Delhi District Court
Ankur Mutreja vs Aviation Employees' CoOperative ... on 19 July, 2021
IN THE COURT OF SH. M. P. SINGH, ADDITIONAL DISTRICT
JUDGE03, EAST DISTRICT, KARKARDOOMA COURTS: DELHI
MCA 14/2016
Ankur Mutreja,
S/o Budhi Prakash Mutreja,
R/o Unit 1, Ground Floor, 156,
Gagan Vihar Extension,
Delhi - 51 ................ Appellant
Versus
1. Aviation Employees' Cooperative House Building Society
(AECHBS)
Through its Secretary,
Office Near Overhead Water Tank,
Gagan Vihar, Delhi - 51
2. Municipal Corporation of Delhi,
Through its Commissioner
Office - Udyog Sadan,
Patparganj Industrial Area, Delhi92
3. Delhi Development Authority,
Through its Vice - Chairman
Office Vikas Sadan, INA, Delhi - 23
4. Department of Urban Development and PWD,
Government of National Capital Territory, Delhi (GNCTD)
Through Chief Secretary, GNCTD,
Delhi Secretariat, I. P. Estate, Delhi. ............Respondents
Appeal filed on - 11.03.2015
Judgment pronounced on - 19.07.2021
JUDGMENT
1. Plaintiff, who is an advocate, has preferred this appeal impugning MCA 14/16 Ankur Mutreja v. AECHBS & Ors. Page 1 of 23 Trial Court's order dt. 25.02.2015 whereby and whereunder his application under Order XXXIX Rules 1 and 2 read with section 151 of CPC was dismissed. For the sake of convenience, the parties shall be referred to, in this judgment, as per their ranks before learned Trial Court.
2. The suit before the Trial Court was filed on 16.12.2009. Facts, as set out in the plaint, are as follows:
I) Plaintiff is owner and in occupation of Unit 1, Ground Floor, 156, Gagan Vihar Extension, Delhi - 51. Gagan Vihar Extension is an unauthorised colony. It was granted Provisional Regularisation Certificate on 17.09.2008 and its regularisation process is presently underway.
II) There is a 20 feet x 55 feet vacant area between 156, Gagan Vihar Extension, Delhi and Gagan Vihar Community Hall. Public Works Department (PWD) had got constructed a labour accommodation for the labour employed in construction of certain road. The said labour accommodation comprised of two walls each on the north and south sides, a floor and other kachha construction. Sometime in SeptemberOctober 2007 it was partially demolished, leaving the north wall and the said floor nondismantaled. Nondemolition of the labour accommodation is a matter in issue in RSA no. 156/09 before the High Court. A civil suit bearing no. 379/09 is also sub judice qua the rights in issue but on a different cause of action. In December 2008 respondent no.1 constructed another floor over and above the MCA 14/16 Ankur Mutreja v. AECHBS & Ors. Page 2 of 23 said kachha floor. It also placed a wooden plank 2 feet x 6 feet in front of the side door located in the common area of 156, Gagan Vihar Extension. From 18.11.2008 onwards in the said vacant area respondent no.1 started to locate halwais of event organisers using the Gagan Vihar Community Hall.
III) 'The said vacant area is an internal road of Gagan Vihar Extension which was dedicated to public use by the original owner' at the time of development of Gagan Vihar Extension Society. Plaintiff enjoyed right of way/ access to his property from the north and south directions through the said vacant areas 'for a very long time till September 2005'. He enjoyed no access from September 2005 to September 2007. Thereafter and till 18.11.2008 he enjoyed only pedestrian and bicycle access from the south direction through the side door located in the common use area of 156, Gagan Vihar Extension, Delhi.
IV) Plaintiff enjoyed right of way / access to his property from the south direction through the said vacant area 'for more than 25 years till 18.11.2008'. Plaintiff's property is the dominant heritage and the said vacant area is subservient heritage. The easement right was suspended, without acquiescing, for the period from September 2005 to September 2007.
V) The unauthorized construction raised by respondent no.1 and the unauthorised wall at the north end of the said vacant area raised by PWD do not fulfill the conditions of regularisation. Thus, respondent MCA 14/16 Ankur Mutreja v. AECHBS & Ors. Page 3 of 23 no.2 and/or respondent no.3 ought to demolish the same.
VI) On these averments, plaintiff sought the following reliefs in the main suit: (a) declaratory decree declaring right of way to his property through the internal road of Gagan Vihar Extension, (b) declaratory decree declaring easement / right of way to his property from the south direction, (c) mandatory injunction directing respondent no.1 to dismantle the said floor and the wooden plank and clear the vacant area, (d) mandatory injunction directing respondent no.1 to stop misusing the vacant area for locating halwais, (e) mandatory injunction decree against respondent no.2 and/or respondent no.3 to demolish the unauthorised floor on the north end of the vacant area.
3. Defendant no.1 (respondent no.1) filed its written statement on 04.05.2010. It states that Order II Rule 2 of CPC hits the present suit, for in suit no. 1516/89 titled 'Aviation Employee House Building Society v. Pushpa Mutreja & Ors.' plaintiff's parents had given an undertaking on 30.11.1994 that they will remove the unauthorised construction, close the window/ door / ventilator that open towards its land and not open the same again in future. Section 11 of CPC also hits the present suit as plaintiff is reagitating and relitigating over the same issue again and again, albeit couched in different forms of relief through different proceedings. Plaintiff has no locus standi to institute the present suit as he is neither the owner nor the landlord of 156, Gagan Vihar Extension, Delhi. In fact, property no. 156, Gagan Vihar Extension, Delhi belongs to his parents and they in their statements recorded in CS no. 1516/89 on 30.11.1994 had actually stated MCA 14/16 Ankur Mutreja v. AECHBS & Ors. Page 4 of 23 so. The suit is filed only to grab its land. Earlier, the court of Sh. R.K. Singh, Senior Civil Judge, East, Delhi had dismissed plaintiff's suit and appeal thereagainst was also dismissed vide order dt. 08.05.2009 in RCA no. 47/09. The community hall was built up on land allotted by DDA after obtaining the requisite sanction. It is denied that RSA no. 156/09 and CS no. 379/09 are with respect to different cases of action. It is stated that matter in issue in all the proceedings initiated by the plaintiff are the same. Around the community hall, there is vacant land that has been left open in terms of the sanction plan and which vacant land belongs to it. It is denied that there is any gap/vacant land between 156, Gagan Vihar Extension and its land/property. In fact, property no. 156, Gagan Vihar Extension adjoins its land. As regards the wall, it is stated that it had existed there since a long time. It also states that the said portion of land over which plaintiff claims right of way is in no way part of public road. In fact, it is pointed out, the plaintiff himself has encroached on public land to the extent of 240 sq. feet. It is denied that the plaintiff ever had any right of way over the portion of land in question. Plaintiff has no right to raise any objection in respect of use the community hall, which is situated in its land, for holding functions etc. Denying other averments, respondent no.1 sought dismissal of the suit.
4. Government of Delhi (defendant no.4/ respondent no.4) in its written statement, filed on 17.07.2010, states there cause of action against it; that Order II Rule 2 of CPC bars the suit inasmuch as an earlier suit (suit no. 662/08 old suit no. 437/08) instituted by plaintiff on same cause of action and similar facts already stands dismissed vide order dt. 08.05.2009 and MCA 14/16 Ankur Mutreja v. AECHBS & Ors. Page 5 of 23 appeal preferred thereagainst was turned down on 17.08.2009; that Urban Development Department forwarded layout plan and other documents of 1639 unauthorised colonies to MCD for scrutiny and the latter is in the process of scritinising them. Denying other averments, it seeks dismissal of the suit.
5. On the Trial Court record there is written statement of Gagan Vihar Resident Welfare Association, which had been initially impleaded as defendant no.5. However, I find from the Trial Court record that it has already been deleted from the array of parties vide order dt. 14.05.2013.
6. Now to application under Order XXXIX Rules 1 and 2 read with section 151 of CPC. Plaintiff states that defendant no.1/ respondent no.1 constructed a floor 2 feet high in front of his side door and the same has completely blocked access to residential portion of his property from the Master Plan Road; that construction of the said floor has rendered the door unusable for all practical purposes; that construction of the said floor was done during pendency of civil suit no. 437/2008, later numbered as 662/2008; that construction of the said floor has caused him irreparable damage; that he filed two other civil suits bearing no. 379/09 and 469/10 and they are based on the same legal rights over the disputed property as in the present suit; that defendant no.1/ respondent no.1 has also filed civil suit no. 495/10. On these averments, plaintiff seeks the following interim reliefs: "(a) that an interim order may be passed directing defendant no.1, its agents, attorneys, assignees whosoever OR allowing me at the cost of defendant no.1 to demolish appropriate portion of floor (5 ft x 5 ft) in the MCA 14/16 Ankur Mutreja v. AECHBS & Ors. Page 6 of 23 front of the door located in the eastern boundary wall of 156, Gagan Vihar Extension, Delhi - 10051 (sic. 110051) and opening into the disputed property of 20 feet x 55 feet approx between 156, Gagan VIhar Extension, Delhi - 110051 and the Gagan Vihar Community Hall Building; and directing defendant no.1, its agents, attorneys, assignees whosever OR allowing me to create appropriate arrangement including construction of slope, steps, drain etc in order to smoothly access my property from the raised portion of the floor (2 ft in height) in the manner as shown in the proposed site plan enclosed along with this application as Annexure B. (b) that any other order, as may be deemed appropriate, may be passed in the circumstances of the case."
7. Arguments heard. Record perused.
8. To begin with, a bare reading of the plaint would show that plaintiff does not at all make out a case of easement by necessity and quasi easement as provided under section 13 of Indian Easements Act, 1882. It is not the plaintiff's case in the plaint that he has no other mode of access to his house, except the side door. As such, the plaintiff cannot plead a case of easement by necessity sans any pleadings.
9. We now come to easement by prescription under section 15 of Indian Easements Act, 1882. On a scrutiny of plaintiff's case from this perspective, I find that there are some very basic and fundamental defects in the plaint, and for this I need not even look into defendants' defence. They are as follows: MCA 14/16 Ankur Mutreja v. AECHBS & Ors. Page 7 of 23 I) Firstly, in Justiniano Antao & Ors. v. Bernadette B. Pereira, (2005) 1 SCC 471 it has been held that in order to claim easement by prescription there should be categorical pleadings that since what date to which date one is using the access for the last 20 years. In Justiniano (supra) briefs facts were as follows: Plaintiff therein claimed easement by prescription - right of motorable access to her house through the property of the defendant(s). She claimed that she had been enjoying motorable access peacefully, continuously, free from any obstruction as an easementary right for the 'last more than 25 years' and prior to that by her fatherinlaw 'for more than 75 years' for all purposes. Apex Court observed, "From this, it is more than clear that there is no specific averment in the plaint or in the statement of the witnesses showing that this access from the land of the defendants was used as of right for the last 20 years. .........There should be categorical pleadings that since what date to which date one is using the access for the last 20 years." Therefore, in the present case, I do not think that the bare averment in the plaint that plaintiff had been enjoying easement 'for a very long time till September 2005' or 'for more than 25 years till 18.11.2008' will be sufficient.
II) Secondly, plaintiff in his plaint says, "the said vacant area is an internal road of Gagan Vihar Extension which was dedicated to pubic use by the original owner of the said area at the time of MCA 14/16 Ankur Mutreja v. AECHBS & Ors. Page 8 of 23 development of Gagan Vihar Extension Colony and I1 have enjoyed Right of Way (ROW) access to my property from the north and south direction through the said vacant area for a very long time till September 2005'. At another place in his plaint, he says, "I2 have enjoyed Right of Way access to my property from the south direction through the said vacant area as an easement right of way till 18th November 2008 for more than 25 years. Therefore, 'more than 25 years before 18th November 2008' will take us back to at least 18.11.1983. That apart, even if we take 20 years plus 2 years - as required by section 15 of the Act from the date of institution of suit, it will take us back to 16.12.1989 / 16.12.1987. It was plaintiff's duty to prima facie show that he was the 'dominant owner'3 over his property at least since 18.11.1983 as claimed by him in the plaint. However, the plaintiff has placed not a single document on record to even remotely show that he has been the dominant owner at least since 18.11.1983 as claimed by him. It is significant to note that in his plaint he claims to be 'owner and in occupation' of his property. But, what surprises me greatly is that he does not state as to since when he has been the 'owner and in occupation' and on the strength of what documents, whether a gift 1 The use of the first person "I" here is significant. It conveys that enjoyment of the said easementary right started with the plaintiff. He does in his plaint say that his predecessorininterest, if any, too had been enjoying the said easement. He neither states in his plaint that the predecessorininterest of his predecessorininterest had also been enjoying the said easement.
2 The use of the first person "I" here again is significant. See supra note 1. 3 See section 4 of Indian Easement Act, 1882 for definition of 'dominant owner'.
MCA 14/16 Ankur Mutreja v. AECHBS & Ors. Page 9 of 23deed, or a sale deed or a Will or at any rate a squatter or a trespasser who perfected his title by adverse possession. Even if not the documents showing since when he has been the dominant owner, he may have at least shown some document to prima facie support his claim that he has been occupier of the property, which he claims to his, at least since 18.11.1983, or at any rate since 16.12.1989 / 16.12.1987 to be in a position of dominant owner as required by law. Going by the plaint, we know nothing on this count. In short, there is no material whatsoever on record to even prima facie support plaintiff's averments of being the dominant owner for the 'last more than 25 years before 18.11.2008'. And it appears that it has been with no basis whatsoever on this count that the plaintiff has been continuing with the suit, out of which this appeal arises, for the last more than a decade. Needless to say, the law is well settled that plaintiff must stand on his own legs and he cannot succeed on the strength of deficiencies / drawbacks, if any, in the case of his rival side in the litigation.
III) Plaintiff seeks to take the aid of section 110 of Transfer of Property Act. In short, this provision states that when any person is shown to be in possession of anything, the burden of proving that he is not its owner is on one disputing it. Therefore, the possession has to be 'shown', that is, it has to be 'shown' in the lis to the court. And such 'showing' of such possession cannot be only in the vacuum, on the basis of mere hollow averments in the plaint sans even a MCA 14/16 Ankur Mutreja v. AECHBS & Ors. Page 10 of 23 prima facie material to support it. That apart, this provision does not state that the person in occupation will be taken to be owner for the last 25 years or 20 years prior to filing of the suit on the basis of his possession at the time of institution of the suit. In order to show possession over the course of last 25 years or 20 years prior to filing of the suit, again the plaintiff has to show some material to show that he has been possession over last 25 years/ 20 years prior to institution of the suit. It should not be forgotten that in claiming easement, one seeks to act to the detriment of the property of the other and therefore on this count the Court has to act with great care and caution.
IV) Thirdly, in order to make out a case of access to one's house on the anvil of easement by prescription it is essential that the plaintiff must acknowledge that land over which he claims access by way of easement belongs to the defendant(s). In the plaint, the plaintiff nowhere acknowledges that the vacant land in question is that of defendant no.1, to whose detriment he claims the easement. Rather, in the plaint, it is claimed that the vacant land in question is 'an internal road of Gagan Vihar Extension which was dedicated to public use by the original owner'. Logically speaking, the said vacant land in question can either be part of a road or it can be property of defendant no.1, to whose detriment easement is being claimed, but it certainly cannot be both at the same time. In Arunachalam Pillai & Anr. v. Sorimuthu Pillai, AIR 2004 Mad MCA 14/16 Ankur Mutreja v. AECHBS & Ors. Page 11 of 23 185 : 2003 SCC OnLine Mad 794 it was held that to claim easement, the plaintiff must admit the title of defendant over the property.
V) A perusal of the Trial Court record as also the undertaking given by plaintiff's parents in a previous civil suit no. 1516/1989 reflect that plaintiff's mother had apparently purchased property no. 156, Gagan Vihar Extension, Delhi only in 1994. The present suit was filed in 2009. The Mutrejas thus did not complete the statutory period of 20 years as required for easement by prescription. This aspect shall also be adverted to in later part of this judgment.
VI) Further, as per the plaint itself from September, 2005 to September, 2007 he had no access to the easement. Plaintiff states that he did not acquiesce to this interruption. But in the plaint it is not stated as to what did the plaintiff do which could manifest that he did not acquiesce to this interruption. That apart, in terms of section 15 of Indian Easements Act cessation of enjoyment for a period of one year, if not acquiesced to for one year shall not be taken as interruption of the easement. However, in the case at hand the interruption lasted for two years, whether acquiesced or not. This again shows that the plaintiff cannot under the law make out a case of easement by prescription.
10. We now come to certain documents placed on record by the plaintiff himself. These documents are copy of the plaint and the judicial order dt.
MCA 14/16 Ankur Mutreja v. AECHBS & Ors. Page 12 of 2330.11.1994 in a previous civil litigation bearing civil suit no. 1516/ 19894 that was disposed of by the court of Ms. Kamini Lau, the then learned Civil Judge, Delhi. This was a suit instituted by AECHBS, and the defendants therein were one Brij Mohan, Registrar of Cooperative Societies, Sh. B.P. Mutreja (Ankur Mutreja's father) and Mrs. B. P. Mutreja (Ankur Mutreja's mother). It appears from a reading of the plaint that property no.156, Gagan Vihar Extension, Delhi - 51 (of which the plaintiff herein claims to be present owner and occupier) earlier belonged to Sh. Brij Mohan. In the judicial order dt. 30.11.1994 it is, inter alia, written that B.P. Mutreja and Pushpa Mutreja have no objection in being impleaed as parties as they are now the owners and they are impleaded as defendants no.3 and 4 and the amended memo of parties be filed during the course of the day. The judicial order dt. 30.11.1994 further notes that Sh. Brij Mohan (defendant no.1 therein) is no longer the owner and he stands deleted from the array of parties. The judicial order dt. 30.11.1994 goes on to state that statements of B.P. Mutreja and Pushpa Mutreja (defendants no.3 and 4) is recorded separately and that in view of 'the statements of parties and the undertaking given by deft. No.3 and 4 which is accepted by this court and by which they shall be bound, the suit of the plaintiff is hereby disposed of as compromise accordingly'. Now, the plaintiff does not state in his plaint as to what exactly was the undertaking given to the court by his parents. He has not filed the copy / certified copy of the said statements/ undertaking given to the court by his parents in the said suit. And this missing link is 4 Plaintiff filed this document together with the plaint. It is at pages 595 - 611.
MCA 14/16 Ankur Mutreja v. AECHBS & Ors. Page 13 of 23filled in by the defendant(s) herein5. In the statements6 recorded in the court on 30.11.1994 this is precisely what the parties to that suit had stated on oath.
Statement of Smt. Pushpa Mutreja w/o B.P. Mutreja, aged about: 43 years R/o 156, Gagan Vihar Extn, Delhi On SA I am the deft. No.3 in this case. I am owner of property no. 156, Gagan Vihar Extn, Delhi - 51. I have recently purchased the premises and I undertake to remove the unauthorised constructed steps, and also to close the window and door and the ventilator, which are opening towards the land of the pltff. The suit be disposed off accordingly. I also undertake not to open the same again in future.
Statement of Sh. B. P. Mutreja s/o Sh. K. R. Mutreja, aged about: 46 years R/o 156, Gagan Vihar Extn, Delhi On SA I am the deft. No.4 in this case. The deft No.3 is my wife. She is the owner of the premises. I have heard her statement. The same is correct. We undertake to close the door, window and ventilator and remove the unauthorised steps constructed by the previous owner deft No.1 as shown in red colour in the site plan and also undertake not to reopen the same again in future. The suit be disposed off accordingly.
Statement of Sh. S. P. Sharma Hony. Secy. Aviation Employees Co. Op. House Building Society, Gagan Vihar, Delhi - 51 On SA I am the secy. of the plaintiff society and I am duly authorised to make a statement on their behalf. I have heard the statement of the deft. No.3 and 4. I am satisfied. We have not filed any other suit pertaining to the same property in any other court till date. The deft No.1 was the previous owner and he be deleted as a party. Deft No.2 is only a 5 At page 797 of the Trial Court record.
6 It apparently is copy of a certified copy.
MCA 14/16 Ankur Mutreja v. AECHBS & Ors. Page 14 of 23performa party and no relief is claimed against him. The suit be disposed off.
11. Given this, I wonder as to how the plaintiff can possibly, by any stretch of imagination, claim easementary right under the law as asserted by him in his plaint, when his parents had themselves stated on oath and given undertaking in the Court that they will not open any door, window, ventilator etc. towards the side of the land of AECHBS.
12. However, the plaintiff seeks to overcome the aforesaid undertaking of his parents by taking various pleas, which are: (A) He argues firstly that the copy of the said statements, filed by defendant(s), is suspect of forgery. I am not persuaded to accept this contention. If it is forged, then the plaintiff himself could have very well filed the copy of the said statement and told the court that whilst the copy of the statements recorded in the court filed by the defendants is forged, the one filed by him is genuine. That apart, I wonder as to when the plaintiff could have filed the plaint and the judicial order of the said previous suit, why did not he file the copy of the statements/undertaking recorded in the court. Further, prima facie I am not inclined to believe that said copy filed by defendant(s) is forged. It seems to me that plaintiff's endeavour is to leave out a very vital missing link in the lis, and when the defendant(s) seek to fill up the same, he cries hoarse. By doing this, he also seems to convey to the court that Yes, I have left a vital missing link, but to overcome it the court cannot seek the assistance of my rival side. (B) His next argument is that the said compromise decree/order does not operate as res judicata or as bar under MCA 14/16 Ankur Mutreja v. AECHBS & Ors. Page 15 of 23 Order II Rule 2 of CPC. No doubt, it does not operate as res judicata. It may also not operate as a bar under Order II Rule 2 of CPC. But it certainly does operate as estoppel and there are several judicial precedents that say so. In this regard, the recent report of Compack Enterprises India Pvt. Ltd. v. Beant Singh, (2021) 3 SCC 702 may very well be referred to. And in terms of section 115 of Evidence Act the estoppel binds even the 'representative' of the party. (C) His next argument is that fraud, misrepresentation and undue influence had been employed on his parents to make the statements. This plea is noted only to be rejected. There is no such plea taken in the plaint, much less even a reference to the said compromised suit. Such an averment can be taken only on a plea properly founded in the plaint. He argues that defendant no.1 in a certain court proceedings undertook not to claim land of 7.6 acres and that the same in fact belongs to Gagan Vihar Extension Colony and this proves the fraud, misrepresentation and undue influence. I wonder as to how this makes the said statement given in the court by his parents not binding. If Gagan Vihar Extension Colony is the owner of the land of 7.6 acres, the big question to be asked is why it is not a party to the present suit. If it is the owner, then Gagan Vihar Extension Colony ought to have been a necessary party in this suit for claim to easement. That apart, a party of his own, or for that matter his representative of his own, sou moto, subject to all just exceptions, cannot assume that the undertaking given to the Court is now a waste paper as there was some fact that was not revealed to the Court. For the undertaking to lose its binding character, it is my view, that the party must MCA 14/16 Ankur Mutreja v. AECHBS & Ors. Page 16 of 23 approach the Court and inform it that the terms of the undertaking / compromise must now be changed as there was some fact that was not disclosed. It is for the Court to ascertain as to whether or not such missing fact was of vital importance as to affect the undertaking / compromise. That apart, leave aside ownership of the land, plaintiff's parents on 30.11.1994 with their eyes wide open had given the statement knowing fully well that in the adjoining property, it is was AECHBS that was in occupation. Even the present suit is filed on the basis that AECHBS is in occupation of the adjoining property. The plaintiff, in his written arguments filed in the appeal file disputes the ownership of defendant no. 1. Nonetheless, defendant no. 1 is very much in occupation in the adjoining property. This plea is turned down. (D) It was next the argument that statements/ undertaking do not identify the properties; that the phrase 'opening towards the land of the plaintiff' in the statement of plaintiff's mother does not identify the property. This argument is again meritless. A bare reading of the plaint of that suit is enough to identify the property and the dispute that had arisen. Further, dispute about opening of doors/ steps/ windows / ventilators could only have been towards the side where the property of plaintiff/ plaintiff's parents and the defendant no.1 meet or touch each other. The plaintiff, it seems, is resorting to hair splitting technicalities of law. In construing the said undertaking and the pleadings of the previous suit as also this suit, the court will not keep its common sense in cold storage. In S. B. Noronha v. Prem Kumar Khanna, AIR 1980 SC 193 it was observed that common sense should not be kept in cold storage when MCA 14/16 Ankur Mutreja v. AECHBS & Ors. Page 17 of 23 pleadings are construed. (E) It was next his argument that the Court can take no notice of the said undertaking/statement of his parents as it is only copy of a certified copy. He urged that a mere copy cannot be admitted in secondary evidence in view of sections 63/65, Evidence Act. This contention is meritless. We are not at the stage of trial. This is the stage where the trial/evidence has not yet begun. At this stage of temporary injunction application the onus is on the plaintiff to make out a prima facie case. On this count, not only the plaintiff from his own showing has failed miserably to make out a prima facie case, but his very case of there being a right in easement in his favour is not at all borne out from the case set up by him. That apart, if this copy is not the true copy of the original statement then the plaintiff ought to have shown to the Court that the undertaking is actually something else. While the plaintiff has filed the copy of the plaint and the judicial order of that suit, he has for reasons best known to him refrained from filing the copy of the undertaking/statement. Further, the plaintiff himself on the Trial Court record has filed large number of documents which are only photocopies. (F) It is next urged that section 40 of Transfer of Property Act does not apply to him for the reason that he is a transferee without notice. This argument is meritless. And the reasons thereof shall be set out in later part of this judgment. (G) It was next the contention that a private arrangement or covenants entered into in relation to a property does not affect public rights. Right in easement is essentially a private right. This right is not for the world or the public at large. Therefore, when the plaintiff asserts a right in easement in his favour he is MCA 14/16 Ankur Mutreja v. AECHBS & Ors. Page 18 of 23 essentially asserting a private right. A public right, on the basis that the vacant land is actually part of a road, is actually distinct from a right in easement. Even from the point of view of a public right, the plaintiff has no case to make out and the reason thereof shall be set out in the very next paragraph.
13. Plaintiff claims that the said vacant land is actually a road meant for the public. To my mind, this plea of the vacant land being actually a road cannot be agitated without the aid of Order I Rule 8 of CPC. This is for the reason that if the vacant land is actually a road, that road would not be only and only for the plaintiff alone. That road would be for the benefit of large number of persons. Given this, this plea of the plaintiff could not possibly have been agitated without the aid of Order I Rule 8 of CPC. There is one more reason to it and which reason is set out in paragraph no. 15 of this judgment.
14. The plaintiff contends that the undertaking/statement given by his parents in the previous suit that was disposed of the Court of Ms. Kamini Lau, the then learned Civil Judge does not bind him. He invokes section 40 of Transfer of Property Act to contend that this provision does not apply to him for the reason that he is a transferee without notice. It is not set out in the plaint as to on what basis and on the strength of what property documents the plaintiff is a transferee. However, he has placed on record photocopies of few documents in his endeavour to show that he is a transferee of Unit 1, Ground Floor, 156, Gagan Vihar Extension, Delhi -
51. These documents are photocopies of affidavits of his parents, MCA 14/16 Ankur Mutreja v. AECHBS & Ors. Page 19 of 23 grandfather, one Ms. Piyusha Mutreja and the plaintiff himself. In these affidavits, it is stated that by way of oral partition the plaintiff had separated from the joint family in May, 2006 and he has been allotted 1/6 th share in the rear portion of 156, Gagan Vihar Extension, Delhi - 51. Even if this plea of partition is accepted on its face value, yet the plaintiff does not under the law become a transferee of the property that he occupies. This is for the reason that under the law partition is not considered transfer of property as nothing new is obtained by cosharer on partition. The specific share of the cosharer, which vested in him earlier, is simply separated. To cite just one judgment for this proposition, reference can be had to Commissioner of Income Tax v. Keshav Lal, AIR 1965 SC 866.
15. The defendant(s) have furnished some documents which are apparently documents of transfer in favour of the mother of the plaintiff. Plaintiff did not file these documents. From these documents, it appears that plaintiff's mother had purchased the property no. 156, Gagan Vihar Extension, Delhi - 51 on 06.04.1994 from Sh. Brij Mohan. And this is why in her undertaking given to the Court on 30.11.1994 there is a reference to her having purchased the property recently. The plaintiff states that this Court can take no cognizance of these documents in view of section 130 of Evidence Act and several provisions of CPC. It is rather very strange that the plaintiff himself does not come up with the documents on the basis whereof he or his parents/grandparents may have acquired the property, but when the defendant(s) file the same, he cries foul by resorting to technicalities of law. Section 130 of Evidence Act applies to a witness. Ms. MCA 14/16 Ankur Mutreja v. AECHBS & Ors. Page 20 of 23 Pushpa Mutreja is not as of now a witness. Further, the plaintiff should know that under section 165, Evidence Act, a Court has immense powers to ask any question whether relevant or irrelevant and also order production of documents and to which neither party can make objections. Not only this, this plea of plaintiff appears to be like that of a tenant who when faced with a litigation says that the rival side is not my landlord, but at the same time he will not reveal / keep mum as to who as per him is his landlord. If these are not the documents of ownership vide which the Mutrejas came to occupy and own property no. 156, Gagan Vihar Extension, Delhi - 51 then the plaintiff ought to state as to how and on the basis of what documents he or his parents came to own/occupy the same. As already stated hereinabove, the plaintiff is completely silent on this aspect. This leads us to another aspect. It at all the Mutrejas came to own and occupy property no. 156, Gagan Vihar Extension, Delhi - 51 in 1994 itself, then how could the plaintiff on the date of filing of the suit in 2009 have completed the statutory period of 20 years for easement by prescription. Not only this, these documents nowhere state that adjacent to property no. 156, Gagan Vihar Extension, Delhi - 51 there is a public road. To me, it appears that the plaintiff deliberately does not want to file his property documents or that of his mother and takes objections to the filing of the same by the defendant(s) because these documents squarely go against the very basis of his case.
16. It is the view of this Court that section 40 of Transfer of Property Act, 1882 shall squarely apply and the plaintiff is squarely bound by the MCA 14/16 Ankur Mutreja v. AECHBS & Ors. Page 21 of 23 undertaking given by his mother in the previous suit disposed of in the Court of Ms. Kamini Lau, the then learned Civil Judge on 30.11.1994. For, if it were not so then it would give a very convenient method to a litigant to avoid an undertaking given to a Court as he may claim that he has already transferred the property or that the property stands partitioned and the portion of the property in question has come to the share of another co sharer and further that the said another cosharer is not bound by the statement/undertaking given by him.
17. It appears to me that the assertions about partition, though not made in the plaint, lack bonafides. It appears that this contention was raised in an endeavour to somehow avoid the undertaking given to the Court by plaintiff's parents on 30.11.1994 in the previous suit. Under section 6 (3) of Hindu Succession Act, partition opens only on the demise of a Hindu. Under section 8 of Hindu Succession Act, succession opens on the demise of a male Hindu dying intestate and not before. Under section 15 of Hindu Succession Act, succession opens on intestate demise of a female Hindu. Given this, I see no scope of partition/succession under the Hindu Succession Act. Further, if the plaintiff seeks to base his assertion about partition on the basis of the Shastric uncodified Hindu Law, then I see not much scope for it. This is for the reason that from the property documents it does appear that the property was in the name of plaintiff's mother and secondly any property acquired or vested on or after 1956 cannot possibly be anything other than separate property.
18. This seems to be luxurious litigation initiated by the plaintiff Ankur MCA 14/16 Ankur Mutreja v. AECHBS & Ors. Page 22 of 23 Mutreja. It prima facie seems to me that he is actually litigating as a proxy of his parents.
19. Conclusion - This appeal is meritless. The appeal stands dismissed. Trial Court record be sent back with a copy of this judgment. Appeal file be consigned to record room.
Digitally signed by Announced in the open Court as also MURARI MURARI PRASAD SINGH through video conference PRASAD Location: Court No.7, Karkardooma Courts, Delhi SINGH on 19th July, 2021 Date: 2021.07.19 12:47:48 +0530 (M. P. Singh) Addl. District Judge03, East, Delhi 19.07.2021 MCA 14/16 Ankur Mutreja v. AECHBS & Ors. Page 23 of 23