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Delhi District Court

Vivek Singh vs Pawan Kumar on 20 November, 2019

            IN THE COURT OF MR. SUNIL BENIWAL ,
        ADDITIONAL DISTRICT JUDGE -02, ( CENTRAL), DELHI

RCA No. 91/17

1.      Vivek Singh
        S/o Sh. Kaptan Singh
        R/o 3/61, Second Floor, Roop Nagar, Delhi-07

2.      Vishal Singh
        S/o Sh. Kaptan Singh,
        R/o 139-E, 3rd Floor,
        Kamla Nagar, Delhi-07
                                                              ...........Appellants
                                     Versus
1       Pawan Kumar,
        S/o Late Sh. Ghasi Raman
        R/o 3/61, First Floor, Roop Nagar, Delhi

2.      Sanjeev Kumar @ Sanjay
        S/o Late Sh. Ghasi Ram,
        R/o 3/61, First Floor,
        Roop Nagar, Delhi
                                                      .........Respondents

Date of Institution of appeal                         :       07.01.2017
Date of pronouncement of judgment                     :       20.11.2019

                              ORDER ON APPEAL

By this order, I shall decide this regular first appeal filed under Order 41 Rule 1 read with Section 96 & 151 of CPC against judgment and decree dated 23.11.2016 passed by Civil Judge (Central), Tis Hazari in CS RCA No. 91/17 Vivek Singh vs Pawan Kumar & Ors. Page 1 of 22 No. 1154/2016 titled as Pawan Kumar vs Vishal Singh. Facts stated in the appeal are as follows:-

1 That the defendants (appellants herein) are challenging the impugned judgment and decree dated 23.11.2016 titled as Pawan Kumar vs Vishal Singh (hereinafter referred to as the impugned order). Vide this impugned order, the Ld. Civil Judge was pleased to decree the suit for permanent and mandatory injunction restraining the defendants from creating any kind of obstruction, hindrance or problem for the plaintiffs (respondents herein) in the use of roof of the suit property bearing no. 3/61, Roop Nagar, Delhi-07. Defendants are also directed to make alteration in their staircase in the manner plaintiffs have made, such that, their families may freely use the staircase and the roof without causing annoyance to each other. Copy of impugned order dated 23.11.2016 is Annexure A-1. 2 The factual matrix of the present case is as follows:-

i. That the case of the plaintiffs is that plaintiffs are cousin brothers as father of the plaintiffs and defendants are real brothers. Plaintiffs further stated that grandfather of the parties i.e. Late Sh. Kanhaiya Lal was absolute owner of the entire property no. 3/61, Roop Nagar, Delhi, built upto three storeys on a plot of 200 sq. yards (hereinafter referred to as suit property). Late Sh. Kanhaiya Lal executed a registered Will dated 29.07.1993 in respect of the suit property. As per the Will, late Kanhaiya Lal bequeathed half share in the ground floor, entire first floor and half share in the roof towards the adjoining property no. 3/62 in favour of the RCA No. 91/17 Vivek Singh vs Pawan Kumar & Ors. Page 2 of 22 plaintiffs/respondents and half share in the ground floor, entire second floor and half share in the roof of the said property adjoining property no. 3/60 in favour of the appellants/defendants. After the death of grandfather, plaintiffs and defendants became absolute owners of their respective portions as per the last Will of Sh. Kanhaiya Lal and started residing peacefully in their respective shares.

ii. It is the case of the plaintiffs that the defendants have illegally denied and obstructed the plaintiffs from accessing their portion of roof as the staircase for the said roof goes through the second floor which belongs to the defendants.

iii. It is the case of the plaintiff that the staircase leading from the first floor to the roof are constructed in such a manner that if the defendants closed the door of their floor then no one can go to the roof of the property due to which the plaintiffs do not have free access to the roof of the suit property on which they have a right. It is alleged that when the defendants are available in the house only then the plaintiffs can use the same but when the defendants are not available, plaintiffs cannot use the roof. It is further the case of the plaintiffs that the defendants are obstructing their right of passage to go to the roof.

iv. It is the case of the plaintiffs that both the parties had entered into an oral agreement with respect to alteration of the staircase so as to make free access to the second floor of the defendants and access to the roof of the plaintiffs easy and plaintiffs have altered the route of their staircase in such a RCA No. 91/17 Vivek Singh vs Pawan Kumar & Ors. Page 3 of 22 manner that the defendants can easily go to the second floor without any obstruction.

v. It is the case of the plaintiffs that they have been denied the access to the roof by the defendants in order to harass the plaintiffs by keeping the door of the staircase locked.

vi. It is the case of the defendants that they have never created any hindrance or obstacles to the plaintiffs or their family members. Objection was taken by the defendants in their written statement that there is no cause of action disclosed in the suit. Maintainability of the suit was also challenged. Contentions of the defendants are that there is no alteration in the suit property after the construction of the building and the plaintiffs had never made any changes in the stairs as alleged by them in the plaint nor there was any agreement with the plaintiffs in this regard. Defendants have contended that there is no possibility of making any change in the stairs. Security of the defendants would also be affected in case of any change in the stairs.

vii On the basis of the pleadings, Ld. Trial Court framed the following issues:-

1. Whether the plaintiff is entitled for relief of permanent injunction, as prayed? OPP

2. Whether the plaintiff is entitled for relief of mandatory injunction, as prayed? OPP

3. Whether the suit of the plaintiff is not maintainable in the present form? OPD

4. Relief.

3. Plaintiffs examined two witnesses to prove their case and defendants examined only one witness.

4 Hon'ble Civil Judge passed a decree dated 23.11.2016. Present appeal is a challenge to that judgment and decree.

Grounds A. Because there was no cause of action disclosed in the plaint and plaintiffs failed to lead any evidence which disclosed any cause of action in their favour. In these circumstances, the order and decree of Ld. Trial Court is not sustainable and is liable to be set aside.

B. Because the impugned order passed by the Ld. Trial Court is based upon incorrect analysis of facts and is bad in law, therefore, liable to be set aside.

C. Because it is admitted case that the appellants never obstructed the respondents and whenever they wanted to access the roof of the suit property, appellants made passage available to them. D. Because in the plaint no specific dates, month or year were mentioned by the plaintiffs as to when they wanted to access the roof but were denied access by the defendants. The plaintiffs failed to provide any such dates on record.

E. Because the Ld. Trial Court failed to appreciate that PW1 in his cross examination clearly admitted that "I have not deposed in my affidavit that the defendants have restrained me from using the stairs" and also "it is RCA No. 91/17 Vivek Singh vs Pawan Kumar & Ors. Page 5 of 22 correct that I have not mentioned in my plaint and in my affidavit that the defendants restrained my family members from using the stairs after the year 2007".

F. Because the Ld. Trial Court has completely and clearly ignored the pleadings and evidence on record and has passed impugned judgment in utmost haste and without application of judicial mind. G. Because the plaintiffs failed to prove that they had made any alteration in the stairs as they have not disclosed when they made the alleged alteration and how they made the same.

H. Because the plaintiffs failed to lead any evidence that route of the stairs in the suit property were changed in pursuance to an agreement between the plaintiffs and defendants.

I. Because the Ld. Trial Court failed to appreciate that without the proposed change which has to be made in the stairs or without the proposed plan approved by any Architect or the certificate of architect with regard to the safety of the building, no judgment or decree could be passed. J. Because the Ld. Trial Court failed to appreciate that the possession of the property cannot be issued in the form of mandatory injunction. K. Because it is a settled law that mere making exhibit mark on a document does not mean that the documents have been proved. The Ld. Trial Court failed to consider that the plaintiff failed to prove the site plan of the suit property.

L. Because the Ld. Trial Court failed to appreciate that the PW1 in his RCA No. 91/17 Vivek Singh vs Pawan Kumar & Ors. Page 6 of 22 cross-examination admitted that the site plan was not prepared by him nor was it signed by him. The plaintiffs have also not examined any other witness to prove the site plan.

M. Because the plaintiffs failed to submit the proposed change demanded in the suit and in the absence of the same the order of mandatory injunction cannot be issued.

N. Because the Ld. Trial Court wrongly relied upon the documents like photographs which were neither relied upon by the plaintiffs in their evidence nor proved that these photographs are of the suit property. O. Because the Ld. Trial Court failed to appreciate that the defendants are in settled possession of the second floor of the building. By issuing the order of change in the route of the stairs it directly disturbs the possession of the defendants.

P. Because through the impugned judgment the Ld. Trial Court has virtually created an absolute right of the plaintiffs in the portion of the second floor which affect the legal right of the defendants. Q. Because the impugned judgment passed by the Ld. Trial Court is based on alleged agreement which was not produced and proved by respondents and thus is invalid.

R. Because there is no date of construction/alteration mentioned by the respondents in its affidavit or pleadings. Moreover, there is no proof of construction/alteration in the staircase adduced by respondents. It is further submitted that there is no rebuttal of the fact that suit property was built up RCA No. 91/17 Vivek Singh vs Pawan Kumar & Ors. Page 7 of 22 about 60 years ago and since then there has been no alteration/modification/construction in the suit property. S. Because as per law no one can carry out structural alterations in a building without permission of MCD. It is submitted that no such permission was produced by the plaintiffs/respondents in their affidavits before Ld. Trial Court.

T. Because the impugned judgment is cryptic as it does not deal with evidence led by the parties.

U. Because no property title deeds, copy of Will or building plan of suit property was produced or proved or relied upon by the respondents. And thus the Ld. Civil Judge presumed title without calling for proofs. V. Because the Municipal Corporation of Delhi was not made a party to the suit. Without impleading MCD as a party to the suit, the respondents were not entitled to seek relief of structural changes in the suit property, neither could the Trial court pass judgment of structural changes. W. Because the appellants never carried out any structural change in suit property. And now appellants are forced by the impugned judgment to carry out structural changes without assessment of possible danger to suit property, the construction of which is more than 60 years old now as it was built by late grandfather of parties.

X. Because the object of mandatory injunction is to restore the "status quo" i.e. to restore things to the original condition and not to create a new state of things which the impugned judgment seeks to create. [K.M. RCA No. 91/17 Vivek Singh vs Pawan Kumar & Ors. Page 8 of 22 Vishwanatha Pillai v. K.M. Shanmugam Pillai (AIR 1969 SC 493).] Y. That, it is admitted case of plaintiffs that the passage in the staircase at second floor of suit property has been the same since the construction of the building and the plaintiffs have used the staircase as such since their birth, and the impugned judgment of Civil Judge seeks to create a new state of things by ordering defendants to make structural alterations. Z. That impugned judgment refers to certain comments made by Court during the course of hearing upon interim applications before settlement of issues and much before evidence was led by the parties. Thus, these comments were made without checking merits of the plaintiff's case. It was not proper of Ld. Trial Court to include those comments as part of the judgment, which could be passed only on the basis of evidence led by parties. The comments not based upon merits must be expunged from the judgment.

AA Because the impugned judgment is based on conjectures and surmises. If the impugned judgment is not set aside then it will create undue hardships to the appellants and it will become very difficult to comply with. AB Because considered from any angle, the impugned judgment is baseless and illegal and as such is liable to be set aside.

It is most respectfully prayed before this Court that this court be pleased to :-

a) to admit the appeal of the appellant and set aside the impugned judgment and decree dated 23.11.2016 passed by Ld. Civil Judge.

b) to pass any other orders as this court may deem fit and proper according to the circumstances of the case.

REPLY Preliminary objections:-

5 Appeal is not maintainable since the appellants have tried to manipulate the names of the parties in the present appeal. Appeal is not maintainable because appellants have not approached this Court with clean hands and have suppressed true and correct facts from the court. Appellants have been creating hindrance in the smooth usage of the staircase of the house from second floor to roof by the respondents and their family members with ulterior motives. Appeal is barred by limitation. Judgment and decree was passed against the appellants on 23.11.2016 and appellants were liable to file the present appeal within 30 days i.e. on or before 24.12.2016. Appeal has been filed on 07.01.2017 without seeking condonation of delay.

Reply on merits:-

6. Respondents are entitled to free access to the roof being owners of half portion. Contention of the appellants clearly shows that they are denying and obstructing smooth access of the respondents to the roof of the suit property. There is no infirmity in the judgment and decree dated 23.11.2016.

Reply to grounds of appeal:

A It is denied that there is no cause of action disclosed in the plaint. It is RCA No. 91/17 Vivek Singh vs Pawan Kumar & Ors. Page 10 of 22 on the basis of evidence led by the parties that the Trial Court passed the said judgment and decree in favour of the respondents judiciously and with proper application of mind.

B It is specifically denied that there is impunity in the judgment and decree. It is specifically denied that the said judgment and decree is passed upon incorrect analysis of facts and is bad in law.

C It is specifically denied that appellants never obstructed the respondents from accessing the roof of the suit property. It is pertinent to mention if there had been any truth in the contention of the appellants that they never obstructed the respondents, then, the respondents had no reason to seek intervention of Court of law for redressal of their grievance as raised in their suit. Alongwith the said suit, respondents had filed an application under Order 39 Rule 1 & 2 read with Section 151 CPC seeking interim relief. Said application was allowed through order dated 03.03.2011. Appellants preferred an appeal against the said order dated 03.03.2011. Said appeal was also dismissed by Court of Ms. Charu Aggarwal, the then Senior Civil Judge cum Rent Controller through order dated 11.07.2014. D It is submitted that it is not possible for anyone to maintain the record of dates, months and years when they wanted to have access to the roof and appellants have denied the same.

E It is submitted that when the appellants do not make any alteration in the staircase leading to the roof through the second floor, it can be clearly inferred that they are restraining the respondents and their family members RCA No. 91/17 Vivek Singh vs Pawan Kumar & Ors. Page 11 of 22 from going to the roof since the year 2007. Despite the gesture of the respondents to change the route of the staircase in such a manner that the appellants can easily go to the second floor without any disturbance, the appellants did not show any such gesture to facilitate the respondents and their family members to use their share of roof of the said property smoothly and without any hindrance or obstruction resulting into the present litigation. F Para under reply is wrong and denied. It is specifically denied that Ld. Trial Court has completely ignored the pleadings and evidence from the record and passed the impugned judgment in utmost haste and without application of judicial mind.

G It is specifically denied that the plaintiffs/respondents failed to prove that they had made any alteration in the stairs or they have not disclosed when they have made the alteration and how they made the same. It is submitted that the appellants are taking a contradictory stand. It is submitted that in his cross examination, DW1 i.e. Vivek Singh, appellant no.1 has admitted "the defendants (appellants herein) have free access to their portion of the property i.e. second floor through staircase from the ground floor itself without any obstruction or hindrance from the plaintiffs (respondents herein) from first floor to second floor". DW1 further admitted that "there are tiles affixed in the staircase of the first floor and there are no such tiles on the ground floor and the second floor". Therefore, it is abundantly clear that alteration and renovation has been carried out by the respondents to facilitate free access to their portion of the property.

H Para under reply is wrong and denied. It is specifically denied that the plaintiffs failed to lead any evidence that route of the stairs in the suit property was changed in pursuance of the agreement between the plaintiffs and defendants. It is submitted that had there been any truth in the contention of the appellants that there was no agreement, it is not known as to why the respondents made the alteration in the staircase to facilitate the free access of the appellants to their portion of the property. I Para under reply is wrong and denied. It is submitted that proposed alteration directed by Ld. Trial Court under the judgment and decree is of such a minor nature that it cannot in any manner affect the safety of the building. It is denied that the certificate of architect with regard to the safety of the building is required to pass the judgment and decree. J Para under reply is wrong and denied. It is submitted that neither the respondents had prayed for possession of any property in their suit nor the possession of any property has been granted in the form of mandatory injunction by the Ld. Trial Court in favour of the respondents.

K       Para under reply is wrong and denied.
L       Para under reply is wrong and denied.
M       Para under reply is misconceived, misplaced, irrelevant, wrong and
denied.         It   is   submitted     that      the     respondents   had     clearly

demanded/demonstrated the alteration in the staircase by the appellants on the second floor in the same manner as has been done by the respondents on the first floor.

N Para under reply is wrong and denied. It is submitted that the Ld. Trial Court has rightly relied on the photographs of the suit property filed by the respondents which were never disputed by the appellants. O Para under reply is wrong and denied. It is specifically denied that by issuing the order of alteration in the route of staircase it directly disturbs the possession of the appellants. On the contrary, the alteration in the route saves the appellants from disturbance from the respondents who have to go to the roof through second floor belonging to the appellants. Proposed alteration does not in any manner create any disturbance to the possession of the appellants and the ground has been taken only for the sake of arguments. P Para under reply is wrong and denied. It is specifically denied that by the impugned judgment, Ld. Trial Court has virtually created an absolute right of the plaintiffs in the portion of the second floor. Q Para under reply is wrong and denied. Respondents crave leave of the court to read the contents of the following para specifically para G of reply to grounds as part and parcel thereof.

R Para under reply is wrong and denied. Contents of para G may be read in response to the same.

S Para under reply is wrong and denied. Respondents have neither made nor sought any structural alteration in the building. Even otherwise, the ground taken by appellants is beyond the pleadings taken by Ld. Trial Court. T Para under reply is wrong and denied. Ld. Trial Court has judiciously RCA No. 91/17 Vivek Singh vs Pawan Kumar & Ors. Page 14 of 22 evaluated the evidence led by the parties before arriving at the conclusion. U Para under reply is wrong and denied. It is reiterated that the Will has not been disputed by the appellants at any stage.

V Para under reply is wrong and denied. The plea of the appellants is beyond the pleadings before the Ld. Trial Court. Respondents crave leave of this court and contents of para G of reply to grounds may be read in response to the same.

W       Para under reply is wrong and denied.
X       Para under reply is wrong and denied. The judgment relied upon by
the appellants is irrelevant to the present case.
Y       Para under reply is wrong and denied. Respondents crave leave to
read the forgoing paras.
Z       Para under reply is wrong and denied.
AA      Para under reply is wrong and denied. Judgment dated 23.11.2016 has

been passed by Trial Court by application of judicial mind and any interference therein shall miscarriage of justice.

AB Para under reply is wrong and denied.

The prayer set up by the applicants is misconceived, wrong and denied. Appeal is devoid of merits and substance and is liable to be dismissed with cost. It is therefore prayed that;

1) this court be pleased to dismiss the appeal of the appellants with exemplary cost.

2) to pass any other order as the court may deem fit.

Order 41 Rule 1 CPC reads as follows:-

APPEALS FROM ORIGINAL DECREES

1. Form of appeal:- What to accompany memorandum- (1) Every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf. The memorandum shall be accompanied by a copy of the judgment.

[provided that where two or more suits have been tried together and a common judgment has been delivered therefor and two or more appeals are filed against any decree covered by that judgment, whether by the same appellant or by different appellants, the Appellate Court may dispense with the filing of more than one copy of the judgment.] 7 The point of limitation was conceded by the respondent defendants in their arguments and they submitted that they are not pressing this point of appeal being barred by limitation. It was submitted that the appeal may be decided on merits rather than technicality. Even otherwise, the appeal does not appear to be barred by limitation as this fact was clarified when clarification was sought by counsel for appellants that if the time taken to obtain the certified copy of judgment and decree is taken out and computed, then the appeal is well within the period of limitation. 8 The very 1st Ground of appeal is that there is no cause of action to file the present suit. The appellate court does not agree. Reasons and RCA No. 91/17 Vivek Singh vs Pawan Kumar & Ors. Page 16 of 22 causes for filing the present suit have been sufficiently enumerated in the original suit filed before the learned civil judge. Appellant defendants were creating hindrances in the easementry rights on the right of passage of the plaintiff respondents to the roof of the suit property to which the plaintiff respondents are legally entitled. Although there is no particular record of the hindrance created, respondents have rightly argued that it is impossible to maintain such record. There was no cause or occasion for the respondents to file the present suit before the trial court if such a hinderance was not being created. Therefore, this ground of appeal is not tenable. 9 Secondly it has been alleged in the appeal that the impugned order and judgment of the learned trial court is based upon incorrect analysis of facts and is liable to be set aside. Upon this count also, the appellate court does not agree. In view of what has been discussed above, both in the appeal as well as the reply filed by the respondents to the said appeal, in the opinion of this court, all the issues that were framed by the learned trial court have been correctly decided in view of the facts alleged and the prevalent law. There appears to be no illegality or infirmity in the findings of the trial court with respect to each issue.

10 Thirdly, there was no occasion for the plaintiff respondents to file the present case in case hindrance was not being created by the defendants/ appellants. It appears unbelievable and illogical that one person would go to the length of filing a civil suit and litigate it for so many years without any genuine grievance or cause of action.

11 Fourthly, as already discussed above, in the case of this nature, parties do not always believe that they would have to get the matter decided and settled in a court of law and therefore the probability of recording such incidents of obstruction is very less. This alone cannot be a ground for the reversal and setting aside of the judgement and decree of the trial court. 12 Fifthly, it may be possible the plaintiff witness number 1 did not categorically depose in his evidence affidavit that he was restrained from using the stairs on any particular and specific instances. But when the entire case file is read as a whole along with the evidence, it appears that there were genuine instances in which the plaintiffs were restrained from accessing the roof of the suit property to which they are legally entitled. 13 The suit has been litigated over a period of years and the appellate court does not believe that the impugned judgement has been passed in a haste and without application of judicial mind. Proper reasons have been assigned by the trial court in arriving at its decision. 14 The plaintiff did not fail to prove that they had made alterations in the stairs. It has been brought on record that tiles of the stairs of the 1 st floor are different from that of the 2 nd floor. Even as per the submissions of the defendants appellants, the construction in the suit property is very old, therefore the fact that tiles of 1 st floor stairs are different from that of the 2 nd floor, it strongly appears that an alteration was made by the plaintiff for the convenience of the defendants in order to allow the defendants access to 2 nd floor of the suit property.

15 So far as regards the plea of the appellants that it is not possible to carry out the direction of mandatory injunction of the trial court in view of absence of an approved plan by the architect or MCD, this can be done even at the stage of execution proceedings and in the present appeal this court has to confine itself to decide the legality or illegality of the judgement and decree passed by the trial court.

16 The trial court has not directed possession of the suit property to be handed over in the form of a mandatory injunction. The trial court has merely directed the defendants/appellants to create passage to allow the plaintiffs respondents, unrestricted access to the roof of the suit property. As per the will of late Shri Kanhaiya Lal, the plaintiffs have a right to half of the roof of the suit property.

17 The defendant appellants have failed to disprove the site plan filed with the plaintiffs and have also failed to put forth and prove their own site plan throughout the trial. Will of late Shri Kanhaiya Lal stands proved as per which both the parties have one half share each in the suit property including that of the roof of the suit property.

18 The plaintiffs have merely asked for an access/right of passage to the roof of the suit property similar to what the plaintiffs have allowed the defendants. This detail as to how this proposed change is to be carried out can be taken up and decided or challenged in the execution proceedings but not at the stage.

19 If the photographs relied upon by the plaintiffs in the suit do not RCA No. 91/17 Vivek Singh vs Pawan Kumar & Ors. Page 19 of 22 belong to the suit property, then the plaintiffs have opened themselves to proceedings under section 340 CRPC. But no such application for initiation of proceedings under section 340 CRPC have been filed by the defendants against the plaintiffs in the trial court or at the stage. 20 Even if the order of change in the route of the stairs directly disturbs the possession of the defendants, even then they cannot divest the plaintiff respondents of the right to have free and unconditional access to the roof which is an easementary right of the plaintiff acquired by them by virtue of will, upon which will even the defendant appellants are relying upon to base their claim upon one half of the suit property. 21 No absolute right has been created with the trial court in favour of the plaintiffs with regard to suit property. Those rights already existed in the plaintiffs by virtue of the will of the grandfather of both the parties. 22 The alleged agreement referred to by the plaintiffs, is an oral agreement and after reading the entire record, it appears that there is a strong probability that such an agreement was entered into, even though orally between both the parties because the parties resided together in the suit property for so long without any dispute prior to the year 2007. 23 No date of construction is required to be compulsorily mentioned in order to prove the alteration made by the plaintiffs because such an alteration in the form of different tiles has been admitted by the defendants appellants.

24 So far as regards permission from MCD is concerned, it can be RCA No. 91/17 Vivek Singh vs Pawan Kumar & Ors. Page 20 of 22 obtained at any stage if it is the will and desire of both the parties to the dispute to settle the matter either amicably or by complying with the judgment and decree of the Ld. Trial Court in order to prevent multiplicity of litigation and proceedings in future.

25 Impugned judgement is not cryptic and has clearly spelt out the reasons for the judgement.

26 Even if the title of the plaintiffs has been presumed by the trial court, the fact that the plaintiffs are also residing in the suit property is not disputed. In the absence of any evidence to the contrary, it cannot be presumed that the plaintiffs do not have any right to access the roof of the suit property.

27 Even though municipal Corporation of Delhi has not been made a party to the suit, no relief against the municipal Corporation of Delhi has been sought or required to be sought by the plaintiff in the original suit before the trial court. In case both the parties are desirous of putting the controversy in dispute at rest, MCD can be impleaded as a party even in execution proceedings because till the stage of the trial court no relief was sought against the MCD by the plaintiffs.

28 Assessment of any possible danger can be made at any stage, even at the cost of the plaintiffs. This is not a ground to hold the impugned judgment illegal.

29 A new state of things is not sought to be created by the impugned judgment. Easementary rights of the plaintiffs exist since the time RCA No. 91/17 Vivek Singh vs Pawan Kumar & Ors. Page 21 of 22 of will of late Shri Kanhaiya Lal.

30 Comments made by the trial court during hearing of the interim applications are allowed to be expunged and striken off from the record as they do not deal with the facts in issues and the merits of the case. Therefore, it is so ordered and be made part of the new decree sheet that shall be prepared at the time of disposal of this appeal.

31 Impugned judgment does not suffer from any illegality or infirmity in the opinion of this court. All the issues have been decided correctly and as per law. No ground is made out to interfere or upset the findings of issues of the trial court. The order, judgment and decree of the trial court are affirmed. Decree sheet be prepared accordingly. Appeal file be consigned to record room. TCR be sent back to proper custody as per law.

                                                        SUNIL      BENIWAL
                                                        BENIWAL    Date: 2019.11.21
Announced in the open Court on                                     13:22:54 +0530
20th day of November, 2019                                (SUNIL BENIWAL)
                                                     ADJ-02, Central,THC/Delhi




RCA No. 91/17                Vivek Singh vs Pawan Kumar & Ors.          Page 22 of 22