Relief under sec 38 read with sec 34

Nydv (Querist) 25 November 2019 This query is : Resolved
Civil Suit suggested for permanent injunction under Sec 38 and Sec 34.

Dispute on usage of common recreation facilities between 2 blocks of SAME registered project( A/B/C versus D1_D2)
A/B/C blocks exists on plotA and D1_D2 on plotB . Both have independent gates. Most facilities on plotA. Few on plotB.

A/B/C in full possession of all common recreation facilities from Day1 as most are on plotA.

D1_D2 used facilities for few years but stopped by A/B/C from last 4-5 years. But D1_D2 uses water tank on A/B/C side from Day1.

Through this planned Civil Suit D1_D2 wanted to use other facilities also like club house, swimming pool.

Query is on Sections suggested for this Suit.
To ask relief under Sec38 : Filing party need possession on the said property.

In this scenario D1_D2 who will file Suit have partial possession only.

Can maintainability of suit is questionable with planned sec 38 and sec 34 ??

Thanks,
Nyadav

Follow Query

Report Abuse

P. Venu (Expert) 27 November 2019
The facts, as posted, lack clarity. Please post simple facts highlighting the cause of action.

Nydv (Querist) 27 November 2019
@P. Venu Respected Sir, let me try to explain

a) Residential Project spread on PlotA, PlotB registered as Phase1
A/B/C buildings on PlotA having own entry gate
D1_D2 buildings on PlotB having own entry gate
6 common facilities/amenties on PlotA(clubhouse,pool,watertank)
2 common facilities/amenities on PlotB(STP, garden)

b) Dispute
A/B/C stopped access of amenities on their side for D1_D2 from last 4-5 years EXCEPT Water Tank.
A/B/C uses all facilities of projects on PlotA, PlotB from Day1
D1_D2 want to use facilities on PlotA like swimming pool, clubhouse

c) Legal solution for D1_D2 suggested through various consultations
File a Civil Suit under Sec 38 and Sec 34 for permanent injunction

d) Question
someone raised question on the suggested legal solution :
as D1_D2 are not in possession so they cannot take ask relief under Sec38
Point is D1_D2 want to use all facilities freely thats purpose of suit but out of all having posesession 2-3 only .

Please guide further on legal solution.

Thanks,
NYadav

P. Venu (Expert) 28 November 2019
Unlike STP, Water Tank and Garden, the facilities of Swimming Pool and Club House involve substantial expenses to be kept in good repair. Are the residents of D1 and D2 contributing or required to contribute for their upkeep?

Nydv (Querist) 28 November 2019
@P. Venu Respected Sir, D1_D2 access blocked by A/B/C for facilities their side Swimming Pool and Club House hence D1_D2 NOT paying any contribution. But willing to pay if get access after Court interim order.

Current only common expenses sharing between A/B/C and D1_D2 is STP by 50% formula...

Coming to main doubt Is this PARTIAL possession of D1_D2 enough to claim relief under sec38 and sec34 ? Understanding of sec38 is main confusion as it states of having possession at time of filing suit.

P. Venu (Expert) 28 November 2019
The question is whether the Club House and Swimming Pool is a common facility for those in D1 and D2 as well. Any suggestion entails that documents are perused and facts examined.

Nydv (Querist) 28 November 2019
@P. Venu Respected Sir,
A/B/C side is powerful with money and lawyers...
This is case of a powerful person knowingly exploit less powerful.

Documents side we hardly see any problem unless we lack some hidden fact :
a) Govt passed 2008 Layout plan clearly shows A/B/C and D1D2 in same project with facilities like ClubHouse
b) Sales agreement of all purchasers attached with 2008 plan Collector order and also mention all facilities will be shared by all purchasers
c) Deed of Declaration done for project in 2013 clearly define all common facilities will be shared between A/B/C and D1_D2...Listed clear.

A/B/C side filed a Civil Suit(inprogress) to cancel Deed of Declaration as they want to form their exclusive society.
A/B/C stopped access of D1_D2 by saying 2007 plan not have D1_D2 buildings in project and builder given all exclusive to them.

Mistake on D1_D2 side they stopped using facilities on A/B/C side except Water Tank from 4-5 years, as not wanted physical fight.

Now they wake up and checked with local advocates most saying filing Civil Suit under Sec38,34, you can get interim order quick.
But few advocates saying sec38 need possession to get relief...Thats confusion on understanding on Sec38. If you can suggest clarity.

Thanks
Nyadav

Nydv (Querist) 28 November 2019
Respected Sir,

Need to understand Sec38 little more for our case. I am adding more facts.

Suit Property in our case : PlotA and PlotB on which buildings are present. PlotA have A/B/C and PlotB have D1_D2

Suit Prayers : Perment Injunction and Interim Injunction in favour of D1_D2 to peacefully use all facilities of project

If Suit submitted under Sec38/Sec34 can it be rejected or declared non maintainable ??

Arguments by lawyers in its favor :
Suit property is plota, plotb...D1_D2 is in full possession of plotb and partial possesion of plota as using Water Tank that side.

What is your opinion about this particular issue of Suit?

P. Venu (Expert) 28 November 2019
Are D1/D2 a party in the pending civil suit. If not, they should take steps to implead. In my understanding, that offers the best remedy.

Nydv (Querist) 28 November 2019
Respected Sir, No D1_D2 not part of it...that Suit is Builder versus A/B/C. Prayers of that suit are for forming society and cancel condonium.
Local lawyers saying better to go with new SUIT of declaration and permanent injunction Sec38, Sec34.

Getting added as party in Existing Suit may not give results as prayers are different.

Different opinions so more confusion...

With new Suit we have fear it will be challenged due to sections and possession confusion...
wanted to be sure on that part by taking more experienced opinions..

KISHAN DUTT KALASKAR (Expert) 02 December 2019
Dear Sir,
Only after going through all the relevant documents I am in a possession to answer your questions.