JUDGMENT
S.K. Mahajan, J.
1. This order will dispose of the application of the plaintiff under Order 39, Rules 1 & 2, CPC for an injunction restraining the defendants from in any manner preventing/obstructing or hindering the plaintiff, his family members or his servants and agents to the peaceful use and occupation of the suit premises on the top floor above the second floor of the property bearing No. D-296, Sarvodaya Enclave, New Delhi, as shown in the plan. The facts in brief are:
2. That the plaintiff was the owner of the plot bearing No. D-296, Sarvodaya Enclave, New Delhi; to re-develop the building on the said plot of land, the plaintiff entered into an agreement on September 9, 1992 with M/s. Ranjeet Combine; in terms of the agreement the Developer was to build the residential dwelling units on the ground, first and second floor and the basement of the building with servant quarters as per the sanctioned plan of the Municipal Corporation of Delhi. That in consideration of redeveloping the said property the plaintiff was to sell, transfer and convey to the Developers or their nominees rights on the first and second floors of the property with proportionate land rights. It is further stated in the plaint that subsequent to the construction of the building the Developer sold the first and second floors of the property to defendants 2 and 3 respectively and the plaintiff was a confirming party thereto. That dispute arose between the parties in respect of the user of the terrace above the second floor. While the case of the plaintiff is that none of the defendants have any right on the terrace above the second floor of the property as defendants have rights only on the floors which have been sold to them, the case of the defendants is that after the transfer of the first and second floor of the property by the plaintiff he divested himself of all rights above the ground floor and the terrace was exclusively meant for the use and enjoyment of the occupants of the first and second floor.
3. To appreciate the rival contentions of the parties one may have to look to two agreements, namely: (1) the agreement entered into between the owner and the Builder; and (2) the Agreement of Sale entered into between the Builder and the defendants. Some of the terms of the Agreement dated 9.9.1992 entered into between the plaintiff and the Builder were as under:
“6. That owners agree to sell, transfer and convey to the Developers or their nominee(s) rights, for First and Second Floors with proportionate land rights in the consideration of the Developers developing Basement, Ground, First and Second Floors plus the consideration of Rs. 8,50,000/- (Rupees eight lacs fifty thousand only). The interest in the land will be available to the prospective purchaser proportionately.
7. That the owners undertake irrevocably to constitute the Developers or their nominee(s) as their general attorney by separate document for negotiating and finalising sale/transfer of First and Second Floor with usage of terrace rights and for submitting applications requisitions, approvals, sanctions, documents of building or other material statutory to be done and performed in connection with the development construction and completion of the said residential building. The owner will apply and obtain the Income Tax Clearance Certificate on the basis of the consideration in the name of the nominee(s) intimated by the developers for the First and Second Floor Units at their own cost.
9. That the Developer shall always be fully competent to settle terms for the transfer of their First and Second Floor dwelling units with common terrace in the building and proportionate land underneath to any person(s) at any time either during or after the building is fully completed and Developers can enter into the Agreement to sell for the sale of Developers portion and accept cash, cheques, pay order, drafts etc. from all such would be transferees in their Developers own name and at their own risk and responsibilities and can issue Receipts for all such payment made to him. In this context, the owners herein agree, declare and record that they shall always join in all such Agreements for sale/conveyance deeds to be given to prospective unit buyers of the Developers portion on such terms as the Developers may deem fit at their absolute discretion.
15. That after the development and construction of the building mention herein above for the portion allocable to the Builders/Developers i.e. complete First and Second Floors, the owners also undertake to give powers of Attorney to the Developers or their nominee(s), to take necessary permission to his/her name and on his or her behalf and execute the instrument of transfer/Sale deed(s) agreement)(s), and get these registered in the office of the Sub-Registrar, New Delhi for the portion allocable to the Developers. The Developers can also obtain the Income Tax Clearance Certificate under Section 230A(I) of the
Income Tax Act,1961 and other permissions, if and when required on behalf of the owner for transfer of the portions falling to the share of the Builder/Developer.”
4. The terms of the Agreement to Sell dated 31.5 .1996 entered into between the Builder and defendants 1 and 2 to which the plaintiff was a confirming party and on which reliance has been placed by both the parties are as under:
“1. That the first party and confirming party both hereby agree to grant, convey and transfer all the rights, titles and interest in the Second Floor of the building at D-296 Sarovdaya Enclave, New Delhi (hereinafter referred to as the said premises) with the proportionate share of land underneath the said building on the terms and conditions herein contained.
2. That in consideration of the said sum of Rs.12 lacs (Rupees twelve lacs only) being received by the First Party from the Second Party, the receipt of which the First Party acknowledges and admits First Party hereby hand over the said Second Floor premises alongwith the proportionate share of the land thereunder unto the Second Party absolutely and forever and the Confirming Party agrees/ratifies the same. The schedule of payment by the Second Party to the First Party is appended to this agreement.
3. That the first party and confirming party assured the second party in respect of the said premises comprising of three bed rooms and a drawing dinning built on the Second Floor of Plot No. D-296, Sarvodaya Enclave, New Delhi – 110 017 together with the proportionate land underneath on land measuring 300 sq. yds. that the confirming party are the sole absolute owners of all rights and that the said premises agreed to be sold herein is not subject to any charges, mortgages, liens, attachment and that there is no dispute/litigation injunction and that the first party and the confirming party have full and unrestricted right to sell and transfer the said premises to the second party as free from all encumbrances and liens such as prior sale, mortgage, attachment etc. and that the first party is always competent to settle terms for the transfer of the said premises alongwith the proportionate land underneath and the confirming party agrees to always join in all such agreements for sale/conveyance deeds. That the first party has the sole and exclusive right to alienate and receive/retain the consideration amount accruing from this agreement by virtue of the first party’s collaboration agreement dated 9.9.1992 with the confirming party and that if the second party suffers any loss on account of this statement then the first party shall make good the said loss.
4. That the physical vacant possession of the said premises has been handed over to the second party to its entire satisfaction at the time of signing of this agreement by the first party and the confirming party and it has already been agreed and understood by all parties to this agreement, namely the first party, the second party and the confirming party, that the drive-way, from the front gate and with the passage leading to entrance of the front ground floor shall be used by the confirming party. However the second party shall have access to this drive-way at any point of time for repair and maintenance of i.e. the pump and water tank, electricity and sewage etc.”
5. It is submitted by the learned Counsel for the plaintiff that as only the first and the second floors have been transferred to the defendants they cannot interfere with the right of the plaintiff to use the terrace. Before filing the suit the plaintiff had on October 7, 1996 given a notice to defendant No. 4 informing him that only the residential dwelling units on the first floor of the said property had been transferred to him along-with proportionate share in the land thereunder and that the terrace rights above the second floor in the property had not in any manner been conveyed
to him either by the Builder/Developer or by the plaintiff and the said defendant was, therefore, called upon to cease and desist from interfering with the plaintiff’s lawful possession and continuous enjoyment of the terrace above the second floor of the property. Reply to this notice was sent by the said defendants and while not denying the claim of the plaintiff that the terrace rights above the second floor in the property were not conveyed to him; the said defendant in the reply stated “that it is misleading and denied that the agreement dated 31.3.1996 executed by your client (plaintiff) is not in accordance with the text and spirit of your client’s (plaintiff’s) agreement with the Developer dated 9.9.1992. In fact your client (plaintiff) unlawfully forced us (defendant No. 4) to sign an agreement dated 31.5.1996 under the threat of refusing to execute the document throwing all the canons of conventional practice and law to the winds, thus denying our lawful use.” From this reply it is clear that defendant No. 4 did not deny the contention of the plaintiff that under the agreement the defendant had no right to use the terrace. Again in paragraph 2 of the preliminary objection in the written statement filed by defendants 1 and 2 it was stated by them as under:
“2. In pursuance of the said Collaboration Agreement dated 9.9.1992, the Plaintiff has transferred his rights, title and interest in respect of the First and Second Floors with commonterrace and proportionate land underneath to M/s. Ranjeet Combine, for a consideration of Rs. 8,50,000/- (Rupees eight lakh fifty thousand only). The said right so conveyed to M/s. Ranjeet Combine, has not been transferred back by them to the Plaintiff, hence the Plaintiff is not entitled to institute and maintain the present suit and the same is liable to be dismissed on this short ground.”
6. Mr. Nayyar contends that the word common terrace appearing in Clause 9 means that the terrace was common to the occupants of first and second floors only and the occupants of the ground floor or the mezzanine floor had no right whatsoever on the terrace. It is also contended by Mr. Nayyar that under Clause 4 of the agreement to sell dated 31.5.1996 confirming party has reserved to itself only the right to drive-way from the front gate with the passage leading to the entrance of the front ground floor and that in case the intention of the plaintiff was also to reserve a right to the terrace of the building it should have been so mentioned in Clause 4 of the agreement.
7. It is also the contention of Mr. Rajiv Nayyar, Senior Counsel appearing for the defendants that a perusal of Clauses 6 and 9 of the Agreement dated 9.9.1992 shows that it was only the Developer or his nominee who had a right on the first and second floors of the property as well as the terrace thereon. In paragraph 7 of the aforesaid agreement dated 9.9.1992 the owner has undertaken irrevocably to constitute the Developers or their nominees as their General Attorney by separate document for negotiating and finalising sale/transfer of first and second floors with user of terrace
rights and for submitting applications etc. Admittedly, this Power of Attorney was never given by the owner to the Developer. In any case, what has been stated in this Clause 7 is that the Developer or his nominee will have a right to negotiate and finalise sale/transfer of the first and second floor with uses of terrace rights. Again in Clause 9 of the agreement the Developer has been given the right to settle terms for the transfer of their first and second floors dwelling units with common terrace in the building and proportionate land underneath to any person.
8. A plain reading of paragraph 2 of the preliminary objections taken in the written statement by defendants 1 and 2 show that the said defendants have not set up their exclusive right to use the terrace but what has been stated is that under the Collaboration Agreement dated 9.9.1992 the plaintiff had transferred his rights, title and interest in respect of the first and second floors with common terrace and proportionate land underneath to M/s. Ranjeet Combine (Developer). The stand, therefore, taken in the written statement is that the terrace was common.
9. I am unable to agree with Mr. Nayyar that in Clause 4 the plaintiff has reserved to himself only the right on the drive-way. Reading of the agreement prima facie shows that what has been given to the defendants is so mentioned in Clause 4 of the agreement and not what has been reserved by the plaintiff to himself. In case the said defendant was given the exclusive right to use the terrace it should have been so mentioned not only in the agreement to sell but also in the Collaboration Agreement entered into with the Developer.
10. For the foregoing reasons, this Court is of the prima facie opinion that the terrace in question, namely, the top floor above the second floor of the property bearing No. D-296, Safdarjung Enclave, New Delhi was meant for common user of the occupants of the property including the parties to the suit and none of the parties, prima facie, have the right to use the same to the exclusion of the other occupants of the property. None of the parties to the suit, therefore, can interfere with the right of the other to use the terrace till the final decision of the suit.
With these observations, the application stands disposed of.
