Neutral Citation Number : 2023/DHC/001687

FAO 456/2018 Page 1 of 9

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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FAO 456/2018

Reserved on :

16.01.2023

Pronounced on :

03.03.2023

IN THE MATTER OF:

SATISH KUMAR JAIN

..... Appellant

Through:

Mr. Virag Kumar Agarwal, Ms.

Shalini

Agarwal,

Ms.

Naina

Agarwal

and

Mr.

Shobhit

Agarwal, Advocates.

versus

BRAHM PRAKASH & ANR.

..... Respondents

Through:

Mr. Shiv Charan Garg, Mr. Imran

Khan, Mr. Rohit Kumar and Ms.

Jahanvi Garg, Advocate.

CORAM:

HON'BLE MR. JUSTICE MANOJ KUMAR OHRI

JUDGMENT

MANOJ KUMAR OHRI, J.

1.

By way of the present appeal filed under Order 43 read with

Section 151 CPC, the appellant/plaintiff has assailed the order dated

28.08.2018 passed by the Trial Court in Suit No.13886/2016 to the extent

that his application under Order 39 Rule 10 read with Order XV-A and

Section 151 CPC was dismissed.

2. The appellant filed the underlying suit for declaration, possession,

damages, permanent and mandatory injunction, wherein he claimed

himself to be the absolute and lawful owner of property bearing No. T-57

Digitally Signed

By:SANGEETA ANAND

Signing Date:07.03.2023

11:14:29

Neutral Citation Number : 2023/DHC/001687

FAO 456/2018 Page 2 of 9

roof/terrace rights alongwith common staircase and superstructure. It

was further claimed that the aforesaid portions were purchased by him

and his brother from respondent No.2/Munni Devi by way of registered

GPA and Will both dated 08.06.1998. The first floor of the property was

sold by respondent No.2 to respondent No.1 (her brother). Allegedly,

after sale of the aforesaid portions to the appellant, somewhere in the first

week of November, 2006, respondent No.1 started raising unauthorized

construction of a tin shed on the roof of the first floor of the property (i.e.

second floor).

In the above facts, the appellant prayed for a decree of declaration

in his favour declaring him to be the sole and absolute owner of second

floor with the superstructure built thereupon and roof/terrace rights

alongwith common staircase (hereinafter, the ‘suit property’); of

permanent injunction restraining the respondents/defendants from parting

with the suit property; of mandatory injunction against the respondents to

remove the tin shed constructed at the suit property; alongwith

possession. Ancillary reliefs in the form of damages/compensation for

use and occupation charges were also sought. Along with the suit, the

appellant had also filed an application under Order 39 Rule 10 read with

Order XV-A and Section 151 CPC. The suit as well as the application

were resisted by the respondents.

3. Learned counsel for the appellant contended that though the Trial

Court found a prima facie case in favour of the appellant and directed the

respondents not to dispose of the suit property or to create any

encumbrance on it till the disposal of the suit, it erred in dismissing the

Digitally Signed

By:SANGEETA ANAND

Signing Date:07.03.2023

11:14:29

Neutral Citation Number : 2023/DHC/001687

FAO 456/2018 Page 3 of 9

application under Order 39 Rule 10 read with Order XV-A and Section

151 CPC. It was further contended that prior to filing of the aforesaid

application, the appellant had also issued a legal notice thereby asking

the respondents to pay Rs.10,000/- per month towards the use and

occupation charges with respect to their illegal possession at the roof of

the first floor, but no reply was given by the respondents. In support of

his submissions, learned counsel referred to the decisions in Metropolis

Travels & Resorts (I) Pvt. Ltd. v. Sumit Kalra & Anr. reported as 2002

SCC On