KUNDA MANOLKAR Vs. JAGDISH KHANDELWAL

JUDGEMENT

(1.) THIS appeal is filed by the plaintiffs challenging order dated 16-10-98 passed by VIIIth Additional District Judge, Gwalior in Civil Suit No. 45-A/96, whereby the application filed by the plaintiffs under Order XXXIX Rules 1 and 2 of Code of Civil Procedure is rejected.

(2.) THE brief facts of the case are that the plaintiffs have instituted a suit against the defendants for declaration and permanent injunction alleging that the land bearing Municipal No. 50/1/157 situated in Ward No. 50 near Idgah Kampoo, Lashkar, Gwalior was owned by the defendant No. 1. The defendant No. 1 entered into an agreement to construct a multistory building with defendant No. 2, who is a builder. As per agreement, ground plus three storeyed building namely Diamond Complex with basement was constructed and flats in the said building were sold. In the present case, the plaintiffs are flat owners in the said building. The said building is registered under the provisions of Madhya Pradesh Prakoshtha Swamitva Adhiniyam, 1976 (hereinafter referred to as 'the Adhiniyam, 1976' ). The case of the plaintiffs is that the defendants after construction the building are trying to construct shops in the basement, which is reserved for a parking area and selling it to third persons. The case of the defendants is that the plaintiffs have no right in the basement. The parking space is separately provided for the flats owner and reserved parking is allotted to them on payment of Rs. 5,000/ -. It is further stated that since the plaintiffs have no right in the basement, the defendants have right to construct the shops and sell it to the third person. It is also alleged that the bye-laws of the building provides for sale of shops to any person and therefore the defendants have right to construct the shops in the basement and alienate the same. The Trial Court after hearing the arguments of the parties and perusing the records rejected the application by holding that the bye-laws of the building provides for construction of shops in the basement. The basement can be used only for shops and offices and parking space is separately allotted to flat owners and therefore they have no right to restrain the defendants from construction the shops and alienating the same.

(3.) FOR proper disposal of the case, it is necessary to first refer to various legal provisions applicable to the building in question. As already stated, the building is registered under the provisions of Adhiniyam, 1976. Section 2 of the Adhiniyam, 1976 provides that the Adhiniyam shall apply only to the property, which has registered a declaration under the provisions of the Adhiniyam. In the present case, the declaration in respect of said building is registered with the Sub-Registrar. Section 3 of the Adhiniyam, 1976 lays down the definition. Section 3 (f) of the Adhiniyam defines common areas and facilities and the said Section reads as under :-