Roof construction without reserved terrace rights constitutes encroachment warranting mandatory injunction for demolition.

The Appellant, Vasdev Wadhwa, is the registered owner of the second floor of property A-24, Pratap Nagar, Delhi, purchased in 2000

In 2005, the Appellant entered into an Agreement to Sell the suit property to his brother, Respondent No. 1, for ₹2,50,000, receiving ₹1,00,000 as earnest money.

The Respondent failed to pay the balance, leading to the forfeiture of the earnest money

Respondent No. 1's subsequent suit for Specific Performance was ultimately dismissed by the Supreme Court, though the Appellant was directed to refund the ₹1,00,000 with interest

Respondent No. 1 obstructed the Appellant's access to the second floor, necessitating multiple injunction suits and police aid for the Appellant to regain entry

Upon gaining access, the Appellant discovered that the Respondents had constructed a "katcha room" on the roof of the second floor (third floor) and installed an iron ladder through the Appellant’s veranda

The Trial Court partly decreed the suit, awarding mesne profits at ₹10,000/month but denying the mandatory injunction for demolition of the illegal structure

1. Whether the Appellant is entitled to a decree of mandatory injunction directing the Respondents to remove/demolish the room and iron stairs constructed over the roof of the second floor

2. Whether the quantification of unauthorized occupation charges at ₹10,000 per month and the duration of the period for which they were awarded required modification

Section 2(12) of the Code of Civil Procedure (CPC), 1908, which defines "mesne profits" as those profits which a person in wrongful possession actually received or might with ordinary diligence have received, including interest

The principle that terrace rights do not inherently remain with a vendor once a floor is sold unless specifically reserved, especially when no access to the roof existed at the time of sale

the doctrine of lis pendens and the evidentiary requirement that a party cannot rely on documents (such as the Gift Deed) not pleaded in the written statement or proved through testimony of the executant

Regarding the mandatory injunction, the Court observed that when the second floor was sold in 1990, no third floor existed, and there was no staircase or reserved right for the terrace

The Respondents’ claim to the roof via a 2019 Gift Deed was rejected as a "manipulated document" created during the pendency of the suit to defeat the Appellant’s rights

The Court noted that the Respondents had encroached upon the Appellant’s veranda to install an iron ladder for access, which constituted a "sheer encroachment"

Regarding mesne profits, the Court upheld the rate of ₹10,000 per month, noting that the Appellant failed to provide documentary evidence (e.g., lease deeds) to justify the claimed ₹25,000 per month

the Court found that the Trial Court erred in stopping the period for mesne profits on the date of a previous court order (22.11.2018) rather than the date the keys were actually handed over (20.02.2019)

It set aside the Trial Court’s refusal of the mandatory injunction and decreed that the Respondents must remove the katcha room and iron stairs within 60 days, failing which the Appellant may remove them and recover expenses

The Court modified the decree for mesne profits, maintaining the rate of ₹10,000 per month but extending the period of liability from 28.07.2015 until the actual handover of possession on 20.02.2019, with 8% simple interest per annum until the decree and 6% thereafter