G. P. MITTAL, J.

1. The Petitioners (Defendants No.1 and 3 before the Trial Court) challenge the order dated 28.11.2008 passed by the learned Additional District Judge whereby the Petitioners and Respondent No.2 were directed to “remove the brick wall so constructed at the first floor of the property No.D-24 (WHS), Timber Market, Kirti Nagar, New Delhi and allow the appellant to use the back side staircase put at the back portion of the ground floor to have access to and from the first floor of property No.B-24 (WHS), Timber market, Kirti Nagar, New Delhi until and unless the stairs, as per the sanctioned plan are reconstructed/rebuilt/completed by the defendant no.1,2 and 3, till the final disposal of the suit.”

2. Status of the parties before this Court, the Appellate Court and the Trial Court is extracted from Para 3 of the Petition hereunder:-

Before this Court Before Appellate CourtBefore Trial Court

Petitioner No.1 Respondent No.1 Defendant No.1

Petitioner No.2 Respondent No.3 Defendant No.3

Respondent No.1 Appellant Plaintiff

Respondent No.2 Respondent No.2 Defendant No.2

Respondent No.3 Respondent No.4 Defendant No.4

3. For the sake of convenience, the parties shall be referred to by their nomenclature before the Trial Court.

4. The facts of the case and the respective position taken by the parties is extracted from Para 2 to 6 of the Trial Court order hereunder:-

“2. The present suit for permanent injunction and mandatory injunction has been filed by the plaintiff claiming that he is the absolute owner and in exclusive possession of first and second floors of the suit property (Property No.B-24, Timber Market, Kirti Nagar, New Delhi), which he had purchased from defendants No.1 and 2 after execution of some documents dt.24.7.1997 whereby the plaintiff also purchase all the roof rights, common passage and common stairs at ground floor. The ground floor is owned by defendant No.1 and 2 who later on inducted defendant No.3 in the property.

3. That the suit property had been constructed as per the sanctioned building plan and plaintiff has been enjoying right to access from the stairs constructed from ground floor to first floor, which are constructed in the front portion of the ground floor as per sanctioned plan.

Further it is alleged that on 8.1.2005, the defendants No.1 and 3 started constructing another staircase from ground floor to first floor. On 12.1.2005 they started demolishing the previous staircase. Despite the objection raised by the plaintiff, the defendants did not desist from their activity. Rather assured the plaintiff that they are doing so in order to re-erect a common staircase of a new design at the same spot by demolishing the old one and further they had constructed an alternative staircase of iron for the time being so as to avoid and inconvenience to the plaintiff, which he can use. The plaintiff acceded to this proposal. But despite repeated requests they avoided to re-erect the new staircase.

4. Further it is stated that on 8.2.2005 the defendants erected a boundary wall around the alternative staircase and at the first floor of the suit property which completely closed the access of plaintiff to his first floor. The plaintiff objected to this and complained to local authorities but it was of no use and due to this construction, the access of the plaintiff has been completely barred to his first floor. Against this illegal activity the plaintiff has filed the present suit wherein by way of the ad-interim injunction that the wall surrounding the alternative staircase may kindly be demolished and the plaintiff be allowed to use the alternative staircase till the new one is erected.

5. The defendants have filed their WS and reply to the interim application and has objected to the present suit on merits on the ground that the alleged alternative staircase is an exclusive staircase for the use of defendant No.1 leading to the mezannine floor in the exclusive possession of the defen