Property ownership rights under buyers' agreements and the Real Estate Act were upheld, confirming the plaintiff's exclusive rights and the dismissal of the defendants' claims for community facility access.

JUDGMENT :

Mr. Pankaj Jain, J.:

The defendants are in revision aggrieved of the order dated 10.2.2022 passed by Additional District Judge, Gurugram allowing the application filed by the plaintiff under Order XXXIX Rule 1 & 2 Code of Civil Procedure (In short, “CPC”).

2. The plaintiff filed suit for declaration with consequential relief of permanent injunction. The plaintiff is the developer and has developed residential group housing complex named ‘Essel Towers’. The defendant petitioner is a society registered under Haryana Registration and Regulation of Societies Act, 2012 formed by the allottees/purchasers of the apartment in the residential project. As per the plaintiff, 8,50,000 square feet built up residential area stands allotted to the pilot society and rest of the area was agreed to be exclusively owned and possessed by the plaintiff. The same includes commercial and institutional area. The built up residential area already stands allotted and vests in the pilot society. The dispute relates to a club/community building consisting of basement, ground floor and first floor covering total area measuring 32277.51 square feet having facilities like swimming pool, gymnasium, sauna steam bath, badminton court, lawn tennis court, zumba room, table tennis room, carom and chess room, billiards room, card room, saloon, restaurant, two banquet halls and three guest rooms etc. It has been claimed that occupation certificate was granted on 14.12.2016.

3. After developing club, operations were started by the plaintiff for providing entertainment, sports and other facilities to the residents/occupiers of the towers on chargeable basis. The first floor consisting of restaurant, two banquets halls and three guest rooms measuring 11730 square feet was leased out to M/s Ottimo Visuals. The applications were invited from the owners/occupiers of the apartment for new member of the club and community building. There are around 300 active members of the club/community building.

4. On account of Covid-19, the club was shut down with effect from 22.03.2020. After Corona when the officials of the plaintiff tried to enter the property to make it useable for the members, they were shocked to find that the defendants and their office bearers resisted their entrance and tried to create hindrance in the ingress and egress of the plaintiff and its officials in the suit property.

5. The plaintiff claimed that the defendants and the alleged members with malafide and dishonest intention are trying to interfere in the use and occupation of the suit property and creating obstruction in the peaceful user thereof. The plaintiff, thus, approached the Court seeking decree of declaration to the effect that the plaintiff is absolute owner in possession of the suit property, i.e. club/ community building consisting of basement, ground floor and first floor and further sought relief of permanent injunction restraining the defendants from interfering in their peaceful possession.

6. The suit was resisted by the defendants. They admitted that the suit property was developed by the plaintiff. However, it was denied that it is the plaintiff who is looking after and is in possession of the suit property. As per the defendant, it is the President of defendant No.2-Resident Welfare Association who is looking after the day to day affairs of the society. Association has been formed for the welfare of the residents residing in more than 756 units. It was claimed that the residents are fully empowered to enjoy the occupancy of their respective properties