A civil court has ruled in favour of the residents of a Malabar Hill building, affirming their right to access the common terrace. The decision comes after a couple claimed exclusive ownership of the terrace, prompting the residents to seek legal action. The court recognized the plaintiffs prima facie claim based on conveyance deeds and their contributions to the terrace's maintenance. While the matter of the defendants exclusive rights will be determined in trial, the court granted the residents access to the terrace, citing the balance of convenience and lack of harm to the defendants. This ruling brings relief to the residents and emphasizes the importance of communal rights.
In a significant ruling, a civil court has declared that the residents of a 60-year-old building in Malabar Hill have the
right to access the common terrace. This decision comes after a couple, who own multiple flats and parts of the
premises, including some inherited from the original property owners, claimed in 2022 that the terrace belonged
exclusively to them and denied other residents’ access.
The court's ruling has brought relief to the residents who were compelled to seek legal recourse. Several flat owners
involved in the case stated that they intended to utilize the terrace for various activities, such as walking.
In its verdict, the court acknowledged the plaintiffs claim over the common terrace by considering entries in
conveyance deeds and their contributions to the terrace's maintenance and other communal areas. The court also
highlighted that the matter of the defendants exclusive rights to the common terrace would be examined in the trial.
The residents who filed the lawsuit and the notice of motion for a temporary injunction to prevent the defendants from
impeding their access to the common terrace include Niranjan Thakur, Yogini Chiranjiv, Rajveev Shah, Arti Jain,
Nirmal L Jain, Navaz Pochkhanawalla, Dwipti Ghose, and Shailesh Jhaveri. They have been residing in the five-story
building named Dunkeld for over two to three decades, and they emphasized the uninterrupted access their
predecessors had to the common terrace on the sixth floor. Additionally, they emphasized the importance of the terrace
as the only escape route during a fire emergency.
The defendant, Aspi Marker, countered the residents claims by asserting his entitlement to a 4/11th undivided share in
the land and building since 2003. He also claimed ownership of two flats on the fifth and second floors, as well as the
garages, storerooms on the ground floor, and the terrace. Aspi further alleged that one of the plaintiffs, a developer,
had instigated the others to file the suit and notice of motion to coerce him into accepting their terms for the building's
redevelopment. Concerns over security were also raised since Aspi and his wife, who are senior citizens residing
alone, accessed their balcony through the terrace. Aspi contended that the terrace was always locked, and when he
travelled, he would provide a duplicate key to the watchman with strict instructions to only access the terrace for
specific purposes like checking water in the overhead tanks or repairing the dish antenna and lift machine.
The court, after reviewing the available evidence, concluded that the plaintiffs had a prima facie case and that granting
them access to the common terrace would cause no harm to the defendants. The court found that the principles of a
prima facie case, balance of convenience, and irreparable loss favoured the plaintiffs. Consequently, the court allowed
the notice of motion, asserting the residents right to access the common terrace.
This ruling brings an end to the residents struggle for access to the common terrace, ensuring that they can enjoy the
use of this community space. It serves as a reminder of the importance of recognizing and respecting the rights of all
residents in shared properties.
In conclusion, the civil court has ruled in favour of the residents of the Malabar Hill building, acknowledging their
right to the common terrace. This decision provides much-needed relief to the residents and upholds the principles of
fairness and inclusivity in communal spaces.
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