Delhi District Court
Shri S P Marwah vs Mr. (Dr.) K D Bhalla on 4 September, 2019
IN THE COURT OF SACHIN SANGWAN :
ADDITIONAL RENT CONTROLLER (SOUTH):
COURT ROOM NO. 204, SAKET COURTS: NEW DELHI
Civil Suit No. 83406/2016
In the matter of:
1. Shri S P Marwah,
S/o late Sh. Mela Ramji Marwah,
2. Smt Tripta Marwah,
W/o Sh. S P Marwah
Both resident of
R/o M10/27, DLF PhaseII
Gurgaon, Haryana
.....Plaintiffs
Versus
1. Mr. (Dr.) K D Bhalla,
S/o late Sh Avinash Bhalla,
2. Mrs. (Dr.) Anjana Bhalla,
W/o Mr. (Dr.) K D Bhalla,
Both resident of :
844/2 (1 to 6), Extended Abadi,
Village Mandi, District Mehrauli, New Delhi
.....Defendants
DATE OF INSTITUTION : 04.09.2012
DATE OF RESERVING ORDER : 17.08.2019
DATE OF PRONOUNCEMENT : 04.09.2019
SUIT FOR MANDATORY INJUNCTION AND DECLARATION
JUDGMENT
1. The facts of the case as borne out from the record are that plaintiffs are husband and wife and defendants are also husband and CS No.83406/16 S P Marwah & Anr V/s K D Bhalla & Anr Page 1/23 wife and are close relative and family doctors of the plaintiffs. As per plaintiffs, plaintiff no.1 is the absolute owner and in possession of property measuring 300 Sq Yards in Khasra No.844/2 (7) situated in extended Abadi of Village Dera Mandi, Tehsil Mehrauli, New Delhi which was purchased from previous owner Rattan Sharma, S/o Sh H D Sharma on 26.11.1990 by virtue of Registered Sale Deed. Further, As per plaintiffs, plaintiff no.2 is the absolute owner and in possession of property measuring 300 Sq Yards in Khasra No.844/2 (8) situated in extended Abadi of Village Dera Mandi, Tehsil Mehrauli, New Delhi which was purchased from her brother Mr Satinder Kumar Puri who purchased the property from previous owner Mrs Shobha Bhatt on 04.05.1990 by virtue of Registered Sale Deed.
2. As per plaintiffs, defendants are the joint owner and in possession of property measuring 1800 Sq Yards in Khasra No.844/2 (1 to 6) situated in extended Abadi of Village Dera Mandi, Tehsil Mehrauli, New Delhi which were purchased from a person who was the close relative / family member of seller of plaintiffs.
3. As per plaintiffs, in 1990, defendants had approached the plaintiff no.1 and given a proposal to purchase 600 Sq Yards of land out of common Khasra no.844/2 (1 to 8) of 2400 Sq Yards land as the owner of the said land measuring about 2400 Sq Yards under common Khasra No.844/2 (1 to 8) wanted to sell out the property to a single buyer. It is stated that plaintiff no.1 and his brotherinlaw Satinder Kumar Puri agreed to purchase the balance land of 600 Sq Yards out of total land 2400 Sq Yards and accordingly, defendants had taken the front portion of 1800 Sq Yards and plaintiff no.1 and his brotherin law had taken the back portion of 600 Sq Yards out of total 2400 Sq CS No.83406/16 S P Marwah & Anr V/s K D Bhalla & Anr Page 2/23 Yards under the common Khasra No.844/2 (1 to 8). As per plaintiffs, defendants had agreed to give a common passage from their land to approach the plaintiff's land at the time of purchase and only on that condition, the plaintiff no.1 and his brotherinlaw agreed to purchase the said land of back portion otherwise they had chosen to purchase front portion and thereafter, on said understanding, plaintiffs purchased the said land at common rate and executed the relevant documents in their favour on different dates. It is stated that defendant no.1 and seller also agreed and signed as witnesses in the registered sale documents of plaintiffs.
4. As per plaintiffs, common stone wall and common main gate surrounding the plot of 2400 Sq Yards was constructed from the joint funds of both parties and thereafter, both parties were using their respective portion after maintaining a kitchen garden house since 1990. It is averred that in the year 2005, defendants constructed their residential house which is unauthorized and against the bylaws of municipal corporation and shifted their residence from Karol Bagh. As per plaintiffs, entrance of both parties were common and plaintiffs were using the same agreed passage which they were using since 1990 over the defendant's land.
5. As per plaintiffs, in the month of June 2012, defendants raised a brick wall and partitioned the area of total land 2400 Sq Yards in two parts i.e. 600 Sq Yards and 1800 Sq Yards and blocked the entrance / passage of plaintiffs. It is stated that plot of plaintiffs is surrounded by other plot owners and there is no other way / passage to enter in portion and as such, defendants are depriving the plaintiffs from using the right of passage over a particular passage of land in which the CS No.83406/16 S P Marwah & Anr V/s K D Bhalla & Anr Page 3/23 plaintiffs are having sole and absolute right to use the same. Thereafter, plaintiffs asked defendants several times to provide a passage /entrance to approach their portion but defendants never given any consideration and they are still adamant. Plaintiffs have also made a complaint to police on 16.06.2012 but police advised to approach the court as the matter relates to civil nature. Hence, the present suit to protect the right of passage / entrance on the land of defendants under the Indian Easement Act, the Act of Estoppels and benefit of Adverse Possession. Accordingly, the plaintiff has filed the present suit inter alia praying as under:
(a) pass a decree of mandatory injunction in favour of plaintiffs and against the defendants thereby directing the defendants to demolish the wall which constructed by defendants on the total land area of 2400 sq yards plot under the common khasra no.844/2 (1 to 8) and provide a passage over / entrance from the land of defendants as the plaintiffs were using the same from the date of purchase i.e. 1990;
(b) pass a decree of permanent injunction in favour of plaintiffs and against the defendants and their agents, associates, employees, officials, LRs, attorney, servants etc thereby directing the defendants not to obstruct the passage / entrance of the plaintiffs to approach their kitchen garden house;
(c) pass any other and further relief
6. The summons for settlement of issues and notice of injunction application under Order XXXIX Rule 1 & 2 CPC were issued against the defendants in the matter and WS was filed on behalf of defendants.
7. Vide detailed order dated 13.05.2013 passed by Ld. Predecessor Judge, application of plaintiff under Order XXXIX Rule 1 & 2 CPC was dismissed.CS No.83406/16 S P Marwah & Anr V/s K D Bhalla & Anr Page 4/23
8. In the WS, it is alleged that suit of plaintiff is not maintainable as well as plaintiffs do not have any cause of action against the defendants and that plaintiffs do not have any locus standi to file present suit and that suit is barred by law under the provisions of Delhi Land Reforms Act, Transfer of Property Act and Easements Act and any other law. It is alleged that present suit has been filed with sole aim and motive of pressurizing the defendants to succumb to the illegal demands of plaintiffs. It is further alleged that plaintiffs do not have any claim or any valid claim whatsoever or any right, title or interest of any nature in respect of land of defendants. It is stated that plaintiffs have made gross incorrect and false allegations in the plaint.
9. It is denied that plaintiff no.2 is owner and in possession of property in Khasra No.844/2/8 in extended abadi of village Dera Mandi, Tehsil Mehrauli, New Delhi. It is stated that defendants are joint owners and in possession of property in Khasra No.844/2 (1 to 6) situated in extended abadi of village Dera Mandi, Tehsil Mehrauli, New Delhi having purchased the same for a valuable consideration under registered sale deeds. It is denied that seller of land to the defendants was a close relative or the family member of sellers of plaintiffs. It is further denied that defendants had given the proposal to purchase the land of 1800 sq yards and the owners of these land had refused to sell in piece manner. It is stated that in fact, the owners of the said entire land are also different and as such, there cannot arise any question of there being one owner of the entire land of 1800 sq yards or 2400 sq yards, as alleged. It is further stated that in fact, defendants have purchased the said 1800 sq yards of land from different owners on different dates who are all residing at different CS No.83406/16 S P Marwah & Anr V/s K D Bhalla & Anr Page 5/23 places. As per defendants, said 1800 sq yards of land was purchased by them as per their requirement and the same was purchased at the offer of erstwhile owners thereof and after purchase, defendants have built the boundary wall and also residential building over the said land out of their funds. It is specifically denied that defendants had approached the plaintiff no.1 or had given a proposal to purchase the purported balance land of 600 sq yards and that defendants had agreed or could have agreed to give any common passage out of their land to the plaintiffs for approaching their land. It is stated that defendants did not have any privity of contract with the owners of the said 600 sq yard of land. It is further stated that even as per documents filed by plaintiff i.e. sale deeds, it is absolutely clear that both the sale deeds have been executed by two different persons and that defendants have not purchased any land from said two persons whose names are given in sale deeds filed by plaintiffs namely Rattan Sharma and Mrs Shobha Bhatt alongwith Mr M L Mian. It is further denied that plaintiff no.1 and his brotherinlaw Satinder Kumar Puri agreed to purchase 600 sq yards of land at the proposal of defendants, as alleged. It is stated that defendants have no connection with the alleged purported purchase of land by plaintiff no.1 and his brotherinlaw. It is stated that since each plot of land has separate number having separate owners, there is no question of consolidation of said plots as 2400 sq yards or bifurcation thereof in the manner as has been sought to be done by plaintiffs. It is stated that there was never any common passage and the defendants since the date they purchased the property are using the same as their sole property without any interference from either the plaintiffs or any other person. It is further stated that plaintiffs never ever used the CS No.83406/16 S P Marwah & Anr V/s K D Bhalla & Anr Page 6/23 premises of the defendants to enter their premises. As per defendants, it is highly unbelievable that the defendants or any person will agree to give passage through his own land for approaching to other persons land. As per defendants, there cannot arise any question of referring or bifurcating the land by the terms 'back portion or front portion'. It is denied that the land purchased by defendants and plaintiffs was at common rate. As per defendants, it is absolutely false that defendant no.1 had understood and agreed by signing as witness. It is denied that defendant no.1 has ever agreed either in writing or witnessing that there is any common passage. It is stated that defendants are neither concerned with any signatures done by any witness nor are the defendants admitting any of such allegations. It is further denied that defendants had purchased the land alongwith the plaintiffs. It is denied that there is any common stone wall or common main gate installed at the said land of defendants. As per defendants, their land is separate having separate boundary wall and separate gate for entry and there cannot arise any question of putting any stone wall or gate out of joint fund, as alleged. It is denied that land was being used as kitchen garden house or any kitchen garden house is being maintained. It is further denied that house of defendants is unauthorized or against any bye laws. As per defendants, they are no aware that plaintiffs were using or maintaining any kitchen garden on their area of land. It is reiterated and denied that there was any common entrance of the defendants and plaintiffs or that plaintiffs were using any alleged agreed common passage at any point of time. It is further denied that defendants have partitioned any area of total land of 2400 Sq Yards rather there cannot arise any question of any partition or division in as much as the CS No.83406/16 S P Marwah & Anr V/s K D Bhalla & Anr Page 7/23 defendants land comprising of 1800 sq yards has always been a separate piece of land which the defendants have been using for a long time as their residence and land of defendants was always having separate boundary wall. As per defendants, since the boundary wall was low and the construction in the other plots in and around adjoining land was being carried out, there was a problem of security and to safeguard their lives and property, the defendants had to raise the boundary wall. As per defendants, boundary wall has been raised by them on their own land and it is for security and safety of the lives and property of defendants and their family members and plaintiffs cannot have any objections or can raise any objection to the same. It is denied that plaintiff's entrance or passage has been blocked by defendants in any manner whatsoever. It is stated that defendants have never ever entered or interfered within the plaintiff's land and the plaintiffs also have no right to interfere or enter upon the defendant's land. It is denied that any law provides access from one's own land or residential house. It is further denied that provisions of Indian Easement Act and Act of Estoppels and benefits of Adverse Possession have any application in the facts of the present case. It is denied that plaintiff shall suffer irreparable loss or injury. As per defendants, the purported complaint to police was rejected by police authorities as plaintiffs had made false complaint which is impracticable. It is denied that defendants constructed any wall on the total area of 2400 Sq yards. It is stated that from the photographs filed by plaintiffs, it appears that said land was never been used by them and has become a jungle. It is alleged that suit of plaintiff is without any cause of action and deserves to be dismissed.CS No.83406/16 S P Marwah & Anr V/s K D Bhalla & Anr Page 8/23
10. Thereafter, replication was filed by plaintiffs denying the allegations as leveled by defendants in its WS. It is stated that there is no specific denial by defendants that plaintiffs were not using the land of defendants to approach their land of 600 sq yards since 1990. It is further stated that plaintiffs had purchased the land of 600 sq yards on 26.11.1990 and defendants had purchased the land of 1800 sq yards on 15.01.1990 and 26.11.1990 i.e. much before and on the same date of purchase of the land by plaintiffs. It is further stated that defendants had purchase the land from Prem Shankar Sharma and plaintiffs had purchased the land from Rattan Sharma, both sellers are real brothers and are the sons of H D Sharma which indicates that seller of plaintiffs and defendants are the family members and are close relative and friends. It is further stated, without common entrance, how can the plaintiffs were maintaining their kitchen garden because there is no other passage to approach their land except the passage from the defendant's land. All other averments made in the WS has been denied by plaintiffs and averments made in the plaint have been reiterated.
11. Thereafter, from the pleadings of the party, following issues were framed :
a) whether the plaintiffs are entitled to a decree of mandatory injunction directing the defendants to demolish the wall constructed by them in Khasra No.844/2 and also to provide a passage or entrance to the plaintiffs from the land of defendants, as prayed for? OPP
b) whether the plaintiffs are entitled to a decree or permanent injunction for restraining the defendants from obstructing the passage or entrace of plaintiffs to approach their kitchen garden house? OPP
c) whether plaintiffs have no locus standi to file present suit? OPD CS No.83406/16 S P Marwah & Anr V/s K D Bhalla & Anr Page 9/23
d) whether the suit is barred by the provisions of Delhi Land Reforms Act, Transfer of Property Act and Easements Act? OPD
e) Relief.
12. Thereafter, plaintiffs led evidence. PW1 S P Marwah tendered his evidence by way of affidavit Ex.PW1/A and relied upon following documents :
a) copy of sale deed dated 26.11.1990 alongwith khatoni and site plan as Ex.PW1/1 (colly) (OSR)
b) copy of sale deed dated 04.05.1990 as Ex.PW1/2 (OSR)
c) photographs as Ex.PW1/3 (colly)
d) copy of police complaint dated 16.06.2012 as Mark PW1/4
e) copy of GPA, agreement to sell, affidavit, Will and SPA, all dated 08.07.1994 as Ex.PW1/5 (colly) (OSR) f) site plan as Ex.PW1/6
13. This witness was duly cross examined by counsel for defendants. Thereafter, plaintiffs examined plaintiff no.1's nephew Mr Rajeev Marwah as PW2. He tendered his evidence by way of affidavit as Ex.PW2/A. This witness was also duly cross examined by counsel for defendants. Thereafter, plaintiffs examined plaintiff no.1's younger brother Mr Chander Prakash Marwah as PW3. He tendered his evidence by way of affidavit as Ex.PW3/A. This witness was also duly cross examined by counsel for defendants. Thereafter, PE was closed.
14. Thereafter, defendants led their evidence. Defendant no.1 Sh. K D Bhalla was examined as DW1 who tendered his evidence by way of affidavit as Ex.DW1/A. He relied upon following documents :
a) sale deed dated 15.01.1990 with respect to plot no.844/2/1 as Ex.D1
b) sale deed dated 15.01.1990 with respect to plot no.844/2/2 as Ex.D2
c) sale deed dated 26.11.1990 with respect to plot no.844/2/3 as Ex.D3
d) sale deed dated 15.01.1990 with respect to plot no.844/2/4 as Ex.D4
e) sale deed dated 15.01.1990 with respect to plot no.844/2/5 as Ex.D5
f) sale deed dated 26.11.1990 with respect to plot no.844/2/6 as Ex.D6 CS No.83406/16 S P Marwah & Anr V/s K D Bhalla & Anr Page 10/23
g) photographs of the kitchen garden, the dwelling house of defendants and land of the plaintiffs as Ex.D7 (colly, 14 photographs)
15. This witness was duly cross examined by counsel for plaintiffs.
During his cross examination, DW1 produced a bill dated 06.01.1993 as proof of raising the wall and copy of same is Ex.DW1/P1 (OSR). Certain photographs from Ex.PW1/3 (colly) were put to him in cross examination and were marked as Mark XA, XB, XC, XD. DW1 also admitted photographs Ex.DW1/P1 (colly, 5 photographs)
16. Thereafter, defendants examined Mrs Neeraj Sabharwal (a relative of both parties) as DW2 who tendered her evidence by way of affidavit as Ex.DW2/A. This witness was duly cross examined by counsel for plaintiffs.
17. Thereafter, defendants examined their driver Shree Pal as DW3 who tendered his evidence by way of affidavit as Ex.DW3/A. This witness was duly cross examined by counsel for plaintiffs. During his cross examination, copy of his driving license and voter ID were exhibited as Ex.DW3/X1 (OSR) & Ex.DW3/X2. Thereafter, defendants examined Mr Virender Kumar Mehra (brotherinlaw of defendant) as DW4 who tendered her evidence by way of affidavit as Ex.DW4/A. This witness was duly cross examined by counsel for plaintiffs. Thereafter, defendants examined Sh Ram Pal (an acquaintance of defendant no.1) as DW5 who tendered his evidence by way of affidavit as Ex.DW5/A. This witness was duly cross examined by counsel for plaintiffs. Lastly, defendant no.2 Dr Anjana Bhalla examined herself as DW6 and she tendered her evidence by way of affidavit as Ex.DW6/A. This witness was also duly cross examined by counsel for plaintiffs. Thereafter, DE was closed and matter was listed CS No.83406/16 S P Marwah & Anr V/s K D Bhalla & Anr Page 11/23 for addressing final arguments.
18. I have heard arguments advanced on behalf of both parties and perused the documents available on record.
FINDING ON THE ISSUE No. 119. The plaintiff has claimed the easementry right through the property of defendant i.e. the plot no.16 (khasra no.844/2 (1 to 6)) on the basis of The Indian Easements Act, 1882 as well as on the basis of an oral agreement/understanding stated to have been arrived at between the parties when the aforesaid plots and the plot in khasra no.844/2 (8) and 844/2 (7) were purchased by the plaintiff no.1 and his brother in law. As far as the rights under Easement Act are concerned, the easement by necessity is provided under section 13 of Indian Easements Act, 1882. Same provides :
13. Easements of necessity and quasieasements: 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 and when the transfer or bequest took effect, CS No.83406/16 S P Marwah & Anr V/s K D Bhalla & Anr Page 12/23 the transferor, or the legal representative of the testator, shall, unless a different intention is expressed or necessarily impleaded, 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 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.
20. It may be noted that section 13 of the aforesaid Act deals with the easements in cases of transfer of property by a single person or in cases of properties severed by partition. However, in the present case, the plaintiff has failed to lead specific evidence that the seller of all the plots was the same person or that the properties were joint property of several persons and became separate properties by partition. Moreover, plaintiff has failed to lead any evidence regarding past easements (prior to the sale deeds) or even plead regarding the same. Rather the sale deeds filed by the parties show that the sellers were different. Therefore, the plaintiff cannot claim the easement under the aforesaid provision of the Easement Act.
21. Proceeding further, the second and the main plea of the plaintiff is that the sellers of defendant were close relatives/members of the family of sellers of the plaintiff and said owners refused to sell the CS No.83406/16 S P Marwah & Anr V/s K D Bhalla & Anr Page 13/23 plots in question in piecemeal manner and they wanted to sell the whole property of 2400 square yards including eight plots to a single buyer. The defendants were not in a position to purchase the entire land and plaintiff no.1 and his brother in law agreed to purchase the rear two plots and the defendants decided to purchase the front six plots and at the time of purchase the defendants agreed to give a common passage from their land to approach the plaintiffs land. In support of said pleas, the plaintiff has examined himself and his nephew as well as his brother. The Counsel for defendant has argued that defendant has denied such agreement and all the plaintiff witnesses are interested witnesses and their evidence is not of much relevance. He has further submitted that no other positive proof has been filed regarding existence of such agreement. On the other hand, Counsel for plaintiff has argued that the fact of joint purchase is supported by the fact that plaintiff is a witness to four of sale deeds executed in favour of defendants and even defendant no.1 has signed on one of the sale deeds of plaintiffs. As a counter argument, the Counsel for defendant has replied that said signatures are on the backside of the sale deed of the defendant and such signatures do not prove the alleged oral agreement. The Counsel for plaintiff has further pointed out that it has been established through the cross examination of defendant witnesses that all the eight plots had a common outer boundary wall and that there had been only one entry/exit into the said eight plots through the front plot of defendants only and that plaintiff has been using the same for accessing their plot no.7 and 8. I have considered the arguments and counter arguments. The alleged oral agreement have been asserted by plaintif and have been denied by the CS No.83406/16 S P Marwah & Anr V/s K D Bhalla & Anr Page 14/23 defendants in their respective pleadings/evidence. In such scenario, the court has to scrutinize the circumstantial facts so as to conclude the existence/ non existence of such agreement. However, in the present case, the circumstantial factors strongly suggest the existence of such oral agreement. Same are discussed as follows:
A. The defendant no.1 has deposed in his cross examination dated 02.08.2018 that "The owners of all the eight plots in question were different. I cannot say for sure whether all of the said owners were family members or relatives but some of them may be relatives of each other". It is to be noted that PW1 has specifically deposed that owners of said plots were family members of Mr. V. K. Sharma. More importantly, the perusal of sale deeds of defendants show that sale deed of plot no.1 have been executed by Rajat Sharma s/o Captain V. K. Sharma, the sale deed of plot no. 2 have been executed by Raman Sharma s/o Captain V. K. Sharma, the sale deed of plot no.3 have been executed by Rakhi Sharma D/o Sh. V. K. Sharma, the sale deed of plot no.4 have been executed by Ajay Sharma s/o late G. L. Sharma through his GPA Captain V. K. Sharma s/o late G. L. Sharma (all of said executants having the same address of K33, Hauz Khas, New Delhi), the sale deed of plot no.5 have been executed by O. P. Sharma s/o Sh. Dhanna Sharma and the sale deed of plot no.6 have been executed by Prem Shankar Sharma s/o Sh. H. D. Sharma. Further, the sale deed of plaintiff no.1 have been executed by Rattan Sharma s/o Sh. H. D. Sharma. Thus, it is apparent that the said sale deeds were executed by the close relatives/family members of same Sharma family.
B. It is admitted by DW1 in his cross examination dated CS No.83406/16 S P Marwah & Anr V/s K D Bhalla & Anr Page 15/23 02.08.2018 that "it is correct that there was an outer boundary wall made of stones boundering the said 2450 square yards area". Even in his cross examination of 20.12.2017 he has deposed "the surrounding walls of all the plots was originally same was running wall." Accordingly, the admitted state of things suggest that all the eight plots were initially being treated as a single property/unit. C. It has been admitted by defendants that plaintiff was the witness in four of the sale deeds of the defendants. Further, the defendant no.1 admittedly signed on the rear side of the sale deed of plaintiffs and admitted in his cross examination that he was aware of the said sale deed. Even most of the sale deeds have been executed around the same time. DW1 has deposed in his cross examination dated 02.08.2018 "the registry of four of the plots purchased by me was done on 15.01.1990 and the registry of remaining two plots purchased by me was done on 26.11.1990 and the registry of the plots purchased by the plaintiff was done on 26.11.1990". Thus, apparently sale transactions of the defendants and the plaintiff no.1 and his brother in law were not only contemporaneous but both parties were in the loop of the things, qua each other's sales. This scenario strongly suggest that all sales transactions were part of same larger transaction. D. Further, DW1 has deposed in his cross examination dated 20.12.2017 "it is correct that this is the only gate installed for all the eight plots. Again said, the said gate was only for 1 to 6 plots. (Court Observation: Counsel for plaintiff has objected stating that Counsel for the defendant has given indication to the witness after he replied that the gate was for all the eight plots)." Even DW2 has deposed in her cross examination "there is only one exit gate in the above said CS No.83406/16 S P Marwah & Anr V/s K D Bhalla & Anr Page 16/23 eight plots. Again said, I know about the six plots and do not know about the eight plots". Even DW3 has deposed "there is boundary wall on all the four sides of eight plot. There is only one exit gate of defendants. There is no exit gate of the plaintiffs". Even DW3 has deposed "there is only single entry/exit for the eight plots in question". Even DW4 has deposed "there is single entry/exit gate for the eight plots in question". Accordingly, said testimonies invariably suggest that all eight plots continued to be bound by a common outer wall and plaintiff never had any other entry/exit gate to his plot except the one entry/exit gate opening from the first plot of the defendants.
22. Now, from the aforesaid facts, it is established that when the eight plots in question were purchased, at least seven of them i.e. 1 to 7 were owned by the members of a single family and the plots on the rear side of plot no.1 had no independent access to the road. In the given circumstances, it was apparent that if the family of sellers sold the front plot (s) to one person then it would have been impossible for them to sell the rear plots to any other person as the same would not have any access to the road. Hence, the plea taken by the plaintiffs that sellers intended to sell all the plots in one go to a single person is supported by the existence of said facts. Secondly, the attestation of the sale deeds of the defendants by the plaintiff no.1 and the signing by the defendant no.1 on the sale deed of plaintiff no.1 without any such requirement and the same time period of the execution of sale deed also show that these were part of same larger transaction. Thirdly, the plots purchased by plaintiffs would have been of no use to them if there was no access to the said plots. It was specifically put to the defendant no.1 in his cross examination "Q, Did it never occurred to CS No.83406/16 S P Marwah & Anr V/s K D Bhalla & Anr Page 17/23 you that plaintiffs were also purchasing the property on 26.11.1990 and the whole plot (consisting of the eight plots) had boundary walls on all side so how will plaintiffs get the passage? A. I never thought about the same because it was none of my business." However, the question about the passage to the plaintiffs' plots was obvious the moment the rear plot was purchased by the plaintiff no.1 within the knowledge of defendant no.1. Fourthly, the parties are close relatives and not strangers and admittedly were having very good relation at the time of sale deeds. Hence, situation was not such as that the plaintiff should have executed a written agreement regarding the easement/passage for future reference/disputes as there was atmosphere of trust and faith between the parties. Thus, the existence of such oral agreement is in consonance of the circumstances existing at the time of purchase of plot no.7 by the plaintiff no.1. Rather, purchase of the plot without such mutual understanding was highly improbable. Fifthly, the plaintiff has claimed to have availed such easementary passage various times by visiting their plot through the plots of defendants. DW1 has deposed "it is correct that when plaintiff used to visit me they used the same entry/exit gate used by me. Vol. There is only one entry/exit gate for plot no.1 to 6. I do not know what was the entry/exit gate for the plot no. 7 and 8. I cannot comment on the suggestion that entry/exit gate for plot no.7 and 8 was the same as for the plot no.1 to 6. Again said, as per me, the entry/exit of plot no.7 and 8 was not the same as for the plot no.1 to 6." He has further deposed that "it is correct that plaintiff used to visit me they used to go to plot no.7 and 8 through my plot no. 1 to 6 only". Thus, it is proved that plaintiffs had been going to their plots after purchase of the same CS No.83406/16 S P Marwah & Anr V/s K D Bhalla & Anr Page 18/23 through the plots of defendants only and it is not the case of defendants that any objection was made to the accessing of the rear plots through the plots of defendants.
23. The next important aspect while deciding the existence of alleged oral agreement is the credibility of the parties, as witnesses. It is to be noted that the defence of defendants is that there was a partition wall between the plot no.6 and 7 and in 2012 the said partition wall was only repaired. However, the photographs filed by defendants themselves Ex.D7 (collectively) show that said wall has a singular construction from bottom to top and appears to be newly constructed without any sign of any old construction at the bottom. Even by naked eye it can be deduced that it is not a case of raising the height of a pre existing wall. DW1 has deposed in his cross examination regarding the photograph mark XB showing the same wall that "the wall shown to me was existing and the height of the same was raised by me from the year 1991 to 1995 when I got my house constructed on my plot and thereafter also repairs have been got done by me of the walls shown by me". When the Counsel asked him to point out the repairs done by him he deposed that the "the upper portion of the wall was broken (approximately 2 to 3 feet was broken) and same was got repaired by me. It is wrong to suggest that the photograph mark XB does not show any new repair work being carried out in the wall". He was further questioned, regarding the wall being entirely new, in the manner as follows "Q. Can you point out any difference regarding the age of construction of the wall in the said 10 feet height of the wall since you say that part of the wall was constructed later on. A. The scrubbing was done by the contractor so there is no difference visible in the old CS No.83406/16 S P Marwah & Anr V/s K D Bhalla & Anr Page 19/23 construction and the new construction". However, the photograph filed by the defendants himself and even mark XB clearly show that the entire wall is a newly constructed wall. The explanation put forth by defendant is wholly unbelievable as no amount of scrubbing shall make the old bricks look like new one and more importantly, it is imprudent that a person will get such detailed scrubbing of only one side of an outer boundary wall while leaving the other sides of outer boundary wall in old/jaded condition. Moreover, if it was required that wall shall have a clean look and not disparate looks due to older lower half and new upper portion, the defendant could have simplicitor got the wall plastered. Thus, the credibility of defendant no.1 is highly doubtful. Moreover, even the defendant no.2 who deposed as DW6 has also given evasive answers. She has deposed in regard to the alleged partition wall that "the wall was already there and we had not raised it but only repaired it. Vol. Later on we raised the height of the wall. The wall was pre existing when we raised construction in 1992. I cannot tell the height of pre existing wall but it may be around 4 to 5 feet approximately. The said pre existing wall may be built up by using stones but I am not sure. The said pre existing wall must be in existence below the upper portion raised by us. I do not remember the date when the upper portion of the wall was raised. Approximately it may have been raised around 19941995". However, the wall being shown in the photographs filed by defendant as well as plaintiff shows that it is a newly constructed wall and it is not the case of defendant that the photographs filed by them are of 1995. DW6 has also evaded the answer regarding the wall being plastered or not and has deposed "I do not remember whether the wall was plastered after raising its CS No.83406/16 S P Marwah & Anr V/s K D Bhalla & Anr Page 20/23 height. Vol. There is greenery around the wall so I do not remember. I do not know whether the other side of the wall (plaintiff's side) plastered or not. I do not remember whether the pre existent portion of the wall has been plastered or not. Vol. I do not go to the back portion of our house where the wall is located.". However, it is unbelievable that a person residing in a property does not even know the condition of its boundary wall specially when they are admittedly residing there for more than 20 years. Further, defendant no.2 has also deposed in her cross examination that she has no idea whether the plaintiff used to visit his plot. This is in contradiction with the statement of defendant no.1 who is husband of defendant no.2 that plaintiff used to visit him at his home and they used to come to meet their sister who was defendant no.1's mother in law and that they used to go to the plot no.7 and 8 through plot no. 1 to 6 only. Thus, none of defendants are credible witnesses.
24. Therefore, the evidence of the case leans heavily in favour of existence of an oral agreement between the parties regarding an easementary passage into the plot of plaintiff no.1 and the usage of such easementary right upto 2012. Hence, this issue is decided in favour of plaintiffs and against the defendants.
FINDING ON THE ISSUE No.2
25. In view of finding of issue no.1, this issue is also decided in favour of plaintiff and against the defendants.
FINDING ON THE ISSUE No.3
26. The Counsel for defendant has argued that plaintiffs are basing their case on their oral agreement and accordingly they should have filed a suit for specific performance of such agreement and injunction CS No.83406/16 S P Marwah & Anr V/s K D Bhalla & Anr Page 21/23 suit is not maintainable. I have considered such submission. However, it is not the case of plaintiff that said agreement was never acted upon even once and rather evidence shows otherwise and the plaintiffs have proved that he had been accessing their plots through the plots of defendants only. Thus, the agreement was being followed for quite some time and only in 2012 obstruction have been put into the passage by constructing the wall and hence injunction suit is maintainable. Accordingly, this issue is also decided in favour of plaintiffs and against the defendants.
FINDING ON THE ISSUE No. 427. During the arguments, the Counsel for defendant has conceded that there is no specific provision of the aforesaid enactments which bars the present suit. Even otherwise, no evidence has been led in regard to said issue and said objections have been limited to pleadings only. Hence, said issue is also decided in favour of plaintiff and against the defendants.
RELIEF
28. In view of aforesaid findings, the suit of plaintiff is decreed.
The plaintiff has sought demolition of the complete wall but the defendants are well within their rights to raise the wall except leaving the space for the passage. However, the plaintiff has not made/led specific pleading/evidence regarding the extent of passage from the front plot of defendants till the plot no.7 of plaintiff. In his evidence, PW1 has only stated that passage was through main road entrance gate 15 feet wide. Considering the fact that passage shall be such as a four CS No.83406/16 S P Marwah & Anr V/s K D Bhalla & Anr Page 22/23 wheeler/car can easily pass through the same, it shall be appropriate that minimum 10 feet passage/easement shall be provided. Accordingly, the defendants are directed to demolish at least 10 feet wide portion of the wall constructed between the plot at khasra no. 844/2 (6) situated in extended Abadi of Village Dera Mandi, Tehsil Mehrauli, New Delhi and the plot at khasra no.844/2 (7) of the said revenue estate for providing a passage of minimum 10 feet and further provide at least 10 feet passage from the entry gate of plot at khasra no.844/2 (1) of defendant till the aforementioned entrance (to be created) of plot no. No.844/2 (7) situated in aforesaid revenue estate.
Decree sheet be prepared accordingly.
File be consigned to Record Room after due compliance.
Digitally signed by SACHIN SACHIN SANGWAN
SANGWAN Date: 2019.09.05
17:47:09 +0530
Announced in the open court (Sachin Sangwan)
on 04.09.2019 Administrative Civil Judgecum
Additional Rent Controllercum
Commercial Civil Judge: (South):
Saket District Courts: New Delhi
CS No.83406/16 S P Marwah & Anr V/s K D Bhalla & Anr Page 23/23