Delhi District Court
Jag Mohan vs Gulshan Kumar on 29 August, 2024
IN THE COURT OF SH. MAYANK GOEL, JSCC/ASCJ/GJ,
SHAHDARA, KARKARDOOMA COURTS, DELHI
CIVIL SUIT No. 357/2021
JAG MOHAN Vs. GULSHAN KUMAR
CNR NO. DLSH03-000662-2021
In the matter of:
SH. JAG MOHAN,
S/o LATE SH. UDHOBHAN,
R/o 14-A, NEW LAYALPUR COLONY EXTENSION,
CHANDER NAGAR,
DELHI-110051.
........ Plaintiff
Versus
SH. GULSHAN KUMAR,
S/o LATE SH. UDHOBHAN ARORA,
R/o A-4/12, GROUND FLOOR,
KRISHNA NAGAR,
DELHI-110051.
ALSO AT:
F-18/11, SECOND FLOOR,
KRISHNA NAGAR,
DELHI-110051.
........ Defendant
SUIT FOR DECLARATION, PERMANENT & MANDATORY INJUNCTION.
Date of Institution : 20.03.2021
Date of reserving of judgment : 16.08.2024
Date of Judgment : 29.08.2024
Decision : PARTLY DECREED
Digitally signed by
MAYANK MAYANK GOEL
GOEL Date: 2024.08.29
___________________________________________________________________________________________________
14:39:36 +0530
CIVIL SUIT No. 357/2021
JAG MOHAN Vs. GULSHAN KUMAR Page No. 1 of 24
CNR NO. DLSH03-000662-2021
JUDGMENT
BRIEF FACTS PLEADED IN THE PLAINT
1. The brief facts which are narrated by the plaintiff are that the plaintiff and the defendant are the real brothers and the plaintiff is younger to the defendant. That the plaintiff and the defendant became joint owners of the built property measuring around 60 x 20 ft. & constructed upto third floor i.e. Ground, First and Second floor bearing No. A-4/12, Krishna Nagar, Delhi- 110051, by virtue of two registered Sale Deed dated 12.05.1999 and by virtue of the Release Deed dated 16.12.2002 by the father of the parties. That the respective father of the plaintiff and the defendant persuaded them to partition the said property for avoiding the future bickering. That the plaintiff and the defendant with the intervention of their father settled the mode of partition of the said property. That the broad outline/sketch of the earmarked portion of share was drawn in the under face of many talks and some verbal understanding for future in keeping mind the optimum utilization of the front side space of the ground floor facing the main road. That the respective father of the parties and the plaintiff and the defendant made aware the concerned person of the almost settled mode of partition with earmarked share alongwith ultimate goal of optimum utilization of the space especially of the ground floor facing the main road of the above said property. That the Partition Deed dated 06.01.2003 was executed and registered with the verbal understanding between the parties to make partition as per the existing structure at site and with future understanding to give the new shape to the stairs for common passage, common usages and so that the plaintiff could get a reasonable space at the ground floor facing the main road for shop. That both of them take the equal proportionate share in terms of the value, utility and space giving more weightage to the value and utility of the ground floor and hence the verbal understanding was made for structuring the existed common passage re-structuring the existed common passage of stairs so that the new modified stairs could be given the shape within the total earmarked area of the passage i.e. 3.9 13.9 ft. equal to 17.8 ft. That it was made clear to the other party i.e. defendant herein to re- modify the existing stairs after the partition in such a way so that the total passage of the stairs MAYANK Digitally signed by MAYANK GOEL GOEL Date: 2024.08.29 ___________________________________________________________________________________________________ 14:39:57 +0530 CIVIL SUIT No. 357/2021 JAG MOHAN Vs. GULSHAN KUMAR Page No. 2 of 24 CNR NO. DLSH03-000662-2021 and its usages could not exceed 17.8 ft. in length and meaning thereby the length of the same be reduced for giving the space of the chowki within the same length and hence, beyond 17.8ft. length all the space was shown in blue colour being the exclusive share of the plaintiff herein. That the modified stairs could enable the plaintiff herein to get the more front portion space in place of the width of 4 ft. with some space behind back and the existing entry door of the defendant be put afresh by making the chowki. That reasonable time was given to the parties to carry out the said desired modification in the stairs though the Partition Deed was executed in the line of existing structures of stairs and passage. That in terms of the said understanding and assurances on the part of the parties (plaintiff and defendant), the exact length/size of the common passage and stairs was mentioned at ground floor i.e. 3.9ft. + 13.9ft. i.e. 17.8ft. And same was shown in Yellow colour. That by the terms of the mode of the said partition dated 06.01.2003, the plaintiff was assigned the earmarked portion as shown in Blue Colour with Mark B and the defendant was assigned the share shown in Pink Colour with Mark A in the respective floors from ground floor to second floor with provision/clause for third floor. That the common passage meant for common usages was shown in Yellow colour and the common passage specially of the ground floor pertaining to some vacant space and stairs was deliberately shown by putting it specific length i.e. 3.9 and 13.9 ft. That the length of the stairs of the first floor and second floor was not mentioned. That the width of the common passage at the ground floor and above is 3.10 ft. excluding the wall. That in terms of the said Partition Deed, the plaintiff got the share of blue colour portion in the said property. That he got the share on the ground floor facing the main road marked with colour blue measuring around 3.10 ft. X 9.2 ft. (excluding the both sides wall) for its usages as the shop having also exclusive access to the first floor through the common passage in the existing shape of vacant space of length i.e. 3.9ft. X 3.10ft. for riding the stairs of the length of 13.9 X 3.10 ft. to reach at its share of the entire first floor portion except only the width of the common passage shown yellow colour, hence the sketch of the said partition deed shows the entire first floor portion in blue colour except the width of the stairs (i.e. 3.10 ft.) of which the length is quantified at the MAYANK Digitally signed by MAYANK GOEL GOEL Date: 2024.08.29 14:40:00 ___________________________________________________________________________________________________ +0530 CIVIL SUIT No. 357/2021 JAG MOHAN Vs. GULSHAN KUMAR Page No. 3 of 24 CNR NO. DLSH03-000662-2021 ground floor to the measurement of 3.9 ft. 13.9 ft. 1.e. 17.8. ft. and width 3.10 ft. (excluding the wall i.e. boundary wall is of 9" and the inner wall is 5") in total. That the plaintiff also got the share of the entire third floor portion i.e. roof of the second floor portion with the right to use the same further with rider qua the shifting of water tank. That the stairs from the second floor onwards is in the share of the plaintiff with a rider to see the water tank. That in terms of the said Partition Deed, the defendant got the share of Pink colour portion in the said property. That he got the share of the entire ground floor portion facing the main road except the portion meant for a shop shown in blue colour measuring around 3.10 ft. x 9.2 ft. (excluding the boundary wall of 9" and inner wall of 5") for the plaintiff and except the portion to the length of 3.9 ft. + 13.9 ft. colour, hence the sketch of the said partition deed shows the entire first floor portion in blue colour except the width of the stairs (i.e. 4 ft.) of which the length is quantified at the ground floor to the measurement of 3.9 ft.+ 13.9 ft. i.e. 17.8 ft. and width 4 ft. (excluding the wall i.e. boundary wall is of 9" and the inner wall is 5") in total. That the plaintiff also got the share of the entire third floor portion i.e. roof of the second floor portion with the right to use the same further with rider qua the shifting of water tank. That the stairs from the second floor onwards is in the share of the plaintiff with a rider to see the water tank. That in terms of the said Partition Deed, the defendant got the share of Pink colour portion in the said property. That he got the share of the entire ground floor portion facing the main road except the portion meant for a shop shown in Blue Colour measuring around 4 ft. x 9.2 ft. (excluding the boundary wall of 9" and inner wall of 5") for the plaintiff and except the portion to the length of 3.9 ft. + 13.9 ft. i.e. 17.8 ft. shown in yellow colour for the sole excess to the first floor onwards. That the defendant is to go to the second floor by using the separate entry at Point "X" and "Y" on the ground floor of the width of 3.9 ft. That the defendant also got the share of entire second floor except the single width of the stairs meant for common passage with colour Yellow measuring around 17.8 ft. in length. That the terms of the said Partition Deed and the accompanied site plan having sketch of the built up constructions with earmarked share and with its depiction through colour pink, blue and yellow ex-facie refers the respective Digitally signed by MAYANK MAYANK GOEL GOEL Date: 2024.08.29 ___________________________________________________________________________________________________ 14:40:05 +0530 CIVIL SUIT No. 357/2021 JAG MOHAN Vs. GULSHAN KUMAR Page No. 4 of 24 CNR NO. DLSH03-000662-2021 shares and it does not leave any ambiguity of the fact that the blue colour portion as mentioned in the Partition Deed is not of the plaintiff herein. That the plaintiff is the sole and exclusive owner of the first floor portion of the suit property shown in red colour and beyond the yellow colour portion from the ground floor i.e. 3.9 & 13.9 fts. length of the stairs reaching to the first floor portion. That the defendant has no right of the earmarked share of the plaintiff of the first floor portion now shown in Red Colour instead of Blue Colour as shown in Partition Deed beyond the portion of the stairs shown in Yellow colour. That the defendant has further no right to use even a inch of the red colour portion of the suit property of the first floor onwards and hence is to virtually find the common passage/space to go to the second floor into his share. That he has no authority to use the space of the exclusive share of the plaintiff of the first floor onwards and the plaintiff due to his overall conduct has withdrawn the implied permission to use space falling within his exclusive share. That the plaintiff is within his right to assert the claim of exclusive usages of his share in the suit property and the conduct of the defendant totally dis-entitled him to avail the earlier given implied permission for going to the second floor portion. That the assertion of the right of the plaintiff qua his exclusive share is not in violation of any accrued right of the defendant as the defendant can't claim any right in the property of the plaintiff. That the plaintiff is no more interested to be subordinate to the defendant by being subservient to his exclusive right. That the plaintiff by way of asserting his right of being entitled of sole and usages and exclusive usages of the entire red colour portion of the first floor is not obstructing the common passage and it does not tantamount to obstructing of the usages of the second floor portion. That the plaintiff many times requested the defendant throughout the year April, 2020- 2021 to sit together through Qamar Alam, Ranjeet and Rajinder for giving way to the un-codified verbal understanding of the partition which happened on 06.01.2003 for optimum utilization of their respective shares on the principle of equality being the shareholder and not on the principle of subordination and subjudigation and qua the unfettered right of the usages. That the plaintiff prior to the specific response of the defendant filed earlier suit for partition for the said property bearing A- 4/12, MAYANK Digitally signed by MAYANK GOEL GOEL Date: 2024.08.29 14:40:08 +0530 ___________________________________________________________________________________________________ CIVIL SUIT No. 357/2021 JAG MOHAN Vs. GULSHAN KUMAR Page No. 5 of 24 CNR NO. DLSH03-000662-2021 Krishna Nagar, Delhi 110051 as advised but was compelled to withdraw maintainable and in view of being not stand of the defendant. That the plaintiff further filed suit for performance on 11.03.2020 qua the said property and the partition dated 06.01.2003 but has now been advised the said suit be withdrawal and hence the application for withdraw is to be filed or is being filed. That the defendant cannot be allowed to claim of his right to use the red colour portion of the suit property owned and possessed by the plaintiff as the owner and has further no right to put any restriction upon its usages on the part of the plaintiff. That the defendant has no right to raise any dispute of the entitlement exclusively of of the the plaintiff suit to use property and the deliberate disputing of the claim necessitated the filing of the present suit. That the water and electric meter of the defendant at point "C" & "D" is in the common passage and it makes obstruction to go to the upstairs. That the defendant has not been removing the water and electric meter from the common passage despite various requests and reminders on the part of the plaintiff. That the plaintiff on 02.03.2021 requested the defendant to remove the same but dared to take action by giving threat of widening of entry gate to the common vacant space of the ground floor by breaking the wall. That the total conduct of the defendant by way of filing his suit qua the said property and his further conduct of not evincing him desire to sit and talk together leave no doubt that the defendant is hell-bent upon using the portion of the plaintiff shown in Red Colour for optimum usages of his property of the second floor by restricting and encroaching the right of the plaintiff qua the same. That the right to access of the defendant in the face of alternative available way and space can't be allowed to supersede the exclusive usages of the property of the plaintiff in his own way. Hence, the present suit has been filed by the plaintiff seeking decree of declaration that the plaintiff is solely entitled to use the portion in the suit property bearing no. A-4/12, Krishna Nagar, Delhi-110051 as shown in red colour in the site plan annexed with the plaint, being the absolute owner of the same in the terms of the registered partition deed dated 06.01.2003. That the plaintiff also seeks decree of permanent injunction in the favour of the plaintiff and against the defendant for restraining the defendant from obstructing the plaintiff to use the common portion i.e. vacant space of passage measuring MAYANK Digitally signed by MAYANK GOEL GOEL Date: 2024.08.29 14:40:12 +0530 ___________________________________________________________________________________________________ CIVIL SUIT No. 357/2021 JAG MOHAN Vs. GULSHAN KUMAR Page No. 6 of 24 CNR NO. DLSH03-000662-2021 around 3.10ft. X 3.9ft. length and common stairs of the ground floor to the length of 13.9ft. and the stairs from the first floor to second floor of the suit property bearing no. A-4/12, Krishna Nagar, Delhi-110051. That the plaintiff also seeks decree of permanent injunction in the favour of the plaintiff and against the defendant, their agents, servants, etc for restraining them widening the 3.9 ft entry gate to the common vacant portion as shown in Yellow Colour in the site plan annexed with marking "X" & "Y" in the ground floor of the property bearing no. A- 4/12, Krishna Nagar, Delhi-110051. That the plaintiff also seeks decree of mandatory injunction in the favour of the plaintiff and against the defendant for directing the defendant to remove the water meter and the electricity meter in his name and for his exclusive usages from the yellow colour portion of the site plan annexed in the ground floor of the suit property bearing no. A-4/12, Krishna Nagar, Delhi-110051 with mark "C" & "D" respectively.
2. Summons of the suit were issued to the defendant. Defendant appeared and filed WS.
BRIEF FACTS PLEADED IN THE WRITTEN STATEMENT OF DEFENDANT.
3. In the written statement filed by defendant, the defendant has taken certain preliminary objections and averred that the defendant has easement rights/right to way to his second floor from the ground floor through the common staircase which he possesses under section 4 of the Indian Easements Act 1882. That the defendant is entitled to such easement and avail the benefits of Section 13 of the Indian Easements Act 1882 which defines easements of necessity and quasi easements. That the said easement over the share of plaintiff is necessary for enjoying the share of defendant and therefore, the defendant is entitled to such easement. That such an easement is apparent and continuous and necessary for enjoying the share of the defendant as it was enjoyed when the partition took effect. That it is an admitted case of the plaintiff that the common staircase is the only staircase in the building leading to the ingress and egress to the second floor of the defendant and is therefore of necessity. That the ingress Digitally signed by MAYANK MAYANK GOEL GOEL Date: 2024.08.29 14:40:15 +0530 ___________________________________________________________________________________________________ CIVIL SUIT No. 357/2021 JAG MOHAN Vs. GULSHAN KUMAR Page No. 7 of 24 CNR NO. DLSH03-000662-2021 and egress to the second floor of the property of the defendant is only possible through the common staircase and any obstruction to the same would render at naught the utilization of the second floor of the said property. That admittedly the partition of the property no. A-4/12, Krishna Nagar, Delhi-110051 in its existing structure at that time had taken place 19 years ago on 06.01.2003 between the plaintiff and defendant with metes and bounds in accordance with the terms of the partition deed dated 06.01.2003 and the site plan annexed thereto. That admittedly the existing stairs in the said property leading from the ground floor to the upper floors is common amongst the plaintiff and defendant as per clause 8 of the partition deed dated 06.01.2003. That the common staircase in itself implied easement rights/right to way to both plaintiff and defendant to their respective floors in the said property. That there has been chowki/landing of the staircase on the first floor and second floor of the said property to allow stairs to change directions and to allow the user a rest. That the said chowki/landing of the staircase on the first floor and second floor of the said property is an easement rights/right to way and remained common and was not affected by the ownership of the plaintiff and defendant in respect of their respective first and second floor. That the defendant had been using the common stairs and the chowki/landing of the staircase on the first floor of the said property to reach its second floor from the first floor for the last 19 years. That similarly the plaintiff had been using the common stairs and the chowki/ landing of the staircase on the second floor of the said property to reach its third floor from the second floor for the last 19 years. That the said position remains same from last 19 years and the plaintiff and defendant have right to use common staircase and which clearly entitles them easement rights/right to way from first floor to second floor and second floor to third floor for the use of the common staircase. That the suit of the plaintiff for the relief of declaration is false and time barred and liable to be rejected on this ground alone. That the present suit for the relief of declaration has been filed after 19 years from the date of partition i.e. 06.01.2003 and hence the same is barred under Article 113 of the Limitation Act 1963. That the plaintiff is guilty of suppressio veri expressio falsi and the plaintiff is himself guilty of wrong doings and has concealed the MAYANK Digitally signed by MAYANK GOEL GOEL Date: 2024.08.29 ___________________________________________________________________________________________________ 14:40:19 +0530 CIVIL SUIT No. 357/2021 JAG MOHAN Vs. GULSHAN KUMAR Page No. 8 of 24 CNR NO. DLSH03-000662-2021 material facts. That the Plaintiff is not entitled to relief of injunction under section 41(i) of the Specific Relief Act. That prior to filing of the present suit, the plaintiff had disturbed and denied access to the defendant and its staff from stairs of first floor upto second floor in the suit property. That the plaintiff had illegally damaged the stairs leading from first floor to second floor of the suit property in present suit thereby restraining the defendant and its staff to reach second floor in the said property. That the defendant was compelled to file police complaints with the local police and a civil suit no. 96/2017 titled "Gulshan Arora vs Jag Mohan & Ors." for permanent and mandatory injunction in respect of the suit property in the District Courts, Karkardooma Delhi. That the "plaintiff" herein is "defendant no.1" in the said suit and "defendant" herein is "plaintiff" in the said suit and the court of the then Ld. JSCC/ASCJ/GJ, Shahdara, Karkardooma Courts, Delhi vide order dated 06.01.2018 on the application under order XXXIX rule 1 & 2 CPC held that:
"Defendant no.1 cannot deny the access to the Plaintiff to use the stair of the first floor to go to the second floor. In view of the same, order dt. 03.02.2017 is confirmed till the final disposal of the case and defendant no.1 is restrained from denying the access to the plaintiff of the stairs of the first floor upto second floor in suit property i.e. A-4/12, Krishna Nagar, Delhi-51".
That the plaintiff had challenged the said order by filing an appeal bearing RCA no. 49/2018 titled as "Jagmohan Arora vs Gulshan Arora & Ors." but the same was also dismissed by the court of Ld. District & Sessions Judge, Shahdara District, Karkardooma Courts, Delhi vide order dated 15.01.2019. That the plaintiff herein is already restrained from denying access to the defendant from stairs of first floor upto second floor in the said property. That the present suit is a counter blast to the said civil suit and the same has been filed by the plaintiff in order to pressurize, harass and coerce the defendant to give up his legitimate claim and to further grab the undue share in the said property. That the present suit deserves outright dismissal with MAYANK Digitally signed by MAYANK GOEL GOEL Date: 2024.08.29 ___________________________________________________________________________________________________ 14:40:22 +0530 CIVIL SUIT No. 357/2021 JAG MOHAN Vs. GULSHAN KUMAR Page No. 9 of 24 CNR NO. DLSH03-000662-2021 exemplary costs. That the said property has already been partitioned amongst the plaintiff and defendant vide partition deed dated 06.01.2003 duly registered with the Office of Sub- Registrar, Delhi vide registration no. 96 in Addl. Book no. 01 Vol. No. 803 pages 01 to 07 dated 06.01.2003 as admitted by the plaintiff himself in the present suit. That since the said property is already partitioned and the plaintiff and defendant are owners and in possession of their respective shares in the said property and the stair case are common between them as per the said partition deed since the year 2003. That the plaintiff had earlier challenged the partition dated 06.01.2003 of the said property and claimed partition of the same especially the common staircase of the said property by filing a suit for partition and later a suit for specific performance.
That the plaintiff and defendant had deliberated upon partition of the existing structure of the suit property, with the agreement that the defendant shall be entitled to the entire ground floor and second floor of the same, whereas the plaintiff shall be entitled to the first floor and roof above the second floor of the same, leaving the staircase leading from ground floor to upper floors as common between them. That there was no verbal understanding for scope of change in future. That the mode of partition was simple in nature keeping in view the existing structure of the property at that time, leaving no scope of any ambiguity. That the partition of the property was affected between the plaintiff and defendant with metes and bounds and the plaintiff and defendant had been using the common stairs for the last 19 years alongwith the chowki/landing of the staircase on all the floors. That there was no alleged verbal understanding between the parties to remodify/reconstruct the existing common stairs. That all the terms and conditions as agreed between the plaintiff and defendant in respect of the suit property at the time of its partition were reduced in writing and incorporated in the partition deed dated 06.01.2003 and apart from that there was no oral assurance/undertaking/ understanding whatsoever agreed/arrived upon between the plaintiff and defendant. That as per the partition deed, it was agreed that the existing whole staircase with its chowki/landing of the Digitally signed by MAYANK MAYANK GOEL GOEL Date: 2024.08.29 ___________________________________________________________________________________________________ 14:40:25 +0530 CIVIL SUIT No. 357/2021 JAG MOHAN Vs. GULSHAN KUMAR Page No. 10 of 24 CNR NO. DLSH03-000662-2021 staircase at all floors would be used commonly between the plaintiff and defendant. That the suit property is admittedly partitioned in totality on 06.01.2003 by metes and bounds in accordance with the registered partition deed dated 06.01.2003 and the plaintiff and defendant are owners and in occupation of their respective shares in the suit property and there has been no dispute whatsoever in respect of area of stairs left between them. That the stairs leading from the ground floor to the upper floors is common amongst the plaintiff and defendant as per clause 8 of the partition deed dated 06.01.2003 which reads as under:
"8. That the stairs shall be used by the parties in common as stated above, which are shown in yellow colour in the enclosed plan."
That the plaintiff and defendant had been using the common stairs for the last 19 years alongwith the chowki/landing of the staircase on all the floors. That the intention of the plaintiff has become malafide and is having evil eye over the staircase and wants to grab the same by way of making alterations in the same as he had earlier raised unauthorized construction in shape of rooms, WC, tin shed etc. at the roof of second floor without obtaining permission from EDMC. That the partition of the property no. A-4/12, Krishna Nagar, Delhi- 110051 in its existing structure at that time had taken place 19 years ago on 06.01.2003 between the plaintiff and defendant with metes and bounds in accordance with the terms of the partition deed dated 06.01.2003 and the site plan annexed thereto. That admittedly the existing stairs in the said property leading from the ground floor to the upper floors is common amongst the plaintiff and defendant as per clause 8 of the partition deed dated 06.01.2003. That there has been chowki/ landing of the staircase on the first floor and second floor of the said property to allow stairs to change directions and to allow the user a rest. That the said chowki/landing of the staircase on the first floor and second floor of the said property is a easement rights/right to way and remained common and was not affected by the ownership of the plaintiff and defendant in respect of the first and second floor. That the defendant had been using the common stairs and the chowki/landing of the staircase on the first floor of the said property to Digitally signed by MAYANK MAYANK GOEL GOEL Date: 2024.08.29 ___________________________________________________________________________________________________ 14:40:30 +0530 CIVIL SUIT No. 357/2021 JAG MOHAN Vs. GULSHAN KUMAR Page No. 11 of 24 CNR NO. DLSH03-000662-2021 reach its second floor from the first floor for the last 19 years. Similarly, the plaintiff had been using the common stairs and the chowki/landing of the staircase on the second floor of the said property to reach its third floor from the second floor for the last 19 years. That the said position remains same from last 19 years and the plaintiff and defendant have right to use common staircase and which clearly entitles them easement rights/right to way from first floor to second floor and second floor to third floor for the use of the common staircase. That it is submitted that as per the partition deed dated 06.01.2003, the staircase remained common between the plaintiff and defendant and the chowki/landing of the staircase on the first floor and second floor of the suit property is a easement rights/right to way and remained common and was not affected by the ownership of the plaintiff and defendant in respect of the first and second floor. That the plaintiff cannot claim the same to be falling in his exclusive share in the first floor of the suit property and the defendant does not require the permission of the plaintiff to use the same as these are to be shared by both the plaintiff and defendant. That it is admitted case of the plaintiff that the water and electricity meters of the defendant are installed/affixed in the common passage on the ground floor. That the water and electricity meters of the plaintiff are also installed/affixed alongside the water and electricity meters installed in the common passage on the ground floor but they do not seem to cause any obstruction to him for going upstairs. That the water and electricity meters in the building are installed at the same place in the common passage on the ground floor even prior to partition of the property on 06.01.2003 and have not caused any obstruction in the common passage for the last 19 years. That the plaintiff has no right to dictate his terms upon the defendant to remove his water and electricity meters from the common passage on the ground floor. That the defendant is a law abiding person and has never extended any threat of widening the entry gate to the common vacant space of the ground floor by breaking the wall. Hence, the suit of the plaintiff is liable to be dismissed.
Digitally signed by MAYANK MAYANK GOEL
GOEL Date:
2024.08.29
14:40:33 +0530
___________________________________________________________________________________________________ CIVIL SUIT No. 357/2021 JAG MOHAN Vs. GULSHAN KUMAR Page No. 12 of 24 CNR NO. DLSH03-000662-2021
4. The plaintiff has filed replication to the WS of defendant denying the averments made in the WS and reiterating the contents of the plaint.
5. On completion of pleadings, issues were framed vide order dated 16.08.2024 which are as follows: -
i) Whether plaintiff is entitled to decree of declaration as prayed for in para (i) of the prayer clause? OPP
ii) Whether plaintiff is entitled to decree of permanent injunction as prayed for in para (ii) and (iii) of the prayer clause? OPP
iii) Whether plaintiff is entitled to decree of mandatory injunction as prayed for in para (iv) of the prayer clause? OPP
iv) Relief.
6. In compliance of court order dated 10.04.2023, the evidence in the connected suit bearing Civ Suit no. 96/2017 titled as "GULSHAN ARORA Vs. JAGMOHAN ARORA AND ORS" shall be read in the present suit. The plaintiff/Sh. Jagmohan Arora herein examined himself as DW1 who led his evidence by way of affidavit Ex.DW1/A. He relied upon following documents:
1. Mark A (colly. 26 pages) Copy of Sale Deed of the plaintiff qua the {already Mark A(colly. 26 property no. A- 4/12, Krishna Nagar, Delhi.
pages) in Civ. Suit No. 357/21}
2. Mark B (already Mark B in Relinquishment Deed of the father of the parties.
Civ. Suit No. 357/21)
3. Ex. DW 1/3 (OSR)(already Ex. Certified copy of Partition Deed dated PW 1/3 in Civ. Suit No. 06.01.2003 along with accompanied Digitally signed by MAYANK MAYANK GOEL GOEL Date: 2024.08.29 ___________________________________________________________________________________________________ 14:40:36 +0530 CIVIL SUIT No. 357/2021 JAG MOHAN Vs. GULSHAN KUMAR Page No. 13 of 24 CNR NO. DLSH03-000662-2021 357/21) sketch/diagram.
4. Ex. DW 1/4 (already Ex. PW Original Site Plan.
1/4 in Civ. Suit No. 357/21) DW 1 was duly cross-examined by Ld. Counsel for the defendant. He deposed it is correct that the stairs shown in yellow colour in site plan, Ex. PW 1/D1 are common stairs in the suit property. He further deposed that when the suit property was purchased in the year 1999, there was only one room existed on the ground floor. He further deposed that the suit property was constructed in around 1990- 92(again said 1999-2000) and no sanctioned plan for construction of the same was obtained from statutory authorities. He further deposed that he did not have any proof to show that the existing structure on the suit property was demolished and the property was reconstructed in the year 1999. He further deposed that it is correct that the common stairs were existing in the suit property prior to the partition dated 06.01.2003, Ex. PW 1/1. He further deposed that it is correct that apart from the common stairs as shown in yellow colour, Ex. PW 1/D1, there are no other stairs leading to upper floors in the suit property. He further deposed that it is correct that the landing/chowki of the stairs from ground floor to first floor fall within the blue colour portion on the first floor as shown in Ex. PW 1/D1. He further deposed that he used to take the stairs from the first floor while going to the roof above the second floor and which is a direct staircase and there is no landing/chowki on the second floor connecting the stairs from first floor to above floor. He further deposed that it is correct that in the site plan, Ex. PW 1/D1, there is no direct stair leading from first floor to roof above the second floor and that from first floor, he has to come to second floor and from there, there is a separate stair leading from second floor to the roof above as shown in blue colour in the site plan of the second floor portion. He further deposed that it is correct that in the partition deed, Ex. PW 1/1, the size of common stairs is mentioned but it is not mentioned that they have to be reconstructed after demolition. He further deposed that it is correct that that Digitally signed by MAYANK MAYANK GOEL GOEL Date: 2024.08.29 ___________________________________________________________________________________________________ 14:40:39 +0530 CIVIL SUIT No. 357/2021 JAG MOHAN Vs. GULSHAN KUMAR Page No. 14 of 24 CNR NO. DLSH03-000662-2021 in the site plan, Ex. PW 1/D1, there is no mention of measurement of stair case on the first floor and second floor portion of the suit property. He further deposed that it is correct that there is no document executed between the plaintiff and defendant in respect of demolishing the existing stairs and reconstruction of the same. (Vol. It was orally agreed.) He further deposed that it is correct that all the terms and conditions agreed upon between the plaintiff and defendant in respect of partition of the property were mentioned in Ex. PW 1/1. He further deposed that it is correct that he had signed the partition deed, Ex. PW 1/1, after going through the entire contents of the same. He further deposed that it is correct that there is no mention of the plaintiff demolishing the stairs and reconstructing them and constructing the roof above the second floor in the partition deed, Ex. PW 1/1 but voluntarily deposed that it was discussed orally. He further deposed that it is correct that he had not asked for inclusion of the above term in the partition deed, Ex. PW 1/1 but voluntarily deposed that he had not asked for the inclusion of above term in the partition deed as the plaintiff Sh. Gulshan Arora is his elder brother and he have trust on him. He further deposed that he had not challenged the partition deed, Ex. PW 1/1 but voluntarily deposed that he had instituted a civil suit against the Sh. Gulshan Arora to declare the partition deed as null and void and for execution of new partition deed. He further deposed that he had withdrawn the civil suit challenging the partition deed. He further deposed that it is correct that he had earlier also filed a suit for specific performance against the plaintiff/Sh. Gulshan Arora for demolishing the common staircase shown in yellow colour portion in Ex. PW 1/D1 and constructing new staircase in place of them and he had withdrawn the said suit also. He further deposed that it is correct that the facts decided between us by way of mutual settlement, one-two days before the partition were not mentioned in the partition deed. He further deposed that no written agreement was executed pertaining to said mutual settlement. He further deposed that it is correct that by way of partition deed, the plaintiff became the owner of ground floor and second floor and he became the owner of first floor and the roof above the second floor. He further deposed that the plaintiff had shop of sofa material on the ground floor and had go-down on the second floor. He further deposed that it is Digitally signed MAYANK by MAYANK GOEL GOEL Date: 2024.08.29 ___________________________________________________________________________________________________ 14:40:43 +0530 CIVIL SUIT No. 357/2021 JAG MOHAN Vs. GULSHAN KUMAR Page No. 15 of 24 CNR NO. DLSH03-000662-2021 correct that the labours/staff of plaintiff used to carry/put heavy foams, bundle of clothes from ground floor to second floor and vice versa. He further deposed that it is correct that he had sent the legal notice dated 21.12.2016 to the plaintiff through my counsel Sh. Amit Kumar. He further deposed that it is correct that there is no damage on the staircases till the sending of legal notice dated 21.12.2016. He further deposed that there is only one staircase to go from ground floor to top floor shown in yellow colour, Ex. DW 1/P1. He further deposed that it is correct that the photographs at Point A and Point B in Ex. PW 1/3(colly), are truly showing the condition of damaged staircase from first floor to second floor. He further deposed that it is correct that the staircases mentioned at Point C to Cl in yellow colour in Ex. PW 1/D1 are damaged. He further deposed that it is correct that I had intentionally damaged the staircases in the night of 15.01.2017. He further deposed that he had not damaged any staircases in the yellow colour portion and had damaged the staircases in the blue colour portion. He further deposed that he had not taken any permission for damaging the staircases in blue colour portion. He further deposed that it is correct that he had damaged the staircases which were existed before the execution of partition deed. He further deposed that it is correct that he had damaged the staircases which were used by the plaintiff for going to the second floor. He further deposed that it is correct that the electricity and water meters are existing on the same place on the ground floor prior to partition deed dated 06.01.2003. He further deposed that it is correct that there is gate for entry in the shop of the plaintiff from the said common area. He further deposed that it is correct that the electricity and water meters are installed in the said common area. He further deposed that he had not done anything to remove his electricity and water meter from the said common area to remove the obstruction.
Thereafter, PE stands closed.
7. In order to prove his defence, the defendant/Sh. Gulshan Arora herein examined himself as PW-1, who led his evidence by way of affidavit Ex.PW 1/A. He relied upon following documents:
MAYANK Digitally signed by
MAYANK GOEL
GOEL Date: 2024.08.29
14:40:47 +0530
___________________________________________________________________________________________________ CIVIL SUIT No. 357/2021 JAG MOHAN Vs. GULSHAN KUMAR Page No. 16 of 24 CNR NO. DLSH03-000662-2021
1. Ex. PW 1/1 (OSR) Original sale deed qua the property bearing no. A-4/12, Krishan Nagar, Delhi.
2. Ex. PW 1/2 (OSR) Original relinquishment deed.
3. Ex. PW 1/3(OSR) Original partition deed dated 06.01.2003 alongwith sketch/
4. Ex. PW 1/4 Original site plan.
5. Ex. PW 1/5 Copy of proof of doing the business.
PW 1 was duly cross-examined by Ld. Counsel for the defendant no.1. He deposed that the partition deed dated 06.01.2003 is accompanied by a detailed site plan, Ex. PW 1/D1 referring the portion built upon the ground floor, first floor and second floor. He further deposed that the pink colour portion shown in the site plan is in his share. He further deposed that the portion shown in blue colour is in the share of defendant no.1 and the yellow colour portion shown is marked as stairs which is common for both of them. He further deposed that the broken stairs were the part and parcel of blue portion and not of yellow colour portion. He further deposed that it is correct that he did not have any right or interest or share in the portion shown in blue colour in Ex. PW1/D1. He further deposed that it is correct that the defendant only has right and authority to use the blue colour portion and he did not have any right into the same. He further deposed that it is correct that the measurement of the common portion of the stairs shown in yellow colour is 13.9 inch only. He further deposed it is correct that as on 10.04.2023, the stairs measuring 13.9 inch length is existing on the first floor portion and it is also correct that the stairs are existing like the past within the said length of the stairs. He further deposed that it is correct that as on 16.01.2017, the defendant no.1 has not broken any stairs shown in yellow color portion of the first floor portion. He further deposed that it is correct that there is no provisional chowki in the stairs measuring 13.9 inch as shown in Ex. PW 1/D1. He further deposed that it is correct that without having the provision of chowki, he cannot go to the second floor portion of his share as shown in pink colour. He further deposed Digitally signed by MAYANK MAYANK GOEL GOEL Date: 2024.08.29 ___________________________________________________________________________________________________ 14:40:50 +0530 CIVIL SUIT No. 357/2021 JAG MOHAN Vs. GULSHAN KUMAR Page No. 17 of 24 CNR NO. DLSH03-000662-2021 that there is existence of 3.9 inch on the ground floor portion just before the said stairs and the said portion is in the floor level meant for both the parties. He further deposed that he did not know the measurement of the length of the stairs from first floor to the second floor. He further deposed that it is correct that there is no mentioning of chowki of the stairs show in both directions upon the first floor portion by using the common stairs. He further deposed that it is correct that there is not mentioning of chowki of the stairs show in both directions upon the first floor portion shown in blue color that is the share of the defendant. He further deposed that it is correct that the defendant has not broken any chowki of the first floor portion and he is having the share of entire blue portion except only the marking of stairs shown in yellow colour Ex. PW1/D1. He further deposed that the roof of the second floor is in the share of the defendant. He further deposed that he was in postal department prior to his retirement. He further deposed that there is no construction in any form upon the roof of the second floor portion as on date today. He voluntarily deposed that the Corporation has broken the same upon his complaint. He further deposed that the defendant has right to construct over the roof of the second floor. He further deposed that he don't have the knowledge whether the MCD has booked the illegal construction raised over the said roof. He further deposed that he don't have any concern with the roof of the second floor also there is no provision for me to go upon the same. He further deposed that he did not have the knowledge that recently the MCD has increased the height of the building from 15 meters to 17 meters. He further deposed that he did not have the knowledge that there is no strict provision of the MCD for getting the sanctioned planned approved to raise the construction within the 100 meters line. He further deposed that the building is raised prior to the partition deed by his father and the father has partitioned between his two sons by way of partition deed Ex. PW1/1. He further deposed that it is correct that if he strictly follow the colour marking qua his share and the common passage as shown in PW1/D1 then he can't be able to have access to the second floor portion of his share. He further deposed that he don't admit the partition deed 100% and voluntarily deposed that he admit the MAYANK Digitally signed by MAYANK GOEL GOEL Date: 2024.08.29 14:40:53 +0530 ___________________________________________________________________________________________________ CIVIL SUIT No. 357/2021 JAG MOHAN Vs. GULSHAN KUMAR Page No. 18 of 24 CNR NO. DLSH03-000662-2021 partition deed in 100% but do not admit the site plan in 100% because the chowki is not mentioned for going to first-second floor portion onwards).
Thereafter, DE stands closed.
8. I have heard the final arguments and have carefully gone through the case file.
9. Issuewise findings as follows:-
Issue no. 1, 2, 3 & 4.
Since, all these issues are interconnected and can be decided by common findings, all the issues have been taken together.
The burden to prove these issues is on the plaintiff. This is admitted fact and not disputed by both the parties that the pink colour portion shown in the site plan Ex. PW1/D1 is in defendant's share and the portion shown in blue colour in the site plan Ex. PW1/D1 is in the share of plaintiff and the yellow colour portion shown is marked as stairs which is common for both of them. The plaintiff has marked his blue colour portion as shown in Ex. PW1/D1 in red colour in site plan Ex. DW1/4. PW1 during his cross-examination also deposed that it is correct that he did not have any right or interest or share in the portion shown in blue colour in Ex. PW1/D1. PW1 during his cross-examination also deposed that it is correct that the defendant only has right and authority to use the blue colour portion and he did not have any right into the same. PW1 during his cross-examination also deposed that it is correct that if he strictly follows the colour marking qua his share and the common passage as shown in PW1/D1 then he can't be able to have access to the second floor portion of his share.
DW1 during his cross-examination deposed that it is correct that apart from the common stairs as shown in yellow colour, Ex. PW 1/D1, there are no other stairs leading to MAYANK Digitally signed by MAYANK GOEL GOEL Date: 2024.08.29 14:40:58 +0530 ___________________________________________________________________________________________________ CIVIL SUIT No. 357/2021 JAG MOHAN Vs. GULSHAN KUMAR Page No. 19 of 24 CNR NO. DLSH03-000662-2021 upper floors in the suit property. DW1 during his cross-examination also deposed that it is correct that the landing/chowki of the stairs from ground floor to first floor fall within the blue colour portion on the first floor as shown in Ex. PW 1/D1. DW1 during his cross-examination also deposed that there is only one staircase to go from ground floor to top floor shown in yellow colour, Ex. DW 1/P1 Ld. Counsel for the defendant argued that the defendant has easementary right of way on the staircases for going to his second floor. Ld. Counsel for the plaintiff argued that as per Section 6 of the Indian Easements Act, 1882, after partition of the property between the parties, the defendant has no easementary right over the stairs which falls in the portion of the plaintiff. Ld. Counsel for the defendant argued that as per Section 13 of the Indian Easements Act, 1882, the defendant has easementary right of way over the stairs which falls in the share of the plaintiff to go to the second floor even after the partition between the plaintiff and defendant.
Section 6 of Indian Easements Act, 1882 provides for Easement for limited time or on condition and lays down as follows:-
"An easement may be permanent, or for a term of years or other limited period, or sub- ject to periodical interruption, or exercisable only at a certain place or at certain times, or between certain hours, or for a particular purpose, or on condition that it shall commence or become void or voidable on the happening of a specified event or the performance or non-performance of a specified act.
Section 13 of Indian Easements Act, 1882 provides for Easements of necessity and quasi easements and lays down as follows:-
"Where one person transfers or bequeaths immovable property to another Digitally signed by MAYANK MAYANK GOEL GOEL Date: 2024.08.29 14:41:02 +0530 ___________________________________________________________________________________________________ CIVIL SUIT No. 357/2021 JAG MOHAN Vs. GULSHAN KUMAR Page No. 20 of 24 CNR NO. DLSH03-000662-2021
(a) if an easement in other immovable property of the transferor or testator is necessary for enjoying the subject of the transfer or bequest, the transferee or legatee shall be en -
titled to such easement; or
(b) if such an easement is apparent and continuous and necessary for enjoying the said subject as it was enjoyed when the transfer or bequest took effect, the transferee or leg - atee shall, unless a different intention is expressed or necessarily implied, be entitled to such easement;
(c) if an easement in the subject of the transfer or bequest is necessary for enjoying 7 other immovable property of the transferor or testator, the transferor or the legal repres- entative of the testator shall be entitled to such easement; or
(d) if such an easement is apparent and continuous and necessary for enjoying the said property as it was enjoyed when the transfer or bequest took effect, the transferor, or the legal representative of the testator, shall, unless a different intention is expressed or ne- cessarily implied, be entitled to such easement.
Where a partition is made of the joint property of several persons,--
(e) if an easement over the share of one of them is necessary for enjoying the share of an - other of them, the latter shall be entitled to such easement, or
(f) if such an easement is apparent and continuous and necessary for enjoying the share of the latter as it was enjoyed when the partition took effect, he shall, unless a different intention is expressed or necessarily implied, be entitled to such easement.
The easements mentioned in this section, clauses (a), (c) and (e), are called easements of necessity.
Where immovable property passes by operation of law, the persons from and to whom it so passes are, for the purpose of this section, to be deemed, respectively, the transferor and transferee.
An easement is a non-possessory interest to use real property in possession of another person for a stated purpose. An easement is considered as a property right in itself at common law. Easement is also referred as equitable servitude. An easement does not give MAYANK Digitally signed by MAYANK GOEL GOEL Date: 2024.08.29 ___________________________________________________________________________________________________ 14:41:06 +0530 CIVIL SUIT No. 357/2021 JAG MOHAN Vs. GULSHAN KUMAR Page No. 21 of 24 CNR NO. DLSH03-000662-2021 holder a right to possession of property. Historically, common law courts enforce four types of easement namely:
a) The right of way.
b) Easement of support of land.
c) Right of sufficient light and air.
d) Right pertaining to artificial waterways.
Usually there are two types of easement namely easement in appurtenant and easement in gross. Easement in appurtenant is one which benefits the dominant adjoining land. Easement in gross is personal to the holder of easement. If easement in appurtenant, it means that there are two parcels of land known as tenements. The dominant tenement is the land which benefits from an easement while the servient tenement is one which bears the burden of easement. An easement may be created in no. of ways like easement by prescription, easement by estoppel, prescriptive easement etc. Even as per section 13 of Indian Easements Act, 1882, the plaintiff has easementary right of way to the staircases which falls in the portion of the defendant no. 1 for going to his second floor.
Therefore, it is admitted fact between both the parties that both the plaintiff and defendant have equal right over the common yellow portion as shown in Ex. PW1/D1 and Ex. DW1/4.
Moreover, no evidence has been led by the plaintiff to show as to why the defendant shall remove his electricity and water meter from the common yellow portion and what inconvenience has been caused to the plaintiff because of them. Furthermore, plaintiff during his cross-examination also admitted that it is correct that the electricity and water meters MAYANK Digitally signed by MAYANK GOEL GOEL Date: 2024.08.29 ___________________________________________________________________________________________________ 14:41:10 +0530 CIVIL SUIT No. 357/2021 JAG MOHAN Vs. GULSHAN KUMAR Page No. 22 of 24 CNR NO. DLSH03-000662-2021 are existing on the same place on the ground floor prior to partition deed dated 06.01.2003. DW1 further deposed during cross-examination that it is correct that there is gate for entry in the shop of the defendant from the said common area and it is also correct that the electricity and water meters are installed in the said common area. DW1 during his cross-examination further deposed that he had not done anything to remove his electricity and water meter from the said common area to remove the obstruction. This shows that the water and electricity meter of both the plaintiff and defendant are in the same common yellow portion of the suit property and when the water and electricity meter of the plaintiff is also in the same common yellow portion and has not been removed by him, he cannot seek the relief of mandatory injunction for removal of water and electricity meter of the defendant from that common yellow portion.
Considering all the facts and circumstances and the abovesaid discussions, it can be concluded and hereby declared that the the plaintiff has sole right to use the portion in the suit property bearing no. A-4/12, Krishna Nagar, Delhi-110051 as shown red color in the site plan Ex. DW1/4 and blue colour portion as shown in Ex. PW1/D1 being the absolute owner of the same in terms of registered partition deed dated 06.01.2003 but the said declaration cannot defeat the easementary right of the defendant to use to portion of the plaintiff necessary to go to the second floor of the property bearing no. A-4/12, Krishna Nagar, Delhi-110051 which is under the ownership of the defendant.
Accordingly, the issue no. 1 & 2 are decided in favour of the plaintiff and against the defendants and issue no. 3 is decided against the plaintiff and in favour of the defendant.
Relief
10. In view of the aforesaid discussion, the suit of the plaintiff is hereby partly decreed in the following terms:
Digitally signed byMAYANK MAYANK GOEL GOEL Date: 2024.08.29 14:41:13 +0530 ___________________________________________________________________________________________________ CIVIL SUIT No. 357/2021 JAG MOHAN Vs. GULSHAN KUMAR Page No. 23 of 24 CNR NO. DLSH03-000662-2021
(i) It is hereby declared that the the plaintiff has sole right to use the portion in the suit property bearing no. A-4/12, Krishna Nagar, Delhi-110051 as shown red color in the site plan Ex. DW1/4 and blue colour portion as shown in Ex. PW1/D1 being the absolute owner of the same in terms of registered partition deed dated 06.01.2003 but the said declaration cannot defeat the easementary right of the defendant to use to portion of the plaintiff necessary to go to the second floor of the property bearing no. A-4/12, Krishna Nagar, Delhi-110051 which is under the ownership of the defendant.
(ii) The defendant, his agents, servants etc. are hereby restrained from obstructing the plaintiff to use the common portion as mentioned in yellow colour in the site plan Ex. PW1/D1 as well as Ex. DW1/4.
(iii) The defendant, his agents, servants etc. are hereby restrained from widening the entry gate to the common vacant portion as shown in yellow colour in the site plan Ex. DW1/4 with marking "X" & "Y" in the ground floor portion of the property bearing no. A-4/12, Krishna Nagar, Delhi-110051.
11. Cost of the suit be awarded to the plaintiff.
12. Decree sheet be prepared accordingly.
File be consigned to record room after necessary compliance.
Announced in open Court.
On this 29th August, 2024 Digitally signed
This Judgment contains 24 pages MAYANK by MAYANK
GOEL
and is signed by me. GOEL Date: 2024.08.29
14:41:16 +0530
(MAYANK GOEL)
JSCC/ASCJ/GJ, SHAHDARA,
KARKARDOOMA COURTS, DELHI
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