where it was inter alia averred that vide deed the first and second floor had been gifted to the respondent/defendant No. 1 and the petitioner/plaintiff continued to be the exclusive owner of the entire land and the ground floor, reference was made to clause 3 of the gift deed which reads as under:-