Delhi District Court
Rekha vs Kamla Devi on 13 December, 2025
IN THE COURT OF SH. SACHIN SOOD, DJ-01,
CENTRAL, TIS HAZARI COURTS, DELHI
RCA NO. 61915/2016
CNR No DLCT 01 011869 2016
Smt Rekha
w/o Sh Kanwar Pal
R/o G-13, MCD Flats,
Dhaka, Kingsway Camp,
Delhi-110009. Appellant
Vs.
1. Smt Kamla Devi
W/o Sh Dhyan Singh
2. Smt Sunita
W/o Sh Parveen Kumar
3. Smt Kiran Devi (Expired on 16.04.2019)
W/o Sh Mahender Kumar
Through her legal representative:
i) Sh Rakesh Kumar (Son)
ii) Sh Rajesh Kumar (Son)
All respondent no 1 to 3 are residents of
SK-4/60, Sindhura Kalan,
Near Chowki No 2, Delhi-110052 Respondents
Date of institution : 01.09.2016
Date of order reserved : 25.09.2025
Date of order : 13.12.2025
RCA No : 61915/2016 Rekha Vs Kamla Devi Page no 1/29
ORDER
1. The present appeal has been preferred against the judgment and decree dt 13.07.2016 as passed by the court of Ld Civil Judge whereby the suit of the plaintiff has been dismissed.
Brief facts of the case:
2. In the plaint, the plaintiff has contended that the plaintiff is the owner of built up plot bearing no SK-4/60 (Municipal No 62 & 63), area measuring 48 X 30 =1440 sq ft = 160 sq yds out of total land area admeasuring 200 sq yds out of khasra no 835/233 and 226 situated at Sindhora Kalan, Chowk No 2, Delhi-52. As per the plaintiff, her mother had purchased the aforesaid property vide sale deed dt 14.02.2009 registered on 25.02.2009. As per the plaint, the mother of the plaintiff vide gift deed dt 01.02.2010 registered on 04.02.2010 gifted the said property to the plaintiff.
3. As per the plaintiff, the defendants 1 to 3 are the owners of 40 sq yds out of the total land area of 200 sq yds who had purchased the same vide registered sale deed dt 12.03.2007.
4. As per the plaint, there is only one stair case which falls in the portion of the plaintiff and defendant no 1 to 3 have no right, title over the said staircase and they have to build their own stair case in their own portion which is also clarified and mentioned in the site plan which was attached with the sale deed of the defendants .
5. As per the plaintiff, the stair case is duly mentioned in the gift deed dt 01.02.2010 which also mentions that the plaintiff has the right to construct the partition wall in her gifted portion. As per the plaint, it is contended that defendant no 1 to 3 have demolished the wall from point Y to Y1 and have RCA No : 61915/2016 Rekha Vs Kamla Devi Page no 2/29 put a gate/door at point X on the ground floor of the property as shown in the site plan and thus the defendants have encroached upon the portion of the plaintiff. It is further contended that defendant no 1 to 3 have erected an iron stair case at the first floor of the property at the side of the plaintiff. It is further contended that defendant no 1 to 3 are using the entry gate at point T which is under the exclusive ownership of the plaintiff and the defendants have no right to use the said entry gate. As per the plaintiff, the defendant no 1 to 3 have done all the illegal acts in the month of March 2010 who have despite requests have not removed the encroachment as well as the as the door on the ground floor and the iron stair case from first floor.
6. The defendant no 1 to 3 despite requests made by the plaintiff have not constructed the partition wall from point Y to Y1 and the labourers of the plaintiff could not construct the same in October 2011 since the entry of the labourers were prohibited. As per the plaintiff the defendants have two entry gates in their own portion from point G & H as shown in the site plan who however are intentionally creating nuisance for the plaintiff. As per the plaintiff the cause of action arose in the month of March 2010 when defendant no 1 to 3 demolished the wall from point Y to Y1 and put a gate/door at point X on the ground floor of the property in question, as shown in the site plan, and further erected an iron staircase on the first floor at the side of the plaintiff, which is also shown in red on the site plan, thus encroaching upon the portion of the plaintiff on the ground floor, which is also shown in red on the site plan. It also arose when the plaintiff requested the construction of a partition wall from point Y to YI and called the laborers in October 2011. However, their entry was prohibited due to the RCA No : 61915/2016 Rekha Vs Kamla Devi Page no 3/29 keeping of the door at point X. Hence, the plaintiff could not succeed in erecting the partition wall from point Y to YI for ulterior motives, and thereafter the cause of action further arose when the plaintiff made requests to the defendants to restore the portions to the same position as existed prior to the demolition of the walls. However, the defendants did not consider the plaintiff's requests. The cause of action again arose on 10.12.2011, when defendants 1 to 3 threatened the plaintiff that if she took any action against them, they would hand over possession to any of their accomplices for her harassment. The cause of action still continues and subsists.
7. The plaintiff prayed for following reliefs:
i) Pass a decree of possession in favour of the plaintiff and against the defendants, thereby the plaintiff may be declared as owner of the portion as shown at point A to B, B to C, C to D and D to A as shown in site plan of the property bearing No. SK-4/60. (Municipal No. 62 & 63), Chowki No.2, Sindhora Kalan, Delhi-110052:
ii) Pass a decree of possession in favour of the plaintiff and against the defendants, thereby the plaintiff may be permitted to take possession of the portion as shown in red Colour in the site plan surrounded with the portion of Y to Y1 and point X on the ground floor as shown in red colour in the site plan as well as the staircase as shown in red colour in the site plan of property bearing No. SK-4/60. (Municipal No. 62 & 63), Chowki No.2, Sindhora Kalan. Delhi- 110052;
iii) Pass a decree of permanent injunction in favour of the plaintiff and against the defendants, thereby restraining the defendants no.1 to 3 from using the entry gate from point T as well as portion between point Y to YI and X as shown in red color and further restraining them from handing over the possession of the said RCA No : 61915/2016 Rekha Vs Kamla Devi Page no 4/29 portions of Y to Y1 and X to any other persons as shown in the site plan of property bearing No. SK-4 60. (Municipal No. 62 & 63). Chowki No. 2, Sindhora Kalan, Delhi-110052. They may be restrained to use the Gate from Point E to F.
iv) Pass a decree of mandatory injunction in favor of the plaintiff and against the defendants, thereby directing the defendants not to restrain the plaintiff from erecting a partition wall between point Y and Y1, as shown in red on the site plan of property bearing No. SK-4/60 (Municipal Nos. 62 & 63), Chowki No. 2, Sindhora Kalan, Delhi 110052. The defendants may be directed not to restrain the plaintiff from erecting the wall at points E and F.
v) Cost of the suit may also be passed in favor of the plaintiff and against the defendants
vi) Any other or further relief which this Honorable Court may deem fit and proper in the facts and circumstances of the case may be passed in favor of the plaintiff and against the defendants, in the interest of justice.
8. Defendants filed their written statement wherein preliminary objection was taken that the suit is barred by limitation and the plaintiff has not come to the court with clean hands and has suppressed material facts and the defendant and her husband have been enjoying the easement of necessity as well as acquisition by prescription. It is further stated that the defendant and her husband have been enjoying the passage from the property of the plaintiff and its predecessors for the last more than 40 years. It is further stated that the defendants have been enjoying the passage leading to ground floor, first floor and second floor from the portion of the plaintiff which they have purchased subsequently.
9. On Merits, it is submitted that the gift deed dt 04.02.2010 executed by Smt Vidya in favour of the plaintiff and also the sale deed dt 14.02.2009 RCA No : 61915/2016 Rekha Vs Kamla Devi Page no 5/29 executed by the vendors in favour of Smt Vidya are not binding upon the defendants . It has further been submitted that the suit property which has been purchased by the defendants was a constructed property at the time of its purchase and the defendant have been in possession thereof for the last more than 40 years and having access to their portion from the property of the plaintiff. It has further been submitted that the sale deed executed in favour of the defendants dt 12.03.2007 is supported by a site plan where it is mentioned that the passage for approaching the portion of the defendants is mentioned in yellow colour and the same is also written in the sale deed as common. The defendants have further admitted that there is only one stair case for approaching the portion of the plaintiff as well as the defendants. The defendants have denied that they have no right, title or interest over the common staircase or that they are liable to construct their own staircase in their portion. The defendants have denied that the gift deed dt 01.02.2010 is binding upon them.
10. The defendants have also denied that there has been any wall at point Y to Y1 or that they have put a gate/door at point X on the ground floor of the property. It has been submitted that the door at point X and the passage at point Y to Y1 is in existence for the last more than 40 years. The defendants have denied encroaching any portion of the plaintiff. The defendants have also denied erecting an iron staircase at the first floor at the side of the plaintiff who have submitted that the said staircase is in existence for the last more than 40 years.
11. The defendants have also denied that the entry gate shown at point T is under the exclusive ownership of the plaintiff and the defendants have no RCA No : 61915/2016 Rekha Vs Kamla Devi Page no 6/29 right to use the same who submits that the said entry gate is being used for the last more than 40 years by the defendants. The defendants have thus denied that the plaintiff has any right to construct any wall at point Y to Y1 which as per the defendant is the only source of access. The defendants have also denied that the plaintiff has any right to construct wall between point E to F. REPLICATION
12. The plaintiff has filed replication to the written statement of the defendants denying the contents of the written statement and re-affirming the contents of the plaint.
ISSUES
13. Vide order dated 24.01.2013, the Ld. Trial Court had framed the following issues:
1. Whether the suit of the plaintiff is barred by limitation ?OPD
2. Whether the plaintiff is entitled for the relief of declaration as prayed for? OPP
3. Whether the plaintiff is entitled for the relief of possession as prayed for ? OPP
4. Whether the plaintiff is entitled for the relief of permanent injunction as prayed for ? OPP
5. Whether the plaintiff is entitled for the relief of mandatory injunction as prayed for ? OPP
6. Relief.
14. The plaintiff in order to prove her case has examined Sh Kanwar Pal as PW-
1 who relied upon various documents :
S No Exhibit No Document 1 Ex PW 1/1 (OSR) GPA Dt 13.12.2012 2 Ex PW 1/ 2 Certified copy of Gift deed dt 01.02.2010 RCA No : 61915/2016 Rekha Vs Kamla Devi Page no 7/29 3 Ex PW 1/ 3 Certified copy of Sale Deed dt 14.02.2009 4 Ex PW 1/ 4 Site plan 5 Ex PW 1/ 5 Certified copy of sale deed dt 12.03.2007 6 Mark A Letter dt 04.03.2010 issued by Assessment and Collection Department, Civil Lines Zone, 16, Rajput Road, Delhi in favour of plaintiff for mutation of suit property. 7 Ex PW 1/ 7 & Ex Two photographs of the suit property PW 1/8
15. Thereafter PE was closed by the attorney appearing on behalf of the plaintiff.
16. Thereafter defendant led her evidence and examined her husband as DW-1 Sh Parveen Kumar and relied upon following documents:
S No Exhibit No Document
1 Ex DW 1/1 SPA
2 Ex PW 1/ 5 Certified copy of the sale deed dt
12.03.2007 executed in favour of
defendants
3 Ex DW-1/P-1 Site plan
17. Defendant also examined DW-2 i.e. Sh Jai Prakash & DW 3 i.e. Sh Vinod Kumar on their behalf and thereafter DE was closed.
18. The court of Ld Civil Judge vide judgment and decree dt 13.07.2016 dismissed the suit as filed by the plaintiff while returning the finding upon issues no 2 to 5 whereby it has been held that the plaintiff has failed to prove that there existed a wall from point Y to Y1. It has further been held that the defendants have been using the passage through the plaintiffs portion i.e. entry X through passage Y to Y1 alongwith the iron staircase RCA No : 61915/2016 Rekha Vs Kamla Devi Page no 8/29 from the last more than 40 years. It has further been held that the gift deed vide which the plaintiff has been given the right to construct the partition wall in her gifted portion could not have been given by the donor (plaintiffs mother) since she was not entitled to give more than what she was entitled. It was thus held that all the essential indigents of Section 15 stand proved as far as entry from point X alongwith passage Y to Y1 in the site plan Ex PW 1/ 4 and iron staircase stands proved.
19. The court of Ld Civil Judge with respect to the entry from point T, E & F held the same to be fulfilling the key indigents of Section 15 of Indian Evidence Act. It was thus held that the defendants have successfully proved the Easementry rights with respect to portion T, E & F, X , Y to Y1 and use of the iron staircase to reach first and second floor of their portions on the basis of Section 15 of Indian Easement Act. It was also observed that keeping in view the fact that the defendants were able to prove the aforesaid on the basis of Section 15 of Indian Evidence Act, hence there is no need to discuss the defence u/s 13 of Easement by necessity and consequently the suit as filed by the Plaintiff was dismissed. GROUNDS OF APPEAL:
20. The present appeal has been preferred by the Plaintiff/appellant on the following grounds:
(a) The Ld Trial Court has misconstrued the cross examinations of DW -1, DW-2 & DW-3 inter alia not appreciating that the defendants have admitted that the property of the defendants have 2 separate an independent ingress and egress and right of easement is applicable only where there is no ingress and egress to the property of the defendants.
RCA No : 61915/2016 Rekha Vs Kamla Devi Page no 9/29
(b) That the question of any Easementry rights are not involved in the present suit.
(c) That the judgment relied upon is not applicable to the facts and circumstances of the present suit.
(d) That Ld Trial Court has not compared the site plan as filed by the plaintiff Ex PW 1/ 4 with the site plan of the sale deed of the defendant (Ex PW 1/D1).
(e) That the Ld Trial Court could not have dismissed the suit of the plaintiff in its entirety and some relief ought to have been granted to the plaintiff.
21. No reply to the present appeal has been filed by the respondents/defendants.
During the course of the present appeal respondent no 3 was reportedly expired as recorded vide order dt 10.09.2020, whose LRs were impleaded vide order dt 28.10.2021.
ARGUMENTS ON BEHALF OF THE PARTIES
22. Ld Counsel for the appellant/plaintiff has addressed arguments on the merits of the case and extensive arguments have been addressed on the site plans as filed by the parties based upon which it has been contended that the defendants have broken the wall between point Y to Y1 who have constructed a staircase as shown at point Z and have also constructed second floor portion. It has been contended that upon the purchasing of the property by the lessees, the Easementry rights are extinguished and the defendants can only take benefits of the rights conveyed to them under their sale deed. It has further been contended that in the present case the rights of easement by way of necessity have not been acquired by the defendants and the Ld Trial Court has not considered the said aspect by not discussing the RCA No : 61915/2016 Rekha Vs Kamla Devi Page no 10/29 same. It has further been contended that the defendants have failed to prove that they are the tenants for the past 40 years.
23. Ld Counsel for the respondent/defendant has submitted that vide the sale deed dt 12.03.2007 i.e. Ex PW 1/5 (sale deed of the defendants) the Easementry rights stands conveyed and transferred upon the defendants. It is further submitted that the sale deed of the defendants is prior in time than the sale deed having been executed in favour of the mother of the plaintiff which has been executed only on 14.02.2009. It has further been submitted that the Easementry rights once conveyed cannot be taken away by the subsequent sale deed. It has further been contended that the plaintiff has grossly failed to discharge the burden of proof casted upon him vide the framed issues. It has further been contended that the plaintiff could not prove that any wall has been demolished by the defendants or construction over the first floor has been raised. It has further been contended that PW-1 who in his cross examination has clearly deposed that he has seen the property only in the year 2010 is ill suited to depose with respect to the events which has taken place prior to the said date.
Arguments heard. Record perused.
24. The concept of easement has been defined under Section 4 of The Indian Easements Act 1882. According to the said provision, an Easementry right is a right possessed by the owner or occupier of the land on some other land, not his own, and the purpose of which is to provide the beneficial enjoyment of the land. This right is granted, because without the existence of this right, an occupier or owner cannot fully enjoy his own property. It includes the right to do or continue to do something or to prevent or to continue to RCA No : 61915/2016 Rekha Vs Kamla Devi Page no 11/29 prevent something in connection with or in respect of some other land, which is not his own, for the enjoyment of his own land. The word 'land' refers to everything permanently attached to the earth and the words 'beneficial enjoyment' denotes convenience, advantage or any amenity or any necessity. The owner or occupier referred to in the provision is known as the Dominant Owner and the land for the benefit of which the Easementry right exists is called Dominant Heritage. Whereas the owner upon whose land the liability is imposed is known as the Servient Owner and the land on which such a liability is imposed to do or prevent something, is known as the Servient Heritage. The right of easement is basically a form of privilege, the integral part of which is to do an act or prevent certain acts on some other land for enjoyment of one's own land.
25. Easements can be both positive or negative. Former refers to a right through which the dominant owner does some act to exercise the right over the land of the servient owner. Whereas, the latter denotes an act of prevention. In a negative easement, the dominant owner prevents or restricts the servient owner from doing certain act or acts. The Easementry right exists only when two heritages are adjacent to each other. It is a right in-rem, which means a right available against the whole world. Easement as a right is always annexed to the dominant tenement. It is a right of re-aliena which means a right over a servient tenement and not on one's own land.
26. The easement can be acquired through express grant made by inserting the clause of granting such a right in the deed of sale, mortgage or through any other form of transfer. This involves by expression by the grantor of his clear RCA No : 61915/2016 Rekha Vs Kamla Devi Page no 12/29 intention. Easementry right can be acquired in implied circumstances in the following ways:-
Easement of Necessity:-
Section 13 of the Indian Easements Act, 1882, deals with this subject. It consists of the circumstances where the owner or occupier cannot use his property without exercising the right of easement over the servient heritage. Thus, absolute necessity is the test.
Easements are quasi as those are arising out of circumstances, i.e., when common properties are converted into tenements by way of sale, mortgage, partition or though any other form of transfer, in such a case, there is an implied grant of right of easement.
Prescriptive Easements:-
27. Section 15 of the Indian Easements Act provides for this type of easement.
The following are the requisites:-
(a) Right must be definite and certain,
(b) Right must have been independently enjoyed without any agreement with the servient owner,
(c) Must be enjoyed openly, peacefully and as of a right without any interruption for a continuous period of 20 years and in respect of any government land the period of non-interruption shall be 30 years.
28. In so far as the case on hand is concerned, the Defendant firstly is claiming Easementry right to use the staircase by way of easement through prescription as prescribed under section 15 as well as by way of necessity as provided under Section 13 of the Indian Easements Act, which reads as follows:-
RCA No : 61915/2016 Rekha Vs Kamla Devi Page no 13/29 "13. Easements of necessity and quasi-easements--Where one person transfers or bequeaths immovable property to another,---
(a)if an easement in other immovable property of the transferor or 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; or
(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
(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 a different intention is expressed or necessarily RCA No : 61915/2016 Rekha Vs Kamla Devi Page no 14/29 implied, be entitled to such easement. The easements mentioned in this section, clauses
(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."
On the aspect of using entry gate from Point E to F or of the usage of the staircase.
29. In the present matter it has been admitted by the Plaintiff that the defendant has purchased the suit property vide registered sale deed dated 12.03.2007 i.e. prior to the purchase of the suit property by the mother of the plaintiff under the sale deed dated 14.02.2009. It is also admitted by the plaintiff that the suit property is built upon a plot of 200 sq yds and also that out of the said 200 sq yds, the defendants have purchased an area of 40 sq yds in the aforesaid built up property under their sale deed dated 12.03.2007. The plaintiff has also admitted that the mother of the plaintiff purchased 160 sq yds out of the total land area measuring 200 sq yds who subsequently executed a registered gift deed dated 01.02.2010 in favour of the plaintiff. The plaintiff has also admitted that in the entire property admeasuring 200 sq yds, there is only one staircase which comes in the portion of the plaintiff. The plaintiff has also placed on record the sale deed dated 12.03.2007 executed by the same vendors in favour of the defendants. Vide the aforesaid sale deed dated 12.03.2007, it is clearly mentioned that on the east side of the property, there is a railway lane and on the west side of the property, there is a road of 15 ft. and on the other two sides, there are RCA No : 61915/2016 Rekha Vs Kamla Devi Page no 15/29 other's plots.
30. In the aforesaid sale deed executed in favour of the defendants, it is clearly mentioned that the actual physical possession of the ground floor of the said property is under the tenancy with tenant and its first floor alongwith roof rights is already in possession with the defendants and its symbolic possession is being given by the vendors to the defendants. The vendors of the aforesaid sale deed have also transferred and conveyed all rights and easements attached with the said property upon the defendants. The defendants alongwith the original of the said sale deed have placed on record the site plan showing the common areas/portion of the property in yellow duly signed by the vendors from whom the plaintiff has purchased 160 sq yds of the said property. The sold portion of the property has been shown by the vendors in red colour (Ex. DW1/P1).
31. The sale deed in favour of the mother of the plaintiff dated 25.02.2009 who has also purchased the suit property also from the aforesaid vendors clearly mentions that the portion being purchased by her is fully under the tenancy of the tenants and the vendors have sold the property on as is where is basis and only symbolic possession has been handed over to the mother of the plaintiff. Alongwith the said sale deed, the plaintiff has not filed any site plan duly signed by the aforesaid vendors unlike the sale deed of the defendants. In the aforesaid sale deed executed in favour of the mother of the plaintiff, the vendors have clearly disclosed that they have already sold the north side portion of the said property i.e. land admeasuring 40 sq yds vide registered sale deed dated 12.03.2007. It has also been mentioned that the defendants under the aforesaid sale deed executed in their favour, are RCA No : 61915/2016 Rekha Vs Kamla Devi Page no 16/29 entitled to the use of the passage and staircase of the said property commonly with the vendors but no ownership right and the vendee right to use the same as a owner has been conveyed. It has further been mentioned that the mother of the plaintiff has right to construct the partition walls in her portion of the said property to avoid any litigation and dispute with the defendant and the defendants shall have no right, title and interest in the said passage and staircase and the mother of the plaintiff will be the sole and exclusive owner of the staircase as well as the passage.
32. Vide the gift deed executed by the mother of the plaintiff in favour of the plaintiff, the mother of the plaintiff has gifted the aforesaid portion purchased by her under the sale deed dated 25.02.2009. Vide the aforesaid gift deed, only symbolic possession has been given to the plaintiff since the property is stated to be occupied by the tenants.
33. Thus, from the aforesaid sale deeds it is clear that the there is only one staircase in the suit property. It is also clear that the defendants have been conveyed not only the ground floor of the suit property but also its first floor. It is also clear that the defendants vide the sale deed dated 12.03.2007, have been conveyed, all the rights and easements attached with their property. It is also clear that the ownership of the staircase has been transferred in favour of the mother of the plaintiff who executed gift deed in favour of the plaintiff. It is also clear that the sale deed executed in favour of the defendants is prior in time than the sale deed executed in favour of the mother of the plaintiff. It is also clear that in the sale deed executed in favour of the defendants, there is no covenant to the effect that the defendants are liable to construct any staircase to reach their portion. Thus, RCA No : 61915/2016 Rekha Vs Kamla Devi Page no 17/29 any covenant existing in the sale deed dated 25.02.2009 is subject to the rights previously conveyed in the suit property. Vide the sale deed dated 12.03.2007 executed in favour of the defendants, there is no condition to the effect that the defendants are liable to built a separate staircase to reach the first floor of the suit property alongwith its roof rights who has been conveyed the Easementry rights not only in the staircase but also in the common portions as shown in yellow in Ex. DW1/P1.
34. The plaintiff also in her suit has admitted that there is one staircase in the entire property measuring 200 sq yds which comes in the portion of the plaintiff. The plaintiff has not shown that there existed any other staircase at the time of conveyance of the property in favour of the defendants in the year-2007 who also could not prove any covenant in favour of the defendants where the defendants were required to construct their own staircase. Thus, from the sale deed of the defendants as well as the admissions made by the plaintiff, it is clear that at the time of execution of the sale deed in favour of the defendants, the suit property consisted of a single staircase which was used by the defendants to reach the first floor. Thus the plaintiffs are not entitled to a decree of possession or a decree of permanent injunction restraining the defendants from using the entry gate from Point E to F or of the usage of the staircase and the findings of Ld Civil Judge on the said aspect cannot be faulted with since the same no only duly fulfills the requirement of Section 15 of Indian Easement Act but also of section 13 of the Indian Easements Act, 1882 and which Easementry rights also stood conveyed vide the sale deed dt 12.03.2007 in favour of the defendant/respondents herein.
RCA No : 61915/2016 Rekha Vs Kamla Devi Page no 18/29 On the aspect of the grant of permanent injunction restraining the defendants from using the entry gate from point T.
35. In the plaint, the plaintiffs have pleaded that the defendants are using the entry gate at point T in the site plan which is under the exclusive ownership of the plaintiff and the defendants no. 1, 2 and 3 have not right to use the said entry gate. The plaintiff in support of the aforesaid contentions has placed reliance upon the site plan (Ex.PW1/4) and has also placed on record the copy of the sale deed of the defendants dated 12.03.2007. The defendants have also placed on record their sale deed duly supported with the site plan marked as Ex. DW1/P1 where the common portion are shown in yellow colour.
36. In order to prove their case, the plaintiff has relied upon the testimonies of PW-1. PW-1 in his testimony has clearly stated that he has seen the suit property only in the year-2010 and also that prior to February-2010, he as well as the plaintiff has not seen the said property. He has also admitted that in the sale deed as executed in favour of the defendants all the rights and easements attached to the said property were conveyed and transferred to the defendants. He has clearly shown his ignorance as to whether the defendants alongwith their husbands were enjoying the ground floor, first floor alongwith passage and staircase from Point T for the last more than 40 years. He has admitted that tenants at Point A and B are using the entrance from point T and the tenants residing at Point C is using the entrance from Point Z. He has also admitted that defendants have been using the entry gate at Point T for the last more than 40 years. He also admitted that the entry gate at point E and F are common for plaintiff and RCA No : 61915/2016 Rekha Vs Kamla Devi Page no 19/29 the defendants which is being used by all the occupants of the suit property. He has denied the suggestion that the defendants have right to use the entrance at point T since they are using the same from the past 40 years by way of Easementry rights.
37. DW-1 in his cross-examination has admitted that the defendants have purchased the area of 40 sq yds marked as A-A1, B-B1 as shown in Ex. PW1/4 in the year-2007. It has further been admitted that area admeasuring 40 sq yds is shown at point A, B, C and D in the site plan attached with the sale deed of the defendants i.e. Ex. DW1/P1. DW-1 has denied the suggestion that the defendants are wrongly, intentionally and deliberately using the entrance from point E, F, T, X, Y-Y1 from the portion of the plaintiff as shown in Ex. PW1/4. DW-1 has stated that as per their sale deed, Ex. PW1/5, the defendants have got the right to enter into their property from point T, E, F and X as shown in Ex. PW1/4 since they are using the said portion from last 40 years. It has further been stated that the right to use the entrance at Point T, E, F and X has been conferred upon the defendants.
38. A bare perusal of the site plan as filed by the defendants Ex. DW1/P1, clearly shows the common areas in yellow portion. The entrance at point T in Ex. PW1/4 is not shown as a common area in Ex. DW1/P1. PW-1 in his cross-examination has clearly stated that the entrance at point T is for the other occupants of the property. From the pleadings of the parties and from the documents placed on record by the defendants themselves and more particularly the sale deed dated 12.03.2007, the defendants who were earlier the tenants of the first floor acquired ownership rights of the ground RCA No : 61915/2016 Rekha Vs Kamla Devi Page no 20/29 floor which was in possession of the tenants and the first floor which was in their possession. From the admitted site plan as filed by the defendants i.e. Ex. DW1/P1 and the sale deed (Ex. PW1/5), the defendants have been conveyed only the property shown at point A, B, C and D and have been granted the Easementry rights qua the common portions as shown in yellow colour in the said site plan. The entrance at Point T as mentioned in Ex. PW1/4 has not been mentioned or shown in yellow colour in Ex. DW1/P1. The defendants who were earlier the tenants cannot be permitted to contend that consequent upon the acquisition of the ownership, the Easementry rights earlier enjoyed by them as tenants are also conveyed to the defendants under the sale deed dated 12.03.2007. The rights and interests of the defendants have been crystallized by the sale deed dated 12.03.2007 duly supported with the site plan i.e. Ex. DW1/P1 and since the entrance at Point T not been shown in yellow colour, the defendants cannot claim any right to use the said entrance or claim its usage which has not been conveyed or transferred to them.
39. The court of Ld Civil Judge has failed to appreciate that consequent upon the execution of the sale deed dt 12.03.2007 the defendants have specifically been granted rights under the said sale deed including the Easementry rights as shown in yellow colour who thus cannot be permitted to contend that they have acquired Easementry rights over the other areas of the suit property. Accordingly, it is held that the defendants have no right to the usage of the entry from Point T as shown in Ex.PW1/4. The defendants only have the right to entry from point E and F as shown in Ex. PW1/4 which also finds reference in Ex. DW1/P1 and has been shown in RCA No : 61915/2016 Rekha Vs Kamla Devi Page no 21/29 the yellow colour. The question of acquisition of right to use entry from Point T cannot be said to have acquired by the defendants under Section 15 of Indian Easement Act or under section 13 of the Indian Easements Act,1882 as per the admitted site plan as filed by the Defendants themselves since after the execution of the sale deed, the rights of the Defendants stood crystallized under the said sale deed and who in terms of the same have only a right to enter into the suit property from points E and F as shown in Ex PW 1/4.
On the aspect of a decree of possession of the portion Y to Y-1 and Point X on the ground floor and the staircase erected at Point Z from the first floor to the second floor.
40. As per the plaint, it is contended that defendant no 1 to 3 have demolished the wall from point Y to Y1 and have put a gate/door at point X on the ground floor of the property as shown in the site plan i.e. Ex. PW1/4 and thus have encroached upon the portion of the plaintiff. It is further contended that defendant no 1 to 3 have erected an iron stair case at the first floor of the property at the side of the plaintiff (Point Z). As per the plaintiff, the defendant no 1 to 3 have done all the illegal acts in the month of March 2010 who have despite requests have not removed the encroachment as well as the as the door on the ground floor and the iron stair case from first floor. It is further the case of the plaintiff that the plaintiff has requested defendants no. 1 to 3 to construct a partition wall from point Y to Y-1 but to no effect and the plaintiff when attempted to construct the partition wall from point Y to Y1 was prohibited from doing so due to their entry being prohibited from point X. The plaintiffs in order RCA No : 61915/2016 Rekha Vs Kamla Devi Page no 22/29 to demonstrate that the defendants have demolished the wall from point Y to Y1 and also to show that and an illegal door has been put at point X has relied upon the sale deed of the defendants i.e. Ex. PW1/5 and its site plan i.e. Ex. DW1/P1. The plaintiffs have also placed reliance upon Ex. PW1/4 i.e. the site plan as filed by the plaintiff.
41. The defendants in their written statement have denied that there has been any wall at point Y to Y1 or that they have put a gate/door at point X on the ground floor of the property. It has been submitted that the door at point X and the passage at point Y to Y1 is in existence for the last more than 40 years. The defendants have denied encroaching any portion of the plaintiff. The defendants have also denied erecting an iron staircase at the first floor at the side of the plaintiff who have submitted that the said staircase is in existence for the last more than 40 years. The defendants have thus denied that they are liable to construct any partition wall from point Y to Y1 who have also denied that the entry of the defendants have been prohibited from the door at point X. It is submitted by the defendants that the plaintiffs have no right to erect any wall at point Y to Y1 which is the only source of access to the defendants. The defendants have denied creating any nuisance for the plaintiff. The defendants have relied upon their sale deed i.e. Ex. PW1/5 and have also placed reliance upon their site plan i.e. Ex. DW1/P1. PW-1 in his cross-examination has admitted that the previous owner has executed a sale deed in favour of the defendants thereby conveying and transferring the rights and easements in favour of the defendants. He has denied the suggestion that the door marked as Mark X in Ex. PW1/4 was in existence for more than 40 years. He has also denied the suggestion that iron staircase RCA No : 61915/2016 Rekha Vs Kamla Devi Page no 23/29 has been used by the defendants for the last more than 40 years. DW-1 in his cross-examination has clearly admitted that the defendants have purchased the area of 40 sq yds marked as A, A1, B, B1 as shown in the site plan i.e. Ex. PW1/4 in the year-2007. He has also admitted that the defendants have purchased the area admeasuring 40 sq yds as shown at Point A, B, C and D in Ex. DW1/P1. He has also admitted that the second staircase running from first floor to second floor is not shown in the site plan Ex. DW1/P1. DW-1 has stated that from Point X, Y to Y-1, there is an entrance for ground floor portion from the property of the defendant. DW-1 has further admitted that the area from point X, Y and Y1 in Ex. PW1/4 is in possession of all the three defendants. Perusal of the sale deed of the defendants i.e. Ex. PW1/5 shows that the defendants under the said sale deed have been conveyed the two rooms on the ground floor of the suit property shown in red in the site plan i.e. Ex. PW1/P1 at Points A, B, C and D which two rooms have separate entrances from both sides of the property as purchased by the Defendants . Perusal of the sale deed i.e. Ex. PW1/5 also shows that as per the directions mentioned in the sale deed in the south, it is clearly mentioned as "remaining portion of the said property." Ex. PW1/5 also clearly mentions vide clause 3 thereof that the ground floor of the said property under sale is under the tenancy of a tenant and its first floor with roof rights is in the possession of the defendants and accordingly, its symbolic and proprietary possession is being given. Thus, from the aforesaid, it is clear that the ground floor on the date of its conveyance i.e. in the year-2007 was not in possession of the defendant but was actually in possession of some tenant.
RCA No : 61915/2016 Rekha Vs Kamla Devi Page no 24/29
42. DW-1 also in his cross-examination has admitted that only the portion shown at Points A, B, C and D have been given under the sale deed which are shown at points A-A1, B-B1 in site plan Ex. PW1/4 in the year-2007. Thus, from the admitted position as is evident from the sale deed as well as the site plan as filed by the defendant (Ex. DW1/P1), the defendants were not given any other portion on the ground floor besides the two rooms from points A, B, C and D. From the admitted site plan as filed by the defendants i.e. Ex. DW1/P1, it is also clear that there is a wall running from points B to D. From the aforesaid site plan, it is also clear that the defendants have not been given any portion mentioned at point X, Y to Y1 through the sale deed i.e. Ex. PW1/5 and neither the said area of the ground floor has been shown in yellow color. The defendants who have admittedly filed the site plan i.e. Ex. DW1/P1, cannot claim any right to occupy the portions mentioned at Point X, Y to Y1 since the said portions were not under their occupation and were under the occupation of some tenant who has not been examined before the court. The defendants have withheld the best piece of evidence i.e. the testimony of their previous owner from whom they have purchased the suit property nor have examined the previous tenant who was occupying the ground floor of the property as purchased by the respondents. The defendants by filing Ex. DW1/P1 have infact admitted that they have broken the wall existing from Point B to D and have encroached upon one room adjoining the room admeasuring 10.9'-10.9'' and have illegally created a passage after the purchase of the suit property and have also installed a gate at Point X who in any case cannot claim anything further than the premises conveyed to them under the sale-deed dated 12.03.2007.
RCA No : 61915/2016 Rekha Vs Kamla Devi Page no 25/29 The court of Ld Civil Judge failed to appreciate that in the admitted sale deed of the defendant dt 12.03.2007 duly accompanied with the admitted site plan viz. Ex DW 1/P1, the defendants have only been granted the portion shown in red colour viz at point A, B, C, D. The Ld Civil Judge failed to appreciate that in the admitted site plan of the defendant there exists a wall between points G & D. Keeping in view the fact that the sale deed of the defendant has been executed in the year 2007 and also keeping in view the fact that as per the admitted site plan viz Ex DW1/P1 is the best piece of evidence, it cannot be said that the defendants have been conveyed any portion other than the portions marked at point A, B, C & D much less the entrance shown at Point X or any right of way through points Y to Y1. Moreover given the fact that the two rooms as per the sale deed of the defendants was under a tenancy of a different tenant, it cannot be said that any Easementry rights by way of prescription or by way of necessity have been acquired by the defendants in portion at points Y to Y1 and the entry gate at point X which two rooms have in any case separate entrances from points G H in Ex PW1/4 (between points C-D and A-B in Ex DW 1/P1). Thus the findings returned by the court of Ld Civil Judge being contrary to the admitted case of the defendants who have themselves filed their admitted site plan i.e. Ex DW1/P1 does not satisfy the requirements of either section 13 or of Section 15 of the Indian Easements Act so far as the entry at point X alongwith passage at points Y to Y1 are concerned. Moreover the court of Ld Civil Judge while returning the findings on the entry X alongwith passage Y to Y1 have declined to discuss the defence of the defendants by way of necessity as enshrined in Section 13 which if RCA No : 61915/2016 Rekha Vs Kamla Devi Page no 26/29 would have been discussed would have clearly negated the existence of any easement by way of necessity since the portion of the ground floor even as per the admitted site plan of the defendant i.e Ex DW1/P1 have two separate entrances between the points at A to B and C to D (in Ex DW1/P1).
43. The court of Ld Civil Judge has failed to appreciate that as per the site plan as filed by the defendants i.e. Ex DW1/P1 and also in the original sale deed as filed by the defendants dt 12.03.2007 there is no mention about any construction existing upon the first floor and neither any iron staircase is shown to be existing in the site plan Ex DW1/P1 going from the first floor to the roof of the first floor. The defendants as per the said sale deed duly accompanied with the site plan have only been conveyed rights of only 40 sq yds and of the portions as shown in red in the said site plan at points ADCD (Ex DW1/P1). The aforesaid sale deed as well as the site plan is the best piece of evidence and the said site plan or the sale deed nowhere mentions about any construction existing above the first floor and as sold to the defendants. The defendants who were earlier the tenants of the vendor of the sale deed till the year 2007 of the first floor of the said property cannot be permitted to contend that in addition to the portion shown in red they have been granted any other portion of the said property or have acquired any rights to install the iron staircase at point Z from the common areas shown in yellow colour qua which Easementry rights have been conveyed to them under the sale deed dt 12.03.2007.
44. DW-1 also in his cross-examination has admitted that the second staircase running from the first floor to the second floor is not shown in the site plan (Ex DW1/P1). Thus in the considered opinion of the court and in view of RCA No : 61915/2016 Rekha Vs Kamla Devi Page no 27/29 the admitted site plan as filed by the defendants (Ex DW1/P1), the defendants were not able to prove that there existed any staircase at the time of their purchasing the suit property who thus have failed to establish any right to install the iron staircase from the common portion at the first floor to reach the second floor and thus it cannot be said that till the date of filing of the present suit, the Defendants have acquired any Easementry rights qua the iron staircase installed at point Z in Ex PW1/4. Accordingly, the findings returned by the court of Ld Civil Judge which are contrary to the admitted site plan are liable to be interfered with.
45. In view of the foregoing reasons, this court is of the considered view that the Ld Trial Court was not right in dismissing the suit of the plaintiff in its entirety and in view of the discussions made above, the present appeal is partly allowed and a decree of possession is passed in favour of the appellant in respect of the portion shown at point Y to Y1 and point X on the ground floor as shown in color red in the site plan as well as the stair case as shown in color Red at point Z in the site plan (Ex PW1/4) . The appellant is also granted a decree of permanent injunction and the defendants are restrained from using the entry gate from point 'T' as well as the portion between Y to Y1 and X as shown in red colour. The defendants/respondents are also restrained from handing over the possession of portions at point Y to Y1 and at point X to any other person and as shown in Ex PW1/4. A decree of mandatory injunction is also passed in favour of the appellants and against the defendants/respondents thereby directing the defendants/respondents not to restrain the plaintiff from erecting the partition wall between Y to Y1 as shown in red colour in the RCA No : 61915/2016 Rekha Vs Kamla Devi Page no 28/29 site plan of the suit property (Ex PW1/4). However since the Defendants have been able to establish the Easementry rights existing in their favour qua entry at points E-F and right to access their portion through the common staircase as shown in color Yellow in Ex DW1/P1, the Plaintiff subject to such right of entry and right to use the common staircase is declared to be the owner of the portion as shown at point A to B, B to C, C to D and D to A as shown in the site plan of the property bearing No. SK- 4/60, (Municipal No 62 and 63), Chowki No 2, Sindhora Kalan, Delhi 110052. Decree sheet be prepared and the site plan i.e Ex PW1/4 shall form part of the decree.
46. File be consigned to record room after due compliance.
47. TCR be sent back alongwith the copy of the this judgment.
Digitally
signed by
SACHIN
Announced in open court (Sachin Sood)
SACHIN
SOOD
SOOD
Date:
2025.12.13
13.12.2025 DJ-01 (Central)
17:15:24
+0530
THC, Delhi.
RCA No : 61915/2016 Rekha Vs Kamla Devi Page no 29/29