Prima facie ownership rights and balance of convenience are crucial in granting interim orders under CPC, overriding claims based on agreements.

VALMIKI J. MEHTA, J.

I.A. No. 758/2016(u/O XXXIX Rules 1 and 2 CPC by plaintiff) & I.A. No. 3670/2016(u/O XXXIX Rule 4 CPC by D-1, 2, 4 & 6)

1. By this order I am disposing of two applications. First is the application filed by the plaintiff under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908 (CPC) being I.A. No. 758/2016, by which plaintiff has prayed for interim orders pendente lite that defendants should not interfere in the construction being made by the plaintiff on the terrace floor/third floor of the property bearing no.I/1782, Chittranjan Park, New Delhi. The second application which is being disposed of is the I.A. No.3670/2016 filed by defendant nos. 1, 2, 4 and 6 for vacation of the interim Order passed in favour of the plaintiff by this Court on 25.2.2016 in I.A. No.758/2016 of the plaintiff.

2. On 18.1.2016, and 25.2.2016, this Court passed the following orders:-

“Order dated 18.1.2016

I.A. No.759/2016 (Exemption)

1. Exemption allowed subject to all just exceptions. I.A. stands disposed of.

CS(OS) No.25/2016 & I.A. No.758/2016 (u/O 39 R 1 & 2 CPC)

2. Plaintiff claims ownership of terrace rights of the property no.1/1782, Chittranjan Park, New Delhi and which terrace exists above the second floor of the property, however, the original owner being the father of the plaintiff is said to have entered into a Collaboration Agreement on 7.11.1988 with one M/s S.S. Developers Pvt Ltd for reconstruction of the property and redistribution of the constructed portions. The Collaboration Agreement dated 7.11.1988 is, however, not filed and nor there is any reference in the plaint as to under which part of the Collaboration Agreement the erstwhile owner, being the father of the petitioner late Major Samarendra Nath Sarkar continued to be the owner of the portion/terrace above the second floor of the property.

3. Existence of a legal right, which the plaintiff claims, necessarily can only be based upon what rights were retained by late Major Samarendra Nath Sarkar under the Collaboration Agreement, and in the absence of which, the plaint in fact will lack cause of action and plaintiff will lack legal right on the basis of which plaintiff claims ownership right of the terrace above the second floor of the suit property.

4. Counsel for the plaintiff at this stage seeks time to file copy of the Collaboration Agreement dated 7.11.1988.

5. List this matter in the ‘supplementary list’ on 16th February, 2016. Order dated 25.2.2016

1. Counsel for the plaintiff urges that the entire property bearing no.I/1782, Chittranjan Park, New Delhi situated on a plot of 320 sq. yds was owned by late Major Samarendra Nath Sarkar. Major Samarendra Nath Sarkar is said to have entered into a collaboration agreement dated 7.11.1988 with one M/s S.S.Developers Pvt. Ltd to develop and construct the entire property. This collaboration agreement was performed and different portions of the property fell to the shares of the builder and late Major Samarendra Nath Sarkar. It is argued by reference to the various title deeds filed by the defendant nos. 1 to 6, and who own different portions of the lower ground floor or ground floor or the first floor that these defendants no.1 to 6 have no rights whatsoever in the terrace of the suit property i.e the portion above the constructed second floor. It is argued that late Major Samarendra Nath Sarkar continued to be the owner of the terrace and therefore the plaintiff who is the son of late Major Samarendra Nath Sarkar has stepped into the shoes of Major Samarendra Nath Sarkar on the death of Major Samarendra Nath Sarkar and who is therefore the sole and exclusive owner of the terrace/roof rights above the second floor of the property in question. It is argued that the defendant nos. 7 and 8 have in fact given no objection in favour of the plaintiff for the plaintiff to construct on the portion above the second floor of the property and which construction the plaintiff is doing in terms of the sanction