Delhi District Court
Beena Baburam vs Govt.Of Nct Of Delhi And Ors on 18 March, 2026
IN THE COURT OF SH VIPUL SANDWAR, ADDL. SENIOR
CIVIL JUDGE-CUM- JUDGE SMALL CAUSE COURT-CUM-
GUARDIAN JUDGE, DISTRICT: SOUTH, NEW DELHI
CS SCJ 1240/19
Beena Baburam Vs. Govt of NCT of Delhi & Ors.
CNR No. DLST03-002008-2019
Mrs. Beena Baburam
W/o Sh. M. R. Baburam,
Plot No.A-314, Pragati Farm,
Dr. Ambedkar Colony, Andheria Mor,
Kh. No.40, Village Chattarpur,
New Delhi-110074 .....PLAINTIFF
VERSUS
1. Govt. of NCT of Delhi
Through its Secretary (Revenue)
Players Building, I. P. Estate,
New Delhi-110092
2. Gaon Sabha Chattarpur
Through the Block Development Officer,
(South) at DC Office Saket, New Delhi
3. Centralised Accident & Trauma Services (CATS)
(An Autonomous Body of Govt. of NCT of Delhi)
Through it's Chairman & Principal Secretary
(Health & Family Welfare)
Yamuna Pushta, Bela Road,
Near Vijay Ghat, New Delhi-11006 .....DEFENDANTS
CS SCJ 1240/19 Beena Baburam Vs. Govt. of NCT of Delhi & Ors. Page No.1 of 21
SUIT FOR PERPETUAL INJUNCTION
Date of institution : 24.12.2019
Date of reserving judgment : 06.03.2026
Date of pronouncement of judgment : 18.03.2026
JUDGMENT
PLAINT
1. The plaintiff is in lawful and peaceful possession of property admeasuring 405 sq. m. bearing House No. A-314, Pragati Farm, Dr. Ambedkar Colony, Andheria Mor, Khasra No.40, Village Chattarpur, New Delhi. The property hereafter referred to as 'suit property'.
2. The suit property is part of the unauthorized colony named Ambedkar Colony which bears Serial No.211 in the list of unauthorized colonies under the jurisdiction of the defendant no.1. The colony is also listed in the National Capital Territory of Delhi (Recognition of Property Rights of Residents in Unauthorised Colonies) Regulations, 2019.
3. The Pragati Sheel Samaj Kalyan Samiti (Registered) is the residents welfare association of the said colony which had applied for regularization of the colony on 27.12.2004 in response to the public notice issued by the defendant no.1. The application shows plaintiff as one of the property owners.
CS SCJ 1240/19 Beena Baburam Vs. Govt. of NCT of Delhi & Ors. Page No.2 of 21
4. The survey report dated 08.07.2005 submitted by the tehsildar to the defendant no.1 contained a list of khasra numbers of lands on which the said colony had been developed and it included the whole Kh. No. 40(4-16) of village Chattarpur. The suit property is a part of Kh. No.40 of village Chattarpur.
5. The layout plan of the colony which was submitted by the Pragati Sheel Samaj Kalyan Samiti for regularization showed the property of the plaintiff as plot no.A-314 and property of her husband as A-314A & A-314B.
6. The property of the plaintiff has been built up and existing prior to 08.02.2007 and is eligible for regularization in accordance with the NCT of Delhi (Special Laws) as enacted from time to time and the Regulations for Regularization of Unauthorized Colonies dated 05.10.2007 as framed by the Municipal Corporation of Delhi. The Delhi Development Authority has notified the procedure for regularization of unauthorized colonies by way of gazette notification dated 24.03.2008 which stands modified by way of the National Capital Territory of Delhi (Recognition of Property Rights of Residents in Unauthorized Colonies) Regulations, 2019. As per the plaint, the property of the plaintiff enjoys statutory protection from demolition and the same is eligible for regularization. Though the defendant no.2/Gaon Sabha Chattarpur claims to be owner of the Kh. No.40 on which suit property exists, still neither the Goan Sabha nor any other authority has the power or jurisdiction to CS SCJ 1240/19 Beena Baburam Vs. Govt. of NCT of Delhi & Ors. Page No.3 of 21 dispossess the plaintiff. At the most Goan Sabha will be entitled to recover the price of land which is in possession of the plaintiff as per the policy of regularization.
7. The plaintiff is entitled to peaceful use, occupation and residence in the suit property as her possession is duly protected by law and defendants are prohibited by law from dispossessing the plaintiff.
8. The plaintiff had actually purchased two bighas of land in khasra no.40 including the suit property from Sh. P. D. Sharma S/o Sh. Lahori Ram who was allottee in possession of khasra no.40 under the Goan Sabha Chattarpur, Delhi since 1967.
9. The plaintiff then built up a house on the said property towards the south side of the two bighas purchased by her and kept the remaining plot as appurtenant land. The house which was built by the plaintiff is 1989-1990 still exists and she is possession of the same. The various telephone, electricity, property tax bills and assessment forms from 2009 & 2010-2011 to 2015-2016 are filed with the plaint.
10. The plaintiff being a member of the Pragati Sheel Samaj Kalyan Samity (Regd.) was a party to the CWP No.3993/2000 in which a final order was passed on 13.02.2003 directing that the general directions passed in the matter of CWP No.4771/1993 titled "Common Cause Vs. UOI" be followed in this case also. In that writ petition, the plaintiff had filed an affidavit declaring that she was occupying the house no.A-314, Dr. Ambedkar Colony, Andheria CS SCJ 1240/19 Beena Baburam Vs. Govt. of NCT of Delhi & Ors. Page No.4 of 21 Mor, New Delhi and that she would not carry out any unauthorized construction in the said property.
11. Despite such orders, the defendant no.1 and 2 wrongly demolished the boundary wall of the property of plaintiff on 03.03.2010 and enclosed the open space of the plaintiff's property within its own boundary built around a large area. The built up portion of the property of the plaintiff was allowed to remain in possession of plaintiff and only the open space was enclosed by the defendant no.1 and 2.
12. The defendants though erected a boundary wall around the plot of which forcible possession was taken by them but they had left a ten feet wide opening for accessing the suit property as a gap in the boundary wall for the benefit of the plaintiff. From this gap, plaintiff was accessing her property by going over the land in possession of Goan Sabha Chattarpur and later in possession of defendant no.3.
13. The plaintiff has been using the opening as shown in the site plan of khasra no.40 of village Chattarpur since the date 03.03.2010 without any hindrance from the defendants as the suit property had no other access to the public streets. Thus, the plaintiff who is in possession of suit property became entitled to the easementary right of necessity as the suit property and the other portion of khasra no.40 of village Chattarpur were earlier both with the same person i.e. plaintiff herein and by use of coercive process of law possession of part of khasra no.40 came to the defendants. After taking over the CS SCJ 1240/19 Beena Baburam Vs. Govt. of NCT of Delhi & Ors. Page No.5 of 21 possession of the remaining part of khasra no.40 of Village Chattarpur, the suit property has the status of dominant heritage and the defendants became subservient owners as per law. From the date of forcible take over of possession in 2010 and till 2019, defendants never obstructed the ingress and egress to the suit property as they had themselves left a ten feet wide opening in front of the suit property so that plaintiff can approach her property by passing through the openings left in khasra no.40. The plaintiff has otherwise being enjoying the easement through public streets for last 30 years i.e. 10.05.1989 by prescription and is therefore entitled to use and enjoy the same without any obstruction or hindrance.
14. The plaintiff had been exercising her easementary right of egress by movement over land in khasra no.40 of village Chattarpur but after hand over of khasra no.40 to the defendant no.3, defendant no.3 has erected a new boundary wall with an iron gate sometime around 2015-2016. However, even after construction of new boundary wall, the gate towards the public street has always remained opened as it is the only access for the plaintiff to approach the public street from the suit property.
15. On 18.11.2019, some officials claiming to be from the office of defendant no.1 and 3 came to the site and stated that they would start construction of the CATS centre and the plaintiff would not be allowed to pass/move through the land in their possession.
16. It is the case of the plaintiff that she is having an easementary right of necessity and also by prescription for last 30 years and these CS SCJ 1240/19 Beena Baburam Vs. Govt. of NCT of Delhi & Ors. Page No.6 of 21 rights cannot be curtailed in any manner. Therefore, the plaintiff has filed the present suit for protection of her easementary rights.
WRITTEN STATEMENT
17. Summons were issued to the defendants. Defendant no.1 and 2 did not appear and they were proceeded ex-parte vide order dated 17.01.2022. Defendant no.3 filed their WS. In their WS, they had stated that a piece of land measuring six bighas, five biswa bearing khasra no.26 (1-6), 27 (3-13) and 28 (0-16) at village Chattarpur, District South has been allotted by defendant no.1 Director Panchayat, District South to Directorate of Health Services on 01.06.2015, for construction of CATS HQ and CATS Control Room in response to the request letter of Dr. Vasantha Kumar N, IAS (the then Director CATS).
18. The defendant no.3 received request letter from defendant no.2 BDO South to obtain possession in the name of CDMO, South District dated 25.08.2015 after removal of encroachment as per the letter. Defendant no.2 also issued letter dated 02.09.2015 regarding demolition programme referring defendant no.1, DGHS, GNCTD and DCP.
REPLICATION
19. The plaintiff filed the replication to the WS of the defendants wherein they denied the claim of the defendants and stated that it is evident that the Goan Sabha is recorded owner of land bearing khasra no.40 as well as land allocated to defendant no.3. therefore, CS SCJ 1240/19 Beena Baburam Vs. Govt. of NCT of Delhi & Ors. Page No.7 of 21 land of khasra no.40 which is at the rear side needs to be treated as dominant heritage and the land allotted to defendant no.3 should be treated to subservient owner's land.
20. After completion of pleadings the following issues were framed:
(1) Whether plaintiff is entitled to decree of permanent injunction for restraining the defendants from obstructing/restricting ingress and egress to the suit property through land in khasra no.40, Village Chattarpur, New Delhi as prayed for in prayer clause (a)?OPP (2) Whether present suit is liable to be dismissed for want of statutory notice under section 80 CPC?
OPD3 (3) Whether this court has no pecuniary jurisdiction to entertain the present suit and whether the present suit has not been valued properly valued for the purposes of court fees and jurisdiction? OPD3 (4) Whether present suit has been filed without any cause of action? OPD3 (5)Whether present suit for injunction is not maintainable in its present form? OPD3
6) Relief
21. The matter thereafter, listed for plaintiff's evidence. The plaintiff examined himself as PW1 and relied on the following documents:-
1.Ex. PW1/1 :- Site plan of the suit property.
2.Mark A :- Copy of application
for regularization of
colony dated
27.12.2004.
CS SCJ 1240/19 Beena Baburam Vs. Govt. of NCT of Delhi & Ors. Page No.8 of 21
3.Mark B :- Copy of Survey Report of colony dated 08.07.2005.
4.Mark C :- Copy of application
for regularization dated
15.11.2007.
5.Mark D :- Copy of eligibility slip
dated 08.08.2008.
6.Mark E :- Copy of provisional
certificate of Dr.
Ambedkar Colony
issued on 17.09.2008.
7.Mark F (colly) :- Copy of the layout
plan of colony
submitted by Pragati
Sheel Samaj Kalyan
Samiti showing plot
no. A-314 along with
extract.
8.Mark G :- Copy of downloaded
google earth imagery
of 2002 and 2006.
9.Mark H :- Copy of Gazette
notification of
Ministry of Housing
and Urban Affairs
dated 29.10.2019.
10.Mark I :- Copy of agreement to
sell in favour of Beena
Baburam dated
10.05.1989.
11.Mark J :- Copy of GPA dated
10.05.1989.
12.Mark K :- Copy of will dated
10.05.1989.
13.Mark L (colly) :- Copy of affidavit
along with receipt
dated 10.05.1989.
14.Mark M (colly) :- Copy of telephone bill
dated 20.12.2014 and
receipt dated
09.05.2004.
15.Mark N (colly) :- Copy of electricity
bills dated 15.11.2006
and 25.04.2019.
16.Mark O (colly) :- Copy of property tax
bills along with a
CS SCJ 1240/19 Beena Baburam Vs. Govt. of NCT of Delhi & Ors. Page No.9 of 21 assessment forms from 1993 onwards.
17.Mark P :- Copy of UPIC no.
1744345300000700 issued on 10.01.2019 by SDMC.
18.Mark Q :- Copy of order dated 13.02.2003 passed by Hon'ble High Court of Delhi.
19.Mark R (colly) :- Copy of downloaded google images of years 2014, 2016, 2017 and 2018.
20.Mark S :- Copy of work order dated 30.11.2015.
21. Ex. PW1/2 (colly):- 4 present photographs of suit property.
22. Thereafter, plaintiff examined Sh. Laxman Singh, draughtsman (Civil) as Ex. PW2.
23. Thereafter, Ld. Counsel for the defendant cross examined the witnesses of the plaintiff and PE was closed vide order dated 30.07.2024 and matter was listed for DE.
24. Defendant no.3 examined Sh. Narender Kumar, Admin Officer, HOO of CATS as DW1. He tendered her evidence by way of affidavit i.e. Ex. DW1/A and relied upon the following documents:
"1. Mark DW1/1 - Copy of request for allotment of land for construction of CATS headquarter and control room (original sent to DC (south)) . (In the evidence affidavit Mark DW1/1 is mentioned as Ex. DW1/1 and the same is now de-exhibit)
2. Mark DW1/2 (OSR) - Copy of allotment letter for construction of CATS (HQ) and Control room. (In the evidence affidavit Mark DW1/2 is CS SCJ 1240/19 Beena Baburam Vs. Govt. of NCT of Delhi & Ors. Page No.10 of 21 mentioned as Ex. DW1/2 and the same is now de- exhibit)
3. Ex. DW1/3 (OSR) - Copy of corrigendum dated 26.06.2015.
4. Mark DW1/4 - Copy of letter dated
25.08.2015 for request to take over the possession of the allotted land. (In the evidence affidavit Mark DW1/4 is mentioned as Ex. DW1/4 and the same is now de-exhibit)
5. Mark DW1/5 - Copy of letter dated 21.08.2015 regarding demolition programme fixed for 02.09.2015 at village Chattarpur, New Delhi. (In the evidence affidavit Mark DW1/5 is mentioned as Ex. DW1/5 and the same is now de-exhibit)"
25. Ld. Counsel for the plaintiff cross examined the said witness at length. Thereafter, DE was closed on 10.02.2026 and matter was listed for final arguments.
26. This Court has duly considered the final arguments advanced by the learned counsel for parties. The Court has meticulously examined the entire record, giving careful attention to the pleadings, the evidence presented, and the submissions made on behalf of the parties. Each aspect of the case has been analysed in light of the relevant facts and law, ensuring that all material brought before the Court has been fully reviewed and assessed in reaching a fair and just decision.
ANALYSIS AND FINDINGS ON THE ISSUES FRAMED
27. This Court has meticulously perused the pleadings, the evidence led by both parties, and the arguments advanced. The issues are decided as follows:-
CS SCJ 1240/19 Beena Baburam Vs. Govt. of NCT of Delhi & Ors. Page No.11 of 21 Issues (i) (1) Whether plaintiff is entitled to decree of permanent injunction for restraining the defendants from obstructing/restricting ingress and egress to the suit property through land in khasra no.40, Village Chattarpur, New Delhi as prayed for in prayer clause (a)?OPP
28. The onus for proving this issue was on the plaintiff. It is the case of the plaintiff that she was in possession of H. No.A-314, Pragati Farm, Dr. Ambedkar Colony, Andheria Mor, Khasra no.40, Village Chattarpur, New Delhi. It is part of unauthorized colony named Ambedkar Colony. Their Residents Welfare Association have applied for regularization of the colony on 27.12.2004. As per the plaint, on 03.03.2010, defendant no.1 and 2 wrongly demolished the boundary wall of the plaintiff and enclosed the open space of the plaintiff's property within its own boundary. However, they left 10 feet opening for accessing the suit property as a gap in the boundary wall. Further on 18.11.2019 some officials of defendant no.1 and 2 came to the property and stated that they would start construction of CATS Centre and the plaintiff would not be allowed to pass/move through the land in their possession. The plaintiff claim their easementary rights of necessity and prescription.
29. In support of their claim, the plaintiff has examined herself as PW1. In her cross examination dated 09.01.2024, she has conceded that the area marked in yellow colour as passage had been allotted to defendant no.3. She has further stated that the colony where the suit CS SCJ 1240/19 Beena Baburam Vs. Govt. of NCT of Delhi & Ors. Page No.12 of 21 property is situated is not regularized. To a specific Court question, whether she has any access to the suit property apart from the one claimed in the present suit, she has replied that she has a small access of approx. seven feet which is not sufficient to cater their needs. She denied the suggestion that defendant no.3 is the rightful owner of the passage in question.
30. Per Contra, it is the case of the defendant no.3 that the land measuring six bighas, five biswa bearing khasra no.26 (1-6), 27 (3-
13) and 28 (0-16) at village Chattarpur, District South has been allotted by defendant no.1 Director Panchayat, District South to Directorate of Health Services on 01.06.2015, for construction of CATS HQ and CATS Control Room in response to the request letter of Dr. Vasantha Kumar N, IAS (the then Director CATS). The defendant no.3 received request letter from defendant no.2 BDO South to obtain possession in the name of CDMO, South District dated 25.08.2015 after removal of encroachment as per the letter. Defendant no.2 also issued letter dated 02.09.2015 regarding demolition programme referring defendant no.1, DGHS, GNCTD and DCP.
31. Defendant no.3 examined Sh. Narender Kumar, Admin Officer/HOO of CATS in his cross examination dated 10.02.2026 he has denied the suggestion that the suit land is situated in khasra no.40 at village Chattarpur. He has further denied the suggestion that defendant no.3 and Goan Sabha Chattarpur had no right to close the land with the boundary. He denied the suggestion that ten foot CS SCJ 1240/19 Beena Baburam Vs. Govt. of NCT of Delhi & Ors. Page No.13 of 21 gate was left in front of the house of the plaintiff to allow the plaintiff to access their property.
32. In the present suit, the plaintiff is seeking her easementary right in the form of perpetual injunction against the defendant no.2. As per the section 4 of the Indian Easement Act, 1882,(hereinafter, the Act) easement is defined as a right which the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done, in or upon, or in respect of, certain other land not his own.
33. In C. Mohamed Vs. Anathachari AIR 1988 Kerala 298, it has been held that:-
"an easement is a privilege, though without profit, enjoy as a right by the owner of a tenement in or over the tenement of another person who is obliged, for the advantage of the former to suffer or refrain from doing something on his own tenemant. An easement has six essential characteristics: (1) there must be a dominant and a servient tenement; (2) the easement must accommodate the tenement; (3) the easement is for beneficial enjoyment of the dominant tenement; (4) the dominant and servient owners must be different persons; (5) the easement should entitle the dominant owner to do and continue to do, or to prevent and continue to prevent, something in or upon or in respect of the servient tenement; and (6) that something must be certain or well defined and capable of being subject-matter of grant."
34. The plaintiff is claiming the easementary right of the ingress and egress to the ten feet wide gate in the boundary wall of defendant no.3 by way of necessity and prescription.
CS SCJ 1240/19 Beena Baburam Vs. Govt. of NCT of Delhi & Ors. Page No.14 of 21
35. It has been held in Balbir Singh Vs. Sawan Singh, AIR 1987 P&H 174 that:
"an easement of necessity is an easement without which the property in question cannot be enjoyed at all. It is an easement which is not merely necessary for the reasonable enjoyment of the dominant tenement, but one without which that tenement cannot be used at all."
36. In the present case, PW1 in her cross examination dated 09.01.2024 to a specific question put by the Court regarding her having any access to the suit property apart from the one claimed in the present suit has answered that she has a small access of approx. seven feet, which is not sufficient to cater their present need. As observed above, an easement of necessity cannot be for reasonable enjoyment rather it can be claimed only when without that easement the property cannot be enjoyed at all, which is not in the present case. Even without ten feet gate of the defendant no.3, the plaintiff by her own statement has admitted that she has a seven feet access to the property. Therefore, the plaintiff cannot claim the easementary right of ingress and egress as an easement of necessity.
37. The plaintiff has also claimed the right to ingress and egress to her property through the ten feet gate of the defendant no.3 as easement acquired by way of prescription.
38. Section 15 of the Indian Easement Act deals with the easement of prescription and reads as follows:
CS SCJ 1240/19 Beena Baburam Vs. Govt. of NCT of Delhi & Ors. Page No.15 of 21 " 15. Acquisition by prescription Where the access and use of light or air to and for any building have been peaceably enjoyed therewith, as an easement, without interruption, and for twenty years, and where support from one person's land, or things affixed thereto, has been peaceably received by another person's land subjected to artificial pressure, or by things affixed thereto, as an easement, without interruption, and for twenty years, and where a right of way or any other easement has been peaceably and openly enjoyed by any person claiming title thereto, as an easement and as of right, without interruption, and for twenty years, the right to such access and use of light or air, support, or other easement, shall be absolute.
Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested.
Explanation 1: Nothing is an enjoyment within the meaning of this section when it has been had a pursuance of an agreement with the owner or occupier of the property over which the right is claimed, and it is apparent from the agreement that such right has not been granted as an easement, or, if granted as an easement, that it has been granted for a limited period, or subject to a condition on the fulfilment of which it is to cease.
Explanation II. Nothing is an interruption within the meaning of this section unless where there is an actual cessation of the enjoyment by reason of an obstruction by the act of some person other than the claimant, and unless such obstruction is submitted to or acquiesced in for one year after the claimant has notice thereof, and of the person making or authorizing the same to be made.
Explanation III : Suspension of enjoyment in pursuance of a contract between the dominant and servient owners is not an interruption within the meaning of this section.
Explanation IV : In the case of an easement to pollute water, the said period of twenty years begins when the pollution first prejudices perceptibly the servient heritage.
When the property over which a right is claimed under this section belongs to Government, this CS SCJ 1240/19 Beena Baburam Vs. Govt. of NCT of Delhi & Ors. Page No.16 of 21 section shall be read as if, for the words "twenty years" the words thirty years" were substituted.
39. As per section 15 for claiming an easementary right by prescription the right must have been enjoyed without interruption for a period of 20 years and if the right which is being claimed is over the property belonging to the government the period is to be read as thirty years. In the present case, as per the plaintiff the defendant no.1 and 2 on 03.03.2010 wrongly demolished the boundary wall of the plaintiff and enclosed the plaintiff's property within its own boundary. They had left ten feet wide gap in the boundary for accessing the suit property by the plaintiff. Later on 18.11.2019 defendant no.1 and 3 asked the plaintiff to stop the use of said ten feet wide gap. As per section 15 for prescription against government the right has to be enjoyed uninterrupted for a period of thirty years. In the present case, the said right was not been enjoyed for a period of twenty years, let alone, thirty years, therefore, plaintiff cannot claim her easementary right of ingress and egress from the ten foot wide gap in the boundary wall of defendant no.3 by way of prescription.
40. Further, section 12 of the Act states who may acquire easement and states that:
"An easement may be acquired by the owner of the immovable property for the beneficial enjoyment of which the right is created, or on his behalf, by any person in possession of the same."
CS SCJ 1240/19 Beena Baburam Vs. Govt. of NCT of Delhi & Ors. Page No.17 of 21
41. It has been held in the judgment Shivpyari Vs. Mst. Sardari AIR 1966 Raj 265 that:
"an easement may be acquired by the owner of immovable property for the beneficial enjoyment of which the right is created on his behalf by any person in possession of the same. Such an easement shall not, however, be personal to him. If the physical acts of the dominant owner are of such a nature as to entitle him to acquire the right of easement, he is entitled to that right notwithstanding the fact that he was doing those acts under the belief that he was the owner in an earlier litigation"
42. In the present case, it is the admitted case of the plaintiff that she is the resident of an unauthorised colony i.e. Ambedkar Nagar, khasra no.40, village Chattarpur. Also, it is her admitted possession that till date the regularization of the same has not been done. As per the plaintiff, the defendant no.3 has built up boundary wall and as per the plaintiff since 18.11.2019 defendant no.3 has stopped the plaintiff from using the ten feet wide gate in their boundary wall for her ingress and egress.
43. The plaintiff is in essence a trespasser over the property and wrongful possessor, she is not claiming easementary rights, on behlaf of, the real owner. In Gopalbhai Jikabhai Suvagiya vs Vinubhai Nathabhai Hirani, Hon'ble Gujarat High Court in RSA 208 of 2015 has observed that:
Trespasser : Although the phrase, "any person in possession" would apparently include a trespasser also, but it can not be said that, he acts, "on behalf of" the real owner". Therefore, a trespasser can not acquire the easement.
CS SCJ 1240/19 Beena Baburam Vs. Govt. of NCT of Delhi & Ors. Page No.18 of 21
44. Further, as per para 12 of the plaint, the defendant no. 1 and 2 wrongly demolished the boundary wall of the plaintiff on 03.03.2010 and enclosed the open space of the plaintiff property within its own boundary. Similarly, in para 14 of the plaint, it is stated that the plaintiff who is in possession of suit property became entitled to the easementary right of necessity as the suit property and the other portion of Kh. No. 40 of Village Chhatarpur were earlier both with the same person i.e. plaintiff herein. Therefore, as per the plaintiff the boundary wall was built on the open space of the plaintiff's property. The easementary right can only be claimed on someone else's property. The dominant owner and the servient owner have to be two distinct persons.
45. It has been observed in Shivpyari (supra):
It may, however, be stated that the owner of one land cannot acquire easement if he is the owner of another land on which he seeks to acquire easement. Unity of ownership is thus destructive to the acquisition of the right of easement but the same cannot be said of a person who is making an unfounded claim on another land if as a matter of fact he is making only a limited use of the other land. Again if the owner or occupier of one land is in fact occupying the other land exclusively and there is unity of possession, easement is extinguished, except under some exceptional circumstances. So also, if there is unity of possession, there can be no acquisition of the right of easement, except in some exceptional cases. In cases where the person has exclusive possession of another land over which he seeks to acquire easement, prima facie, the physical acts which he is doing on the land of the other will be referred to his exclusive possession, unless there is strong evidence that the animus was only to acquire an easement.
CS SCJ 1240/19 Beena Baburam Vs. Govt. of NCT of Delhi & Ors. Page No.19 of 21
46. Therefore, in view of the above discussion, the issue is decided against the plaintiff.
As to issue no. 2,3,4, and 5
47. The onus for proving the above said issues were on the defendant no.3. Issue no.2 pertains to non compliance of statutory notice under section 80 CPC. Vide order dated 28.02.2020, the application under section 82 CPC of the plaintiff was allowed and the present suit was proceeded further. Issue no.3 pertains to pecuniary jurisdiction and valuation of suit, issue no.4 pertains to non existence of cause of action and issue no.5 pertains to maintainability of the suit in the current form. The said issues are technical in nature and requires evidence to prove the same. The defendant no.3 has not proved either by evidence or by bringing on record anything to substantiate their contention. Since, no evidence has been led on these issues and also no legal arguments have been made by the parties on these issues the said issues remain unproved by the defendant no.3 Accordingly, issue no.2,3,4 and 5 are decided against the defendant no.3.
CONCLUSION AND ORDER Relief:
48. In view of the findings on all the issues above, this court concludes that the present suit of the plaintiff is hereby dismissed.
CS SCJ 1240/19 Beena Baburam Vs. Govt. of NCT of Delhi & Ors. Page No.20 of 21 No order as to costs.
Decree sheet be prepared accordingly.
File be consigned to Record Room after due compliance.
Digitally signed by VIPUL Announced in the open court VIPUL SANDWAR on 18th March 2026 SANDWAR Date: 2026.03.18 16:12:03 +0530 (VIPUL SANDWAR) ASCJ-cum-JSCC-CUM-GJ (South) Saket Courts, New Delhi
CS SCJ 1240/19 Beena Baburam Vs. Govt. of NCT of Delhi & Ors. Page No.21 of 21