: 1 : FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE APPEAL FROM ORDER NO.697 OF 1997 -------------------------------------------------------------- Office Notes, Office Memoranda Court’s or Judge’s orders of Coram, appearances, Court’s . orders or directions and . Registrar’s orders . -------------------------------------------------------------- Mrs.A.S. Malvankar for the Appellant. CORAM : S.J. VAZIFDAR, J. DATED : 4TH JUNE, 2008. P.C. : 1. This is an Appeal against the order of the learned Judge dismissing the Plaintiff’s Notice of Motion. 2. The Plaintiff sought an order restraining the Defendants from blocking his ingress, egress and access to the terrace of the suit property. 3. The facts that are relevant for the purpose of this Appeal are not really in dispute. The Plaintiff is admittedly : 2 : the owner of the building having purchased it from the previous owner. The Defendants are the tenants in respect of various tenements in the building. The Defendants contended that they have been in possession of the terrace as the same was a common amenity flowing from the tenancy of the tenants. At this stage I must presume that the Defendants are entitled to use the terrace in view of a letter dated 9.1.1996 upon which the learned Judge has correctly placed reliance. The same reads as under :- "With reference to your letter dated 05.01.1996, I have to inform you that, all the tenants in General were permitted to use the terrace as aminity, since the construction of the Building known as ‘Jitendra Kunj’. Regarding terrace Room (Second Floor) stands in the name of SMT.UJAMBEN SHAMJIBHAI JANGLA and/or SHRI SANDEEP MADHUKANT KACHARIA as per list of tenants given at the time of Sale." 4. The landlord does not reside in the building himself. One of the structures on the terrace is also admittedly occupied by the tenants. They : 3 : have thus been in exclusive use and occupation of the terrace. The impugned order therefore, cannot be faulted. 5. It is however necessary to modify the impugned order only to the extent that the tenants will not obstruct or restrain the Plaintiff/Appellant from having access to the terrace for the purpose of maintenance thereof as well as for the purpose of maintenance of any amenities that may be there. If the Appellant desires to do so, he shall give the Defendants atleast 48 hours notice in writing. The Defendants shall permit the Appellant access to the terrace for the said purpose. 6. In the circumstances, the Appeal from Order is accordingly disposed of.