INDU RAI Vs. I S BAJAJ

JUDGEMENT

(1.) This application under Order XXXIX, Rules I & 2 read with Section 151 of the Code of Civil Procedure has been filed by the plaintiff seeking restraint orders against the defendant "from interfering with the peaceful possession of the plaintiff without a prior permission of the Court and restraining the defendant from raising any further constrution during the pendency of the suit and restraining the defendant from selling/alienating the front terrace to any anti-social element/third party or parting with possession of the property in question during the pendency of the suit."

(2.) The facts that emerge from a reading of the plaint are that the plaintiff is the onwer of the second floor of E-78, IInd Floor, Greater Kailash-I, New Delhi-110 048 since 13.12.1988. It has been variously stated that the plaintiff is in possession of "the roof of the second floor/front terrace over the second floor." The plaint further narrates that the second floor is not approved and alternatively that although only 1000 sq. ft. has been approved, 2266 sq. ft. has actually been constructed and sold to the plaintiff. The plaintiff was enjoying the peaceful possesion 'of the front terrace over the second floor till 5.7.1999 when the defendant "put a lock in the stairs to obstruct the entry of the plaintiff in the ceiling and started demolishing the walls." Alongwith in the plaint, a copy of Sale Deed dated 13.12.1988 executed by the defendant in favour of the plaintiff as also the Sale Deed executed by the defendant in favour of the plaintiff's son have been filed. These Deeds contain the following Clause 13 which are obviously germane to the point in issue:

(3.) It is in these circumstances that the prayers made in the application have been pressed by the plaintiff. In its reply the defendant stated, inter alia, that the plaintiffs have no right, title or interest in the terrace floor; that they were entitled to use the terrace for a period of three years which has already expired; that an agreement to sell has been entered into between the defendant and Shri Manvir Singh on 28.5.1999 for the third floor, possession of which has been handed over; that the present law permits the construction of third floor; that the servant quarters should be constructed on the top floor and, therefore, once the construction of the third floor is complete servant quarters will be shifted thereon. In these circumstances it has been urged by the defendant that there is no ground, in law and/or in equity, for the grant of the ad interim injunction prayed for.