Delhi District Court
M/S. K.T. Rajan vs Sh. Mohinder Kumar Jain (Now Deceased) on 17 October, 2013
In the Court of Sh. Parveen Singh: Senior Civil Judgecum Rent
Controller (Central), Tis Hazari Courts, Delhi.
RCA No. 04/13
1. M/s. K.T. Rajan,
Municipal Private No. M/8,
Mahalaxmi Market, Bhagirath Place,
Delhi.
Through its Partner (Regd.)
2. M/s. Paragon Electricals,
Municipal Private No. M/14,
Mahalaxmi Market, Bhagirath Place,
Delhi.
Through its Sole Proprietor
Sh. Ashok Arora. ................ Appellants.
VERSUS
1. Sh. Mohinder Kumar Jain (Now deceased)
Through his heirs and legal representatives
(a) Seeta Devi
w/o late Sh. Mohinder Kumar Jain,
(b) Ravi Kant Jain,
RCA No. 04/13 1 of 9
(c) Gaurav Kumar,
Both sons of late Sh. Mohinder Kumar Jain,
(d) Rekha Gupta,
D/o late Sh. Mohinder Kumar Jain,
All r/o 1864, 2nd Floor, Mahalaxmi Market,
Bhagirath Place, Delhi.
2. Seeta Devi,
W/o Late Sh. Mohinder Kumar Jain,
R/o 1864, 2nd Floor, Mahalaxmi Market,
Bhagirath Place,
Delhi. ................... Respondents.
Date of Institution : 09.02.2012.
Date of Arguments: 01.10.2013.
Date of Judgment: 17.10.2013.
APPEAL AGAINST THE JUDGMENT DATED 24.01.2012
PASSED BY LEARNED CIVIL JUDGE
JUDGMENT
This is an appeal against the impugned judgment dated 24.01.2012 passed by learned Civil Judge.
2. The brief facts are that, the plaintiffs/ appellants had filed a RCA No. 04/13 2 of 9 suit for permanent injunction against the respondents/ defendants. The case of the plaintiffs/ appellants was that they were running their respective shops bearing nos. M/23 and M/10 in Mahalaxmi Market, Bhagirath Place, Delhi and there was a common passage for users of these shops as shown from points A to B in site plan Ex.PW1/1. It is further the case of the appellants/ plaintiffs that the respondents/ defendants were trying to raise unauthorized construction of a shop by blocking this passage and hence, a suit was filed for restraining the defendants/ respondents from using this passage. It was claimed that this passage was for the use of shopkeepers, their employees and customers etc and; for 20 years prior to the filing of the suit, the appellants/ plaintiffs had been in continuous, peaceful and uninterrupted use and possession of that passage and had been enjoying easementary rights of that passage. The respondents/ defendants claimed to be the owners of the shop no. M23 and the passage near the wall at point A and B in the site plan Ex.PW1/1 and had tried to raise construction by blocking that passage without any right or authority.
3. The respondents / defendants in their written statement alleged that the portion shown in red color in the site plan Ex.PW1/1 was not a passage and in fact, it was a shop bearing no. 26A , which was about 8 feet wide and the whole land shown in red colour was not a passage but the passage was only having a width of 5 feet. They also claimed that no easementary right could have been claimed over the passage as it was RCA No. 04/13 3 of 9 servient owner's property. It was claimed that shop no. 26A was situated on the side of the passage and it was 8 feet wide and no easement can be claimed on the plot on the three sides of shop no. 26A. It was claimed that the passage was only 5 feet wide. It was further claimed that they were the owners of shops no. 23,24, 25, 26 and 26A and they had a right to build a shop on that land.
4. After the completion of the trial, the learned trial court vide the impugned judgment dismissed the suit of the appellants/ plaintiffs. Hence, the present appeal.
5. I have heard learned counsels for the parties and perused the record very carefully.
6. The basic premise for the challenge of the judgment is, that the appellants had perfected their right of easement upon the passage shown at point A to B in site plan Ex.PW1/1 and the learned trial court completely ignored this fact and decided this question without any detailed discussion or reasoning.
7. Therefore, I am first taking the question of easementary right as claimed by the appellants/ plaintiffs.
8. The evidence brought by the appellants before the trial court for proving their easementary right, was the oral testimony of PW1. PW1 Sh. Ashok Kumar Arora deposed as under: That I have been running my business of sale and purchase of RCA No. 04/13 4 of 9 electrical goods under the name and style of M/s. Paragon Electricals at Shop No. M14, Mahalaxmi Market, Bhagirath Place, Delhi, while Shri Sarvpalli Sehgal has been running the identical business under the name and style of M/s. K.T. Rajan, the plaintiff no. 2 as one of the partners thereof at Shop No. M8, Mahalaxmi Market, Bhagirath Place, Delhi. I have got prepared the site plan of the aforesaid shops adjoining thereto, which have been correctly shown in the said site plan. The common passage for all the shopkeepers, their employee and customers is shown in red colour in the said site plan. The said site plan is Ex.PW1/1. All of us, our respective employees and customers use the said common passage. All of us have been in continuous, peaceful, uninterrupted and hostile use and possession of the said common passage for the last about 40 years and as such all of us have been enjoying the easementary rights of the said passage. There is no other passage for going to, and coming back from the said shops, except the said common passage.
9. Apart from this oral testimony, the appellants did not bring forward any evidence to prove that they had perfected the easementary right qua the passage in question. For an easement to be established, there are six essential ingredients which are required to be proved. These are:
(i) There must be a dominant and servient tenement.
(ii) An easement must accommodate the dominant tenement.
(iii)The right of easement must be possessed for the beneficial enjoyment of the dominant tenement.
(iv)Dominant and servient owners must be different persons.
(v) The right should entitle the dominant owner to do and continue to do something, or to prevent and continue to prevent something being done, in or upon, or in respect of, the servient tenement; and
(vi) That something must be of a certain or well defined character and be RCA No. 04/13 5 of 9 capable of forming the subject matter of a grant.
10. Therefore, to prove an easementary right qua the passage, it was required that the appellants would have clearly stated that they were having a dominant tenement and apart from that, they should have clarified who was the owner of the passage as claimed by them and that he was the servient owner. They were also required to show that the dominant owner and servient owner were not the same person. The appellants have not disclosed any such details.
11. During the course of arguments, it was admitted that the entire complex belonged to one person referred to as Jaipurias. That being the case, the status of a dominant and servient owner cannot exist in the same person. I, therefore, find that the appellants did not disclose the necessary ingredients to prove any easementary right in respect of the passage in question.
12. Learned counsel for the appellants has contended the trial court failed to appreciate that PW1 Sh. Ashok Kumar Arora had deposed that father of PW1 had purchased the shop no. M14 in the name of the mother of PW1 from one Jaipuria and thus, the status of appellant in suit shop was no longer of a tenant but of an owner thereof. Therefore, the appellant would have become the dominant owner of the suit shop and would have easementary right to the passage. Here again, I find that no documents of ownership had been placed on trial court's record. Secondly, it RCA No. 04/13 6 of 9 has not been disclosed when the shop was purchased and thus, it was not possible for the trial court to calculate the period of the alleged open and hostile user of this alleged passage to arrive at a conclusion that whether, the appellants or their predecessor in interest had perfected the right of easement of way? Therefore, on this mere oral testimony, the trial court could not have reached at a conclusion that the appellants/ plaintiffs had an easementary right to the entire passage shown at points A to B in the site plan Ex.PW1/1.
13. The next rung of argument of learned counsel for the appellants is, that the trial court failed to appreciate the fact that the shop no. 26A was not in existence and it was a vacant land and therefore, the trial court should have held that the respondents/ defendants failed to prove the existence of shop no. 26A.
14. I have considered the rival contentions made on behalf of the parties and perused the record very carefully.
15. From the perusal of the record, I find that there is no challenge on behalf of the appellants to the sale deed Ex.DW1/A. The sale deed has been executed by the owner of the entire complex, who has given a number to this portion of land as M26A. The allegation of appellant was that the respondents were trying to raise construction of this shop when the appellants filed the suit. Therefore, it is not the question of existence of the structure which was to be considered by the trial court but it was the RCA No. 04/13 7 of 9 question of purchase of the land by the respondents/ defendants that was to be considered by the trial court. The purchase of this land had been proved by the respondents and the only ground on which the appellants could have stopped the respondents from raising any construction on this land in their own right would have been if, they had proved that this shop was a part of the passage to which the appellants had perfected their right by way of easement. In my opinion, the appellants had failed to prove any easementary right with regard to the area purchased by the respondents.
16. I also find that there is a report of local commissioner on the record, which has not been challenged by either of the parties. The said report shows that the common passage adjoining the property no. M23 was found to be having a width of 4.5 meters. However, the site plan filed by the appellants shows that the other passages shown at points X and Y are having a width of 2.5 meters. If that be the case, then when this shopping complex was constructed by the original builder/ owner, it is more probable that the width of all the passages would have been kept the same. Therefore, it is highly probable that this portion which was left by the builder/ owner was left for carving out another shop/ portion.
17. As regards the oral arguments of easement of necessity, I find that even after leaving out the space purchased by the respondents, a passage having a width equal to the width of other passages of the complex would still be available with the appellants/ plaintiffs and therefore, when there is a RCA No. 04/13 8 of 9 clear access available to the premises of the appellants even after leaving the space of the respondents, the appellants cannot claim any easement of necessity. In this regard, reliance has been placed on the judgment of Gouri Amma Krishanamma v. Seethalakshmi Amma & Ors., AIR 2004 Kerala 75 wherein it was held, that alternative inconvenient pathway is no ground for claiming easement of necessity. The necessity must be absolute and not a convenient mode of enjoyment.
18. In view of my above discussions, I find that the appellants had neither pleaded nor proved the necessary ingredients of easement by way of prescription. Secondly, as the appellants will still have a passage available to their shops, they cannot claim the easement of necessity.
19. I accordingly find no illegality or infirmity in the judgment of the learned trial court. Thus, the appeal must fail. The appeal is accordingly dismissed. Trial court record be sent back alongwith the copy of the judgment. Appeal file be consigned to the record room.
Announced in open Court (PARVEEN SINGH) on 17.10.2013. Senior Civil Judge- cum- Rent (This judgment contains 09 pages Controller (Central), and each paper bears my signature.) Tis Hazari Courts, Delhi. RCA No. 04/13 9 of 9