JYOTI KUMAR Vs. P K TALWAR

JUDGEMENT

(1.) THIS is an appeal against the order and decree dated 15th October, 2008 passed by the learned Additional District Judge, Delhi in Suit No. 98/2004 filed by the appellant-plaintiff for permanent injunction whereby the suit was dismissed.

(2.) THE relevant facts are that the plaintiff claiming herself to be the owner of an area measuring 100 sq. feet of open back courtyard of property no. E-34, Greater Kailash, Part- 1, New Delhi having purchased the same from the owner of the said property by a registered sale deed dated 6. 4. 1996 filed a suit for permanent injunction against the respondent-defendant on the allegations that he had purchased a part of the basement in the aforesaid property on the rear side and was threatening to break the wall of the toilet connected with his basement in order to use the back courtyard of which the appellant-plaintiff was the exclusive owner. In the plaint, a prayer was made for passing of a decree of permanent injunction restraining the respondent-defendant from entering the back courtyard. The respondent-defendant contested the suit by filing a written statement. While not disputing the fact that the appellant-plaintiff had purchased the back side courtyard of property no. E-34 claimed that since the original owner of plot no. E-34 had got constructed several flats through a builder the provisions of the Delhi Apartment Ownership Act, 1986 became applicable in respect of different apartments. It was further pleaded that as per law the so called rear side backyard which the plaintiff claimed to have purchased was in fact open 'setback? area which is required to be left open in front as well as in the rear side of a building and every apartment owner has an undivided interest in that area as per Section 4 (3) of the aforesaid Act of 1986 and consequently the sale deed in respect of that area relied upon by the plaintiff was void being contrary to the provisions of the Delhi Apartment ownership Act. Thus, according to the respondent defendant the suit filed by the appellant-plaintiff was not maintainable.

(3.) ON the afore said pleadings of the parties the learned Trial Judge framed the following two issues only vide order dated 17. 11. 2006: 1. Whether provisions of Delhi Apartment Ownership Act, 1986 prohibited the plaintiff from purchasing common area of the suit premises? OPP 2. Whether the plaintiff is entitled to the injunction as sought? OPP 3. Relief.