FAO No. 456/2010

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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FAO No.456/2010 & CM No.22352/2010

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21^st July, 2011

DHRUBA DASGUPTA & ORS

...... Appellants

Through:

Mr. Naresh K. Thanai, Advocate.

VERSUS

SURJENDU SHEKHAR GHOSH & ORS

...... Respondents

Through:

Mr. S.K.Bhaduri and Mr. K. Kumar,

Advocates for R-1 and R-2.

Mr. Sudhir Kathpalia, Adv. for Ms.

Suparana Srivastava, Adv. for R-3/MCD.

CORAM:

HON’BLE MR. JUSTICE VALMIKI J.MEHTA

1.

Whether the Reporters of local papers may be

allowed to see the judgment?

2.

To be referred to the Reporter or not?

3.

Whether the judgment should be reported in the Digest?

VALMIKI J. MEHTA, J (ORAL)

1. The challenge by means of this first appeal under Order XLIII Rule 1 of

the Code of Civil Procedure, 1908 (CPC), is to those portions of the impugned

orders dated 13.10.2010 and 26.11.2010, which have restrained the

appellants/defendants from constructing a lift to the third floor of the suit

premises.

2011:DHC:3641

FAO No. 456/2010

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2. The only issue which arises for determination is as to whether the

plaintiffs/respondents have any right title or interest in the area where the

lift

is

being

constructed

by

the

appellants/defendants.

If

the

respondents/plaintiffs have any right to the area where the lift is being

constructed, then the appellants/defendants cannot construct the lift. If,

however, there is no right of the respondents/plaintiffs in the area where the

lift is being constructed, the appellants can construct the lift, subject of

course to the necessary permissions as required in law being obtained.

3. The respondents/plaintiffs claim ownership to the rear side flat of

second floor of the property I-1747,Chittranjan Park, New Delhi. The rights

are claimed by virtue of an Agreement to Sell and Purchase dated 20.3.2008.

A reference to the agreement shows that what has been transferred in

favour of the respondents/plaintiffs is the following:-

“AND WHEREAS in the manner aforesaid First Party became the

sole and absolute owner of said portion of the said property i.e. REAR

PORTION of SECOND FLOOR (TOWARDS EAST) WITHOUT TERRACE

RIGHTS, CONSISTING OF THREE BED ROOMS, THREE BATHROOMS,

ONE DRAWING CUM DINING ROOM, ONE KITCHEN, REAR BALCONY,

along with proportionate undivided, indivisible and impartible

leasehold parts in the land underneath of Property bearing No.-I-

1747, situated at Chittaranjan Park, New Delhi-110019, measuring

307 sq. yards AND WHEREAS first party for their bonafide needs and

requirements have agreed to sell, transfer convey all their rights in

respect of the said portion of the said property i.e. REAR PORTION OF

SECOND FLOOR(TOWARDS EAST) WITHOUT TERRACE RIGHTS,

CONSISTING OF THREE BEDROOMS, THREE BATHROOMS, ONE

DRAWING CUM DINING ROOM, ONE KITCHEN, REAR BALCONY,

alongwith

proportionate

undivided,

indivisible

and

impartible

leasehold rights in the land underneath of Property bearing No. I-

1747, situated at Chittaranjan Park, New Delhi-110019, measuring

307 sq. yards. to the second party for a consideration of

2011:DHC:3641

FAO No. 456/2010

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Rs.15,60,000/- (Rupees Fifteen lakhs sixty thousand only) to be paid

in the manner hereinafter appearing:-“

4. A reference to the aforesaid Clause of the Agreement to Sell in favour

of the respondents/plaintiffs shows that there is no right of the

respondents/plaintiffs in the rear set back where the lift is being constructed.

If, therefore, there are no rights of the respondents/plaintiffs in the area

where the lift is being constructed, I fail to understand as to how the

respondents/plaintiffs can seek injunction against construction of the lift.

The impugned order is therefore clearly bound to be set aside. I may note

that unless and until a person has a right to an area as a common area as

per an agreement by which the property is purchased, such common area

does not vest