Delhi District Court
Basant Khatri vs Sunil Kumar Bhola on 10 December, 2025
IN THE COURT OF SENIOR CIVIL JUDGE CUM RENT
CONTROLLER (WEST), TIS HAZARI COURTS, DELHI
Presided by : Richa Sharma
CS SCJ No.995/2025
CNR No. DLWT03-001674-2025
Basant Khatri
R/o G-43, 1st and 2nd Floor,
Kirti Nagar, New Delhi-110015. ........Plaintiff
Versus
Sunil Kumar Bhola,
R/o G-43, 3rd Floor,
Kirti Nagar, New Delhi-110015. .......Defendant
Date of Filing : 10.07.2025
Date of Judgment : 10.12.2025
SUIT FOR PERMANENT AND MANDATORY INJUNCTION
JUDGMENT
1. The brief facts of the case as stated in the plaint are, that the plaintiff is the absolute and lawful owner and resident of 1 st and 2nd floor of the property bearing the address as No.G-43, Kirti Nagar, New Delhi-110015. The defendant resides on the 3rd floor of the same property and claims to be the owner of the said 3rd floor.
2. It is averred, that even since the plaintiff purchased the 1 st and 2nd floor, he has been using the terrace for keeping his water tank, installing T.V./dish antenna and other necessary accessories and has been enjoying the right to access terrace as this right was granted to Digitally signed by RICHA SHARMA RICHA Date:
SHARMA 2025.12.10 16:10:02 _________________________________________________________________________________________________________ +0530 CS SCJ No.995/2025 Basant Khatri Vs. Sunil Kumar Bhola Page No. 1 of 34 him under the registered sale deed for installation/repair/ maintenance of T.V./dish antenna and water tank. Accordingly, the plaintiff has been accessing the terrace during normal working hours whenever required.
3. It is further averred, that the plaintiff had never been denied such access by the defendant in the last one decade except on few odd instances and thus the defendant had always acknowledged the plaintiff's right to access the terrace for installation/repair/maintenance of T.V./Dish Antenna and water tank. In February/1st week of March, 2025 defendant started raising illegal and unauthorized construction on 3rd Floor of G-43, Kirti Nagar, New Delhi-110015. Thearafter, concerning the safety of the building and well being of the plaintiff, his family members and neighbours in the area aprise the plaintiff filed a suit for permanent and mandatory injunction with a prayer to restrain the defendant, his agents, successors, assigns etc. from raising illegal and unauthorized construction over suit property i.e. 3rd Floor of G-43, Kirti Nagar, New Delhi-110015.
4. It is further averred, that on 10.03.2025 the Court of Ms. Neha Pandey, Ld. JSCC-Cum-ASCJ-Cum-Gudn. Judge, West District, Tis Hazari District Courts, Delhi passed a restraining order, restraining the defendant, his agents, successors, assigns etc from raising illegal and unauthorized construction on the suit property. But despite the said order, the defendant continued with the construction and the plaintiff was constrained to file contempt proceedings under Order XXXIX Rule 2A r/w Sec.151 CPC. The Court issued notice to the _________________________________________________________________________________________________________ CS SCJ No.995/2025 Basant Khatri Vs. Sunil Kumar Bhola Page No. 2 of 34 Digitally signed by RICHA RICHA SHARMA SHARMA Date:
2025.12.10 16:10:11 +0530 defendant contempt petition No.9/2025 on 22.03.2025 and granted an opportunity to defendant to file a response vide order dated 10.06.2025
5. It is further averred, that after service of the above notice, in the first week of April, 2025 when the plaintiff was trying to climb upstair to inspect his water tank, the defendant and his family members physically obstructed the plaintiff in approaching upstairs and started using filthy language and made derogatory remarks and intimidating gestures. It is further stated, that being alarmed, with the threats extended, the plaintiff, could not access the roof top and suffered inconvenience due to water supply issue.
6. It is further averred, that thereafter the plaintiff requested the defendant to allow him to access the terrace for periodical clearing of water tanks and for repair of the ventilation shaft shed belonging to the plaintiff, which had been damaged due to defendant's unauthorized construction. Despite repeated requests, the defendant did not allow the plaintiff or his authorized representative to repair the ventilation shaft or fix the fibre sheet.
7. It is further averred, that even since the plaintiff filed the earlier suit and communicated the stay order dated 10.03.2025, the defendant and his family members have been preventing the plaintiff from accessing the terrace under one pretext or another. It is contended, that the plaintiff and his family members being harassed and RICHA wrongfully restrained from exercising their legal right to access the SHARMA Digitally signed by RICHA SHARMA terrace. The abusive behaviour of defendant's family has caused Date: 2025.12.10 16:10:18 +0530 _________________________________________________________________________________________________________ CS SCJ No.995/2025 Basant Khatri Vs. Sunil Kumar Bhola Page No. 3 of 34 mental agony and mental harassment to the plaintiff and his family members. It is further averred, that defendant and his family members have now started threatening the plaintiff and his family members with dire consequences in the event of plaintiff seeking an access to terrace.
8. It is further averred, that compelled by circumstances as mentioned above, the plaintiff got issued a legal notice to the defendant through his counsel on 27.05.2025, thereby calling upon the defendant to allow the plaintiff and his authorized agents to access the terrace rights as per the rights granted to the plaintiff by virtue of the sale deeds pertaining to the 1st and 2nd floor of the suit property. Further, in response to the aforesaid notice issued by the plaintiff, the defendant through his advocate sent a response dated 07.06.2025, thereby declining the request of the plaintiff and his right to access the terrace in terms of the registered sale deeds. Further, surprisingly the defendant also threatened the plaintiff to remove the water tank, dish antenna, water pipes and other equipments, if any, within 15 days of receiving the response from terrace failing which the defendant shall initiate proceedings against the plaintiff for removal.
9. It is further submitted, that due to the defendant's hostile conduct, the plaintiff made a complaint to the Delhi police by making calls on 15.06.2025 bearing registered ID No. 11384068 and 23.06.2025 bearing ref. No. 11340162. The plaintiff has also made a written RICHA SHARMA complaint to the SHO, Kirti Nagar on 21.06.2025 but no action was taken. During the police visit to the terrace, it was observed that the Digitally signed by RICHA SHARMA Date: 2025.12.10 16:10:23 +0530 _________________________________________________________________________________________________________ CS SCJ No.995/2025 Basant Khatri Vs. Sunil Kumar Bhola Page No. 4 of 34 plaintiff's water tank was without a lid, creating a serious health hazard, especially during monsoon season with rising cases of dengue, malaria and chickengunia. Despite this, the defendant continues to deny terrace access for plaintiff.
10.It is further averred, that plaintiff issued a rejoinder dated 27.06.2025, reiterating his legal rights to terrace access, requesting withdrawal of the defendant's illegal demand for removal of the water tank/dish antenna, and again highlighting the urgent need to repair the damaged ventilation shaft.
11.It is submitted that despite having been duly served with the aforesaid rejoinder dated 27.06.2025 to the response to the legal notice, the defendant has neither allowed the plaintiff to access the terrace nor given any reply to the same. Under the compelling circumstances the plaintiff has no other option but to approach this for seeking appropriate directions against the defendant to protect his legal rights. It is further averred, that due to the illegal and unauthorized construction and damage to the ventilation shaft the Plaintiff has suffered damage to the tune of Rs.1,00,000/- and the defendant is liable to compensate to plaintiff towards the same. Hence, the present suit.
12.Summons of the present suit was served upon the defendant on 12.07.2025. However, despite service defendant failed to file WS on record of the Court within the stipulated period for filing the WS. RICHA SHARMA Accordingly, the right of the defendant to file the WS was closed Digitally signed by RICHA SHARMA Date: vide the order dated 06.10.2025.
2025.12.10 16:10:27 +0530_________________________________________________________________________________________________________ CS SCJ No.995/2025 Basant Khatri Vs. Sunil Kumar Bhola Page No. 5 of 34
13.Thereafter, the matter was listed for the plaintiff's evidence.
EVIDENCE LED BY THE PLAINTIFF
14.In order to prove his case, plaintiff examined himself as PW-1. PW-1 tendered in evidence his duly sworn in affidavit exhibited as Ex.PW1/1, thereby placing reliance upon the following documents :-
1. Copy of the sale deed in respect to the 1 st and 2nd Floor of the residential property bearing No.G-43, Kirti Nagar, New Delhi-110015 is Ex.PW1/1 (OSR) and Ex.PW1/2(OSR).
2. A copy of my aadhar card is Ex.PW1/3(OSR).
3. Photographs of terrace showing the water tank and dish antenna is Ex.PW1/4 (Colly.).
4. Copy of the order dated 10.03.2025 is Ex.PW1/5.
5.Copy of order dated 10.06.2025 is Mark B.
6. Copy of the legal notice dated 27.05.2025 is Ex.PW1/7.
7. Copy of the response to the legal notice dated 07.06.2025 is Mark C.
8. Copy of the call details along with the police complaint dated 21.06.2025 filed before the SHO, Kirti Nagar is Ex.PW1/9.
9.Copy of the rejoinder dated 27.06.2025 along with the delivery receipt is Mark E.
15.PW1 was cross-examined at length by the Ld. Counsel for the defendant.
RICHA SHARMA by RICHA SHARMA
16.Thereafter, plaintiff's evidence was closed on 10.11.2025.
Digitally signed Date: 2025.12.10_________________________________________________________________________________________________________ 16:10:34 +0530 CS SCJ No.995/2025 Basant Khatri Vs. Sunil Kumar Bhola Page No. 6 of 34 EVIDENCE LED BY THE DEFENDANT
17. As the defendant's right to file the WS stands closed vide the order dated 06.10.2025, the matter was listed for final arguments.
18.I have heard the submissions advanced by Ld. Counsels for the both the parties at length and have further perused the record carefully.
19.Before delving into the merits of the case, this Court deems it fit to discuss in brief the law pertaining to the burden of proof as entailed under the earlier Indian Evidence Act, 1872 and the present Bhartiya Sakshya Adhiniyam 2023.
20.The burden of proof in civil trial is the obligation upon the plaintiff that the plaintiff would adduce evidence that proves his claim against the defendant and is based on preponderance of the probabilities. Under Indian law, until and unless an exception is created by law, the burden of proof lies on the person making any claim or asserting any fact. A person who asserts a particular fact is required to affirmatively establish it. Relevant provisions of the Bhartiya Sakshya Adhiniyam 2023 dealing with burden of proof are produced as under:-
Burden of proof:-
104. Whoever desires any Court to give judgment as to RICHA SHARMA any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts Digitally signed by RICHA SHARMA Date: 2025.12.10 16:10:40 +0530 _________________________________________________________________________________________________________ CS SCJ No.995/2025 Basant Khatri Vs. Sunil Kumar Bhola Page No. 7 of 34 exist.
When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
105. On whom burden of proof lies.--
The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
106. Burden of proof as to particular fact.-
The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
109. Burden of proving fact especially within knowledge.--
When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
21.Therefore, on the basis of the law laid as above, court proceeds with the appreciation of evidence as adduced in the present suit.
22. In order to assert his claim, plaintiff examined himself as PW-1 and by way of evidence affidavit he placed reliance on the document RICHA SHARMA Digitally signed by exhibited as Ex. PW-1/1 and Ex. PW-1/2, being the sale deeds in RICHA SHARMA Date: 2025.12.10 16:10:45 +0530 _________________________________________________________________________________________________________ CS SCJ No.995/2025 Basant Khatri Vs. Sunil Kumar Bhola Page No. 8 of 34 respect of the first and second floor of the suit property, bearing the address as G-43, Kirti Nagar, New Delhi-110015.
It is an admitted fact, that the plaintiff is an undisputed owner of the First and the Second floor of the suit property and the said fact also stands transpired from the sale deed Ex. PW-1/1 and PW-1/2. Now, in order to appreciate the contentions of the plaintiff, it is imperative to analyse and assess the terms and conditions entailed in the sale deed exhibited as Ex. PW-1/1 and Ex. PW-1/2.
23.Now, Court proceeds to begin with the appreciation of the terms entailed in the sale deed dated 31.08.2022, relevant in context of the fact and circumstances of the case in hand.
24.Bare perusal of the document exhibited as Ex. PW-1/1 clearly reveals, that the said sale deed was executed between one Smt. Suraksha Vaid @ Vaid Suraksha and the plaintiff i.e. Sh. Basant Khatri on 31.08.2022.
Now, as per clause 9 of the terms and conditions entailed in document Ex. PW-1/1, the vendee i.e. the plaintiff namely Sh. Basant Khatri had the right to go on the roof of the top floor for the purpose of installation as well as maintenance of the TV/dish antenna and water tank and further as per the sale deed itself, he also had the right to go on the ground floor for the repair/check of electric and water meter/motor connection with the further directing that the owner of the top floor and the ground floor shall have no objections to the same. The relevant extracts of clause 9 of the sale deed is reproduce as under:-
Digitally signed by "That the vendee can go on roof of the top floor RICHA RICHA SHARMA SHARMA Date:
2025.12.10 16:10:50 _________________________________________________________________________________________________________ +0530 CS SCJ No.995/2025 Basant Khatri Vs. Sunil Kumar Bhola Page No. 9 of 34 installation/maintenance of T.V./dish antenna and water tank and also go on ground floor for repair/check of electric and water meter/motor connections and the owners of top floor and ground floor shall have no objection therein"
Thus, from the above term, it categorically stands deduced without an iota of doubt, that the vendee had been given an unfettered right to have access to the top floor as well as to the ground floor for the purpose of carrying out the requisite installation, maintenance, repair work pertaining to the TV/dish antenna, water tank and the term so contained therein also categorically specifies, that the owners of the top and ground floor shall not have any objections to the same. Even otherwise, it is implicit that once a person is in occupation of a premises in capacity of an owner, he ought to have undisputed rights to enjoy all the easementary rights that devolve upon him vide virtue of he being the owner of the premises in question. Any intrusion or hindrance to such an enjoyment would per se amount to violation of not just the easementary rights but also the right to life and liberty.
25.Thus, from the appreciation of the sale deed i.e. Ex PW-1/1 with respect to the first floor of the suit property, it safely stands deduced, that the plaintiff has the right to an un-objected access to the roof as well as to the ground floor for the purpose of maintenance/repair of water tank/electricity meter/dish antenna etc.
26.Proceeding further, Court now appreciates the terms entailed in RICHA SHARMA Digitally signed by document Ex. PW-1/2 i.e. sale deed executed on 26.11.1993 by Sh.
RICHA SHARMA Date: 2025.12.10_________________________________________________________________________________________________________ 16:10:55 +0530 CS SCJ No.995/2025 Basant Khatri Vs. Sunil Kumar Bhola Page No. 10 of 34 Madhur Malhotra in favour of the plaintiff i.e. Basant Khatri, vide which it stands entailed, that the vendor had constructed the first and second floor and that the vendor out of the same had agreed to sell half undivided share of the entire floor without roof rights to the vendee. It is pertinent to note, that there is no qualm about the fact, that the plaintiff is not having any exclusive roof rights as the said fact duly stands admitted and acknowledged by the plaintiff himself and also that vide the present suit the plaintiff is not claiming any exclusive rights with respect to the roof but the plaintiff is only asserting his right to have an uninterrupted access to the roof as the said right stands bestowed upon him vide the sale deed i.e. Ex. PW-1/1 and Ex. PW-1/2 per se. The requisite term vide sale deed Ex. PW-1/2, stands entailed in clause 13, 14 and 15, whereby the vendee is entitled to install the TV antenna on the roof with further entitlement to maintain the water tank on the roof of the said building and for this purpose he or his agents shall be fully competent to repair/clean at their own cost and expenses.
27.It is further pertinent to note, that apart from the above the plaintiff also has all the rights of sewerage, driveway, common stair case, essential service and all other rights as available, with a further clarification that all such rights shall be enjoyed by the vendee uninterrupted. Relevant clauses of the sale deed to this effect are reproduced as under:-
"13. That the vendee shall be entitled to install the T.V. Antenna on the roof of the said building Digitally signed by RICHA RICHA SHARMA SHARMA Date:
2025.12.10 16:11:01 +0530 _________________________________________________________________________________________________________ CS SCJ No.995/2025 Basant Khatri Vs. Sunil Kumar Bhola Page No. 11 of 34
14. That the vendee shall be entitled to maintain the water tank on the roof of the said building for this purpose he or his agents shall be fully competent to repair, clean etc. the same at his own costs and expenses including booster pump and water storage.
15. That all rights of sewerage, driveways, common stair case, essential services and all such other rights as available and permission under any act shall be enjoyed by the vendee uninterrupted together with other owners of the building."
Thus, from the perusal of the above documents being the sale deeds, it categorically stands deduced, that the plaintiff vide virtue of the sale deed itself had an uninterrupted right to access the roof as the same stood vested in him vide the sale deeds for the purpose of carrying out requisite maintenance, repair, etc., be it with respect to the water tanks or dish antenna or electricity meter etc. It is apposite to note, that vide the virtue of sale deed itself, the plaintiff has the right to get the requisite acts with respect to maintenance/repair/upkeep done either on his own or on his behalf through his agents or any other person and thus the principal contention raised in the final arguments from the side of the defendant qua the family members and the plumber accessing the roof on behalf of the plaintiff is on the face of it sans merit as the sale deed per se gives this right to the plaintiff to get the repair and maintenance work done through his family members/agents on his behalf as well.
RICHA SHARMA
28. Court at this stage further deems it fit to place reliance on the Digitally signed by RICHA SHARMA Date: 2025.12.10 16:11:07 +0530 _________________________________________________________________________________________________________ CS SCJ No.995/2025 Basant Khatri Vs. Sunil Kumar Bhola Page No. 12 of 34 judgment of Akarshan Bhawan Flat Owners Welfare Association Akarshan Bhavan and Another Vs Sushil Kumar Jain and Others (date of decision is 01.02.2024), whereby it was held by the Hon'ble High Court of Delhi as under:-
"Para -14 The necessity of using a roof in multi-storeyed buildings for common facilities is statutorily recognized under Section 3 (j)(ii) of the Act of 1986. The right of the occupants of the subject building to access the roof for the aforesaid proposes would also be protected under Section 22 of the Indian Easements Act, 1882, in the facts of this case, the roof was admittedly being used for common overhead water tanks and fire safety equipment as on 31.05.2022 hen respondent no. 4 purchased the said roof. The owners and occupants of the 50 offices on the lower floors of the building have a right to use the roof for their beneficial enjoyment. Therefore, the unilateral removal on 24th October 2022 by respondent no. 4 from the existing roof was improper and illegal; more so when the suit had been filed and is pending before the learned single judge of this Court. There was a clear attempt by respondent no.4 to change the status quo prior to filing the written statement in his anxiety to oppose the reliefs sought in the plaint."
" Para 17- The respondent no. 4 is therefore, liable to permit the appellants to restore the overhead water tanks for supply of water to the toilets and install the requisite fire safety equipment as per the directions of the fire service department. It is clarified that as and RICHA when, respondent no. 4 receives building sanction for constructing SHARMA Digitally signed an additional floor from Municipal Corporation, the respondent no. 4 by RICHA SHARMA Date: 2025.12.10 _________________________________________________________________________________________________________ 16:11:12 +0530 CS SCJ No.995/2025 Basant Khatri Vs. Sunil Kumar Bhola Page No. 13 of 34 will be entitled to construct the new floor and, in that scenario, the common overhead water tanks and fire safety equipment have to be shifted to the roof over the sanctioned newly constructed additional floor".
" Para 21-The respondent no. 4 is directed to permit the appellant no. 1, associations and its members to access the water tanks, the lift room and the fire service equipment at all for their services and maintenance. Respondent no. 4 is restrained from causing any hindrance in the access of the roof for the aforesaid purpose".
29.Court further deems it fit to place reliance on the judgment of Rajender Jaina Vs Sanjay Aggarwal & Anr (date of order is 25.04.2024), whereby it was held as under:-
"Para 48- In this regard, it is first and foremost important to reiterate the meaning of the term "easement" as defined under Section 4 of the Indian Easement Act, 1882 and the same is reproduced herein below:
"4. "Easement" defined. An easement is a right which the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done, in or upon, RICHA Digitally signed by RICHA SHARMA or in respect of, certain other land not his SHARMA Date:
own.
2025.12.10 16:11:17 +0530 _________________________________________________________________________________________________________ CS SCJ No.995/2025 Basant Khatri Vs. Sunil Kumar Bhola Page No. 14 of 34 Dominant and servient heritages and owners. The land for the beneficial enjoyment of which the right exists is called the dominant heritage, and the owner or occupier thereof the dominant owner, the land on which the liability is imposed is called the servient heritage, and the owner or occupier thereof the servient owner. Explanation- In the first and second clauses of this section, the expression "land"
includes also things permanently attached to the earth; the expression "beneficial enjoyment" includes also possible convenience, remote advantage, and even a mere amenity; and the expression "to do something" includes removal and appropriation by the dominant owner, for the beneficial enjoyment of the dominant heritage, of any part of the soil of the servient heritage or anything growing or subsisting thereon.
Illustrations (a) A. as the owner of a certain house, has a right of way thither over his neighbour B's land for purposes connected with the beneficial enjoyment of the house.
This is an easement.
(b) A, as the owner of a certain house, has Digitally the right to go on his neighbour B's land, and signed by RICHA RICHA SHARMA SHARMA Date:
2025.12.10 16:11:22 +0530 _________________________________________________________________________________________________________ CS SCJ No.995/2025 Basant Khatri Vs. Sunil Kumar Bhola Page No. 15 of 34 to take water for the purposes of his household out of a spring therein. This is an easement.
(c) A, as the owner of a certain house, has the right to conduct water from B's stream to supply the fountains in the garden attached to the house. This is an easement.
(d) A, as the owner of a certain house and farm, has the right to graze a certain number of his own cattle on B's field, or to take, for the purpose of being used in the house, by himself, his family, guests, lodgers and servants, water or fish out of C's tank or timber out of D's wood or to use for the purpose of manuring his land, the leaves which have fallen from the trees on E's land. These are easements.
(e) A dedicates to the public the right to occupy the surface of certain land for the purpose of passing and re-passing. This right is not an easement.
(f)A is bound to cleanse a water course running through his land and keep it free from obstruction for the benefit of B. a lower riparian owner. This is not an easement.
RICHA SHARMA Digitally signed by Para 49. Section 4 of the said Act defines an easement as a right RICHA SHARMA Date: 2025.12.10 16:11:27 +0530 _________________________________________________________________________________________________________ CS SCJ No.995/2025 Basant Khatri Vs. Sunil Kumar Bhola Page No. 16 of 34 which is possessed by the owner or occupier of a specific land, for the purpose of the beneficial enjoyment of that land, in order to continue with an act or to prevent from an act to happen and continue in preventing the act from being done, in or upon regarding the certain other land which is owned or possessed by the owner or occupier of the specific land.
Para 50. As illustrated by the examples provided in the aforesaid provision, in cases where there is a person who has to cross certain path/way to get access to a certain place, then the aforesaid path to which a person has to cross is called an easement.
Para 51. The explanation of the aforesaid provision defines the phrase "to do something" as doing an act for the beneficial enjoyment of the dominant heritage such as removal and appropriation by the dominant owner of any part of the soil of the servient heritage or anything growing or subsisting thereon.
Para 52. Furthermore, the term "beneficial enjoyment" has been defined as dominant owners' possible convenience, remote advantage, and even a mere amenity.
Para 53. It is also pertinent to define two key terms, te., dominant heritages and servient heritages. Dominant heritages and owners is the land pertaining to which beneficial enjoyment of the land exists, RICHA and the owner of the said land is called dominant owner. Servient SHARMA Digitally signed heritages refer to the occupier thereof is the servient owner. specific by RICHA SHARMA Date: 2025.12.10 _________________________________________________________________________________________________________ 16:11:32 +0530 CS SCJ No.995/2025 Basant Khatri Vs. Sunil Kumar Bhola Page No. 17 of 34 land on which there is a liability imposed, and the owner or Para 54. The provision which is relevant to the instant dispute is Section 22 of the Indian Easement Act, 1882 wherein there is a restriction imposed upon the dominant owner such that he/she shall exercise his/her right in such a way that it is least inconvenient to the servient owner and the servient owner shall also exercise the right in such a way that it is least harmful/determinant to the heritage owner as well as the right must be confined to a determinate part. Relevant portion of the abovesaid provision is as under:-
"22. Exercise of easement Confinement of exercise of easement. The dominant owner must exercise his right in the mode which is least onerous to the servient owner; and, when the exercise of an easement can without detriment to the dominant owner be confined to a determinate part of the servient heritage, such exercise shall, at the request of the servient owner, be so confined. Illustrations (a) A has a right of way over B's field. A must enter the way at either end and not at any intermediate point. (b) A has a right annexed to his house to cut thatching- grass in B's swamp. A, when exercising his easement, must cut the grass so that the plants may not be destroyed."
Digitally signed by RICHA RICHA SHARMA SHARMA Date:
2025.12.10 16:11:37 _________________________________________________________________________________________________________ +0530 CS SCJ No.995/2025 Basant Khatri Vs. Sunil Kumar Bhola Page No. 18 of 34 Para 55. The aforesaid provision has been discussed by the Bombay High Court in the judgment of Dhundiraj Balkrishna Phalnikar v. Ramchandra Gangadhar Kale, 1922 SCC OnLine Bom 12 and relevant extract of the same is as follows:-
"MACLEOD, C.J. The question in this second appeal is whether the order of the lower appellate Court restraining the defendant from obstructing the plaintiffs' Bhangi and Bhisti from entering by the door X in the map. Exhibit 20, and thence passing over the defendant's back-yard and entering the plaintiffs' privy at point A is right. Defendant's house adjoins the plaintiffs' house to the west. There is a lane to the west of the defendant's house and it is admitted that the plaintiffs have a right of way over the defendant's back-yard, so that the sweeper may have access to the plaintiffs' privy. The defendant bought his house in 1915. Until then the sweeper had passed through the door X but in 1916 the defendant made certain alterations. He opened a door at the southern end of his wall and after reserving a passage of about three feet he built a wall to the north, so as to Digitally reserve for himself the rest of the back-yard. signed by It cannot be said that it would be in any way RICHA RICHA SHARMA SHARMA Date:
2025.12.10 16:11:42 +0530 _________________________________________________________________________________________________________ CS SCJ No.995/2025 Basant Khatri Vs. Sunil Kumar Bhola Page No. 19 of 34 more inconvenient for the sweeper to pass along this passage to-the plaintiffs' privy than to go in by the door X as he used to do, but the plaintiffs contend that they are entitled to stand on their strict right, that, the right of way from the door X to their privy having once been acquired, the servient owner cannot substitute any other way between the lane and the plaintiffs' privy. The trial Judge appears to have admitted this proposition of law to be correct, but considered that the plaintiffs were agreeable to the new arrangement when he visited the spot. Because the second plaintiff had adduced no evidence to show that the defendant had made the alterations against his will or without his consent, the learned Judge appears to have held that there was acquiescence on the part of the plaintiffs, and that it was owing to other disputes having arisen between the parties relating to the ownership of the party wall and certain windows in the plaintiffs' house that the plaintiffs began to object to the obstruction at door X. If an issue had been raised on the point of acquiescence this finding might Digitally RICHA signed by RICHA SHARMA have been entitled to consideration, but the SHARMA Date:
2025.12.10 16:11:47 +0530 Judge, seems issue had been raised, ought to _________________________________________________________________________________________________________ CS SCJ No.995/2025 Basant Khatri Vs. Sunil Kumar Bhola Page No. 20 of 34 have called evidence to prove that they had not acquiesced, and, as the appellate Court has pointed out, the defendant never pleaded consent, no issue was raised, and the evidence was not directed to it. It would. therefore, be dangerous to assume that consent had been given. I do not think that section 22 of the Indian Easements Act can assist the defendant. Its provisions can only apply when the exact way to be taken over the premises of the servient owner has not been ascertained. Whether the servient owner, when once the right of way has been defined, can substitute a new way is a question which does not seem to have been provided for by the Indian Basements Act and therefore we must have recourse to the Common 120.1 570.] Law: Lovell v. Smith ((1857) 3 C.B.N.S. : Hulbert v. Dale [[1909] 2 Ch No doubt the and Young v. Kinloch [[1910] A.C. 169.] general rifle is that a right of way once defined cannot be altered Deacon v. The South-Eastern Railway Company [(1889) 61 L.T. 377.] and the dominant owner is entitled to exert his strict rights unless he can be induced to consent to a deviation. The defendant was aware of the Digitally existing right of way when he bought his signed by RICHA RICHA SHARMA SHARMA Date:
2025.12.10 16:11:52 _________________________________________________________________________________________________________ +0530 CS SCJ No.995/2025 Basant Khatri Vs. Sunil Kumar Bhola Page No. 21 of 34 premises, and unless he can prove acquiescence in the new way the plaintiffs must succeed. The appeal must be dismissed with costs.
COYAJEE, J. I concur, and would add that Courts in this country have given effect to the general rule that when once the line of way has been definitely set out, neither the dominant nor the servient owner can compel the other to give or to accept a different and a substituted way. In Hamid Hosseih v. Gervain [(1871) 15 W.R. 496.] Norman C.J. observed: "We think it is clear that if any person has a right of way from one place to another over a particular line, if he and his ancestors, have been accustomed to use that way from a long time past, he has a right to go over it and cannot be compelled to use a different and substituted way." Similarly, in Varajlal Parbhudas v. Moti Kuber [(1893) P.J.
473.), where the facts were not widely different from those in this case, this Court held that: "If the defendant's right of way was directly from the door in plaintiff's osri to the defendant's osri, the plaintiff cannot obstruct that right of way and offer him another way through his chowk." In my Digitally signed by RICHA RICHA SHARMA SHARMA Date:
2025.12.10 16:11:58 _________________________________________________________________________________________________________ +0530 CS SCJ No.995/2025 Basant Khatri Vs. Sunil Kumar Bhola Page No. 22 of 34 opinion, therefore, the decision of the lower appellate Court is right."
Para no. 56. In the aforesaid judgment, it was held that Section 22 of the Indian Easement Act, 1882 is not applicable in those cases where the exact way to be taken over the premises of the servient owner has not been ascertained, hence, in case the servient owner had been using a specific way for years then the aforesaid provision is not applicable on the servient owner. The aforesaid provision provides for a situation where there is uncertainty pertaining to right of way which the servient owner can use.
Para no. 57. The Coordinate Bench of this Court in the judgment of Aneil Kumar Bhalla & Anr. V. B.R Gambhir & Ors. CS (OS) 1062/2005 dated 5th September 2006 while adjudicating upon with the easementary right under Section 22 of Indian Easement Act, 1882 held as follows:
"24. As per the Indian Easement Act, 1882 even otherwise plaintiffs would have an easementary right to access the under ground water tank on the ground floor as also the roof above the second floor assuming defendant No.1 to be the dominant owner. Defendant No.1 cannot violate Section 22 of the Indian Easement Act, Digitally 1882. Needless to state, as defined, an signed by RICHA SHARMA RICHA SHARMA Date:
easement is a right which the owner or 2025.12.10 16:12:03 +0530 _________________________________________________________________________________________________________ CS SCJ No.995/2025 Basant Khatri Vs. Sunil Kumar Bhola Page No. 23 of 34 occupier of immovable property possesses for beneficial enjoyment of that property. It is not pleaded by defendants 1 and 2 that plaintiffs can have access to the under ground water tank on the ground floor or to the overhead water tank above the roof of the second floor through any other means or through any other place, other than what is claimed by the plaintiffs."
Para no. 58. Further, the Division Bench of this Court in the judgment of Anupama Malik and Ors. vs. Sudershan Malhotra and Ors. MANU/DE/9698/2007 held that the occupants and owners of the lower floors are entitled to use the staircase and the mumty to access their water tankers on the terrace. The Court had categorically held that the occupants/owners of the lower floor have casementary rights to the staircase pertaining to the top floor and the top floor owner cannot instali any gate/obstruction on the same without providing a duplicate key thereof. The relevant extracts of the judgment is reproduced herein below:-
"2. Sudarshan Malhotra owned property No. 1/14 Ramesh Nagar, New Delhi. The property consists of a ground floor, a first floor and a second floor. A staircase leads up to the floor above from the ground floor and is covered by a Digitally signed by RICHA mumty. Water tanks are installed on the mumty RICHA SHARMA SHARMA Date:
2025.12.10 16:12:08 which serves the entire building. Sudarshan +0530 _________________________________________________________________________________________________________ CS SCJ No.995/2025 Basant Khatri Vs. Sunil Kumar Bhola Page No. 24 of 34 Malhotra executed an agreement to sell, power of attorney and a will in favour of Anupama Malik and her husband Chander Mohan Malik pertaining to the second floor of the property. These are the usual documents being executed in Delhi to transfer rights in immovable property. Recital in the agreement to sell recorded that the staircase and the mumty would be common together with proportionate rights in the land.
3. The second floor has a terrace in front. To reach to the roof of the mumty an iron monkey staircase has been installed at the terrace in front of the second floor. Meaning thereby he who has to access the water tanks at the roof of the mumty has to come up to the staircase and through the door opening on to the terrace in front of the second floor has to enter the terrace and therefrom use the iron ladder to climb up to the monkey ladder to reach the roof of the mumty.
4. Dispute started when a gate was installed cutting access from the floors below to the second floor and the gate/door opening on to Digitally the terrace at the second floor came to be signed by RICHA SHARMA RICHA SHARMA Date:
locked by the purchasers of the second floor. 2025.12.10 16:12:13 +0530 _________________________________________________________________________________________________________ CS SCJ No.995/2025 Basant Khatri Vs. Sunil Kumar Bhola Page No. 25 of 34 Sudarshan Malhotra retaliated by cancelling the agreement to sell, power of attorney etc.
5. A suit was filed by Sudarshan Malhotra praying, amongst others, issuance of permanent injunction restraining Anupama Malik and her husband from affixing any locks on the doors marked 'A' and 'B' in the site plan filed along with the plaint. She claimed a mandatory injunction that the gates marked 'A' and 'B' should be permanently removed.
6. Considering an application under Order 39 Rule 1 and 2 CPC filed by Sudarshan Malhotra, and in view of the sale documents in favour of Anupama Malik and her husband, learned Trial Judge held that the staircase and the mumty and the right to go to the roof of the mumty was a common right and hence nobody could lock the gates marked 'A' and 'B'. A limited injunction has been issued in favour of Sudarshan Malhotra which reads as under:
XXX
7. In view of the title documents relied upon by the respective parties and in view of the admitted position that the staircase and the Digitally signed by RICHA RICHA SHARMA SHARMA Date:
2025.12.10 16:12:19 _________________________________________________________________________________________________________ +0530 CS SCJ No.995/2025 Basant Khatri Vs. Sunil Kumar Bhola Page No. 26 of 34 mumty is expressly stated to be common areas for use by all occupants of the building as also the fact that water tanks are installed on the roof of the mumty and access to the water tanks has to be through the terrace in front of the second floor, (even easementry rights flow in favour of Sudarshan Malhotra) the impugned order cannot be faulted. 8. Accordingly the application of plaintiff under Order 39 Rules 1 & 2 read with Section 151 CPC is hereby allowed and defendants are restrained from locking the gates A and B situated on the second floor of property bearing No. 1/14, Ramesh Nagar, New Delhi without providing plaintiff the duplicate keys of the locks of the said doors and also not to change the locks of the said gates without her consent during the pendency of the suit.
9. I find no merits in the appeal."
59 The Coordinate Bench of this Court in the judgment of Keshav Aggarwal vs. Sudarshan Kumar Banga and Ors., MANU/DE/275/2010 has given a similar finding stating to the effect that the occupants of the top floor cannot claim exclusive ownership/right over the common staircase especially when the RICHA SHARMA water tank and water pumps of the resident on the ground floor are Digitally signed by RICHA SHARMA Date: 2025.12.10 _________________________________________________________________________________________________________ 16:12:26 +0530 CS SCJ No.995/2025 Basant Khatri Vs. Sunil Kumar Bhola Page No. 27 of 34 on the terrace. The relevant portion of the findings of the Coordinate Bench is reproduced herein below:
"2. Brief facts of this case are that petitioner and his wife are the joint owner of the entire third floor of property bearing No.B-365. Chitranjan Park, New Delhi. Respondent nos. 1 and 2 are the owners of the ground floor. On the ground floor, there is a front setback, east side common passage and rear setback for common usage of the occupants so as to facilitate the common facilities. There are water pumps installed for each floor adjacent to the underground water tank. Respondent nos. 1 and 2 in violation of the terms and conditions contained in the sale deed, have debarred the petitioner and other occupants from operating, maintaining and cleaning the water pump as well as groundwater tank. Aggrieved by their illegal action, petitioner filed a suit seeking permanent injunction against the respondents. Trial court after considering the pleadings, allowed the application of the petitioner under Order 39 rule 1 and 2 of the Code of Civil Procedure (for short asCode"), vide order dated 11th February, 2010.Digitally signed by RICHA
RICHA SHARMA SHARMA Date:
2025.12.10 _________________________________________________________________________________________________________ 16:12:34 +0530 CS SCJ No.995/2025 Basant Khatri Vs. Sunil Kumar Bhola Page No. 28 of 34 XXX
12. Since First Appellate Court has also held that staircase and other amenities are for common of all occupants and the water tank of petitioner is installed in the courtyard of the ground floor and no doubt it leave the occupants at the mercy of respondent nos. 1 and 2, then by no stretch of imagination it can be said that respondent nos. 1 and 2 have full proprietary rights of the entire ground floor of the premises. Under these circumstances, petitioner cannot be denied access to his water tank and water pumps situated on the ground floor.
13. Thus, the findings of the First Appellate Court are totally perverse and against the pleadings of the parties.
14. Petitioner has a prima facie case in its favour and balance of convenience also lies in his favour and it is the petitioner who will suffer irreparable loss if injunction prayed for, is not granted.
Para no. 62. In view of the aforesaid judgment, it is observed by this RICHA Court that as per the settled position of law any of the occupants of SHARMA Digitally signed by RICHA the property cannot restrict the other occupants of the property from SHARMA Date: 2025.12.10 _________________________________________________________________________________________________________ 16:12:40 +0530 CS SCJ No.995/2025 Basant Khatri Vs. Sunil Kumar Bhola Page No. 29 of 34 accessing the common areas since the said occupants have easementray rights over the same. Common areas such as common staircase, lift, etc., are for common use, therefore, any occupani of the property cannot exercise his/her monopoly over the same. The owners/occupants of the lower floor of the property have easementary rights to use the common staircase attached to the property of the top floor in order to access the water tanks on the terrace or access the terrace itself.
Para no. 65. Therefore, the appellant is the dominant owner being the owner of the third floor of the property and the respondent no.1 is the servient owner being the owner of the second floor of the property. Accordingly, the servient owner has easementary rights of way through the staircase attached to the house of the dominant owner in order to access the portion of the terrace to access his water tankers.
30.Therefore, relying upon the judgments of the Hon'ble High Court of Delhi, recapitulated as above, this Court finds no hesitation in deducing that the plaintiff not only has the right to access the roof as per the terms contained in the sale deed but also vide the virtue of the easementary rights vested in him, the plaintiff is legitimate in his right to affect his access to the roof for the purpose of carrying out the maintenance/repair of the water tank and that the defendant has miserably failed to make out any case in his favour as in the first place, no defence has been broughtforth on record of the Court by RICHA SHARMA the defendant and secondly, the plaintiff despite being subjected to Digitally signed by RICHA the litmus test of cross examination by the Ld counsel for the SHARMA Date: 2025.12.10 16:12:47 +0530 _________________________________________________________________________________________________________ CS SCJ No.995/2025 Basant Khatri Vs. Sunil Kumar Bhola Page No. 30 of 34 defendant was able to maintain his stand even during cross examination. Nothing stands surfaced in the cross examination of the plaintiff to put a dent in his claim as asserted in the plaint.
31. It is further evident from the reply of the defendant to the legal notice dated 27.05.2025 marked as Mark C, that despite plaintiff having a right to access the terrace vide virtue of the terms entailed in the sale deeds, the defendant had written at clause B of his reply dated 07.06.2025, that the terrace is not a common area of the building or to which the residents hold the common right or access. Therefore, any right claimed by the plaintiff regarding terrace right are denied. From the said reply it per se stands deduced, that the defendant had stopped the plaintiff from affecting his access to the roof as there is a categorical admission made to this effect in the reply to the notice sent by the defendant to the plaintiff and this denial to the access by the defendant further stands concretized by the contents of the para no. 2 of their reply to the legal notice sent by the plaintiff, whereby the defendant asked the plaintiff to remove the water tank, dish antenna, water pipe and other equipments from the terrace and such averments made in the reply to the notice are not only berserk but also primarily violative of the easementary rights that stands vested in the plaintiff. The relevant excerpts of clause B and Para no. 2 of the document marked as Mark B are as under:- " Clause b.......Additionally, it is noted that the terrace is not a common area of the building over which residents hold common rights or access. Therefore, any right claimed by you regarding our RICHA SHARMA client's terrace are denied."Digitally signed by RICHA SHARMA
" Para no. 2 In light of the aforementioned facts stated on the Date: 2025.12.10 16:12:53 +0530 _________________________________________________________________________________________________________ CS SCJ No.995/2025 Basant Khatri Vs. Sunil Kumar Bhola Page No. 31 of 34 instructions of our client, we reiterate our client's demand and, per their instructions, request that you remove your water tanker, dish antenna, water pipes and other equipment from our client's terrace within 15 days of receiving this notice...."
32.The plaintiff also placed reliance upon the police complaint exhibited as Ex. PW-1/9. Perusal of the said document clearly reflects, that the plaintiff had made all possible efforts to resolve the said issue amicably.
33. It is further not out of place to mention, that during the course of trial the defendant had himself made a statement on oath that he shall not stop the access of the plaintiff or his family to the roof/ terrace for the purpose of maintenance of the TV/dish antenna and water tank, ventilation shaft etc. Therefore, the objection as raised by the defendant during the course of final arguments with effect to the roof being accessed by the family member or the agents or the plumber on behalf of the plaintiff is per se merit less and does not cut much eyes with the Court as the same is not only against the rights of the sale deed but also violative of the statement made by the defendant on oath before the court.
34. Thus, on the basis of the above observations and findings, a logical corollary can be culled out, that the plaintiff is legit in his right to affect access to the roof for the purpose of RICHA SHARMA installation/repair/maintenance of T.V./Dish antenna, water tank and Digitally signed by RICHA SHARMA other accessories including ventilation shaft.
Date: 2025.12.10 16:12:59 +0530_________________________________________________________________________________________________________ CS SCJ No.995/2025 Basant Khatri Vs. Sunil Kumar Bhola Page No. 32 of 34
35. Relief
36. As a sequel to the observations and findings made as above, the suit stands decree in favour of the plaintiff and against the defendant in the following terms:-
1. Relief of mandatory injunction is granted in favour of the plaintiff and against defendant/his agents/his authorized representative thereby directed the latter to allow plaintiff/his authorized representative/his agents/family members to access the terrace and remove all obstructions and not to interfere with the plaintiff's right to access terrace for installation/repair/maintenance of T.V. Dish antenna, water tank and other accessories including ventilation shaft;
2. Relief of permanent injunction is granted in favour of the plaintiff and against the defendant defendant/his agents or any one acting through him thereby restraining the latter from obstructing the right of the plaintiff and his family members to have access to terrace for installation/repair/maintenance of T.V./dish antenna and water tank;
3. Further, defendant is directed to provide duplicate keys of the lock to the plaintiff in case the terrace is locked and in case lock of the door of terrace is changed, simultaneously duplicate key of the same be provided by the defendant to the plaintiff.
4. Plaintiff prayed for a decree of damages to the tune of Rs.
RICHA SHARMA 1,00,000/- but nothing stands filed on record of the Court to prove Digitally signed the said averment. Thus, in the absence of any such cogent by RICHA SHARMA Date: 2025.12.10 16:13:26 +0530 _________________________________________________________________________________________________________ CS SCJ No.995/2025 Basant Khatri Vs. Sunil Kumar Bhola Page No. 33 of 34 documented proof, the claim qua the damages to the tune of Rs. 1,00,000/- remains unproved and accordingly the same is not awarded.
5. Cost of the suit be awarded to the plaintiff. Before parting with the judgment, this Court further deems it fit to state that in case the water alarms have not been installed in the water tanks of the plaintiff then plaintiff is directed to install the same, so that there is no overflow of water as the same may not only result in the wastage of water but at the same time might also result in damaging the roof and the walls as a result of the continuous overflow of water.
37.Decree sheet be prepared on deposition of the deficient Court fees, if any.
38.File be consigned to record room after due compliance.
Digitally
Announced in the open Court RICHA
signed by
RICHA
SHARMA
on 10.12.2025. SHARMA Date:
2025.12.10
16:13:34
+0530
(Richa Sharma)
Sr. Civil Judge - Cum - RC
THC / Delhi / 10.12.2025
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