Delhi District Court
Susheel Kumar Gupta vs M P Gupta on 29 November, 2025
IN THE COURT OF DISTRICT JUDGE-05,
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI
Presided by:-
Sh. Abhishek Srivastava, DHJS
RCA DJ No. 61719/16
CNR No:- DLCT01-004285-2016
Sh. Susheel Kumar Gupta
S/o Late Sh. S.P. Gupta
R/o Rahul Apartments,
24/24, Ansari Road,
Darya Ganj, New Delhi- 110002. .......Appellant
Vs.
Sh. M.P. Gupta (dead)
Through
Sh. Krishna Gupta
(Son/LR of deceased Sh. M.P. Gupta)
R/o D-27, Green Park Main,
New Delhi. ......Respondent
Date of Institution:- 26.05.2016
Date of Judgment:- 29.11.2025
RCA DJ 61719/16 1 of 25
Susheel Kumar Gupta Vs. M.P. Singh
Judgment dated 29.11.2025
JUDGMENT
1. This is an appeal under Section 96 read with Order XLI of CPC, 1908, challenging the judgment and decree dated 26.04.2016 (henceforth 'impugned judgment'), passed by the Court of Ld. Civil Judge-02, Central District, Tis Hazari Courts, Delhi (henceforth 'Ld. Trial Court') in Suit No. 489/2014, 'Susheel Kumar Gupta V/s M. P. Gupta' (henceforth 'subject Suit'), whereby, the Suit of the plaintiff for mandatory and permanent injunction was dismissed.
2. Before the trial court proceedings, the appellant herein was the plaintiff and the respondent herein was the defendant. For convenience, parties are referred to as per their original rankings before the Learned Trial Court. It may be noted, at the outset, that during pendency of appeal, the respondent had expired and his LR was impleaded as a party to the present appeal vide order dated 23.08.2023.
BRIEF FACTS OF THE CASE, AND THE PROCEEDINGS BEFORE THE LEARNED TRIAL COURT
3. The facts of the case, as pleaded by the plaintiff in the plaint, in brief, are as under:-
(a) That the plaintiff is residing/ operating from the ground floor and second floor of property bearing No. 4841, Plot No. 24, Rahul Apartments, Ansari Road, New Delhi- 110002 (henceforth 'said property/ building'). The plaintiff purchased the said property from the defendant (works in the name and style of M/s EMCA Construction Company), who is owner of the top floor i.e. fourth floor of the building.
RCA DJ 61719/16 2 of 25 Susheel Kumar Gupta Vs. M.P. Singh Judgment dated 29.11.2025
(b) That the building has certain common infrastructure facilities such as water tanks, dish antennas, drainage pipes, lift room and machinery at its rooftop i.e. above fourth floor.
(c) That the top floor/ fourth floor of the property is lying locked for some time and in spite of best efforts by the plaintiff and other occupants/ owners of the said building, the defendant is not taking any action to open passage/ stairs leading to the terrace of the building.
(d) That due to blocked passage and the staircase leading to the terrace of the said building, common facilities installed on the roof top could not be properly serviced/ maintained resulting in grave inconvenience to all the residents.
(e) That lift machinery and lift room are situated on the terrace of the building which is inaccessible due to passage blocked by the defendant. The plaintiff and other occupants desire to operate the lift and employ lift men but this can not be done unless the plaintiff, lift technicians, lift man have free access to the terrace of the building.
Since lift is lying non-operational for quiet sometime now, there may be certain parts/ components/ switches etc. that may require immediate replacement prior to operation of the lift and this would be possible only when the plaintiff and lift technicians are allowed access to the terrace.
(f) That the plaintiff and other residents tried to contact and persuade the defendant to provide the free access to the roof of the said building, however, all went in vain. Hence, the plaintiff filed the suit.
RCA DJ 61719/16 3 of 25 Susheel Kumar Gupta Vs. M.P. Singh Judgment dated 29.11.2025
4. The defendant was duly served with the summons of the suit. However, his defence was struck off and proceeded ex-parte in the suit.
5. In order to substantiate his case, the plaintiff examined two witnesses. Plaintiff Sh. Susheel Kumar Gupta examined himself as PW1 and Sh. Rajneesh Kumar Aggarwal (the other resident of the said property/ building) as PW2.
FINDINGS OF LEARNED TRIAL COURT
6. Findings of Ld. Trial Court may be summarised as follows:-
(a) The plaintiff has put on record his sale deed (Ex.PW1/1), his mother's sale deed (Ex.PW1/2) and sale deed of another resident of the same building Sh. Rajneesh Kumar Aggarwal (PW2), (Ex.PW1/3). Perusal of all three sale deeds shows that they have purchased their respective flats with the right to "stairs, liftwell and common passages etc." in the building in question. There is no specific mention of the roof rights in the sale deeds. Also, no right of free ingress or egress to the roof of the fourth floor where the common amenities are stated to be installed by the plaintiff finds any mention in the sale deed. No subsequent agreement allowing the same has been put on record.
(b) The plaintiff has admitted that the defendant is the owner of the fourth floor. It is the settled provision of law that the court cannot grant such a wide relief which directly infringes with the right of others, say, in the present case, the defendant's right of ownership and peaceful possession. The plaintiff has no right to disturb the possession of the defendant in absence of any document allowing him access to the fourth floor.
RCA DJ 61719/16 4 of 25 Susheel Kumar Gupta Vs. M.P. Singh Judgment dated 29.11.2025
(c) Moreover, the plaintiff has failed to prove that there is any separate passage leading to the roof of the fourth floor of the building which can be covered under the word 'common passage' as mentioned in the sale deed or which can be granted to the plaintiff without disturbing the possession of the defendant on the fourth floor of the building. In such circumstances, granting of free ingress and egress through the property of the defendant or to allow the plaintiff to break open the locks of the fourth floor would directly interfere with the right of ownership and peaceful possession of the defendant without there being any obligation in the favour of the plaintiff.
(d) The plaintiff is said to have purchased the suit property vide sale deed registered on 09.09.1991 and the present suit has been filed in 2014.
The pleadings are completely silent about the state of affairs for the last approximately 23 years and whether the plaintiff ever exercised any right of free ingress or egress to the roof of the fourth floor in the past.
GROUNDS OF APPEAL
7. The aforesaid judgment has been challenged by the appellant/ plaintiff in the present appeal inter alia on the following grounds:-
(a) That the Ld. Trial Court committed grave error in holding that the present suit has been filed after 23 years. It is submitted that till 2014, the plaintiff and other residents were using the rooftop and only in the year 2014, the defendant locked the staircase thereby denying free ingress and egress to the roof of the building.
RCA DJ 61719/16 5 of 25 Susheel Kumar Gupta Vs. M.P. Singh Judgment dated 29.11.2025
(b) That the Ld. Trial Court failed to appreciate that from reading of several clauses of the sale deeds, it is apparent that the plaintiff and the other occupants are entitled to use common facilities including right of free ingress or egress to the roof of the fourth floor where the common amenities are installed.
(c) That the Ld. Trial Court failed to consider that the plaintiff and other residents in the said building have their water tanks, dish antennas etc. installed at the terrace/ rooftop of the suit property and these are necessary things for enjoying the property. The plaintiff has an easement right to access on the roof/ terrace of the said property without any restriction.
(d) That the Ld. Trial Court failed to peruse the photographs (Ex.PW1/4 (Colly)) clearly depicting that there is a separate passage leading to the 4th floor/ top floor of the property.
(e) That the Ld. Trial Court failed to appreciate that gross injustice is being done with the plaintiff and the other occupants of the building by depriving/ denying them of their right to lead a peaceful and healthy life attached to the said property. Plaintiff's basic human rights and his right to life as envisaged under Article 21 of the Constitution are being infringed.
REPLY
8. The defendant/ respondent Sh. M. P. Gupta filed a reply to the appeal on 22.07.2016. Respondent in his reply, supported the impugned judgment and decree and prayed for dismissal of appeal with costs stating that it is devoid of merit.
RCA DJ 61719/16 6 of 25 Susheel Kumar Gupta Vs. M.P. Singh Judgment dated 29.11.2025
Respondent submitted in his reply that the top floor of the property is in possession of his son with whom he had no relations since 1994. Respondent further pleaded that on making inquiry, it has come to his knowledge that the top floor and stairs leading to terrace have been sealed by some Government authority.
ARGUMENTS
9. Arguments were heard on behalf of the appellant and the respondent. Ld. counsel for the appellant during arguments questioned the judgment of the Ld. Trial Court on the grounds referred above and prayed for its setting aside. Ld. Counsel for the appellant in support of his arguments filed a written synopsis as well.
10. Per Contra, Ld. Counsel for the LR of the deceased respondent submitted that the Ld. Trial Court has rightly dismissed the Suit of the plaintiff and prayed for the dismissal of the present appeal with costs. Ld. Counsel for the LR of the deceased respondent in support of his arguments filed a written synopsis as well.
ANALYSIS AND FINDINGS
11. In a nutshell, the case of the plaintiff is that he and his mother are residing in the building in separate flats on different floors. They are deriving their right/ title/ interest through the defendant through Ex.PW1/1 and Ex.PW1/2. The defendant is residing on the fourth/top floor.
12. The building has certain common infrastructure facilities such as water tanks, dish antennas, drainage pipes, lift room and machinery at its rooftop i.e. above fourth floor. Since the top floor/ fourth floor of the property is lying locked for some time and in spite of best efforts by the plaintiff and other occupants/ owners of the said building, the defendant is not taking any action to open passage/ RCA DJ 61719/16 7 of 25 Susheel Kumar Gupta Vs. M.P. Singh Judgment dated 29.11.2025 stairs leading to the terrace of the building, common facilities installed on the roof top could not be properly serviced/ maintained resulting in grave inconvenience to all the residents.
13. The plaintiff accordingly filed the suit for mandatory and permanent injunction with following prayer(s);
a. To issue mandatory injunction to defendant, its assigns, employees, heirs, administrators, successor in interest, to unblock and unlock the passage/ stairs leading to the terrace of the building situated at 4841, Plot No. 24, Rahul Apartments, Ansari Road, New Delhi-110002. b. To issue mandatory injunction to break open the locks of fourth floor of the building situated at 4841, Plot No. 24, Rahul Apartments, Ansari Road, New Delhi 110002 and make provision for separate passage/ stairs to terrace of the said property in case relief prayer for a) above could not be granted by this Hon'ble Court.
c. To issue permanent injunction against defendant, its assigns, employees, heirs, administrators, successor in interest, to provide free ingress and egress to plaintiff to the terrace of the building situated at 4841, Plot No. 24, Rahul Apartments, Ansari Road, New Delhi-110002. d. Any other relief that this Hon'ble Court may deem fit and proper in the interest of justice in favour of plaintiff and against the defendant.
14. It is relevant to note that the defence of the defendant was struck off and (he) was proceeded ex-parte before the Ld. Trial Court.
15. As already noted, in order to substantiate his case, the plaintiff examined two witnesses. He examined himself as PW1 and Sh. Rajneesh Kumar Aggarwal (the other resident of the said property/ building) as PW2.
RCA DJ 61719/16 8 of 25 Susheel Kumar Gupta Vs. M.P. Singh Judgment dated 29.11.2025
16. The plaintiff in his examination-in-chief tendered his evidence affidavit as Ex.PW1/A and relied on documents Ex.PW1/1 to Ex.PW1/8. Here, I am reproducing the relevant paras/ portions of evidence affidavit Ex.PW1/A ( in extenso);
"2. That the plaintiff is residing/ operating from First Floor and Second Floor of immovable property bearing no. 4841, Plot No. 24, Rahul Apartments, Ansari Road, New Delhi 110002. This building has certain common infrastructure facilities at its rooftop above Fourth Floor.
3. That the defendant is a builder and developer of the area and is working in the name and style of M/S EMCA Constructions. He has constructed many buildings in Ansari Road, Darya Ganj Area including immovable property, now known as 4841, Plot No. 24, Rahul Apartments, Ansari Road, New Delhi-110002.
4. That defendant is owner of top floor i.e. fourth floor of the immovable property bearing no. 4841, Plot No. 24, Rahul Apartments, Ansari Road, New Delhi-110002.
5. That the plaintiff has purchased an apartment in the said building from defendant who has constructed the same. Certified true copy of sale deed duly registered as no. 5380 in addl. Book no. 1, vol 5550 on pages 12 to 22 on 09.09.1991 in the office of sub registrar 1, Kashmere Gate, Delhi executed in my favour for Flat no. 1 on First Floor consisting of two bed rooms, attached bath rooms, drawing cum dining and study together with proportionate share in stairs, lift well and common passage etc. measuring 953.32 sq ft. is enclosed and marked as Exhibit PW1/1.
6. That the plaintiff's mother has purchased -2- apartments in the said building from defendant who has constructed the same. True copy of the RCA DJ 61719/16 9 of 25 Susheel Kumar Gupta Vs. M.P. Singh Judgment dated 29.11.2025 certified true copy of sale deed duly registered as no. 3903 in addl. Book no. 1, vol 4268 on pages 175 to 181 on 20.12.1983 in the office of sub registrar I, Kashmere Gate, Delhi executed in favour of my mother Mrs Gigi Gupta w/o Sh S P Gupta for Flat no. G 1 and G 1 A on Ground Floor consisting of one hall, room and two bathrooms together with proportionate share in stairs, lift well and common passage etc. measuring 800.98 sq ft; is enclosed and marked as Exhibit PW1/2.
7. That my mother is a senior citizen and is unable to climb stairs and due to in-operational lift, she is finding it very difficult to visit me and my family and other relatives who come to see myself and my family.
8. That Mr Rajnish Kumar Aggarwal has purchased an apartment in the said building from defendant who has constructed the same. Certified true copy of sale deed duly registered as no. 4242 in addl. Book no. 1, vol no. 9731 on pages 68 to 73 on 018.11.1998 in the office of sub registrar III, Asaf Ali Road, New Delhi executed in for Flat no. 1 on Upper Ground Floor consisting of one room, attached bath rooms, drawing cum dining and study together with proportionate share in stairs, lift well and common passage etc. measuring 323.29 sq ft. is enclosed and marked as Exhibit PW1/3.
9. That the top floor/ fourth floor of the said property i.e. 4841, Plot No. 24, Rahul Apartments, Ansari Road, New Delhi - 110002 is lying locked for some time now and inspite of the best efforts by the plaintiff and other occupants/ owners of the said building, defendant did not take any action to open passage/ stairs leading to the terrace of the building.
10. That equipment for certain common facilities are installed on the terrace of the said building, for example, water tanks, dish antennas, drainage RCA DJ 61719/16 10 of 25 Susheel Kumar Gupta Vs. M.P. Singh Judgment dated 29.11.2025 pipes, lift room and machinery etc. It is submitted that due to blocked passage and staircase leading to the terrace of the said building, common facilities installed on the roof could not be properly serviced/maintained which is resulting into grave inconvenience to all the residents/ occupants of the said building. Photographs taken by plaintiff of the terrace of the property under reference showing un hygienic conditions of the roof and in- operative lift room, poor sanitation etc. as on 23.01.2014 are enclosed and collectively marked as Exhibit PW1/4.
11. That newspaper Delhi Times dated 23.01.2014 which figures in photographs as Ex P W 1/4 is enclosed and marked as Exhibit PW1/5.
12. That as a result of defendant not providing free ingress and egress to the roof of the building, water in water tanks have turned stale with algae formations and bacteria which is hazardous to health of the occupants of the entire building. It is further submitted that the stale water inside these tanks at roof of the said building has become a perfect breeding ground for mosquitoes and as a result, there are chances of spread of disease like malaria and other water borne diseases. The water in the said tanks is not safe for drinking/ consumption for human beings and as a result, occupants/ residents including plaintiff have to buy water from outside. This is leading to unnecessary financial burden on plaintiff. Water is life and without safe drinking water, it is very difficult to survive.
13. That defendant has breached fundamental right to life of the plaintiff by denying free access to the roof of the said building. It is further submitted that since existing water tanks are not in good condition, the occupants/ residents including plaintiff cannot store water in these tanks. Neither new water tanks can be installed on the terrace which may serve as storage for RCA DJ 61719/16 11 of 25 Susheel Kumar Gupta Vs. M.P. Singh Judgment dated 29.11.2025 requirement in case of exigency. The situation is going to be precarious in view of the approaching summer season when the temperature is likely to raise above 40 degree Celsius.
14. That there are several old persons and senior citizens residing in the building. Plaintiff himself is a senior citizen and it is very difficult for him to climb stairs since he is suffering from various ailments that come naturally with old age. The relatives of the plaintiff who come to visit him and his family also face difficulty in climbing stairs due to non-operational lift facility in the said building. It is submitted that lift machinery and lift room is situated on the terrace of the building which is inaccessible due to passage blocked by defendant. It is further submitted that plaintiff and other occupants desire to operate the lift and employ lift man, but this cannot be done unless plaintiff, lift technicians, lift man have free access to the terrace of the building. Since lift is lying non-operational for quiet sometime now, there may be certain parts/components/ switches etc. that may require immediate replacement prior to operation of the lift and this would be possible only when the plaintiff and lift technicians are allowed access to the terrace..."
17. PW1 (and the other witness PW2 who deposed in line of PW1) have not been cross-examined on behalf of the defendant.
18. From reading of the testimony of PW1 (unrebutted), following things emerge;
(a) There is a lift installed in the building (refer to one of the photographs forming part of Ex.PW1/4).
(b) The lift machinery and lift room are situated on the terrace of the building (refer to one of the photographs forming part of Ex.PW1/4).
RCA DJ 61719/16 12 of 25 Susheel Kumar Gupta Vs. M.P. Singh Judgment dated 29.11.2025
(c) JAGThe said lift is lying non-operational for quiet sometime now.
(d) The fourth floor/ top floor is lying locked for some time now.
(e) The lift as such could not be repaired.
19. It (testimony of PW1) shows that the fourth/ top floor was not locked since the inception (when the plaintiff purchased the flat). This should be a recent phenomenon (leading to file the suit in the court).
20. The plaintiff in para 12 of the plaint of his suit has pleaded to the effect that the cause of action for filing this suit arose when defendant blocked passage/ stairs to the terrace of the building situated at 4841, Plot No. 24, Rahul Apartments, Ansari Road, New Delhi-110002. The cause of action further arose when plaintiff tried to contact defendant in order to persuade him to open blocked passage/ stairs leading to the terrace of the said building. The cause of action further arose on 03.02.2014 when a legal notice was issued to the defendant by counsel of the plaintiff.
21. Findings of Ld. Trial Court that there was a delay of 23 years in filing the suit, in the considered view of this court, as such, is not correct. More so, when there was no written statement filed by the defendant controverting the case of the plaintiff. Also, when the testimony of the plaintiff's witness remained unchallenged.
22. Now, coming to the aspect as to whether the plaintiff has been able to show his right to free ingress and egress to the terrace of the building, and his entitlement for the relief(s) he claimed in the suit.
23. It was argued on behalf of the plaintiff before this court that the plaintiff and the other residents of the building have their water tanks, dish antennas etc. RCA DJ 61719/16 13 of 25 Susheel Kumar Gupta Vs. M.P. Singh Judgment dated 29.11.2025 installed at the terrace/ rooftop of the suit property and these are necessary things for enjoying the property. Further, the lift machinery and lift room are situated on the terrace of the building, and the lift could not be repaired without having free access to the terrace of the building. It was accordingly submitted that the plaintiff has an easementary right to access on the roof/ terrace of the fourth/ top floor of the building without any restriction.
24. Before proceeding to examine the submissions advanced on behalf of the plaintiff, it is apposite to note at the outset that the plaint of the suit does not specifically employ the term 'easement'.
25. For having a basic idea what an 'easement' is, I am quoting hereinbelow certain paras of a decision passed by the Hon'ble Madras High Court in A. Manivannan V/s Thariq; 2024 SCC OnLine Mad 2830;
19. The concept of easement has been defined under Section 4 of The Indian Easements Act, 1882. According to the said provision, an easementary right is a right possessed by the owner or occupier of the land on some other land, not his own, and the purpose of which is to provide the beneficial enjoyment of the land. This right is granted, because without the existence of this right, an occupier or owner cannot fully enjoy his own property. It includes the right to do or continue to do something or to prevent or to continue to prevent something in connection with or in respect of some other land, which is not his own, for the enjoyment of his own land. The word 'land' refers to everything permanently attached to the earth and the words 'beneficial enjoyment' denotes convenience, advantage or any amenity or any necessity. The owner or occupier referred to in the provision is known as the Dominant Owner and the land for the benefit of RCA DJ 61719/16 14 of 25 Susheel Kumar Gupta Vs. M.P. Singh Judgment dated 29.11.2025 which the easementary right exists is called Dominant Heritage. Whereas the owner upon whose land the liability is imposed is known as the Servient Owner and the land on which such a liability is imposed to do or prevent something, is known as the Servient Heritage. The right of easement is basically a form of privilege, the integral part of which is to do an act or prevent certain acts on some other land for enjoyment of one's own land.
20. Easement can be both positive or negative. Former refers to a right through which the dominant owner does some act to exercise the right over the land of the servient owner. Whereas, the latter denotes an act of prevention. In a negative easement, the dominant owner prevents or restricts the servient owner from doing certain act or acts. The easementary right exists only when two heritages are adjacent to each other. It is a right in-rem, which means a right available against the whole world. Easement as a right is always annexed to the dominant tenement. It is a right of re-aliena which means a right over a servient tenement and not on one's own land.
21. The easement can be acquired through express grant made by inserting the clause of granting such a right in the deed of sale, mortgage or through any other form of transfer. This involves by expression by the grantor of his clear intention. Easementary right can be acquired in implied circumstances in the following ways:-
Easement of Necessity:-
Section 13 of the Indian Easements Act, 1882, deals with this subject. It consists of the circumstances where the owner or occupier cannot use his property without exercising the right of easement over the servient heritage. Thus, absolute necessity is the test and the convenience.
RCA DJ 61719/16 15 of 25 Susheel Kumar Gupta Vs. M.P. Singh Judgment dated 29.11.2025
22. Easements are quasi as those are arising out of circumstances, i.e., when common properties are converted into tenements by way of sale, mortgage, partition or though any other form of transfer, in such a case, there is an implied grant of right of easement.
Prescriptive Easements:-
23. Section 15 of the Indian Easements Act provides for this type of easement. The following are the requisites:-
(a) Right must be definite and certain,
(b) Right must have been independently enjoyed without any agreement with the servient owner,JAG
(c) Must be enjoyed openly, peacefully and as of a right without any interruption for a continuous period of 20 years and in respect of any government land the period of non-interruption shall be 30 years.
Customary easements:-
24. An easement right can be acquired by virtue of a local custom. This is known as customary easements. Section 18 of the Indian Easements Act provides for it. For example, people living in a particular city or town having a right to use water.
(Underlined by me)
26. As noted hereinabove, the plaintiff has not specifically used the word 'easement' in the plaint, however, it is clear from averments contained in the pleading that the plaintiff is claiming right to have an access on the roof/ terrace of the fourth/ top floor of the building to repair lift, and to change/ repair/ clean water tank, and use dish antenna (as easement of necessity).
27. Section 13 of The Indian Easements Act, 1882 deals with easements of necessity and quasi easements. It reads as under;
RCA DJ 61719/16 16 of 25 Susheel Kumar Gupta Vs. M.P. Singh Judgment dated 29.11.2025
"13. Easements of necessity and quasi easements- Where one person transfers or bequeaths immovable property to another,-
(a) if an easement in other immovable property of the transferor or testator is necessary for enjoying the subject of the transfer or bequest, the transferee or legatee shall be entitled 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 legatee shall, unless a different intention is expressed or necessarily implied, be entitled to such easement; or
(c) if an easement in the subject of the transfer or bequest is necessary, for enjoying other immovable property of the transferor or testator, the transferor or the legal representative of the testator shall be entitled to such easement;or
(d) if such an easement is apparent and continuous and necessary for enjoying the said property as it was enjoyed when the transfer or bequest took effect, the transferor, or the legal representative of the testator, shall, unless a different intention is expressed or necessarily implied, be entitled to such easement.
Where a partition is made of the joint property of several persons,
(e) if an easement over the share of one of them is necessary for enjoying the share of another of them, the latter shall be entitled to such easement, or
(f) if such an easement is apparent and continuous and necessary for enjoying the share of the latter as it was enjoyed when the partition took effect, he shall, unless a different intention is expressed or necessarily implied, be entitled to such easement.
RCA DJ 61719/16 17 of 25 Susheel Kumar Gupta Vs. M.P. Singh Judgment dated 29.11.2025
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."
28. Key principles governing an easement of necessity may be set out as follows;
(a) Implied grants of easements arise where the dominant and servient tenements have been in common ownership and a cessation of that common ownership has been brought about by the disposition of either tenement by the common owner.
(b) The easements that are implied on severance of tenement are easements of necessity and quasi easements (which are dealt with in Section 13 of the Indian Easements Act).
(c) On the grant by the owner of a tenement of part of that tenement, a grant is implied of all those easements without which the enjoyment of the part granted can not be had at all. The reason for raising such an implied grant is traceable to the rule that a grantor shall not derogate from his own grant and that a grant is always construed strictly against the grantor. Easements of necessity are implied also in favour of the grantor if the part of the tenement retained by him can not be enjoyed at all without such easements. This rule of implied reservation of easements rests upon the necessity of the case and the impossibility of admitting that the parties could have really intended to exclude such an implication.
RCA DJ 61719/16 18 of 25 Susheel Kumar Gupta Vs. M.P. Singh Judgment dated 29.11.2025
(d) Doctrine rests upon absolute necessity and not convenience.
(e) Since the easement is limited by the necessity of the case, it ceases when it is no longer required in order to render the grant or reservation effective.
29. With this understanding, let us examine the case of the plaintiff.
30. Sale deeds are proved on behalf of the plaintiff. Ex.PW1/2 is a sale deed dated 7th November 1983 executed by the defendant (M/s EMCA Construction Company) in favour of the mother of the plaintiff. I am reproducing the relevant portion of the Ex.PW1/2;
"...AND WHEREAS the Vendor has agreed to sell and the Vendee has agreed to purchase flat No. G-1 and G-1A on the ground floor, consisting of one hall, room and two bath rooms together with proportionate share in the bath rooms and stairs lift well and common passages etc.... NOW THIS SALE DEED WITNESSETH AS UNDER:
1....
2....
3....
4. That the vendor do hereby sell, convey, transfer, assign by way of absolute sale the above mentioned property alongwith all the rights of use of electricity in the said portion with all rights, titles, interest, easements, privileges and appurtenances thereof unto the Vendee AND TO HOLD the said property hereby conveyed unto the Vendee absolutely.
6. That the Vendor has constructed the building on a piece of land measuring 285.5 Sq.yards, bearing Municipal No. 4841 ward No. XI known as RAHUL APARTMENTS and all the flat owners of the said RCA DJ 61719/16 19 of 25 Susheel Kumar Gupta Vs. M.P. Singh Judgment dated 29.11.2025 building shall remain the owner of the land in the proportion of covered area of their flat vis-a-vis the total covered of the building.
7. That the Vendee shall be liable for bearing the following expenses and costs in proportionate to the covered area:-
(a) Costs and expenses of maintaining in good repairs, cleaning and lighting the common amenities like lifts, passages, staircase etc.
(b) For costs and expenses of white-washing, paint and polishing the said amenity, frontage and side-wall of the building, it will be the choice of the Vendar to keep the front elevation of the building painted or white-washed in any colour he likes and the Vendee would bear the proportionate costs for the same.
(c) That the Vendee would bear the proportionate expenses for payment of salary, wages and other payment to the staff engaged for purposes of scavenging, cleaning and working as watch and work.
(d) That the Vendee shall proportionately bear the electricity bill common services like lifts, bathrooms and staircase etc.
8....
9...
10. That it is clearly understood that the passage from the ground floor to the Barsati floor shall remain common-passage and all the flat owners shall enjoy its peaceful use..."
31. Ex.PW1/1 is a sale deed dated 09.09.1991 whereby the plaintiff purchased the property from one Smt. Akal Kumari (who purchased the property from the defendant). It is stipulated in the sale deed that the terms of the sale deed would be subject to terms and conditions of sale deed dated RCA DJ 61719/16 20 of 25 Susheel Kumar Gupta Vs. M.P. Singh Judgment dated 29.11.2025 07.11.1983 executed by the defendant in favour of the plaintiff's vendor). The relevant recitals are as under;
"...WHEREAS the said VENDOR is the absolute owner and in full possession of a Flat No.1 on First Floor consisting of Two Bedrooms, attached bathrooms, Drawing-cum-Dining, Kitchen and study together with proportionate share in the bathrooms and stairs, lift well and common passages etc. measuring 953.32 sq. ft. approximately covered area particularly shown in COLOUR 'RED' in the PLAN attached herewith, out of Building bearing Municipal No.4841 Ward No. XI and popularly known as 'RAHUL APARTMENTS situated at 24/24, Ansari Road, Darya Ganj, New Delhi-110 002, within the limits of Municipal Corporation of Delhi and accordingly bounded as under :-...
...
4. That the Vendor do hereby sell, convey, transfer & assign by way of absolute sale the above mentioned Flat No.1 on First Floor, which is shown in COLOUR 'RED' in the PLAN attached (subject to the terms and conditions as laid down in the Sale Deed dated 7.11.1983 executed by M/S EMCA CONSTRUCTION COMPANY the previous owner in favour of the Vendor of the above mentioned Flat No.1 on First Floor under sale and the Vendee shall be bound for the same) with all rights, title, interest, easements, privileges and appurtenances thereof UNTO the VENDEE and TO HAVE AND TO HOLD the said "FLAT" hereby conveyed UNTO the VENDEE absolutely and forever hereinafter who shall enjoy all rights of ownership etc. and the Vendor has no right, title and interest left in the above mentioned premises 1.0. 'FLAT No.1 on FIRST FLOOR' hereby conveyed henceforth after execution of this 'SALE DEED'..."
RCA DJ 61719/16 21 of 25 Susheel Kumar Gupta Vs. M.P. Singh Judgment dated 29.11.2025
32. From reading of the Sale deeds, it appears that the plaintiff and the other occupants of the building have right, title and interest in their respective flats with proportionate share in the stairs, lift well and common passages etc. It is clarified in the sale deed Ex.PW1/2 that the passage from the ground floor to the Barsati floor shall remain a common passage.
33. It is apparent (from reading of the Sale deeds) that when the plaintiff, his mother and the other resident PW2 purchased their respective flats, provision for a lift in the building was there, and right, title and interest in it was assigned to them. The plaintiff through his testimony and testimony of PW2 [alongside photographs (collectively exhibited as Ex.PW1/4)] has brought on record that the lift machinery and lift room are situated on the terrace of the building. And, the said lift is lying non-operational for want of repair (as defendant denying access to the roof/ terrace of the fourth/ top floor of the building).
34. The plaintiff through his testimony and testimony of PW2 read with photographs (collectively exhibited as Ex.PW1/4) has further been able to show that water tanks are lying on the terrace of the building. And, the water tank is not in good condition, however, could not be replaced as the defendant denying access to the roof/ terrace of the fourth/ top floor of the building.
35. At the cost of repetition, it may again be noted that before the Ld. Trial Court, the defendant remained ex-parte and as such there is no case of the defendant on record.
36. This court is of considered view that the plaintiff can not enjoy the flat in the building (and lift forming part of the building) to the fullest without having access to the roof/ terrace of the fourth/ top floor of the building as lift RCA DJ 61719/16 22 of 25 Susheel Kumar Gupta Vs. M.P. Singh Judgment dated 29.11.2025 machinery, lift room and water tank are situated on the roof/ terrace of the fourth/ top floor of the building. It is absolute necessity for the plaintiff to have an access to the roof/ terrace of the fourth/ top floor of the building for repairing the lift machinery lying in lift room situated on the roof/ terrace of the fourth/ top floor of the building, and for changing/ repairing/ cleaning water tank situated on the roof/ terrace of the fourth/ top floor of the building.
37. Merely because there is no specific mention of the roof rights in the sale deeds (Ex.PW1/1 to Ex.PW1/3), it can not be inferred that said right was not granted to the plaintiff. There is an implied grant given by the plaintiff's vendor under Ex.PW1/1 to have an access to the roof/ terrace of the fourth/ top floor of the building for repairing the lift machinery lying in lift room situated on the roof/ terrace of the fourth/ top floor of the building, and for changing/ repairing/ cleaning water tank situated on the roof/ terrace of the fourth/ top floor of the building.
38. The absence of the pleading in the plaint in respect to the word 'easement' is not fatal to the case of the plaintiff, as it is a well settled law that pleadings need not contain the exact statutory language or expression. Though the plaintiff has not mentioned the word 'easement' in the plaint, it can be inferred from the pleadings that the plaintiff is claiming only the easementary rights from the defendant (relied on a decision of the Hon'ble Supreme Court in Ram Sarup Gupta V/s Bishun Narain Inter College; (1987) 2 SCC 555 and of the Hon'ble Madras High Court in A. Manivannan V/s Thariq; 2024 SCC OnLine Mad 2830).
RCA DJ 61719/16 23 of 25 Susheel Kumar Gupta Vs. M.P. Singh Judgment dated 29.11.2025
39. Also, a suit for injunction to protect an easement, or to prevent an obstruction to an easement is maintainable without having a formal prayer seeking formal declaration of such easementary right (relied on a decision of Hon'ble Kerala High Court in Unnikrishnan V/s Ponnu Ammal and Others; AIR 1999 Ker 405).
40. As per Section 8 of the Transfer of Property Act, 1882, unless a different intention is expressed, the transferee gets all rights and interest in the property. Section 8 is a recognition by the legislature of the rule that accessory follows the principal. The sale deed standing in the name of the plaintiff (Ex.PW1/1) and his mother's name (Ex.PW1/2) clearly state that all the rights of the vendor in the respective flats (including easements, privileges and appurtenances thereof) are transferred to the plaintiff and his mother.
41. It is relevant to note that there is no restriction imposed in the sale deeds regarding not having an access to the roof/ terrace of the fourth/ top floor of the building. Under Section 11 of the Transfer of Property Act, 1882, when once an interest has been created absolutely in favour of a person, no fetters can be imposed on its full and free enjoyment.
RELIEF/ CONCLUSION
42. From the above discussion this court concludes the plaintiff has been able to show his right to free ingress and egress to the roof/ terrace of the fourth/ top floor of the building, only in connection with repairing the lift machinery lying in the lift room situated on the roof/ terrace of the fourth/ top floor of the building, and for changing/ repairing/ cleaning the water tank situated on the roof/ terrace of the fourth/ top floor of the building (and for no other purpose).
RCA DJ 61719/16 24 of 25 Susheel Kumar Gupta Vs. M.P. Singh Judgment dated 29.11.2025
43. Accordingly, the defendant, his assigns, employees, heirs, administrators, successor in interest are injuncted from restraining the plaintiff from having an access to the roof/ terrace of the fourth/ top floor of the building for repairing the lift machinery lying in lift room situated on the roof/ terrace of the fourth/ top floor of the building, and for changing/ repairing/ cleaning water tank situated on the roof/ terrace of the fourth/ top floor of the building. The defendant, his assigns, employees, heirs, administrators, successor in interest, in terms of Section 14 of the Indian Easement Act, 1882, are directed to unblock and unlock the passage/ stairs leading to the terrace of the building situated at 4841, Plot No. 24, Rahul Apartments, Ansari Road, New Delhi-110002, and provide free ingress and egress to the plaintiff to the terrace [only for repairing the lift machinery lying in the lift room situated on the roof/ terrace of the fourth/ top floor of the building, and for changing/ repairing/ cleaning the water tank situated on the roof/ terrace of the fourth/ top floor of the building (and for no other purpose)].
44. As a net result of the aforesaid, present appeal is allowed and the impugned judgment and decree dated 26.04.2016 passed by Ld. Civil Judge-02, Central District, Tis Hazari Courts, Delhi in Suit No. 489/2014 is set aside.
45. The Reader shall prepare the decree sheet as per this judgment. After preparation of the decree sheet by the Reader, the file shall be consigned to the record room.
46. Parties are left to bear their own costs. Digitally signed by ABHISHEK ABHISHEK SRIVASTAVA (Announced in the open court on this 29th day of November, 2025 SRIVASTAVA Date:
This Judgment consists of 25 of signed pages). 2025.11.29 16:33:31 +0530 (Abhishek Srivastava) District Judge-05, Central, THC, Delhi RCA DJ 61719/16 25 of 25 Susheel Kumar Gupta Vs. M.P. Singh Judgment dated 29.11.2025