$~67 * IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 26^th NOVEMBER, 2024 IN THE MATTER OF:

+ CS(OS) 709/2023 & I.A. 21970/2023 RENU CAPRIHAN & ANR ......Plaintiffs Through: Mr. Mandeep Singh Vinaik, Ms.

Anjali Sharma, Mr. Deepak Bashta, Ms. Ragini Vinaik, Ms. Thanglunkim, Mr. Gaikhuanlung, Advocates.

versus SANGEETA GROVER .....Defendant Through: Mr. Aman Nandrajog, Ms. Bhawana Mapwal, Advs.

CORAM:

HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD JUDGMENT (ORAL)

I.A. 7746/2024

1. This is an application on behalf of the Defendant under Order XXXIX Rule 4 CPC for modification/variation of the Order dated 11.03.2024.

2. The present suit has been filed for a decree of partition specified portion of the immovable property which is residential plot of land and building constructed at M-113, Greater Kailash Part II, New Delhi-110048. The Plaintiffs have sought relief regarding basement, terrace and certain other common areas of the property. The Plaintiffs sought to clearly demarcate the land beneath and demarcate the entitlement of the respective parties to the suit properties, i.e., the land rights, the basement, the terrace, Signature Not Verified Digitally Signed CS(OS) 709/2023 Page 1 of 27 and all common areas of the residential property.

3. For the purpose of granting interim injunction, a Local Commissioner was appointed by this Court vide Order dated 25.01.2024 to inspect the suit property and file a detailed report. The Local Commissioner filed its report.

4. The Local Commissioner qua terrace portion had given the following report:-

“29. At the very top of the staircase, there is door on the left which leads to the terrace area above the second floor.

Signature Not Verified Digitally Signed CS(OS) 709/2023 Page 2 of 27

30. The terrace door is on the left and in front there is a corridor used as a common area:

Signature Not Verified

31. The corridor has four servant's quarters on the right, 3 for the Plaintiff and 1 for the Defendant.

32. The Defendant claims that the fourth quarter was built illegally. At the end of the corridor there is a sink, pantry, and bathroom which are common areas.

Signature Not Verified Digitally Signed CS(OS) 709/2023 Page 4 of 27

33. The terrace is divided into two parts. Roughly the first one third is an open space. This is occupied by the Defendant and is shown below:

Signature Not Verified Digitally Signed CS(OS) 709/2023 Page 5 of 27

34. The remaining two-third portion of the terrace has been fenced off by the Plaintiff who occupied this portion. There is a terrace garden with many plants in that part. There is also a frame on the top.

Signature Not Verified Digitally Signed CS(OS) 709/2023 Page 6 of 27

35. The fence to access this part of the terrace is usually kept locked by the Plaintiff.

36. The fenced off garden area occupied by the Plaintiffs also has another room with 2 doors. The room is full of various items.

Signature Not Verified Digitally Signed CS(OS) 709/2023 Page 7 of 27

37. The Defendant claims this room was illegally constructed by the Plaintiffs. The Plaintiffs claim that this construction was intimated to the Defendant beforehand.

38. The garden area is tiled, the Plaintiffs informs that the tiles are waterproof to ensure that there is no seepage.

39. The Defendant claims that the Plaintiffs' plants at the edge of their balcony create issues as water etc. falls down to their area. A picture of the balcony taken from the terrace is below:

Signature Not Verified Digitally Signed CS(OS) 709/2023 Page 8 of 27 ”

5. As far as terrace is concerned, after perusing the report of the Local Commissioner, the following arrangement was made vide Order dated

11.03.2024:-

“10. Insofar as the terrace is concerned, the terrace is stated to be having a common water tank, which services the entire building and there is one small emergency tank which belongs to the Plaintiffs. If the Defendant wishes to install an emergency water tank herself, she is free to do so and access to the terrace shall be for the same.

11. This