$~55 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Decision: 21^st December, 2022 + C.R.P. 216/2022 RANJAN KUMAR RAY ..... Petitioner Through: Mr. Irfan Ahmed, Advocate.

versus TAPAN KUMAR RAY & ANR. ..... Respondents Through: Mr. Prashant Sharma, Advocate for R-1.

CORAM:

HON'BLE MS. JUSTICE JYOTI SINGH

JUDGEMENT

JYOTI SINGH, J. (ORAL)

C.M. APPL. 55867/2022 (Exemption)

1. Allowed, subject to all just exceptions.

2. Application stands disposed of.

C.R.P. 216/2022 & C.M. APPL. 55866/2022

3. Present petition has been filed by the Petitioner laying a challenge to an order dated 06.09.2022 passed by the Trial Court in CS SCJ No. 1471/2021, dismissing the application filed by Defendant No. 1 under Order 7 Rule 11 CPC. Petitioner herein is Defendant No. 1 before the Trial Court while Respondent No. 1 is the Plaintiff and Respondent No. 2 is Defendant No. 2 and the parties are hereinafter referred to by their litigating status before the Trial Court.

4. Facts to the extent necessary and relevant for disposal of this Revision Petition are that Plaintiff filed a suit against his brothers Defendants No. 1 and 2 seeking the following reliefs:-

“a) Pass a decree of permanent injunction and mandatory Signature Not Verified Digitally Signed C.R.P. 216/2022 Page 1 of 7 injunction in favour of the Plaintiff and against the Defendants no. 1 and 2, their agents, assignee, associates, their henchmen or any other person acting on their behalf for causing disturbance, hurdle, interference and restraining in the peaceful entry, peaceful enjoyment and construction on the second floor i.e. on the roof of the first floor in the said property i.e. suit property (as clearly shown in the site plan attached to the present plaint); and/or b) Pass a decree of permanent injunction in favour of the Plaintiff and against the Defendants no. 1 and 2, their agents, assignee, associates, their henchmen or any other person acting on their behalf thereby directing the Defendants not to create any obstruction in the construction of rooms by the Plaintiff at the second floor, and/or c) Pass a decree of mandatory injunction in favour of the Plaintiff and against the Defendants no. 1 and 2 thereby directing the Defendant no. 1 and 2 to construct staircase for accessing the second floor i.e. the roof of the first floor of the said premises in order to allow the Plaintiff to access and ensure free passage, free ingress and egress to and to the ls! floor room of premises of the suit property for the purpose of carrying out construction work of rooms at the 2nd floor of the said premises; and/ or d) Pass a decree of permanent and mandatory injunction in favour of the Plaintiff and against the Defendants no. 1 and 2 thereby directing the Defendants no. 1 and 2 not to stop the Plaintiff and his family members from constructing the said property at the second floor i.e. the roof of the first floor (more specifically shown as “open terrace” in the attached site plan).”

5. Claim of the Plaintiff before the Trial Court is that he had purchased the suit property bearing No. J-1929, Chittaranjan Park, New Delhi, jointly with the Defendants, from the erstwhile owners, Ms. Niharika Banerjee and Mrs. Mukul Bhattacharya, through their General Power of Attorney holder, Mr. Gautam Ganguly by a Sale Deed dated 01.02.2007.

6. It is averred that prior to the purchase of the suit property, which was partly constructed upto the first floor, parties entered into a Mutual Agreement dated 15.01.2007, agreeing and authorizing the Plaintiff to construct rooms on the second floor of the suit property. It was also agreed that Defendant No. 2 shall occupy the ground floor, Signature Not Verified Digitally Signed C.R.P. 216/2022 Page 2 of 7 Defendant No. 1 shall occupy the first floor and the Plaintiff shall be at liberty to construct on the second floor.

7. The suit was filed by the Plaintiff primarily asserting that despite approaching the Defendants, there has been resistance in cooperating for carrying out c