KANTABEN T SHAH Vs. DEVENDRAKUMAR C SHAH

JUDGEMENT

(1.) The respondent No.1 - original defendant No.1 Devendrakumar C. Shah is Organizer of Rama Apartments. He staying in Flat No.9 of the said Apartments. The defendant No.2 Ashish Devendrakumar Shah, son of defendant No.1 is the builder carrying out construction work in the name and style of "Pintu Builders & Organizer". He staying with his father i.e. defendant No.1 in Rama Apartments. The said apartments were constructed by the defendant No.2. In all 12 flats have been constructed and (1) Shri Vimalkant J. Bhojak, (2) Shri Ramanlal Hiralal Thakkar, (3) Smt. Prabhaben Champaklal Soni, (4) Smt. Yashodaraben Vasudev Thakkar, (5) Jayshreeben Kantilal Pathak, (6) Urmilaben Manilal Patel, (7) Kantaben Thakarshibhai Shah, (8) Dr. Bhanvarlal Mangilal Jain and (9) Shri Bhavsar, respectively the plaintiffs No.1 to 9 have purchased the said flats from defendant No.1 and since 1990-91 the plaintiffs are staying in their respective flats. As per the document each member has got 1/12 share in the said apartments and as per the terms and condition no one can construct on terrace of the said apartments. There is a clear reference to that effect in the registered document. Each flat is having construction of 80 sq.yds. 4 flats are on the ground floor, 4 flats are on the first floor and 4 flats are on the 2nd floor. In all 12 flats are there in Rama Apartments. Out of 12 flats, 9 flats are in possession of the plaintiffs, one flat is in possession of defendants No.1 and 2 and Flat No.2 and 12 are vacant as the owner of the said flats are not residing in Ahmedabad.

(2.) It is alleged that by keeping the plaintiffs in dark the defendants No.1 and 2 wanted to construct 2 more flats on the terrace of the 2nd floor of the apartments and they wanted to finish illegal construction at the earliest. When the plaintiffs tried to stop the illegal construction they were threaten by the defendants No.1 & 2. Without getting the plan approved the defendants No.1 and 2 wanted to complete the construction for which the defendant No.3 had not given any permission. Therefore, at last the plaintiffs have to file Civil Suit No.2689 of 1994 before the City Civil Court, Ahmedabad. Along with the said Suit, the plaintiffs have also filed injunction Application and prayed that the defendants No.1 and 2 be restrained from putting up any construction or completing the construction on the terrace and they may be restrained from selling part of the terrace to anyone else.

(3.) It appears that on injunction Application the City Civil Court granted injunction in favour of the plaintiffs in the Suit filed by them and restrained the defendants from putting up any construction. The said injunction was continued in favour of the plaintiffs till 7.8.2000. However, on 7.8.2000 written undertaking Ex.31 submitted in Civil suit No.2689 of 1994 by the defendants No.1 and 2 Shri Devendra Shah and Shri Ashish Shah to the effect that they will not put up any construction on the terrace of 3rd floor, which they are constructing on the terrace (2nd floor) of the apartments, and all the common rights of the plaintiffs regarding use of terrace shall continue. They will also abide by the understanding arrived at between the parties outside the Court. Accordingly, it was prayed that interim stay against the construction granted by the Court be vacated. Simultaneously, Purshis Ex.33 was submitted on the same day i.e. on 7.8.2000 stating that "stay against the construction on the terrace, granted in the suit filed by the plaintiffs, is in force till today, but the plaintiffs have no objection if the defendants put up construction as per the undertaking Ex.31 submitted to the Court on the terrace because of the F.S.I. got by them. The decree may be drawn to the effect that their right on the terrace after construction would remain intact and accordingly the stay may be vacated. The said purshis Ex.33 for consent decree was signed by one Shri Rajesh G. Bhojak, on behalf of Shri Vimalkant Bhojak, plaintiff No.1, and also signed by both the defendants Shri Ashish Shah and Shri Devendra Shah. It was signed by the learned Advocate Shri P.D.Bhate for the plaintiffs and Shri B.K.Dosani for the defendants.