Delhi District Court
Sh. Rajib K. Sengupta vs Smt. Suyasha Vohra W/O Diwan Chand Vohra on 24 December, 2014
IN THE COURT OF Ms. JYOTI KLER, ADDITIONAL SENIOR CIVIL JUDGE
CUMJUDGE SMALL CAUSE COURTCUM GUARDIAN JUDGE, SOUTH
EAST DISTRICT, SAKET COURT COMPLEX, NEW DELHI
RCA No: 01/13
Case ID No. 02406C0082912013
IN THE MATTER OF :
Sh. Rajib K. Sengupta
S/o Late Sh. D.N. Sengupta
(senior citizen)
R/o 327, Aravali Apartments,
Alaknanda, Kalkaji, New Delhi19 ......Appellant
Versus
1. Smt. Suyasha Vohra W/o Diwan Chand Vohra,
2. Sh. Diwan Chand Vohra S/o Sh. Ram Lal,
Both R/o SFS Flat No. 2, Shivalik Apartments,
Alaknanda, Kalkaji, New Delhi.
3. Delhi Development Authority (through its Vice Chairman),
Vikas Sadan, New Delhi.
......Respondents
Date of Institution: 01.04.2013
Date of Final Arguments: 23.12.2014
Date of Order: 24.12.2014
Decision: Appeal allowed
APPEAL AGAINST THE FINAL ORDER DATED 18.02.2013 PASSED BY
Ms. RICHA GUSAIN SOLANKI, LD. CIVIL JUDGE (WEST), TIS HAZARI
COURT
JUDGMENT
1. This is an appeal against the final order dated 18.02.2013 (hereinafter referred to as "the impugned order") passed by Ms. Richa Gusain RCA 01/14 Rajib Sen Gupta Vs. Suyasha Vohra & Ors. 1/7 Solanki, Ld. Civil Judge (West), Tis Hazari Court, Delhi.
2. Vide the impugned order Ld. Trial Court dismissed the suit of the appellant on the following preliminary issue:
"Whether the suit is maintainable in view of the bar in Easement Acts? OPD"
3. Appellant instituted a Suit for Permanent Injunction before the Ld. Trial Court. Respondents herein were the defendants. The Suit was instituted with the averments that the appellant is owner in possession of car garage no. 1 situated on the ground floor (below flats no. 19 and 21) in the Shivalik Apartments, Alaknanda, Kalkaji, New Delhi since February, 1987. He purchased the said car garage from original allottee Sh. Ranjit Lal. The car garage was allotted to Sh. Ranjit Lal by DDA, i.e. respondent no. 3. However, respondents no. 1 and 2 had evil eye on the car garage and wanted to usurp the same. They instituted false and frivolous litigations against the appellant. On 04.07.2004 they laid down rubbish lying in bags in the car garage and restrained the appellant from parking his car in the garage.
4. Written statements were filed by the respondents.
5. Following facts emerged from the written statements of the respondents:
The respondent no. 3 had allotted a flat bearing No. 2, SFS, Category II, Kalkaji to Sh. Ranjeet Lal on 17.03.1983. Possession of the flat was handed over to him on 20.10.1983. Sh. Ranjeet Lal executed an agreement to sell in favour of respondent no. 1 & 2 with respect to the flat on 09.11.1983 and a GPA on 14.11.1983. Respondent no. 1 and 2 were put in RCA 01/14 Rajib Sen Gupta Vs. Suyasha Vohra & Ors. 2/7 possession of the flat on 14.11.1983. Thereafter, a car garage no. I was allotted to Sh. Ranjeet Lal Kapoor on 02.05.1984 and possession of the car garage was handed over to him on 06.09.1984. The car garage was sold by Sh.
Ranjeet Lal Kapoor to the appellant by agreement to sell in February, 1987 and the appellant was put in possession of the same. Respondent no. 1 and 2 applied to respondent no. 3 for conversion on the basis of agreement to sell and GPA which was allowed on 01.04.1997. While applying for conversion, respondent no. 1 and 2 furnished an undertaking regarding the car garage as well. Due to this undertaking, the car garage was also linked in the conveyance deed. Thereafter, plaintiff applied for conversion of car garage on the basis of agreement to sell and it thus came to the notice of respondent no. 3 that the car garage and the flat had been sold to different persons, though the car garage is treated as appurtenant to the residential unit. After becoming aware of the same, respondent no. 3 cancelled the conversion of the flat on 13.01.2000 as the respondent no. 1 and 2 had concealed material facts regarding sale and purchase of car garage.
6. While deciding the aforesaid preliminary issue Ld. Trial Court observed that the suit of the appellant was barred under Section 19 of Easement Act and Section 9 of Transfer of Property Act. Ld. Trial Court further observed that the document of ownership executed in favour of the appellant was void and he had no cause of action to approach the Court as he had no legal right to continue in possession of the suit property.
7. Appellant approached this Court in first appeal. It is stated that the impugned order is against the law and facts, based on surmises and RCA 01/14 Rajib Sen Gupta Vs. Suyasha Vohra & Ors. 3/7 conjectures. The preliminary issue was framed by the Ld. Trial Court after 8 long years and Ld. Trial Court failed to notice that there was no claim by the respondents that they ever exclusively enjoyed the car garage in question.
8. Arguments on the appeal were heard at length. Written arguments were also filed by the appellant as well as by respondent no. 1 & 2. The appellant placed an affidavit on court record on 26.11.2014 with the averment that he had written a letter dated 14.07.2014 to respondent no. 3 after which respondent no. 3 issued a letter dated 16.09.2014 assuring the appellant that the car garage will be made free hold as soon as the case pending in the court gets over. It was submitted by the appellant that this document may be considered by the court for deciding the appeal filed by him.
9. I have considered the rival contentions and record has been perused carefully.
10. The first and foremost question that this appeal raises is whether the Ld. Trial Court applied the law correctly to the facts of the case. Ld. Trial Court dismissed the suit of the appellant on the ground that it was barred by Section 19 of the Easements Act and Section 9 of the Transfer of Property Act. Section 19 of the Easements Act provides that the transfer or devolution of dominant heritage shall be deemed to pass the easement, and Section 9 of the Transfer of Property Act provides that easement cannot be transferred apart from its dominant heritage.
11. A reading of the impugned order does not make it clear as to which property was considered dominant heritage by the Ld. Trial Court and what was the easement. The term easement has been defined in Section 4 of RCA 01/14 Rajib Sen Gupta Vs. Suyasha Vohra & Ors. 4/7 the Indian Easements Act, 1882. According to the said Section, 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, or in respect of certain other land not his own. Easement presupposes two heritages, i.e. dominant heritage and servient heritage. The dominant heritage is the land for the beneficial enjoyment of which the right exists. Servient heritage is the land on which the liability is imposed. The owner of dominant heritage and servient heritage must be different.
12. In the present case, it appears that Ld. Trial Court has assumed the flat to be the dominant heritage and the car garage to be the servient heritage, in which, owner of the dominant heritage has a right to park his vehicle. However, Ld. Trial Court failed to note the fact that the flat as well as the car garage were initially allotted to the same person and not to the two different persons. When the flat was transferred in favour of respondent no. 1 and 2, the car garage had not been allotted to the original allottee and hence there was no right to car garage existing at that time. Further, it is not only the right to park the vehicle that is in question but the title to the car garage. The flat and car garage being of the same person initially, cannot be equated with dominant and servient heritage. It is moreover, not the right of parking that is in question, but title of the car garage. The Easement Act, 1882 thus cannot be applied to the facts of the present case as there is no question of dominant and servient heritage in the present suit and the respondents cannot further claim any easement as they never enjoyed the car garage in dispute.
RCA 01/14 Rajib Sen Gupta Vs. Suyasha Vohra & Ors. 5/7
13. The second ground on which Ld. Trial Court dismissed the suit is that the plaintiff had no legal right to "continue" in possession of the car garage as the conveyance deed stood cancelled by respondent no. 3 and the ownership of the garage was thus with DDA. Ld. Trial Court failed to appreciate that the appellant was in possession of the car garage not as a trespasser. He was put in possession by the original allottee himself. The conveyance deed was cancelled by the DDA while the appellant was in possession of the car garage. Though, legally it is the DDA who is the owner of the property after cancellation of conveyance deed, however, possession also is 9 points in law and DDA cannot forcibly evict the appellant but will have to follow due process of law. It is not the case of either of the parties that the appellant is a trespasser and even if that is the case, the respondents will have to prove it by leading evidence during the trial.
14. The Ld. Trial Court will have to determine as to whether the plaintiff is in possession of the suit property, whether he came in possession lawfully and whether he is entitled to the injunction as claimed which can be done only after leading the evidence. The fact that the plaintiff no longer has a right to "continue" in possession is not sufficient to throw out the case of the plaintiff, as the law respects long, settled and lawful possession, and will protect such possession untill the due process of law is followed by the person who is seeking eviction.
15. In my considered opinion, Ld. Trial Court erred in applying the principles of law to the facts of the case. Hence, the impugned order suffers from illegality on account of such error. The appeal is therefore allowed. The RCA 01/14 Rajib Sen Gupta Vs. Suyasha Vohra & Ors. 6/7 impugned order is set aside and the matter is remanded back to the Ld. Trial Court for further proceedings as per law. It is made clear that the Ld. Trial Court shall proceed with the suit uneffected from the observations made in the present appeal, which have been made only for the purpose of deciding this appeal on a limited aspect of applicability of the Indian Easements Act, 1882. The appellant is at liberty to file the letter dated 16.09.2014 issued by the DDA before the Ld. Trial Court along with appropriate application and the Ld. Trial Court may decide the application on merits uneffected by the observations in the present judgment.
16. Let a copy of the judgment be sent to the Ld. Trial Court for intimation along with Trial Court Record.
17. Appeal file be consigned to recordroom.
Announced in the open court
on 24.12.2014 (JYOTI KLER)
ASCJ/JSCC /Gdn.JUDGE
SOUTHEAST, SAKET COURTS, NEW DELHI
RCA 01/14 Rajib Sen Gupta Vs. Suyasha Vohra & Ors. 7/7