Delhi District Court
Gulshan Arora vs Jagmohan Arora on 29 August, 2024
IN THE COURT OF SH. MAYANK GOEL, JSCC/ASCJ/GJ,
SHAHDARA, KARKARDOOMA COURTS, DELHI
CIVIL SUIT No. 96/2017
GULSHAN ARORA Vs. JAGMOHAN ARORA AND ORS.
CNR NO. DLSH03-000172-2017
In the matter of:
SH. GULSHAN ARORA,
S/o LATE SH. UDHO BHAN ARORA,
R/o SHOP No. A-4/12, Krishna NAGAR,
DELHI-110051.
........ Plaintiff
Versus
1. SH. JAGMOHAN ARORA,
S/o LATE SH. UDHO BHAN ARORA,
R/o SHOP No. A-4/12, Krishna NAGAR,
DELHI-110051.
2. EAST DELHI MUNICIPAL CORPORATION,
THROUGH ITS COMMISSIONER,
419, UDYOG SADAN, PARPARGANJ,
DELHI-10092.
3. DEPUTY COMMISSIONER,
SHAHDARA SOUTH ZONE,
EAST DELHI MUNICIPAL CORPORATION,
KARKARDOOMA VISHWAS NAGAR,
DELHI-110032.
4. SHO,
PS KRISHNA NAGAR,
DELHI-110051.
........ Defendants
MAYANK Digitally signed by
MAYANK GOEL
GOEL Date: 2024.08.29
_______________________________________________________________________________
14:38:01 +0530
CIVIL SUIT No. 96/2017
GULSHAN ARORA Vs. JAGMOHAN ARORA AND ORS. Page No. 1 of 19
CNR NO. DLSH03-000172-2017
SUIT FOR PERMANENT & MANDATORY INJUNCTION.
Date of Institution : 23.01.2017
Date of reserving of judgment : 16.08.2024
Date of Judgment : 29.08.2024
Decision : DECREED
JUDGMENT
BRIEF FACTS PLEADED IN THE PLAINT
1. The brief facts which are narrated by the plaintiffs are that as per the Partition Deed dated 06.01.2003, the plaintiff is the absolute owner of the ground floor and second floor of the property and defendant no. 1 is the owner of first floor and the stairs were common in property bearing no. A-4/12, Krishna Nagar, Delhi-110051. That the plaintiff is doing the business of handloom and furnishing from the abovesaid property on ground floor and second floor. That the defendant no. 1 is raising unauthorized construction on third floor without any sanction plan from defendant no. 2/EDMC. That the suit property is an old property and can- not bear the load of the massive construction on the roof of the property and any alternation. That on 16.01.2017, when the plaintiff reached his shop, he was surprised to find that the stairs between first and second floor were broken by the defendant no. 1 in the preceding night which has blocked the entry of the plaintiff on the second floor where the stock of plaintiff is lying. That the act of the defendant no. 1 has made the plaintiff helpless and his business is hampered. That the act of breaking of the stairs by defendant no. 1 is illegal and the complaint in this regard was made to the police but no action is taken by the police. That several com - plaints were made to the defendant no. 2 and 3 in relation to unauthorized construction carried out by defendant no. 1 by greasing the palm of the officials of the EDMC. Hence, the present suit has been filed by the plaintiff seeking decree of permanent injunction in the favour of the plaintiff and against the defendant no. 1 for restraining the defendant no. 1 from raising illegal and unauthorized construction in the suit property bearing no. A-4/12, Krishna Nagar, Delhi- 110051 on the third floor as shown in the site plan attached with the plaint. TheDigitally plaintiff also signed MAYANK by MAYANK GOEL GOEL Date: 2024.08.29 14:38:05 +0530 _______________________________________________________________________________ CIVIL SUIT No. 96/2017 GULSHAN ARORA Vs. JAGMOHAN ARORA AND ORS. Page No. 2 of 19 CNR NO. DLSH03-000172-2017 seeks the relief of decree of mandatory injunction for directing the defendant no. 1 to 4 to de- molish the entire illegal and unauthorized construction in the suit property bearing no. A-4/12, Krishna Nagar, Delhi-110051 on third floor of the suit property. The plaintiff also seeks the re- lief of decree of mandatory injunction in favour of plaintiff and against the defendant no. 1 that the stairs between first and second floor be restored by the defendant no. 1 which were demol- ished by defendant no. 1 to block the entry of the plaintiff on second floor, where the stock of plaintiff is lying.
2. Summons of the suit were issued to the defendants. Defendants appeared but WS has been filed by the defendant no. 1 to 3.
BRIEF FACTS PLEADED IN THE WRITTEN STATEMENT OF DEFENDANT NO.1
3. In the written statement filed by defendant no. 1, the defendant no. 1 has taken certain preliminary objections and averred that the plaintiff has concealed the material facts and filed the present suit with motive to harass and humiliate the answering defendant. He fur- ther averred that the plaintiff has claimed for the equitable relief of the injunction in the present suit by concealing the material facts. He further averred that the suit is also liable to be dismissed as no cause of action has arisen in favour of the plaintiff against the defendant no.1. He further averred that plaintiff is elder brother of defendant no.1. He further averred that the suit property was purchased through two registered sale deeds dated 12.05.1999 in the name of plaintiff, defendant no.1 and their father in equal share. He further averred that the father of parties released his share in the suit property through execution of registered Release Deed dated 16.12.2002 in favour of the plaintiff and defendant no.1 and thereby, the plaintiff and defendant no.1 acquired their right of equal share in the suit property. He further averred that the suit property was purchased from the income of father of the parties and defendant no.1 as father was running a shop of sofa material and defendant used to sit to run the business. He fur- ther averred that the plaintiff was working in Post Office at the post of Clerk and used to keep MAYANK Digitally signed by MAYANK GOEL GOEL Date: 2024.08.29 14:38:13 +0530 _______________________________________________________________________________ CIVIL SUIT No. 96/2017 GULSHAN ARORA Vs. JAGMOHAN ARORA AND ORS. Page No. 3 of 19 CNR NO. DLSH03-000172-2017 all his income himself. He further averred that the defendant no.1 started to work with father at the age of 15 years and father had assured to give the whole suit property to the defendant no.1 as the plaintiff had a government job. He further averred that the plaintiff took voluntary re- tirement from service in the year 2003-04 with motive to grab the entire suit property as he is elder in the family. He further averred that the defendant no.1 is owner of half share in the suit property but the plaintiff has not given any place to sit and work at ground floor. He further averred that the plaintiff and defendant entered into a mutual settlement on the advice and dir- ection of father. He further averred that the plaintiff had consented to reconstruct stairs and give portion 8 X 13.9 sq. ft. to the answering defendant at ground floor below the stairs for running the shop of sofa material. He further averred that the length area of stairs of each floor alongwith chowki shall be 8 X 13.9 sq. ft. as shown with map annexed with the partition deed dated 06.01.2003. He further averred that as per Partition Deed dated 06.01.2003, ground floor and second floor (as shown in Pink Colour marked as "A" in the enclosed plan attached with Partition Deed) became the share of plaintiff alongwith right to use stairs. He further averred that the first floor and roof of second floor (as shown in Blue Colour marked as "B" in the en- closed plan attached with Partition Deed) became the share of plaintiff alongwith right to use stairs. He further averred that the tin shed was also constructed at the roof of second floor after some time of execution of partition deed with consent of plaintiff during lifetime of father. He further averred that the parties are in the possession of their respective share of the aforesaid property except disputed area of stairs. He further averred that the defendant no.1 and his father asked several times to reconstruct the stairs of the suit property to the plaintiff but on one pretext or the other, the plaintiff kept on gaining time. He further averred that the father of the parties expired in the month of November 2008. He further averred that the stairs along- with chowki has not been reconstructed and existing area of stairs are more than as mentioned in attached site plan of aforesaid partition deed which falls in share of the defendant no.1. He further averred that the plaintiff is using area 6X8 sq. ft. of the defendant no.1 at first floor for going at second floor as the stairs have not been reconstructed. He further averred that the MAYANK Digitally signed by MAYANK GOEL _______________________________________________________________________________ GOEL Date: 2024.08.29 14:38:16 +0530 CIVIL SUIT No. 96/2017 GULSHAN ARORA Vs. JAGMOHAN ARORA AND ORS. Page No. 4 of 19 CNR NO. DLSH03-000172-2017 plaintiff is not complying with his own words, undertaking and also the terms of partition deed with ulterior motive to grab the above-mentioned portion of the defendant no.1. He further averred that the defendant no.1 has requested the plaintiff to reconstruct the stairs and have possession of area as agreed between them. He further averred that even the existing stairs from the ground floor to second floor are constructed in the area falls in the share of defendant no.1. He further averred that the defendant no.1 finding no other option, sent legal notice dated 21.12.2016 to the plaintiff which was duly received by the plaintiff. He further averred that the plaintiff replied the same dated 03.01.2017 in mechanical manner and denied the contents and area demanded by the defendant no.1. He further averred that the plaintiff has installed electric and water meter at ground floor on the walls which falls in the share of defendant no.1. He fur- ther averred that the plaintiff has also open a gate which fall in the area of defendant no.1. He further averred that the defendant has filed the suit seeking fresh partition and possession of his half share in the suit property due to denial of the contents of the aforesaid partition deed by the plaintiff. That the plaintiff has also grabbed so many properties and the proper shares have not been given in different properties to other family members. That as per Partition Deed page 5 Para 2, first floor and roof of second floor portion with rights of upper construction along with proportionate ownership right in the plot of land with stairs became the share of def endant no.1. That the plaintiff only works at ground floor and using second floor for the pur- pose of godown. That the tin shed at roof of second floor is old construction and constructed after some time of execution of partition deed. That the answering defendant was only carry- ing out repairing work in tin shed. That on 13.12.2015, the furniture of defendant kept in tin shed at roof of second floor had sustained fire from crackers at Diwali occasion and defendant no.1 suffered with heavy loss. That the structure of suit property is highly strong and after per- mission from competent authorities, four more floors can be constructed above the suit prop- erty. That whatever were initiated with permission and agreement by the plaintiff as the stairs had to be reconstructed as per area mentioned in the plan annexed with partition deed. That no fresh construction activity has been carried out by the defendant at roof of second floor i.e. Digitally signed MAYANK by MAYANK GOEL GOEL _______________________________________________________________________________ Date: 2024.08.29 14:38:19 +0530 CIVIL SUIT No. 96/2017 GULSHAN ARORA Vs. JAGMOHAN ARORA AND ORS. Page No. 5 of 19 CNR NO. DLSH03-000172-2017 third floor. That the construction is old and only have tin shed. That no fresh construction activity has been carried out by the defendant at the third floor. Hence, the suit of the plaintiff is liable to be dismissed.
BRIEF FACTS PLEADED IN THE WRITTEN STATEMENT OF DEFENDANT NO. 2 AND 3
4. In the written statement filed by defendant no. 2 and 3, the defendant no. 2 and 3 has taken certain preliminary objections and averred that the suit property was inspected by the area JE(B)-I/SH(S) on 30.01.2017. That the property consists of ground floor, first floor, second floor & third floor. That some old steps of the staircase found damaged. That the con- struction of ground floor to second floor is old & occupied. However, the owner/occupier of third floor has raised the unauthorized construction at third floor in recent past and same has been booked vide booking file No.19/B/UC/SS/17 dated 30.01.2017. That a show cause no- tice dated 30.01.2017 has been sent to the owner/occupier of the property. That the owner/oc- cupier has submitted reply to the above show cause notice which was examined and same was found unsatisfactory. That the matter was further processed and the demolition notice dated 14.02.2017 has been sent to the owner/occupier with directions to demolish the unauthorized construction within stipulated period. That the response of the above demolition notice is awaited. That the further action would be taken in due course of time as per the provisions of the DMC Act.
5. The plaintiff has filed replication to the WS of defendant no. 1 to 3 denying the averments made in the WS and reiterating the contents of the plaint.
6. On completion of pleadings, issues were framed vide order dated 10.07.2019 which are as follows: -
Digitally signed byMAYANK MAYANK GOEL GOEL Date: 2024.08.29 14:38:24 +0530 _______________________________________________________________________________ CIVIL SUIT No. 96/2017 GULSHAN ARORA Vs. JAGMOHAN ARORA AND ORS. Page No. 6 of 19 CNR NO. DLSH03-000172-2017
i) Whether plaintiff is entitled to decree of permanent injunction as prayed for?
OPP
ii) Whether plaintiff is entitled to decree of mandatory injunction as prayed for? OPP
iii) Whether plaintiff has concealed material facts? OPD
iv) Whether plaintiff is not entitled to equitable relief of injunction? OPD
v) Whether the suit has not been properly valued for the purpose of court fees and jurisdiction? OPD
vi) Relief.
7. In order to prove his case, the plaintiff examined plaintiff as PW-1, who led his evidence by way of affidavit Ex.PW 1/A. He relied upon following documents:
1. Ex. PW 1/1 (OSR) Partition Deed dated 06.01.2003. (Colly 9 pages)
2. Mark A Copy of legal notice dated 21.12.2016 to D-1.
3. Mark B Copy reply to legal notice on date 03.01.2017.
4. Mark C Copy of complaint to SHO PS Krishna Nagar dated 11.12.2016.
5. Ex. PW 1/2 (OSR) Copy of complaint to DCP Shahdara dated 18.01.2017.
6. Ex. PW 1/3 Original photographs of suit property. (Colly 4 pages)
7. Ex. PW 1/4 Original site plan of suit property.
PW 1 was duly cross-examined by Ld. Counsel for the defendant no.1. He de- posed that the partition deed dated 06.01.2003 is accompanied by a detailed site plan, Ex. PW 1/D1 referring the portion built upon the ground floor, first floor and second floor. He further deposed that the pink colour portion shown in the site plan is in his share. He further deposed that the portion shown in blue colour is in the share of defendant no.1 and the yellow colour portion shown is marked as stairs which is common for both of them. He further deposed that Digitally signed by MAYANK MAYANK GOEL _______________________________________________________________________________ GOEL Date: 2024.08.29 14:38:28 +0530 CIVIL SUIT No. 96/2017 GULSHAN ARORA Vs. JAGMOHAN ARORA AND ORS. Page No. 7 of 19 CNR NO. DLSH03-000172-2017 the broken stairs were the part and parcel of blue portion and not of yellow colour portion. He further deposed that it is correct that he did not have any right or interest or share in the portion shown in blue colour in Ex. PW1/D1. He further deposed that it is correct that the defendant only has right and authority to use the blue colour portion and he did not have any right into the same. He further deposed that it is correct that the measurement of the common portion of the stairs shown in yellow colour is 13.9 inch only. He further deposed it is correct that as on 10.04.2023, the stairs measuring 13.9 inch length is existing on the first floor portion and it is also correct that the stairs are existing like the past within the said length of the stairs. He fur- ther deposed that it is correct that as on 16.01.2017, the defendant no.1 has not broken any stairs shown in yellow color portion of the first floor portion. He further deposed that it is cor- rect that there is no provisional chowki in the stairs measuring 13.9 inch as shown in Ex. PW 1/D1. He further deposed that it is correct that without having the provision of chowki, he can- not go to the second floor portion of his share as shown in pink colour. He further deposed that there is existence of 3.9 inch on the ground floor portion just before the said stairs and the said portion is in the floor level meant for both the parties. He further deposed that he did not know the measurement of the length of the stairs from first floor to the second floor. He further de- posed that it is correct that there is no mentioning of chowki of the stairs show in both direc- tions upon the first floor portion by using the common stairs. He further deposed that it is cor- rect that there is not mentioning of chowki of the stairs show in both directions upon the first floor portion shown in blue color that is the share of the defendant. He further deposed that it is correct that the defendant has not broken any chowki of the first floor portion and he is having the share of entire blue portion except only the marking of stairs shown in yellow colour Ex. PW1/D1. He further deposed that the roof of the second floor is in the share of the defendant. He further deposed that he was in postal department prior to his retirement. He further deposed that there is no construction in any form upon the roof of the second floor portion as on date today. He voluntarily deposed that the Corporation has broken the same upon his complaint. He further deposed that the defendant has right to construct over the roof of the second floor.
MAYANK Digitally signed by
MAYANK GOEL
GOEL Date: 2024.08.29
_______________________________________________________________________________ 14:38:31 +0530 CIVIL SUIT No. 96/2017 GULSHAN ARORA Vs. JAGMOHAN ARORA AND ORS. Page No. 8 of 19 CNR NO. DLSH03-000172-2017 He further deposed that he don't have the knowledge whether the MCD has booked the illegal construction raised over the said roof. He further deposed that he don't have any concern with the roof of the second floor also there is no provision for me to go upon the same. He further deposed that he did not have the knowledge that recently the MCD has increased the height of the building from 15 meters to 17 meters. He further deposed that he did not have the know- ledge that there is no strict provision of the MCD for getting the sanctioned planned approved to raise the construction within the 100 meters line. He further deposed that the building is raised prior to the partition deed by his father and the father has partitioned between his two sons by way of partition deed Ex. PW1/1. He further deposed that it is correct that if he strictly follow the colour marking qua his share and the common passage as shown in PW1/D1 then he can't be able to have access to the second floor portion of his share. He further deposed that he don't admit the partition deed 100% and voluntarily deposed that he admit the partition deed in 100% but do not admit the site plan in 100% because the chowki is not mentioned for going to first-second floor portion onwards).
Thereafter, PE stands closed.
8. In order to prove his case, the defendant examined himself as DW-1, who led his evidence by way of affidavit Ex.DW 1/A. He relied upon following documents:
1. Mark A (colly. 26 pages) Copy of Sale Deed of the plaintiff qua the prop-
{already Mark A(colly. 26 erty no. A- 4/12, Krishna Nagar, Delhi. pages) in Civ. Suit No. 357/21}
2. Mark B (already Mark B in Civ. Relinquishment Deed of the father of the Suit No. 357/21) parties.
3. Ex. DW 1/3 (OSR)(already Ex. Certified copy of Partition Deed dated PW 1/3 in Civ. Suit No. 357/21) 06.01.2003 along with accompanied sketch/ Digitally signed by MAYANK MAYANK GOEL GOEL Date: 2024.08.29 14:38:35 +0530 _______________________________________________________________________________ CIVIL SUIT No. 96/2017 GULSHAN ARORA Vs. JAGMOHAN ARORA AND ORS. Page No. 9 of 19 CNR NO. DLSH03-000172-2017 diagram.
4. Ex. DW 1/4 (already Ex. PW Original Site Plan.
1/4 in Civ. Suit No. 357/21) DW 1 was duly cross-examined by Ld. Counsel for the defendant. He deposed it is correct that the stairs shown in yellow colour in site plan, Ex. PW 1/D1 are common stairs in the suit property. He further deposed that when the suit property was purchased in the year 1999, there was only one room existed on the ground floor. He further deposed that the suit property was constructed in around 1990- 92(again said 1999-2000) and no sanctioned plan for construction of the same was obtained from statutory authorities. He further deposed that he did not have any proof to show that the existing structure on the suit property was demol- ished and the property was reconstructed in the year 1999. He further deposed that it is correct that the common stairs were existing in the suit property prior to the partition dated 06.01.2003, Ex. PW 1/1. He further deposed that it is correct that apart from the common stairs as shown in yellow colour, Ex. PW 1/D1, there are no other stairs leading to upper floors in the suit property. He further deposed that it is correct that the landing/chowki of the stairs from ground floor to first floor fall within the blue colour portion on the first floor as shown in Ex. PW 1/D1. He further deposed that he used to take the stairs from the first floor while going to the roof above the second floor and which is a direct staircase and there is no landing/chowki on the second floor connecting the stairs from first floor to above floor. He further deposed that it is correct that in the site plan, Ex. PW 1/D1, there is no direct stair leading from first floor to roof above the second floor and that from first floor, he has to come to second floor and from there, there is a separate stair leading from second floor to the roof above as shown in blue colour in the site plan of the second floor portion. He further deposed that it is correct that in the partition deed, Ex. PW 1/1, the size of common stairs is mentioned but it is not men - tioned that they have to be reconstructed after demolition. He further deposed that it is correct MAYANK Digitally signed by MAYANK GOEL GOEL Date: 2024.08.29 _______________________________________________________________________________ 14:38:38 +0530 CIVIL SUIT No. 96/2017 GULSHAN ARORA Vs. JAGMOHAN ARORA AND ORS. Page No. 10 of 19 CNR NO. DLSH03-000172-2017 that that in the site plan, Ex. PW 1/D1, there is no mention of measurement of stair case on the first floor and second floor portion of the suit property. He further deposed that it is correct that there is no document executed between the plaintiff and defendant in respect of demolishing the existing stairs and reconstruction of the same. (Vol. It was orally agreed.) He further de- posed that it is correct that all the terms and conditions agreed upon between the plaintiff and defendant in respect of partition of the property were mentioned in Ex. PW 1/1. He further de- posed that it is correct that he had signed the partition deed, Ex. PW 1/1, after going through the entire contents of the same. He further deposed that it is correct that there is no mention of the plaintiff demolishing the stairs and reconstructing them and constructing the roof above the second floor in the partition deed, Ex. PW 1/1 but voluntarily deposed that it was discussed orally. He further deposed that it is correct that he had not asked for inclusion of the above term in the partition deed, Ex. PW 1/1 but voluntarily deposed that he had not asked for the in- clusion of above term in the partition deed as the plaintiff Sh. Gulshan Arora is his elder brother and he have trust on him. He further deposed that he had not challenged the partition deed, Ex. PW 1/1 but voluntarily deposed that he had instituted a civil suit against the Sh. Gulshan Arora to declare the partition deed as null and void and for execution of new partition deed. He further deposed that he had withdrawn the civil suit challenging the partition deed. He further deposed that it is correct that he had earlier also filed a suit for specific performance against the plaintiff/Sh. Gulshan Arora for demolishing the common staircase shown in yel- low colour portion in Ex. PW 1/D1 and constructing new staircase in place of them and he had withdrawn the said suit also. He further deposed that it is correct that the facts decided between us by way of mutual settlement, one-two days before the partition were not men- tioned in the partition deed. He further deposed that no written agreement was executed per- taining to said mutual settlement. He further deposed that it is correct that by way of partition deed, the plaintiff became the owner of ground floor and second floor and he became the owner of first floor and the roof above the second floor. He further deposed that the plaintiff had shop of sofa material on the ground floor and had go-down on the second floor. He further Digitally signed by MAYANK MAYANK GOEL GOEL Date: 2024.08.29 _______________________________________________________________________________ 14:38:42 +0530 CIVIL SUIT No. 96/2017 GULSHAN ARORA Vs. JAGMOHAN ARORA AND ORS. Page No. 11 of 19 CNR NO. DLSH03-000172-2017 deposed that it is correct that the labours/staff of plaintiff used to carry/put heavy foams, bundle of clothes from ground floor to second floor and vice versa. He further deposed that it is correct that he had sent the legal notice dated 21.12.2016 to the plaintiff through my counsel Sh. Amit Kumar. He further deposed that it is correct that there is no damage on the staircases till the sending of legal notice dated 21.12.2016. He further deposed that there is only one staircase to go from ground floor to top floor shown in yellow colour, Ex. DW 1/P1. He further deposed that it is correct that the photographs at Point A and Point B in Ex. PW 1/3(colly), are truly showing the condition of damaged staircase from first floor to second floor. He further deposed that it is correct that the staircases mentioned at Point C to Cl in yellow colour in Ex. PW 1/D1 are damaged. He further deposed that it is correct that I had intentionally damaged the staircases in the night of 15.01.2017. He further deposed that he had not damaged any staircases in the yellow colour portion and had damaged the staircases in the blue colour por- tion. He further deposed that he had not taken any permission for damaging the staircases in blue colour portion. He further deposed that it is correct that he had damaged the staircases which were existed before the execution of partition deed. He further deposed that it is correct that he had damaged the staircases which were used by the plaintiff for going to the second floor. He further deposed that it is correct that the electricity and water meters are existing on the same place on the ground floor prior to partition deed dated 06.01.2003. He further de- posed that it is correct that there is gate for entry in the shop of the plaintiff from the said com- mon area. He further deposed that it is correct that the electricity and water meters are installed in the said common area. He further deposed that he had not done anything to remove his elec- tricity and water meter from the said common area to remove the obstruction.
Thereafter, DE stands closed.
9. I have heard the final arguments and have carefully gone through the case file.
10. Issuewise findings as follows:-
Digitally signed MAYANK by MAYANK
GOEL
GOEL Date: 2024.08.29
_______________________________________________________________________________ 14:38:46 +0530
CIVIL SUIT No. 96/2017
GULSHAN ARORA Vs. JAGMOHAN ARORA AND ORS. Page No. 12 of 19
CNR NO. DLSH03-000172-2017
Issue no. 1, 2, 3 & 4.
Since, all these issues are interconnected and can be decided by common find- ings, all the issues have been taken together.
The burden to prove issue no. 1 and 2 is on the plaintiff and burden to prove issue no. 3 and 4 is on the defendants. It is not disputed fact that the MCD had already demolished the illegal and unauthorized construction on the third floor of the suit property during the trial of the present suit. Therefore, the main point of contention remaining in the present case is that the defendant no. 1 has illegally demolished the stairs between the first floor and the second floor to block the entry of the plaintiff on second floor.
This is also admitted fact and not disputed by both the parties that the pink colour portion shown in the site plan Ex. PW1/D1 is in plaintiff's share and the portion shown in blue colour in the site plan Ex. PW1/D1 is in the share of defendant no.1 and the yellow colour por- tion shown is marked as stairs which is common for both of them. PW1 during his cross-exam- ination deposed that the broken stairs were the part and parcel of blue portion and not of yel- low colour portion. PW1 during his cross-examination also deposed that it is correct that he did not have any right or interest or share in the portion shown in blue colour in Ex. PW1/D1. PW1 during his cross-examination also deposed that it is correct that the defendant only has right and authority to use the blue colour portion and he did not have any right into the same. PW1 during his cross-examination also deposed that it is correct that as on 16.01.2017, the de- fendant no.1 has not broken any stairs shown in yellow color portion of the first floor portion. PW1 during his cross-examination also deposed that there is no construction in any form upon the roof of the second floor portion as on date today. PW1 during his cross-examination also deposed that it is correct that if he strictly follows the colour marking qua his share and the common passage as shown in PW1/D1 then he can't be able to have access to the second floor portion of his share. During cross-examination, the plaintiff has duly admitted that defendant Digitally signed by MAYANK MAYANK GOEL GOEL Date: 2024.08.29 14:38:49 +0530 _______________________________________________________________________________ CIVIL SUIT No. 96/2017 GULSHAN ARORA Vs. JAGMOHAN ARORA AND ORS. Page No. 13 of 19 CNR NO. DLSH03-000172-2017 no. 1 has neither demolished the common stairs in yellow color nor demolished the stairs in the pink color portion of the plaintiff.
DW1 during his cross-examination deposed that it is correct that apart from the common stairs as shown in yellow colour, Ex. PW 1/D1, there are no other stairs leading to up- per floors in the suit property. DW1 during his cross-examination also deposed that it is cor- rect that the landing/chowki of the stairs from ground floor to first floor fall within the blue colour portion on the first floor as shown in Ex. PW 1/D1. DW1 during his cross-examination also deposed that it is correct that there is no damage on the staircases till the sending of legal notice dated 21.12.2016. DW1 during his cross-examination also deposed that there is only one staircase to go from ground floor to top floor shown in yellow colour, Ex. DW 1/P1. DW1 during his cross-examination also deposed that it is correct that he had intentionally damaged the staircases in the night of 15.01.2017. DW1 during his cross-examination also deposed that he had not taken any permission for damaging the staircases in blue colour portion. DW1 dur- ing his cross-examination also deposed that it is correct that he had damaged the staircases which were used by the plaintiff for going to the second floor.
Section 334 of The Delhi Municipal Corporation Act, 1957 provides for the Applications For Additions To, Or Repairs Of, Buildings and lays down as follows:-
(1) Every person who intends to execute any of the following works, that is to say -
(a) to make any addition to a building;
(b) to make any alteration or repairs to a building involving the removal or re - erection of any external or partly wall thereof or of any wall which supports the roof thereof to an ex-
tent exceeding one - half of such wall above the plinth level, such half to be measured in su- perficial feet;
(c) to make any alteration or repairs to a frame building involving the removal or re - erec- tion of more than one - half of the posts in any such wall thereof as aforesaid; or involving MAYANK Digitally signed by MAYANK GOEL GOEL Date: 2024.08.29 _______________________________________________________________________________ 14:38:53 +0530 CIVIL SUIT No. 96/2017 GULSHAN ARORA Vs. JAGMOHAN ARORA AND ORS. Page No. 14 of 19 CNR NO. DLSH03-000172-2017 the removal or re-erection of any such wall thereof as aforesaid to an extent exceeding one - half of such wall above plinth level, such half to be measured in superficial feet;
(d) to make any alteration in a building involving -
(i) the sub - division of any room in such building so as to convert the same into two or more separate rooms, or
(ii) the conversion of any passage or space in such building into a room or rooms;
(e) to repair, remove, construct, reconstruct or make any addition to or structural alteration in any portion of a building abutting on a street which stands within the regular line of such street;
(f) to close permanently any door or window in an external wall;
(g) to remove or reconstruct the principal staircase or to alter its position;
shall apply for sanction by giving notice in writing of his intention to the Commissioner in such form and containing such information as may be prescribed by bye - laws made in this behalf.
(2) Every such notice shall be accompanied by such documents and plans as may be so pre- scribed.
As per Section 334 of the DMC Act, 1957, the permission is required from the Commissioner, MCD to demolish the staircases and DW1 during his cross-examination duly admitted that he had not taken any permission from MCD for demolition of the staircases. Therefore, the act of defendant no. 1 demolishing the staircases is illegal.
Ld. Counsel for the plaintiff argued that the plaintiff has easementary right of way on the staircases for going to his second floor and the defendant no.1 has restricted and stopped his right to way to the second floor by demolishing the staircases. Ld. Counsel for the defendant no. 1 argued that as per Section 6 of the Indian Easements Act, 1882, after partition of the property between the parties, the plaintiff has no easementary right over the stairs which falls in the portion of the defendant no. 1. Ld. Counsel for the plaintiff argued that as per Sec-
Digitally signed by
MAYANK MAYANK GOEL
GOEL Date: 2024.08.29
_______________________________________________________________________________ 14:38:56 +0530 CIVIL SUIT No. 96/2017 GULSHAN ARORA Vs. JAGMOHAN ARORA AND ORS. Page No. 15 of 19 CNR NO. DLSH03-000172-2017 tion 13 of the Indian Easements Act, 1882, the plaintiff has easementary right of way over the stairs which falls in the share of the defendant no. 1 to go to the second floor even after the par- tition between the plaintiff and defendant no.1.
Section 6 of Indian Easements Act, 1882 provides for Easement for limited time or on condition and lays down as follows:-
"An easement may be permanent, or for a term of years or other limited period, or subject to periodical interruption, or exercisable only at a certain place or at certain times, or between certain hours, or for a particular purpose, or on condition that it shall commence or become void or voidable on the happening of a specified event or the performance or non-performance of a specified act.
Section 13 of Indian Easements Act, 1882 provides for Easements of necessity and quasi easements and lays down as follows:-
"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 en-
titled 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 leg- atee shall, unless a different intention is expressed or necessarily implied, be entitled to such easement;
(c) if an easement in the subject of the transfer or bequest is necessary for enjoying 7 other immovable property of the transferor or testator, the transferor or the legal rep- resentative of the testator shall be entitled to such easement; or
(d) if such an easement is apparent and continuous and necessary for enjoying the said property as it was enjoyed when the transfer or bequest took effect, the transferor, or the legal representative of the testator, shall, unless a different intention is expressed or necessarily implied, be entitled to such easement.
Where a partition is made of the joint property of several persons,--
Digitally signed by
MAYANK MAYANK GOEL
GOEL Date: 2024.08.29
14:39:01 +0530
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(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 trans - feror and transferee.
An easement is a non-possessory interest to use real property in possession of another person for a stated purpose. An easement is considered as a property right in itself at common law. Easement is also referred as equitable servitude. An easement does not give holder a right to possession of property. Historically, common law courts enforce four types of easement namely:
a) The right of way.
b) Easement of support of land.
c) Right of sufficient light and air.
d) Right pertaining to artificial waterways.
Usually there are two types of easement namely easement in appurtenant and easement in gross. Easement in appurtenant is one which benefits the dominant adjoining land. Easement in gross is personal to the holder of easement. If easement in appurtenant, it means that there are two parcels of land known as tenements. The dominant tenement is the land which benefits from an easement while the servient tenement is one which bears the bur- den of easement. An easement may be created in no. of ways like easement by prescription, easement by estoppel, prescriptive easement etc. Digitally signed by MAYANK MAYANK GOEL GOEL Date: 2024.08.29 _______________________________________________________________________________ 14:39:04 +0530 CIVIL SUIT No. 96/2017 GULSHAN ARORA Vs. JAGMOHAN ARORA AND ORS. Page No. 17 of 19 CNR NO. DLSH03-000172-2017 Even as per section 13 of Indian Easements Act, 1882, the plaintiff has ease- mentary right of way to the staircases which falls in the portion of the defendant no. 1 for go- ing to his second floor.
Considering all the facts and circumstances and the abovesaid discussions, the plaintiff has proved issue no.1 and 2 and the defendant failed to prove issue no. 3 and 4.
Accordingly, the issue no. 1 & 2 are decided in favour of the plaintiff and against the defendants and issue no. 3 & 4 are decided against the defendants and in favour of the plaintiff.
Issue no. 5.
The burden to prove this issue is on the defendants.
No evidence has been led by the defendants to prove this issue. Hence, the de- fendants fail to prove this issue.
Accordingly issue no. 5 is decided against the defendants and in favour of the plaintiff.
Relief
11. In view of the aforesaid discussion, the suit of the plaintiff is hereby decreed in the following terms:
(i) The defendant no. 1 is hereby permanently restrained from raising illegal and unauthorized construction in the suit property bearing no. A-4/12, Krishna Nagar, Delhi-
110051 on third floor as shown I the site plan.
Digitally signed byMAYANK MAYANK GOEL GOEL Date: 2024.08.29 14:39:08 +0530 _______________________________________________________________________________ CIVIL SUIT No. 96/2017 GULSHAN ARORA Vs. JAGMOHAN ARORA AND ORS. Page No. 18 of 19 CNR NO. DLSH03-000172-2017
(ii) The defendant no. 1 is directed to repair and restore the stairs between first and the second floor which were demolished by defendant no.1 to block the entry of the plaintiff on second floor.
12. Cost of the suit be awarded to the plaintiff.
13. Decree sheet be prepared accordingly.
File be consigned to record room after necessary compliance.
Announced in open Court.
On this 29th August, 2024 This Judgment contains 19 pages MAYANK Digitally signed by MAYANK GOEL and is signed by me.
GOEL Date: 2024.08.29
14:39:13 +0530
(MAYANK GOEL)
JSCC/ASCJ/GJ, SHAHDARA,
KARKARDOOMA COURTS, DELHI
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