Delhi District Court
Page 1 Of 26 Puran Chand Yogi & Ors. vs . U.O.I & Ors. Suit No. 244/09/05 on 2 May, 2016
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In the Court of Ms. Namrita Aggarwal
Commercial Civil Judge cum ARC1 (Central)
Tis Hazari Courts, Delhi.
Suit No. 244/09/05
Unique I.D. No. 02401C0157482005
In the matter of :
1. Sh. Puran Chand Yogi
Member, Delhi Legislative Assembly
(Rajinder Nagar Assembly Constituency)
R/o EF5 R, Inder Puri,
New Delhi110012
2. Sh. Ajit Yadav
S/o Late Sh. Ram Yadev
President of Todapur Gram Sudhar Samiti,
R/o WZ32, Village Todapur,
New Delhi110012.
3. Sh. Mahinder Singh
S/o Sh. Sultan
R/o WZ7, Village Todapur,
New Delhi110012.
4. Sh. Prem Pal Sharma
S/o Bhoodev Sharma
R/o WZ108A, Village Todapur,
New Delhi110012.
Page 1 of 26 Puran Chand Yogi & Ors. Vs. U.O.I & Ors. Suit no. 244/09/05
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5. Sh. Ramesh Yadev
S/o Late Sh. Ram Swaroop Yadev
R/o WZ73B, Village Todapur,
New Delhi110012. .......... Plaintiffs
Versus
1. Union of India, through Secretary
Ministry of Defence, New Delhi.
2. General Officer Commanding (GOC)
Head Quarters, Delhi Area,
Delhi Cantt110010.
3. Station Commander
Delhi Cantonment,
Delhi Cantt110010. ........ Defendants
SUIT FOR PERMANENT INJUNCTION
Date of Institution : 01.03.2005
Case reserved for Judgment : 29.01.2016
Date of Judgment : 02.05.2016
Decision : Rejected
JUDGMENT:
Page 2 of 26 Puran Chand Yogi & Ors. Vs. U.O.I & Ors. Suit no. 244/09/05
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1. A suit for permanent injunction has been filed by the plaintiffs representing village of Todapur, New Delhi against Union of India, General Officer Commanding Head Quarters and Station Commander, Delhi Cantonment, praying for a decree of permanent injunction in their favour by restraining the defendants from interfering in the enjoyment of the metallic road as shown in red colour in the site plan which is connecting plaintiffs village to the main road and is considered as lifeline of village Todapur and also from restraining the defendants from forcibly closing the said road by constructing wall or by any other manner whatsoever.
2. The case of the plaintiffs is that the plaintiffs are the residents of village Todapur. That the defendants are answerable and responsible for the acts of the cantonment authorities of Delhi Cantt. That village Todapur is situated near Pusa Institute and adjacent to the Delhi Cantt Area falling under Police Station Inderpuri, New Delhi. That the plaintiffs village is an old village and existing for more than last 400 years at the same place where it is settled now. That the plaintiffs village is having a population of around 12,000 people and there are many cottage industries in the said village. It is on the Municipal Map of MCD and all the municipal facilities are provided in this village by the municipal Page 3 of 26 Puran Chand Yogi & Ors. Vs. U.O.I & Ors. Suit no. 244/09/05 4 authorities like electricity, road, sewer system, drainage and other health facilities for the last about 30 years. That around 30 years back, municipal authorities had constructed a Pucca/Metallic road as shown in red colour in the site plan for connecting the plaintiffs village to the main road as there was there was no other enough wide road in the village to connect it to the main road. The MCD also provided streetlights on the said road and the said road is the only way through which the heavy vehicle and light heavy vehicle like car, fire brigade, ambulance, etc, can enter into the plaintiffs village. It is submitted that there is also a drainage (a cemented nala) about 35 ft. wide made by the MCD alongside of the said road.
3. That in the year 1988, the defendants by using military forces came to the plaintiffs village and demolished many houses which were quite old and at that time plaintiffs had made the request and representation to the Hon'ble Governor of Delhi and to Dr. Raja Ramanna, the then Hon'ble Minister of State, Ministry of Defence. That immediately after the demolition, the defendants also constructed a boundary wall for whole of the area of their demarcation and the wall was also constructed on the either side of the said road. That on representation of the plaintiffs, a special enquiry was ordered through Page 4 of 26 Puran Chand Yogi & Ors. Vs. U.O.I & Ors. Suit no. 244/09/05 5 Deputy Commissioner, Delhi, and SDM, who filed its report dated 26.04.1990. In its report, it was submitted by the SDM that houses in village are indeed very old and encroachment, if any, is not of recent origin. It may be a historical fact that part of the village was acquired by the British but no compensation was paid to the villagers and they have continued to be in possession ever since then. That even after 40 years of independence, the army authorities did not initiate the process of removing the encroachments and it was in 1988 only that about 200 houses were demolished virtually overnight. On the basis of the said report of the SDM, the Deputy Commissioner of Delhi, on behalf of Lt. Governor Delhi, vide letter dated 28.05.1990 had advised the defendants through General Officer Commanding, Headquarters Delhi Area, Delhi Cantt. as not to undertake any fresh demolition exercise beyond what has already been demolished in the year 1988. It was also held that the boundary wall which was constructed in 1988, should serve as the demarcating point between the village land and the army land.
4. That in the year 1998, defendants alongwith more than 2000 army jawans again entered the plaintiffs village and started demolishing houses. However, local police intervened and found that the army authorities were not having any valid orders or documents. That the Page 5 of 26 Puran Chand Yogi & Ors. Vs. U.O.I & Ors. Suit no. 244/09/05 6 Hon'ble Chief Minister Sh. Sahib Singh had also issued letter dated 25.07.1998 to the Hon'ble Minister of Defence that the possession of the plaintiffs village was never disturbed and further requested to direct the authorities to comply with the promise made in writing by the Minister of State for Defence Sh. Raja Ramanna that the boundary wall which was constructed in the year 1988 should serve as the demarcating point between the plaintiffs village land and the defendants land.
5. That in SeptemberOctober, 2004, the defendants constructed adjacent boundary wall quite high except the wall on the either side of the said road. While the said construction was going on, the plaintiffs came to know from the official from the Defence that the said road is going to be closed by the defendants by putting walls at the either ends of the said road. That immediately on receiving this information, the plaintiffs issued legal notice dated 06.10.2004 in compliance of Section 80 CPC to the defendants. Despite service of the said legal notice, the defendants in pursuance of their evil motives had constructed the wall upto the side edges of the said road in a manner so that it can be joined further. It is averred by the plaintiffs that the defendants have no right, title or authority to interfere in the plaintiff's using the said road and drainage system alongside the said road or to block the said road and the Page 6 of 26 Puran Chand Yogi & Ors. Vs. U.O.I & Ors. Suit no. 244/09/05 7 drainage system alongside the said road by forcibly constructing a wall as the said road was made by the MCD for connecting the plaintiffs village to the main road.
On the above stated grounds, prayer is made for a decree of permanent injunction thereby restraining the defendants from interfering in the enjoyment of the said road and also from restraining the defendants from forcibly closing the said road by constructing wall or by any other manner whatsoever.
6. Summons of suit was served on defendants, who opted to file written statement denying all the contentions made by the plaintiffs in the plaint stating that the plaintiffs have not made the MCD as a party, though, it is averred by the plaintiffs that all the roads in village Todapur were constructed by MCD and are being maintained by it. It is denied that there is no other enough wide road in the village to connect it to the main road. It is submitted that alternate link roads are available from the village to the main road and also from the main road to the village. It is averred by the defendants that the so called drainage system is in total disuse and is merely a dump of filth and dirt in A1 army land. Defendants have denied that the boundary wall is a demarcation line between the defence land and village. Defendants also challenged the Page 7 of 26 Puran Chand Yogi & Ors. Vs. U.O.I & Ors. Suit no. 244/09/05 8 report of SDM stating that the said report is one sided report and cannot be termed as proper inquiry report since the army authorities were not consulted and their view was not obtained at the time of inquiry and thus, the said report is biased and subjective to point of view of the villagers. For the existing boundary wall, it is submitted by the defendants that it is merely a temporary protective measure to stop further encroachment of A1 defence land since the said land is still under encroachment by the illegal encroachers. It is submitted by the defendants that the road in question is A1 defence land and army has exclusive right and title for the use of the said land. The said road is passing through and connecting important military installations and if the said road is thrown open to all, the safety and security of army establishments and installations would be seriously compromised. Further, it is submitted that the management of drainage of the village is a matter which has to be looked into by the local authorities and just because village drainage flows alongside the road in army land, is no cause to usurp the A1 defence land.
7. After the completion of pleadings, the following issues are framed vide order dated 25.08.2005:
1. Whether defendants are owners of the suit land? OPD
2. Whether the portion of road in dispute forms part of the A1 Page 8 of 26 Puran Chand Yogi & Ors. Vs. U.O.I & Ors. Suit no. 244/09/05 9 defence land? OPD
3. Whether the plaintiff is entitled to the relief of permanent injunction as prayed for? OPP
4. Relief.
8. Plaintiff no. 1 Sh. Puran Chand Yogi stepped into the witness box as PW1 and deposed on the lines of plaint. Further, he relied upon following documents:
a) Site plan : Ex. PW1/1
b) Photographs : Ex. PW1/2 to PW1/5
c) Negatives of photographs : Ex. PW1/6 (colly.)
d) Legal notice : Ex. PW1/7
e) Postal receipts : Ex. PW1/8 & PW1/9
f) AD Cards : Ex. PW1/10 & PW1/11
g) Letter dt. 25.07.1998 : Ex. PW1/12
h) Letter to the Chief Minister dt. 06.01.2005 : Ex. PW1/13
i) Letter to Lt. Governor Delhi through letter dt. 06.01.2005 : Ex. PW1/14 j) Postal receipt : Ex. PW1/5
k) Letter dt. 24.02.2005 alongwith representation dt. 15.12.2004: Ex. PW1/16
l) Reply dt. 01.03.2005 in English : Ex. PW1/17
m) Reply dt. 01.03.2005 in Hindi : Ex. PW1/18
n) Original envelopes : Ex. PW1/19 & PW1/20
o) Letter dt. 25.02.2005 : Mark 'A'
p) Envelope : Mark 'B'
q) Certified copy of letter dt. 03.03.2005 : Ex. PW1/23
9. PW2, Sh. Ajit Singh Yadev entered into the witness box and proved the inquiry report enclosed with letter dated 26.04.1990, which was prepared at the direction of Lt. Governer Delhi with signature dated 04.05.1990 and letter dated 28.05.1990 from the office of the Deputy Page 9 of 26 Puran Chand Yogi & Ors. Vs. U.O.I & Ors. Suit no. 244/09/05 10 Commissioner, Delhi as Ex. PW2/A1, PW2/A2 & PW2/A3. He also proved copy of letter dated 06.08.1990 written by Dr. Raja Ramanna to Sh. Kalka Das, who as Member of Parliament at that time as Ex. PW2/1.
10. Sh. Hazari Lal entered into the witness box as PW3 stating himself to be the resident of village Todapur. He stated in his affidavit that municipal facilities are provided in the village by municipal authorities and the road in question was constructed about 30 years back by municipal authorities.
11. Sh. Ramesh Yadev entered into the witness box as PW4 and deposed in sync with PW1.
12. PW5, Sh. Harish Kumar Kohli from DDA at DCW (Planning) at Vikas Minar, New Delhi, stepped into the witness box alongwith the summoned record, i.e. proposed development plan of village Todapur and Dashghra, attested copy of which was Ex. PW5/1.
13. PW6, Sh. V. D. Sharma, who was Junior Engineer (Civil) with Municipal Corporation of Delhi entered into the witness box and stated that village Todapur is looked after by MCD with regard to the repairs of Page 10 of 26 Puran Chand Yogi & Ors. Vs. U.O.I & Ors. Suit no. 244/09/05 11 the streets, nalies, garbages, sewerage, etc. and that all the road which are internal of the village are managed by MCD. During cross examination, this witness stated that defence land situated in village Todapur has no concern with MCD and that PWD is maintaining the main road.
14. In defendant's evidence, Sh. Rattan Singh, S.D.O. II, from the Office of the Defence Estates Officer, Delhi Circle, Delhi Cantt. entered into the witness box as DW1 and deposed on the lines of written statement. Further, he relied upon the following documents :
a) Authorization letter : Ex. DW1/1
b) Photocopy of Gazette Notification No. 775 dt. 21.12.1911, : Ex. DW1/2 published in Govt. Gazette vide no. 51 dt. 22.12.1911
c) Photocopy of Gazette Notification No. 3188Military : Ex. DW1/3 dt. 13.05.1915
d) Photocopy of the Survey of India Plan for the year 195256 : Ex. DW1/4
e) Extract from General Land Register and General Land : Ex. DW1/5 & DW1/6 Register Plan showing the land in question in disctinct colour
15. I have heard the arguments of both the parties and have also gone through the judicial record. My issuewise findings are as under:
16. In the present case, the main contention of the plaintiffs is that they have filed the present suit on behalf of residents of village Todapur for their welfare since the road in question is the lifeline of village Page 11 of 26 Puran Chand Yogi & Ors. Vs. U.O.I & Ors. Suit no. 244/09/05 12 Todapur, which connects the entire village to the main road. However, no document has been filed on record to prove that residents of village Todapur have authorized the plaintiffs in the present matter to file or pursue the present case on their behalf. Moreover, the present suit has also not been filed as a representative suit, as should have been done if the contentions of the plaintiffs are admitted to be correct. Further, PW2 Sh. Ajit Yadev has claimed himself to be the President of village Todapur Gram Sudhar Samiti, a recognized welfare association of village Todapur, which works for the interest of villagers and represents villagers. However, during crossexamination, this witness admitted that he has not placed on record any document to prove that Todapur Gram Sudhar Samiti is a recognized welfare association of Todapur village or that they work for interest of the villagers or represents villagers. Further, no document has been filed to prove that PW2 is the President of Todapur Gram Sudhar Samiti. Thus, it stands unproved that the present suit has been filed for the interest of the villagers of Todapur or that villagers of Todapur have authorized plaintiffs to institute the present suit on their behalf.
17. Secondly, it is averred by the plaintiffs that the road in question, on which easementry right is claimed by the residents of village Todapur is Page 12 of 26 Puran Chand Yogi & Ors. Vs. U.O.I & Ors. Suit no. 244/09/05 13 maintained by Municipal Corporation of Delhi and even streetlights have been installed on the said road by MCD only. It is claimed by the plaintiffs that the metallic road of 30 ft. wide was built up by MCD for connecting the plaintiffs village to the main road and the village itself is under the maintenance of MCD. However, not even a single document has been filed by the plaintiffs to prove that the said road, which is the subject matter of the suit was built by MCD or that the same is even maintained by MCD. Moreover, PW6, Sh. V.D. Sharma from MCD office was called, who stated that though village Todapur is looked after by MCD, however, the defence land exists in the said village, with which MCD has no concern. Thus, as per the contention of PW6, the road, which is subject matter of the suit is nowhere connected or has any concern with MCD. However, since it is the case of the plaintiffs that the road in question is looked after and maintained by MCD and it was MCD only, who had built the said road, therefore, it was obligatory upon the plaintiffs to implead MCD as a party in the present suit. However, no steps were taken by the plaintiffs to implead MCD, though, it is the case of the plaintiffs that the said road was constructed by MCD and under the maintenance of MCD only. Thus, the case of the plaintiffs is bad for non joinder of necessary parties as well.
Page 13 of 26 Puran Chand Yogi & Ors. Vs. U.O.I & Ors. Suit no. 244/09/05 14 Issues no. 1 and 2.
1. Whether defendants are owners of the suit land? OPD
2. Whether the portion of road in dispute forms part of the A1 defence land? OPD
18. The onus to prove both these issues were placed upon the defendants. In order to prove its case, the defendants made DW1 enter into the witness box, who stated that the land measuring 663 acres in village Todapur was acquired by Gazette Notification No. 775 dated 21.12.1911, published in Government Gazette vide No. 51 dated 22.12.1911 for the formation of new Capital of India at Delhi. DW1 has also placed on record the photocopy of Gazette Notification, which is Ex. DW1/2. Further, it was stated by DW1 that after acquisition of the said land, the boundaries of the "New Cantonment Delhi" were described by Gazette Notification No. 3188Military dated 13.05.1915. Photocopy of the said Gazette Notification is Ex. DW1/3. It is further submitted by DW1 that the said defence land has also been illustrated in Survey of India Plan as published by Surveyor General of India as A1 Defence land vide document Ex. DW1/4. Further, it is submitted that the land in question comprises of G.L.R. Survey Number 268 Delhi Cantonment and classified as A1 Defence land under the management of Ministry of Page 14 of 26 Puran Chand Yogi & Ors. Vs. U.O.I & Ors. Suit no. 244/09/05 15 Defence. Further, entries in the General Land Register maintained under Rule 10 of the Cantonment Land Administration Rules, 1937, which shows that the landlord of the land in question is the Government of India, Ministry of Defence. DW1 also also placed on record an extract from General Land Register and General Land Register Plan showing the land in question in distinct colour to be A1 Defence land as Ex. DW1/5 and Ex. DW1/6. From these exhibited documents, which were published by Government of India, defendants have sought to prove that road, which is the subject matter of suit in question, forms part of A1 Defence land under the Cantonment, which forms part of Govt. of India, Ministry of Defence. The plaintiffs, on the other hand, have nowhere stated as to under whose ownership the road in question lies. It is not the case of the plaintiffs that the road in question is under the ownership of the village authorities or village Gram Sudhar Samiti. It is also not the case of the plaintiffs that the ownership of the road vests with MCD. The only contention made by the plaintiffs was that the road in question was constructed by MCD. However, no document to substantiate the same has been filed by the plaintiffs. Further, the plaintiffs have themselves relied upon a report of SDM Mrs. Neelkamal Darbari dated 26.04.1990 Ex. PW2/A2, wherein it is stated that in 1913, when the city of Delhi was being built, the said village of Todapur was acquired by British Page 15 of 26 Puran Chand Yogi & Ors. Vs. U.O.I & Ors. Suit no. 244/09/05 16 Government. From the fact that the plaintiffs are relying on this report, the plaintiffs do not dispute that the land forming part of village was acquired by the British Government for the formation of city of Delhi. Since the said acquisition was not challenged at that time, therefore, it cannot be said by the plaintiffs today that no compensation was paid to them for the said acquisition, therefore, the said acquisition remained a paper exercise. If there was any grievance of residents of village Todapur qua said acquisition of land, which has been admitted by the plaintiffs themselves, then they should have disputed the said acquisition at relevant point of time only. Thus, the plaintiffs have made a vague averment regarding the ownership of the road without substantiating it by any document. Further, the contention of the plaintiffs that the MCD had built the road in dispute and maintaining the same is also not substantiated nor MCD has been made a party in the present case by the plaintiffs. In these circumstances, contentions of the defendants is believed to be true. The defendants have fulfilled their onus to prove these issues, showing themselves to be the owner of the road in question and that the road in question is A1 Defence land. Hence, these issues are decided in favour of the defendants and against the plaintiffs.
Page 16 of 26 Puran Chand Yogi & Ors. Vs. U.O.I & Ors. Suit no. 244/09/05 17 Issue no. 3.
Whether the plaintiff is entitled to the relief of permanent injunction as prayed for? OPP
19. The plaintiffs by filing the present suit have sought to restrain the defendants from obstructing the road in question and for restraining the defendants in the enjoyment of the said road, as has been shown in red colour in the site plan filed by the plaintiffs. It is averred by the plaintiffs that the road in question was constructed about 30 years back by municipal authorities for connecting plaintiffs village to the main road as there was no other enough wide road in the village to connect to the main road. That the road in question is the only way through which the heavy vehicle and light heavy vehicle like car, fire brigade, ambulance, etc, can enter into the plaintiffs village and the MCD is also providing streetlights on the said road. That there is also a drainage made by MCD alongside the said road. That the defendants by using military forces had entered into the village of the plaintiffs in 1988 and carried out certain demolition and also constructed a boundary wall for the whole of the area of their demolition and also wall was constructed on either side of the road. However, since the alleged road is the lifeline of village, representations were made to Hon'ble Governor of Delhi and to Dr. Raja Ramanna, the then Hon'ble Minister of State, Ministry of Defence, who ordered an Page 17 of 26 Puran Chand Yogi & Ors. Vs. U.O.I & Ors. Suit no. 244/09/05 18 enquiry. The SDM conducted the enquiry and stated that for 40 years after independence, the army authorities did not initiate the process of removing the encroachment and it was for the first time in 1988 that about 200 houses were demolished virtually overnight without giving notice to the inhabitants. On the basis of the said enquiry, a letter was issued by Lt. Governor Delhi, advising the defendants not to undertake any fresh demolition exercise beyond what has already been demolished in 1988. It was also asked that the boundary wall should be considered to be serving as a demarcating line between the village land and the army land. However, despite this, again in 1998, the defendants entered into the village for demolition but by the intervention of local police, the demolition could not be done. Further, Sh. Sahib Singh, Chief Minister of Delhi, also issued a letter dated 25.07.1998 to Ministry of Defence to consider that the possession of plaintiffs land may not disturbed and had further requested Ministry of Defence to comply with the promise made in writing by Minister of State for Defence. Per contra, it is submitted by the defendants that road in question is A1 Defence land belonging to the defendants and it is necessary to protect the said road since it is connecting various important military installations and is crucial for the safety and security of army establishments and installations. Page 18 of 26 Puran Chand Yogi & Ors. Vs. U.O.I & Ors. Suit no. 244/09/05 19
20. Firstly, the letters which were issued by the Hon'ble Lt. Governor of Delhi and the Hon'ble Chief Minister of Delhi at that relevant point of time, as has been mentioned by the plaintiffs clearly shows that it was an admitted fact that the land belongs to Ministry of Defence and that is why requests were continuously sent to them to consider that the wall constructed in 1988 by army authorities should act as demarcating line between the village and the cantonment area and further not to carry out any encroachment. Since these requests were made to the Ministry of Defence, it shows that the concerned important authorities had recognized Ministry of Defence to be the owner of this road in question. Going further, the plaintiffs have claimed their easementry right on the road in question by stating that the said road was built around 30 years back by municipal authorities to connect the plaintiffs land to the main road and is also maintained by MCD. As per the case of the plaintiffs, this road serves as lifeline of village Todapur and is the only connecting road which connects inside of village to the main road and on which, heavy and light heavy vehicle ply. However, defendants have stated that since this land is A1 Defence land, therefore, it is of crucial importance which cannot be thrown open for use of villagers as it can be detrimental to the security of the country.
Page 19 of 26 Puran Chand Yogi & Ors. Vs. U.O.I & Ors. Suit no. 244/09/05 20
21. In Ravinder Kumar Sejwal and Anr. Vs. DDA decided on 26.11.2008 in RSA No. 234 of 2007, the Hon'ble Delhi High Court has defined easementry right as follows : It has been held that easementry right can be claimed on two basis, (i) acquisition by prescription, (ii) easement by way of necessity. Easement by way of necessity
14. Section 13 of the Indian Easements Act, 1882 which makes provision for easement by way of necessity reads as under: "13. Easement of necessity and quasinecessity: 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;
(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 portion 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 Page 20 of 26 Puran Chand Yogi & Ors. Vs. U.O.I & Ors. Suit no. 244/09/05 21 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 is expressed or necessarily 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.
15. 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 easement of necessity sought to be predicted 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. Easement by way of Prescription
16. Section 15 of the Indian Easements Act, 1882 which makes provision for easement by way of prescription reads as under : "15. 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 20 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 20 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 20 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 20 years shall be taken to be a period ending Page 21 of 26 Puran Chand Yogi & Ors. Vs. U.O.I & Ors. Suit no. 244/09/05 22 within two years next before the institution of the suit wherein the claim to which such period relates is contexted.
Explanation I : Nothing is an enjoyment within the meaning of this section when it has been had in 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 fulfillment 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 : Suspensions of enjoyment in pursuance of a contract between the dominant and the 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 20 years begins when the pollution first prejudices perceptibly the servient heritage. When the property over which a right is claimed under this section Goverment, this section shall be read as if, for the words "20 years" the words "30 years" were substituted.
17. From a reading of the 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;
Enjoyment should be for a period of 20 or 30 years, as the case may be. Page 22 of 26 Puran Chand Yogi & Ors. Vs. U.O.I & Ors. Suit no. 244/09/05 23
22. In the present case, the plaintiffs have claimed easementry right on the basis that the road has been openly, peacefully and uninterruptedly being used by them and their ancestors since last 30 years. However, it has not been pleaded by the plaintiffs that they have been claiming suit road as of right . The question now which has been raised is whether a person who is claiming easementry right by way of prescription claiming that he has been using the road openly, peacefully and uninterruptedly since very long period can claim easmentary right by prescription on the ground that he has been using the same as of right?
23. In Nasirrudin Vs. Deokali, AIR 1929 PAT 124, it has been observed that in English Law, the exercise of a right of way and similar positive easements for a prolonged period gives rise to the presumption that such exercise is of right, that is to say, it is presumed that the right of passage is exercised without any permission, expressed or implied, on the part of the owner of servant tenement. In India, however, where such views of the exclusiveness of landlord property do not prevail a mere period of long user will not give rise to the presumption. It is customary for the owner of piece of waste land not to raise any objection to the passage of strangers over such land.
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24. In Salina Jitendra Lal Vs. Ram Charan, AIR 1959 PAT 474, it has been held that it was wrong to say that merely because there was no cultivation of the disputed land there was a presumption either in law or in fact that the user of a pathway over the land was more of right and thus, in India, mere user for a long period of property will not give rise to the presumption that the claim as a user was a matter of right.
25. In the present case as well, the plaintiffs did not challenge the acquisition of land in question over which road/way is being claimed as a easementry right and thus, the plaintiffs have obviously not exercised their right over the road u/s 3 (b) of Land Acquisition Act, 1894, which helds that a person claiming an easementry right is a person interested, meaning thereby is a person who can object to notification issued u/s 4 of the Land Acquisition Act. Needless to mention, on acquisition of land, firstly for the formation of National Capital Territory of Delhi and thereby, by Army Cantonment, the land vests in said Ministry of Defence only and thus, the plaintiffs have no right to claim easementry right over it. Moreover, it has been stated by PW1 as well as PW2 that PWD road no. 25 starting from Loha Mandi upto Rattan Puri Chowk, Rajinder Nagar, is 6 lane road, on which Todapur village is situated. It is also admitted that there are two small entrance in the village and that heavy vehicles like Page 24 of 26 Puran Chand Yogi & Ors. Vs. U.O.I & Ors. Suit no. 244/09/05 25 Fire Brigrade, Water Tanker and other public utility vehicles like Ambulance can enter into Todapur village vide road PWD 25 itself. PW1 further admitted that there are some alternative paths available for the entrance and exist in village Todapur. However, they are not so wide.
26. In Gauri Amma Krishnaamma Vs. Seethalakshmi Amma & Ors., AIR 2004, KER 75, it has been held that alternative inconvenient pathway is no ground of claiming easement of necessity.
27. In the present case as well, it is submitted by the witnesses that there are alternate ways but they are not as wide as road in dispute. As if similar convenient ways are not available that does not mean that plaintiffs can claim right over defence land.
28. In Rajinder Kakkar Vs. DDA, 1994 (28) DRJ 432 DB, it was held that the Court should not grant injunction which will have the result of permitting or protecting the continuous and continual illegal possession of Government land . An illegal and unauthorized possession, if it is open, or for prolonged time in connivance with local / Government agencies does not in any way make it legal.
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29. Thus, in the present case as well, the plaintiffs are not entitled to relief of permanent injunction as prayed for only on the ground that plaintiffs are using the said road since 30 years illegally. Hence, this issue is also decided against the plaintiffs.
30. As far as report of SDM is concerned, the said report was prepared without taking into account the version of Ministry of Defence and also without going into the details of any documents. Further, various letters issued to Ministry of Defence by various authorities are in a manner of request made to Ministry of Defence and thus cannot be regarded as final direction that such land can be used by villagers freely. Relief :
31. Since issue no. 3 is decided against the plaintiffs, the plaintiffs are not entitled for relief. Suit of the plaintiffs is rejected. No order as to costs. Decree sheet be prepared accordingly.
Announced in open Court (Namrita Aggarwal)
on 2 Day of May, 2016. CCJ cum ARC1 (Central)
nd
[This judgment contains 26 pages.] Tis Hazari Courts, Delhi
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