Form No.J(2) IN THE HIGH COURT AT CALCUTTA Civil Appellate Jurisdiction Appellate Side Present : The Hon’ble Mr. Justice Sabyasachi Bhattacharyya & The Hon’ble Mr. Justice Uday Kumar FMAT No. 208 of 2025 + CAN 1 of 2025 Sudeep Chitlangia -vs- Kanchan Jyoti Rao and others For the appellant : Mr. Saptansu Basu, Mr. Amit Kumar Nag, Mr. P. Banerjee. For the respondent no. 1 : Mr. Supriya Ray, Mr. Aditya Chakraborty, Ms. Saggat Parveen, Ms. Saolini Bose. For the respondent no. 5 : Mr. Aniruddha Mitra, Mr. Anirban Ghosh. Heard on : June 18, 2025. Judgment on : June 18, 2025. Sabyasachi Bhattacharyya, J.: 1. The original certified copy of the impugned order be kept on record and be tagged with the Memorandum of Appeal. 2 2. The present appeal has been preferred by the defendant no. 1 in a declaratory suit against an order whereby the appellant’s application under Order XXXIX Rule 4 of the Code of Civil Procedure was dismissed and the temporary injunction application of the plaintiff/respondent no. 1 was allowed by making the ad interim order granted earlier absolute to the effect that there shall be status quo with regard to nature, character and possession of the suit property, which is a portion of the roof of the concerned building. 3. Learned senior counsel appearing for the appellant argues that Rule 117(4) of the Kolkata Municipal Corporation Building Rules, 2009 (in short, “the 2009 Rules”) prevents any sub-division of a terrace on the topmost storey of any building. It further provides that every terrace on the topmost storey of any building shall have a common access. It is submitted that the status quo with regard to exclusive possession of the plaintiff/respondent no. 1 is antithetical to such provisions. 4. Learned senior counsel next argues that the lease deed in favour of the predecessor-in-interest/lessor of the plaintiff, who is a proforma defendant/respondent no. 5 in the present litigation, as well as the subsequent lease deed executed in favour of the 3 plaintiff/respondent no. 1, are violative of an order of injunction passed by a learned Single Judge of this Court on April 5, 1994 in Suit No. 113 of 1994. 5. It is contended that as such, the lease deeds in favour of the plaintiff as well as the plaintiff’s lessor are themselves void. 6. Learned senior counsel appearing for the appellant cites a judgment in the case of Jehal Tanti and others Vs. Nageshwar Singh (dead) through LRS reported at (2013) 14 SCC 689 in support of such proposition, where it was held that a transfer in the teeth of an order of the injunction is unlawful and void. 7. Learned senior counsel for the appellant further contends that the defendant no. 1/appellant has common rights to the roof of the property. It is submitted, by placing reliance on the title deed of the defendant no. 1/appellant, that the said deed confers rights to the common areas of the suit property and the common facilities and amenities thereof. It is argued that the roof rights come within the ambit of such common facilities. 8. Learned senior counsel appearing for the plaintiff/respondent no.1 as well as the proforma defendant / respondent no. 5 contend that insofar as Rule 117(4) is concerned, the same merely confers common access to all residents of a building to 4 the roof thereof. It is submitted that the respondent and the proforma defendant / respondent no. 5 do not have any objection if temporary ingress and egress is given to the defendants with regard to the portion of the roof which is occupied by the plaintiff. However, such temporary access cannot be converted to a right to disturb the exclusive possession of the plaintiff. 9. It is submitted that the injunction order passed in Suit No. 113 of 1994 has not been violated at all by way of the lease granted in favour of the plaintiff as well as his predecessor-in-interest. It is submitted that the plaint of the suit, in connection with which such injunction was granted, does not contain any schedule. The rights claimed in the said suit are restricted to the respective flats and office spaces owned by the members of the plaintiff no. 1- association therein, that is, the Poddar Point Owners and Occupiers Association. 10. By drawing the attention of the court to the injunction order dated April 5, 1994, it is contended that the same merely restrained the defendant nos. 1 and 2 therein from creating any third party interest in respect of which the suit has been filed. 5 11. Since the suit was not filed in respect of the roof rights, the same did not prevent transfer of the said rights in favour of the plaintiff by the plaintiff’s predecessor. 12. Learned senior counsel appearing for the respondent/proforma defendant / respondent no. 5 further argue that even in the deeds executed in favour of the plaintiffs in Suit No. 113 of 1994, it is clearly mentioned that the rights conferred on them by the said deeds in respect of the premises no. 113, Park Street, Kolkata, would not affect the ingress and egress and other facilities and benefits of the purchasers. 13. Moreover, a specific portion of the roof, separate from that granted to the present plaintiff and its predecessor, was conveyed in favour of a company of which the present appellant has pervasive control. 14. Thus, it is submitted that common rights to the roof of the said building was never conferred in favour of the defendant/appellant. 15. Since several arguable questions of law and fact are involved, we admit the appeal, to be heard on the grounds taken in the memorandum thereof. 6 16. Upon a careful perusal of the materials before us, we find that the points argued in respect of the application are same as those involved in the appeal and accordingly we take up the appeal and the application together for disposal. 17. We find from the plaint of the suit, that is, the Suit No. 113 of 1994, in connection with which the injunction order dated April 5, 1994 was passed, that the same did not contain any schedule. In paragraph no. 1 thereof, it was mentioned that the plaintiff no. 1 was an Association of owners and occupiers of flats and office spaces in a multi-storied building situated at 113, Park Street. 18. The reliefs claimed in the said suit did not pertain to the entire building situated at 113, Park Street. The declarations sought were specifically restricted to the lawful possession and occupation of the “different portion of Poddar Point and the other plaintiffs in respect of their respective flats and/or office spaces and common amenities and facilities” in the said building. 19. Hence, it is absolutely not borne out by the reliefs sought in the said suit and/or the averments made in the plaint thereof that specific roof-rights in respect of the said building were claimed by the plaintiffs therein. 7 20. The injunction order dated April 5, 1994 was restricted to the properties in respect of which the suit had been filed. 21. Hence, the injunction order, read in conjunction with the averments made in the plaint and the reliefs sought therein, make it abundantly clear that the same pertains to the respective flats and the office spaces and the vague “common amenities and facilities”, which were not specifically enumerated in the plaint or the order. As such, it cannot be said that there was ex facie violation of the said injunction order, by transfer of a portion of the roof of the said building in favour of the plaintiff and/or the plaintiff’s lessor. 22. We find from the agreement of sub lease dated April 15, 2024 executed in favour of the plaintiffs by his predecessor M.A. Leasing & Construction Private Limited that the same pertains to a portion of the roof of the said building. 23. As rightly argued on behalf of the respondent and proforma defendant / respondent no. 5, the deed by which a lease of 999 years was executed in favour of M. A. Leasing & Construction Private Limited was dated June 5, 1995, which was much prior to coming into force of the 2009 Rules. 8 24. Thus, in any event, the purported bar under Rule 117(4) of the said Rules did not affect the transfer in favour of the M. A. Leasing & Construction Private Limited retrospectively. Since valuable rights and vested interests in an exclusive portion of the roof had already devolved upon M. A. Leasing & Construction Private Limited prior to coming into force of Rule 117(4), subsequent transfers by the said lessee M. A. Leasing & Construction Private Limited with regard to its exclusive portion of the roof cannot also be said to be hit by Rule 117 (4) of the 2009 Rules. 25. Even otherwise, as held above, it cannot be said that there was any ex facie violation of the injunction order. Moreover, even from the deeds executed in favour of the plaintiffs in Suit No. 113 of 1994, we do not find any specific roof-rights being created in their favour. 26. Be that as it may, we find from the several transfer deeds in respect of the different portions of the roof of premises no. 113, Park Street, Kolkata that the said transfers carved out an exception with regard to the ingress and egress and other necessary facilities and benefits with regard to the roof. 9 27. That apart, in view of the fair concession given by learned counsel appearing for the plaintiff/respondent and the proforma defendant / respondent no. 5 M. A. Leasing & Construction Private Limited, to the effect that they would not have any objection if ingress and egress is allowed to the defendant/appellant in the present suit in respect of the suit property, we are of the opinion that the impugned order can be modified/clarified to the said limited extent. 28. Insofar as the change in nature and character of the suit property is concerned, however, the subject property ought to be maintained in statu quo during pendency of the lis and, as such, we do not intend to interfere with the said portion of the impugned order. 29. Accordingly, FMAT No. 208 of 2025 is disposed of by modifying the impugned order to the limited extent that the parties shall maintain status quo with regard to the nature and character and/or possession of the suit property, with the rider that the defendant/appellant and his men and agents might have limited and temporary ingress and egress to the suit property for specific purposes, if any. It is made clear that such ingress and egress shall not be of such nature as to disturb the exclusive possession 10 of the plaintiff in respect of the suit property and/or shall not create any equity or special right in favour of the defendant/appellant. 30. We further make it clear that we have not conclusively decided the issues involved in the suit on merits and it will be open to the parties to raise all issues at the time of final hearing of the suit and the learned trial Judge shall be at liberty to proceed independently in adjudicating the suit in accordance with law, without being influenced in any manner by any of the observations made hereinabove. 31. CAN 1 of 2025 stands disposed of as well in the light of the above observations. 32. There will be no order as to costs. I agree. (Sabyasachi Bhattacharyya, J.) (Uday Kumar, J.)