Delhi District Court
Saroj Devi vs Dda & Ors on 1 October, 2013
: 1 :
IN THE COURT OF DR. NEERA BHARIHOKE : ADJ01
SOUTH DISTRICT : SAKET COURTS : NEW DELHI
Suit No. 167/13
In the matter of :
Saroj Devi
..... Plaintiff
Versus
DDA & Ors.
..... Defendants
01.10 .2013
ORDER :
1 Vide this order, I shall dispose off the application of the plaintiff u/o 39 Rules 1 & 2 CPC.
Brief facts of the case are as under:
2 Plaintiff is the owner of the said property situated in khasra no. 154, Lado Sarai, Mehrauli road, New Delhi. Said property was purchased in 1975 and it is stated that since 1975, it has only one access being a motorable access from main Mehrauli road through the defendant's land.
Contd....P..1 of 31 : 2 : 3 Plaintiff has described said property as dominant heritage and defendant's land being the servient heritage. Plaintiff has submitted that said property belongs to his father since 1975 and after his death, he has succeeded the said property and he and his family have been accessing the said property through the servient heritage. The servient heritage originally was Chhabra Nursery and in 1990, defendant no.1 acquired large tracts of land in the area including Chhabra Nursery and it was rechristened as Qutab Nursery. However, plaintiff and her family members continued to use the only passage to the said property being across the Qutab Nursery. 4 It is stated that said property is situated at the rear end of the Nursery abutting the open drain and there was never ever any access from the rear or sides of the Nursery and said property. Some time later encroachments sprung up against the rear boundary wall between the wall and the banks of the open drain.
5 Around 1985 defendant no.1 constructed the bypass road to the north of the servient and dominant heritages (but not adjacent / touching through either). It is stated that despite the construction of bypass road, dominant heritage did not have access to it and the only access continued to be across the servient heritage. The same led to Contd....P..2 of 31 : 3 : further encroachments over the drain.
6 The only access to the dominant heritage is stated to be through main gate of servient heritage and has been used peacefully and continuously as a right of passage by implied grant to the dominant heritage since the time of its purchase and also later from the time the house was constructed in 1975. This is evident from the fact that after acquisition of the servient heritage, the defendant continued to give access to the plaintiff in the boundary wall of the servient heritage for smooth and undisturbed ingress - egress to the dominant heritage and have continued to allow its occupants and their guests, visitors, employees, etc to park their vehicles within the servient heritage adjacent to the boundary wall of the dominant heritage. That the plaintiff's rights in the servient heritage are not those of a licensee.
7 The said passage is also used by the defendants for various other activities including bringing vehicles by the staff of the defendants no.1 & 2. To the knowledge of the plaintiff, no one other than the parties and their servants etc and some of the other occupants of the land of the erstwhile Chhabra Nursery which has not been acquired by defendant no.1, such as play school, have a right to Contd....P..3 of 31 : 4 : motorable access within the servient heritage. 8 Dominant heritage and its occupants have always had the easementary right by implied grant not just to use servient property, throughout the day and night as access to the house by vehicle or on foot for themselves, but also to the use of the same for their friends, family, guests, employees, tradesman, visitors, etc who would visit and stay with them from the year 1975 and prior from the time of acquisition and during construction.
9 Plaintiff and her friends, family, guests, tradesman, visitors, servants, etc have also had the right to park their vehicles on the servient heritage adjacent to the dominant heritage without restriction. There has been no restriction on the number of vehicles that the plaintiff has been entitled to park on the servient heritage adjacent to the dominant heritage, infact when the plaintiff's son got married, many of the functions were held on the dominant heritage and guests and well wishers had unhindered motorable access, without special permission from the defendants, through the servient heritage and to park thereon. There has been no interference or negative affect on the property or business of the defendants by the use of the easementary rights in the servient heritage by the plaintiff Contd....P..4 of 31 : 5 : as the easementary rights have also been exercised reasonably. 10 That the main gate of the servient heritage was either kept open or if it was locked a key was also provided to the plaintiffs/occupants of the dominant heritage and her family members/employees/servants/visitors so that they could use the said passage and park as narrated above. There is no parking facility available on the main Mehrauli road or within 2 km of the main gate to servient heritage.
11 Plaintiff by virtue of her title over the dominant heritage is the dominant owner of the easementary rights acquired by prescription in the said passage/way over the servient heritage and to the land on the servient heritage adjacent to the dominant heritage for parking/security and it cannot be disturbed or taken away by the defendants/servient owner.
12 Neither the plaintiff nor the occupants of the dominant heritage have ever caused any inconvenience whatsoever to the defendants and have been enjoying the peaceful and unhampered use of the passage / way and the land of the servient heritage adjacent to the dominant heritage for parking / security for over the years dating Contd....P..5 of 31 : 6 : back to the purchase of the dominant heritage and further 1975 when the property was constructed without any obstruction, objection and restriction from the defendants or any predecessor in interest in the servient heritage.
13 There has never been any complaint in any regard to the exercise and use of the easementary rights as narrated above and the plaintiff and the occupants of the dominant heritage have been in continuous and peaceful use of the same openly since the time of the purchase of the dominant heritage and thereafter upon the construction of the house in 1975.
14 Adjoining to the property of the plaintiff/dominant heritage, there is a vacant plot where there has been no construction/activity. During the last year, at the end of October, 2012, some construction activities were initiated on the said adjoining plot by persons unconnected with the plaintiff who sought access to the adjacent plot from the main gate of the servient heritage situated at main Mehrauli road. Perhaps to stop such construction activities suddenly on 01.11.12, the lock on the main gate of the servient heritage was changed and the plaintiff and her family members were suddenly and without notice, not provided with the key to the said Contd....P..6 of 31 : 7 : gate or access and deprived of their easementary rights. 15 Because of the nuisance caused by a third party to the defendants and the plaintiff, the defendant locked the main gate and informed the plaintiff that vehicles would not be allowed inside the servient heritage. The same interfered with the right of way and parking of the plaintiff to the dominant heritage. It is submitted herein that since the last about 38 years and prior, the plaintiff and the occupants of the dominant heritage have been peacefully using the said passage as access and land adjacent to the said property for parking/security without any obstruction. The plaintiff and her family members were the sufferers of the said abrupt interference with their easementary right of way etc. It is submitted herein that the plaintiff acquired this right of passage and parking/security as an easementary right along with the dominant heritage inherited from her father.
16 It is further submitted that there is no other access or motorable access or convenient place to park vehicles near the dominant heritage or close to the main gate to the servient heritage on the Mehrauli road and the defendant's denial of the rights of the plaintiff resulted in gross inconvenience to the plaintiff and her Contd....P..7 of 31 : 8 : family. Easementary rights have been exercised in respect of the dominant heritage by the plaintiff and her family members for approx 38 years, peacefully without any restriction, openly, hostile and unhindered. The parking of the cars at some other place is also neither convenient nor safe 17 It is further submitted that the plaintiff acquired easementary right by implied grant to use the passage and the adjacent land to the dominant heritage over the servient heritage for parking / security by prescription since the same is being used ever since the house was constructed in approx 1975, without any hindrance or obstruction by the earlier owner and also by the defendants since the acquisition of the servient heritage by it in 1980. 18 The back side of dominant heritage, there is a covered drain and the back side is entirely occupied by villagers/encroachers and there exist large fully grown trees on the back and on the other side, adjacent to the said property, the land either belongs to defendants or some other party.
19 After 01.11.12, due to change of lock of the main gate of the Nursery, leading to the dominant heritage the plaintiff, her family, Contd....P..8 of 31 : 9 : guests, servants, visitors, etc were forced to access the dominant heritage from a tiny subgate within the frame of the main gate of the servient heritage which required them to bend and through which it is impossible to carry any object other than small bags. 20 Plaintiff's husband namely R.K. Sharma met the officers of the defendants and requested for the restoration of their rights to access and parking but the defendants refused to permit the same. The plaintiff also submitted representations to the defendants on 15.11.12 and 20.11.12 narrating the entire inconvenience and right to use the passage and parking space, but the defendants have had a cold and apathetic attitude towards the plaintiff and ignored all the requests made by the plaintiff for enforcement of her legal rights in respect of the said rights.
21 Plaintiff filed a writ petition 7830 of 2012 before the Hon'ble High Court of Delhi interalia praying for a Writ of Mandamus thereby directing the defendants herein not to obstruct or resist or restrict the free passage of the plaintiff, her family, guests, servants, visitors etc including their vehicles from the gate of the nursery and from parking in the area specifically shown in Blue colour and from installing a private security or direct the defendants to provide the Contd....P..9 of 31 : 10 : keys of the gate of the Nursery. If the same is to be locked and to ensure the free passage of the plaintiff, her family, guests, servants, visitors etc. including their vehicles from the gate of the Nursery through the passage and from parking in the area. 22 The Hon'ble High Court of Delhi vide order dated 17.12.12 directed the defendants to take a decision on the representation of the plaintiff dated 15.11.12 so that the plaintiff may avail her civil remedies, as per law. As an interim measure, the Hon'ble High Court directed the defendants to provide a duplicate key to the plaintiff for access to her residence inside the nursery till the fate of the representation of the plaintiff dated 15.11.12 is communicated to her. The Hon'ble Court also directed the defendants to decide the plaintiff's representation within a period of four weeks and inform the plaintiff within a week thereafter.
23 Despite the order dated 17.12.12, the defendants malafide harassed and further victimized the plaintiff by refusing to give the plaintiff a duplicate key of the lock of main gate entry in contempt of the directions of Hon'ble High Court in above said writ petition despite the plaintiff having shown a certified copy of the order of Hon'ble High Court to them and the order dated 17.12.12 was passed Contd....P..10 of 31 : 11 : in the presence of the counsel for the defendants on advance notice of the said writ petition.
24 Under such circumstances, the plaintiff was forced to address a further representation to the defendant on 22.12.12 and 31.12.12 stating that if the key was not given to the plaintiff, then appropriate contempt of court proceedings would be initiated. The defendants handed over a duplicate key to the plaintiff on 31.12.12. 25 Since the duplicate key was given to the plaintiff which restored the right of way of the plaintiff through the servient heritage to the dominant heritage, the plaintiff has been exercising and using her easementary rights as she has done continuously for over the last thirty seven years.
26 On 09.05.13, the plaintiff received a reply from the defendants of the same date in response to her representation dated 15.11.12 rejecting her request for allowing the passage from Qutub Nursery for parking of vehicles on false, frivolous and flimsy grounds. The plaintiff has grave apprehension that the defendants shall deprive the plaintiff and her family of her easementary rights by changing the lock at the gate of the passage as they had done on Contd....P..11 of 31 : 12 : 01.11.12.
27 Hence the present suit along with the present application has been filed. The plaintiff has prayed for an ad interim injunction directing the defendants, their agents, employees, etc not to obstruct or resist the free passage of the plaintiff, her family, guests, servants, visitors etc., including their vehicles to (i) the passage from the main gate of the servient heritage as specifically shown in Green colour from point "A' to "B'; (ii) from parking their vehicles in the area specifically shown in Blue colour at point "C"; and (iii) from installing a private security guard at the point marked "D" in the site plan attached, in any manner, directly or indirectly. On the first date of hearing i.e. 17.05.13, IO was passed in favour of plaintiff directing the defendants to maintain status quo with respect to the lock put on the gate, the keys of which are also with the plaintiff till further orders. 28 Defendant has filed a detailed WS and reply after being served along with photographs. Defendant has submitted that the land of village Lado Sarai, Mehrauli, New Delhi was acquired by DDA in the year 1980 vide Award No. 36/8081 dated 20.06.1980. The said land was handed over to the Horticulture Department of DDA on 24.06.1980 for maintaining the area as green.
Contd....P..12 of 31 : 13 : 29 It is submitted that the present suit has been filed with malafide intention by the plaintiff and the plaintiff is attempting to mislead and misdirect this court to obtain wrongful gain at the cost of the defendants. It is not in dispute that the land over which the plaintiff claims the right to use for parking vehicles and for entry / exit, does not belong to the plaintiff. It is exfacie evident that the cause title of the suit states that the residential address of the plaintiff to be "Qubab Nursery, Mehrauli road, New Delhi". However, upon perusal of para 1 of the plaint itself, as well as the documents filed by the plaintiff along with the suit, including the papers in respect of the Probate petition, those of the office of the SDM, Delhi Vidyut Board, BSES, Delhi Jal Board; and the ration card, it is evident that the address of the plaintiff, and the property which is claimed to be the 'dominant heritage' is stated as 'property bearing khasra no. 154, village Lado Sarai, back side of Qutab Nursery, Mehrauli Road, New Delhi", or to that effect none of these documents state the address of the plaintiff to be inside the subject nursery. However, the subsequent documents of the plaintiff have been manipulated and created in order to/in a manner as to describe the residence of the plaintiff as if the same was located within the nursery itself. It is submitted that infact, the house of the plaintiff, claimed to Contd....P..13 of 31 : 14 : be the 'dominant heritage' is situated outside the boundary of the nursery belonging to the defendants. This is evident in the photographs filed by the plaintiff herself. It is submitted that the plaintiff infact had access to her house from the road leading to Lado Sarai which can be seen in the photographs being filed by the defendants along with the present WS. However, subsequently the said access has been blocked and plastered by the plaintiff with malafide intent. It is submitted that the access from the Lado Sarai road was the direct access to the plaintiff's house. The access of the plaintiff's house on that side opens onto the bypass road of village Lado Sarai which is thereafter connected to the Aurobindo Marg, which is a convenient and proper road for accessing the property of the plaintiff. It is submitted that the house of the plaintiff is in infact on the backside of the nursery, beyond its boundary and in front of and on the road side of village Lado Sarai. The address of the plaintiff which is evident from her own documents is substantial and sufficient proof of the fact that her house is infact situated in Lado Sarai and not within Qubab Nursery belonging to the defendants. As such, the plaintiff is clearly attempting to mislead this court into believing that the house within which is residing is actually situated within the premises of the Qutab nursery, which is far from the truth and infact contrary to her own documents. It is submitted that the house of the Contd....P..14 of 31 : 15 : plaintiff is about 214 m away from the main gate of Qutab nursery and to access/reach the said house, the entire stretch of 'Kacha' passage within the nursery has to be traversed by the pedestrians/motor vehicles belonging to the plaintiff or her family. On the contrary, the actual front of the said property/house of the plaintiff opens immediately onto the road on the other side, although the access on that side has since been blocked / covered by the plaintiff for malafide reasons, since the plaintiff and the family members seem to prefer the option of having substantial parking space for their cars within the nursery and picturesque access and surroundings on the nursery side. The site was actually inspected by the staff of the defendants and the above situation was observed/noted. It is submitted that the plaintiff has parked as many as four cars/vehicles within the premises of the nursery belonging to the defendants in an unauthorized manner. It is denied that the plaintiff was permitted to drive her vehicles through the nursery and park the same within the property/land of the nursery. The plaintiff has no right whatsoever to use the passage way through the nursery for bringing and parking her vehicles even as per the Forest (Conversation) Act 1980. Since the area is green area, the continuous and constant passage of the cars through the same is detrimental to the environment and to the plaints being attended to within the nursery. The contention of the plaintiff that the access to Contd....P..15 of 31 : 16 : her house from the Lado Sarai raod is not possible, is false and baseless. It has been observed at the the site that there is a stretch of 30 feet of boundary wall that has been constructed by the plaintiff on that side and a substantial part of it is possible to be opened in order to provide the plaintiff direct access onto the road on that side. As such, the plaintiff has a ready and easily available alternative access to her property which she chooses not to use in order to use the access through the nursery belonging to the defendants. Photographs of the site showing the said wall are filed along with the present WS. It is further submitted that there is no proof whatsoever of the plaintiff's averment that she has been permitted to access her house through the nursery, for driving her car or for parking the same. It is submitted that the staff of the DDA repeatedly requested the plaintiff and her family members not to bring their vehicles into the nursery, but to no effect, and the plaintiff and her family members would quarrel with the staff of the DDA. It is submitted that by intimidating the staff of the DDA, the plaintiff and her family members managed to park their vehicles / cars within the nursery during the night and thereafter have managed to bring the said vehicles in and drive them out despite the request of the staff not to do so.
30 It is submitted that the present suit is improper and Contd....P..16 of 31 : 17 : liable to be dismissed in view of the fact that no permission whatsoever was ever granted to the plaintiff to bring in her cars and use the land of the nursery to mark the same. As such the provisions of the Indian Easements Act are not applicable and hence the suit u/s 35 thereof is not maintainable. Since such easementary right was never granted by the defendants to the plaintiff or obtained by her by prescription, hence the question of applicability of the above provisions does not arise.
31 Defendants have denied the submissions of the plaintiff and have prayed for dismissal of the present suit and application. 32 Detailed arguments were advanced by Ld. counsels for both the parties. Arguments heard. Record perused carefully. 33 Plaintiff has described said property as dominant heritage and defendant's land being the servient heritage. Plaintiff has submitted that said property belongs to his father since 1975 and after his death, he has succeeded the said property and he and his family have been accessing the said property through the servient heritage. The servient heritage originally was Chhabra Nursery and in 1990, defendant no.1 acquired large tracts of land in the area Contd....P..17 of 31 : 18 : including Chhabra Nursery and it was rechristened as Qutab Nursery. However, plaintiff and her family members continued to use the only passage to the said property being across the Qutab Nursery. The plaintiff has prayed for an ad interim injunction directing the defendants, their agents, employees, etc not to obstruct or resist the free passage of the plaintiff, her family, guests, servants, visitors etc., including their vehicles to (i) the passage from the main gate of the servient heritage as specifically shown in Green colour from point "A' to "B'; (ii) from parking their vehicles in the area specifically shown in Blue colour at point "C"; and (iii) from installing a private security guard at the point marked "D" in the site plan attached, in any manner, directly or indirectly.
34 Plaintiff has claimed by way of interim injunction the same relief which she has sought in the main suit and allowing the application would amount to decreeing of the suit. However, an interim exparte order has been passed in favour of plaintiff and the present application deserves to be duly considered and decided. 35 Plaintiff has stated that said property is situated at the rear end of the Nursery abutting the open drain and there was never ever any access from the rear or sides of the Nursery and said Contd....P..18 of 31 : 19 : property. Some time later encroachments sprung up against the rear boundary wall between the wall and the banks of the open drain. 36 Defendant has submitted that the house of the plaintiff, claimed to be the 'dominant heritage' is situated outside the boundary of the nursery belonging to the defendants. This is evident in the photographs filed by the plaintiff herself. It is submitted that the plaintiff in fact had access to her house from the road leading to Lado Sarai which can be seen in the photographs being filed by the defendants along with the WS. Defendant has submitted that subsequently the said access has been blocked and plastered by the plaintiff with malafide intent. Defendant has submitted that the access from the Lado Sarai road was the direct access to the plaintiff's house. The access of the plaintiff's house on that side opens onto the bypass road of village Lado Sarai which is thereafter connected to the Aurobindo Marg, which is a convenient and proper road for accessing the property of the plaintiff. Defendant has submitted that the house of the plaintiff is in infact on the backside of the nursery, beyond its boundary and in front of and on the road side of village Lado Sarai. Defendant has submitted that the house of the plaintiff is about 214 m away from the main gate of Qutab nursery and to access / reach the said house, the entire stretch of 'Kacha' passage within the nursery Contd....P..19 of 31 : 20 : has to be traversed by the pedestrians / motor vehicles belonging to the plaintiff or her family. On the contrary, the actual front of the said property / house of the plaintiff opens immediately onto the road on the other side, although the access on that side has since been blocked / covered by the plaintiff for malafide reasons, since the plaintiff and the family members seem to prefer the option of having substantial parking space for their cars within the nursery and picturesque access and surroundings on the nursery side. The site was actually inspected by the staff of the defendants and the above situation was observed / noted. Defendant has submitted that the plaintiff has parked as many as four cars / vehicles within the premises of the nursery belonging to the defendants in an unauthorized manner. Defendant has denied that the plaintiff was permitted to drive her vehicles through the nursery and park the same within the property / land of the nursery. It is stated that the plaintiff has no right whatsoever to use the passage way through the nursery for bringing and parking her vehicles even as per the Forest (Conversation) Act 1980. Since the area is green area, the continuous and constant passage of the cars through the same is detrimental to the environment and to the plaints being attended to within the nursery.
Contd....P..20 of 31 : 21 : 37 I concur with the submissions made by defendant. In the cause title of the suit, plaintiff has given her residential address to be "Qubab Nursery, Mehrauli road, New Delhi". However, in para 1 of the plaint as well as the documents filed by the plaintiff along with the suit, including the papers in respect of the Probate petition, those of the office of the SDM, Delhi Vidyut Board, BSES, Delhi Jal Board; and the ration card, the address of the plaintiff, and the property which is claimed to be the 'dominant heritage' is stated as 'property bearing khasra no. 154, village Lado Sarai, back side of Qutab Nursery, Mehrauli Road, New Delhi", or to that effect none of these documents state the address of the plaintiff to be inside the subject nursery. However, the documents of the plaintiff which are of recent years describe the residence of the plaintiff as DDA Qutab Nursery, Lado Sarai, Mehrauli road, New Delhi. Thus, apparently the plaintiff has changed description of her address from khasra no. 154, village Lado Sarai, back side of Qutab Nursery, Mehrauli Road, New Delhi to DDA Qutab Nursery, Lado Sarai, Mehrauli road, New Delhi. Previous description of her property in itself establishes that the house of the plaintiff, claimed to be the 'dominant heritage' is situated outside the boundary of the nursery belonging to the defendants. The address of the plaintiff establishes that her house is situated in Lado Sarai and not within Qubab Nursery belonging to the defendants. The plaintiff Contd....P..21 of 31 : 22 : has misled this court into believing that the house within which plaintiff is residing is actually situated within the premises of the Qutab nursery, which is contrary to her own documents. Thus, plaintiff has not approached the court with clean hands and is not entitled to injunction in view of section 41(i) of Specific Relief Act. 38 Plaintiff has submitted that there is no other road for accessing her property. However, photographs filed by defendant reveal and affirm the submission of the defendant that there is a stretch of 30 feet of boundary wall that has been constructed by the plaintiff on that side and a substantial part of it is possible to be opened in order to provide the plaintiff direct access onto the Lado Sarai road on that side. As such, the plaintiff has a ready and easily available alternative access to her property which she for reasons best known to her has chosen not to use in order to use the access through the nursery belonging to the defendants. Photographs of the site showing the said wall are filed along with the WS. Plaintiff has filed no proof in respect of her averment that she has been permitted to access her house through the nursery, for driving her car or for parking the same. Defendant on the other hand has submitted that by intimidating the staff of the DDA, the plaintiff and her family members managed to park their vehicles / cars within the nursery Contd....P..22 of 31 : 23 : during the night and thereafter have managed to bring the said vehicles in and drive them out despite the request of the staff not to do so.
39 Plaintiff has claimed easementary rights in the suit property by claiming that she and the erstwhile owner has been using the suit property since the year 1975 without any obstruction from the defendant no.1 despite the acquiring of the suit land by the defendant no.1 in 1980. Similar were the facts in the matter titled Ravinder Kumar Sejwal & Anr. Vs DDA RFA 234/2007 decided on 26.11.2008.
40 The case set up by the appellants in the plaint was that they have an easementary right to access their land comprised in Khasra no. 225 through the road in question and that they had openly, peaceably and uninterruptedly been using the said road since the days of their ancestors over the last 100 years. It was pleaded that the road is the only approach road and motorable road leading to the land of the officers of Delhi Development Authority attempted to interfere with the peaceful enjoyment of the road.
41 Respondent had denied that road or a path existed as Contd....P..23 of 31 : 24 : claimed in the plaint, much less used by the forefathers of the appellants for 100 years. It was stated that to protect the acquired land, when DDA was in the process of erecting a boundary wall to bound the acquired lands, the suit was filed with the intention of facilitating trespass on the land vested in DDA under the notification issued under Section 22 of the DDA Act 1957.
42 In crossexamination, the appellant no.2 admitted the factum of acquisition of the land on which the alleged road was stated to exist and admitted that the appellants took no action when the land was being acquired. Ld. trial court in the said matter had dismissed the suit filed by the appellants on the ground that the act of the appellants in not raising any challenge to the acquisition of the land over which the alleged easementary right was claimed has resulted in the extinguishment of any alleged easementary right. It was also held that the evidence established that the appellants had a right to access their land from another point. In the present case also, the plaintiff has admitted in the plaint that the road i.e. the suit property had been acquired by the defendant no.1 in 1980 and she had not taken any action when the said road was being acquired. Defendant no.1, on the other hand, has shown from the photographs that there is a stretch of 30 feet of boundary wall that has been constructed by the Contd....P..24 of 31 : 25 : plaintiff on that side and a substantial part of it is possible to be opened in order to provide the plaintiff direct access onto the Lado Sarai road on that side. Thus, an alternate accessible road is available to the plaintiff which she has chosen not to use despite the fact that the distance of her house from the accessible road is negligible.
43 Plaintiff has falsely claimed easement by way of necessity. Hon'ble High Court in the above cited judgment discussed in detail the right of easement by way of necessity and observed as :
"Easement by way of necessity:
Section 13 of the Indian Easement Act 1882 which makes provision for easement by way of necessity reads as under:
Easements of necessity and quasi necessity where one person transfers or bequeaths immovable property to another
(a) if an easement in another immovable property of the transferor to testator is necessary for enjoying the subject of the transfer or bequest the transferee or legatee shall be entitled to such easement: or
(b) if such an easement is apparent and continuous and necessary for enjoying the said subject as it was enjoyed when the transfer or bequest took effect, the transferee or legatee shall, unless a different intention is expressed or necessarily implied, be entitled to such easement;
(c) if an easement in the subject of the transfer or bequest is necessary for enjoying other immovable property of the transferor or testator, the transferor or the legal representative of the testator shall be entitled to such easement; or Contd....P..25 of 31 : 26 :
(d) if such an easement is apparent and continuous and necessary for enjoying the said property as it was enjoyed when the transfer or bequest took effect the transferor or the legal representative of the testator, shall unless a different intention is expressed or necessarily implied, be entitled to such easement.
Where a partition is made of the joint property of several persons.
(e) if an easement over the share of one of them is necessary for enjoying the share of another of them, the latter shall be entitled to such easement; or
(f)if such an easement is apparent and continuous and necessary for enjoying the share of the latter as it was enjoyed when the partition took effect, he shall unless the different intention to expressed or necessarily implied, be entitled to such easement; or The easements mentioned in this section, Clause (a), (c) and (e) are called easements of necessity.
Where immovable property passes by operation of law, the persons from and to whom it so passes are, for the purpose of this section, to be deemed, respectively, the transferor and transferee.
A bare perusal of the said Section makes it clear that the easement by way of necessity can be claimed only in cases of transfer or partition of the dominant heritage which is not the case in the present case. Therefore, the plea of the easement of necessity sought to be predicated by the appellants on the basis that the road is the only approach road or motorable road leading to the property of the appellants is not applicable in the present case."
Contd....P..26 of 31 : 27 : 44 In view of the law laid down and quoted above, plaintiff is not protected by plea of easement of necessity. Hon'ble High Court of Delhi also discussed easement by way of prescription as :
"Section 15 of the Indian Easement Act 1882 which makes provision for easement by way of prescription reads as under:
Easement 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.
From a reading of Section 15 it is clear that the essential requisites of the easement by way of prescription are as under:
(i) Actual enjoyment of an easement;
(ii) Enjoyment should be open;
(iii) Enjoyment should be peaceable;
(iv) Enjoyment should be as of right;
(v) Enjoyment should be without any interruption;
(vi) Enjoyment should be for a period of twenty or thirty years, as the case may be.
The question which arises is what is the tenor of the expression as of right occurring in Section 15 of the Indian Easement Act and whether the fact that a person claiming easementary rights by way of prescription proves that he had been using an easement openly, peaceably and uninterruptedly since a very long period leads to a presumption that he had been using the same as of right?
The legal norm which emerges is that the mere fact that a person proves that he had been using an easement openly, peaceably and uninterruptedly since a very long period does not lead to a presumption that he had been using the same as of right. A person claiming easementary rights by way of prescription must specifically plead and prove that he had been enjoying an easement as of right.
The fact that the appellants did not challenge the Contd....P..27 of 31 : 28 : acquisition of the land in question over which the right of way is being claimed as an easementary right, the appellants have obviously not exercised their right under Section 3(b) of the Land Acquisition Act 1894 which holds that a person claiming an easementary right is a person interested meaning thereby is a person who can object to the notification issued under Section 4 of the Land Acquisition Act or the declaration issued under Section 6 thereof. Needless to state, on possession of acquired lands being taken over by virtue of the mandate of Section 16 of Land Acquisition Act, the land vests in the appropriate government in the instant case the central government, free of all encumbrances and thus the respondent got the right to the land when the same was placed at its disposal by the central government, free from any encumbrance.
45 In the present case also, the plaintiff has nowhere alleged nor has filed any document to allege that the plaintiff challenged the acquisition of the road in question over which the right of passage has been claimed as an easementary right. Plaintiff has not exercised her right under section 3(b) of Land Acquisition Act, 1894. Thus, plaintiff is not entitled to any protection by simply alleging that she was using the road as of right in view of law quoted in the preceding paras.
46 In the cited judgment also the appellants were responsible for creating a situation which has resulted in no access Contd....P..28 of 31 : 29 : being available to their land by not ensuring access thereto from the road which led up to and end at the boundary of their land with that of respondent. Hon'ble High Court of Delhi specifically upheld the decision of dismissal taken by ld. trial court in that matter. Here also, plaintiff has submitted that she has no alternate accessible road to the main road from her house. Defendant no.1 has submitted that the plaintiff infact had access to her house from the road leading to Lado Sarai. The said road exists is visible in the photographs filed by the defendants along with the WS. However, subsequently the said access has admittedly been blocked and plastered by the plaintiff. The access from the Lado Sarai road was the direct access to the plaintiff's house. The access of the plaintiff's house on that side opens onto the bypass road of village Lado Sarai which is thereafter connected to the Aurobindo Marg, which is a convenient and proper road for accessing the property of the plaintiff. The site plan filed by plaintiff reveals that the house of the plaintiff is in infact on the backside of the nursery, beyond its boundary and in front of and on the road side of village Lado Sarai. There is a stretch of 30 feet of boundary wall that has been constructed by the plaintiff on that side and a substantial part of it is possible to be opened in order to provide the plaintiff direct access onto the road on that side. As such, the plaintiff has a ready and easily available alternative access to her property. Thus, Contd....P..29 of 31 : 30 : the plaintiff has failed miserably to establish a prima facie case in her favour.
47 The plaintiff has no right whatsoever to use the passage way through the nursery for bringing and parking her vehicles even as per the Forest (Conversation) Act 1980. Since the area is green area, the continuous and constant passage of the cars through the same is detrimental to the environment and to the plaints being attended to within the nursery.
48 In view of these observations, the present application is dismissed and exparte interim order dated 17.05.13 is vacated. However, plaintiff is given 7 days time to make the necessary repairs and arrangements for accessing the main road available towards the front portion of her house opening towards Lado Sarai Road. Plaintiff is directed to return the keys of the gate to the defendants within 15 days from today failing which the defendants are at liberty to change the lock of the gate and to do the needful to prevent entry and use of the passage by the plaintiff, her family, guests, servants, visitors, etc. 49 Nothing stated herein shall tantamount to expression of this court on merits of the case and shall be without prejudice to the Contd....P..30 of 31 : 31 : respective rights and liabilities of the parties, which are to be decided on merits.
50 To come up for replication, admission / denial of documents and framing of issues on 06.12.2013.
Dictated and announced in the open court on 01.10.2013 (Dr. Neera Bharihoke) ADJI(South) Saket Courts 01.10.2013 Contd....P..31 of 31