Delhi District Court
Smt. Hoshyari Devi vs Municipal Corporation Of Delhi & ... on 22 May, 2007
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IN THE COURT OF DR. T. R. NAVAL, ADDL. DISTRICT JUDGE DELHI
MCA No. 5 of 2007
IN THE MATTER OF
Smt. Hoshyari Devi Appellant
Vs.
Municipal Corporation of Delhi & Another Respondents
ORDER
This order will dispose of a Miscellaneous Civil Appeal filed by the appellant/plaintiff against the order dated 18.01.2007 passed by Shri Brijesh Kumar Garg, Ld. Commercial Civil Judge, Delhi.
2. I have heard arguments of the learned counsels for the parties and perused the file.
3. The facts of the present case, which are necessary for disposal of the present appeal, are that plaintiff had filed a suit for mandatory injunction against the Municipal Corporation of Delhi (MCD) and Sh. N.K. Singh on the allegations that plaintiff was the owner and bonafide resident of a house bearing No. 21, Dharam Colony, Tyagi Vihar, Nangloi Ext., Delhi and defendant No. 2 Sh. N.K. Singh was his neighbour. The house of the plaintiff opens at two sides. On one side, it opens near the house of defendant No. 2. On 28/02/06, 10 and 16 April, 2006 defendant No. 2 made attempts to construct a room containing latrine and bathroom at the street
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adjacent to the gate of the plaintiff as shown red in the site plan. The plaintiff raised hue and cry and also reported the matter to the police, but defendant No. 2 could not be restrained from illegally encroaching upon public land i.e. street out side the house. MCD has also failed in its duties to stop the encroachment on public land/right of way. Therefore, the plaintiff in her suit prayed for passing ad interim injunction as well as mandatory injunction against the defendants directing them to remove the encroachment as shown red in the site plan.
4. Municipal Corporation of Delhi in its written statement prayed that officers of defendant No. 1 inspected the site on 14/09/06 and they found that a small room was in existence at the site in dispute but it was neither on public land nor on the public street. It was also pleaded that there was no encroachment on public land/street/right of way as pleaded by the plaintiff.
5. Defendant No. 2 contested his suit on the grounds that back side of the house of plaintiff is towards his house and the main entrance of the plaintiff's house is in opposite side. He further pleaded that there is a plot bearing No.12, Dharam Colony, Nangloi, Delhi measuring 500 sq. yds. and his house and house of other 10 different people are situated there in. There was a common private passage in the plot. He has not encroached on public land. The defendants prayed for dismissal of suit as well as the application.
6. After hearing arguments of Ld. counsels for parties Ld. Civil Judge declined to grant ad interim injunction to the plaintiff, holding that plaintiff could not show prima facie case in her favour and that she may not suffer irreparable loss and injury and balance of convenience did not lie in
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her favour.
7. Having aggrieved from that decision, the appellant/plaintiff preferred present appeal.
8. The impugned order has been assailed on the grounds that learned Civil Judge did not apply his judicial mind. Counsels for defendant No. 1 had misguided the court by filing false report. The balance of convenience lies in favour of the appellant and she will suffer irreparable loss. The prima facie case is also in her favour. On the other hand, it has been argued that order of Ld. Civil Judge is beyond any illegality or infirmity.
9. During the course of the arguments Ld, counsel for appellant argued that plaintiff/appellant had acquired easementary right of the light and way and the defendant No. 2 has violated her right.
10. Section-15 of The Indian Easements Act, 1882 deals with the acquisition of easement right. It runs as under :
15. Acquisition by prescription. - Where the access and use of light or air to and for any building have been peaceably enjoyed therewith, as an easement, without interruption, and for twenty years, and where support from one person's land or things affixed thereto, has been peaceably received by another person's land subjected to artificial pressure is or by things affixed thereto, as an easement, without interruption, and for twenty years, and where a right of way or any other easement has been peaceably and openly enjoyed by any person claiming title thereto, as an easement and as of right, without interruption, and for twenty years, the right, to such access and use of light or air, support, or other easement, shall be absolute.
Each of the said period of twenty years shall be taken to be a
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period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested. ''
11. This section provides that easementary right of light, etc. can be acquired by using the same continuously for a period of 20 years. On perusal of entire plaint, I found that plaintiff has nowhere mentioned that she has been using the way and getting the light for the last 20 years. Therefore, this argument of Ld. counsel for plaintiff/appellant is not tenable.
12. As mentioned above, the case which was filed by the plaintiff/appellant was a case for mandatory injunction. The relief prayed in the ad interim injunction application and main suit is the same. In case ad interim injunction is granted to the plaintiff then it would amount to decreeing of the suit without trial.
13. The plaintiff in her suit has yet to prove that she was having possession on the site of dispute and she had been getting light from the site for the last 20 years or that the defendant No. 2 has constructed a small room in the public land or street. Thus both the parties have to produce evidence, and in the absence of evidence, it is not prima facie clear on the face of documents and averments by the counsel, whether any right of the appellant has been violated by the defendant No. 2.
14. Consequently upon the above reasons and discussions I am also of the view that the appellant could not show prima facie case in her favour. The balance of convenience does not lie in favour of the plaintiff as room has already been constructed. Suffering of any loss without violation of legal right does not amount to irreparable loss. In these circumstances I conquer
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with the findings of Ld. Civil Judge. Therefore, I do not find any illegality or infirmity in the impugned order. Consequently, the appeal is dismissed. All the parties are left to bear their own cost.
15. Parties and their counsel are directed to appear before Shri Brijesh Kumar Garg, Ld. Commercial Civil Judge on 29.05.2007 for further order.
TCR be returned with copy of this order and appeal file be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT (DR. T. R. NAVAL) ON THIS 22nd DAY OF MAY, 2007. ADDL. DISTRICT JUDGE DELHI.