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[Cites 8, Cited by 0]

Delhi District Court

Rajbir Singh vs . Alok Gupta And Ors. on 13 December, 2019

                                            RCA No. 22/13
                                                60912/16
                      Rajbir Singh Vs. Alok Gupta and Ors.


       IN THE COURT OF VIKAS DHULL, ADDITIONAL
     DISTRICT JUDGE­01 (WEST)/TIS HAZARI COURTS,
                        DELHI

RCA No. 22/2013 (60912/16)

(Suit No.55/2011)

In the matter of :

Sh.Rajbir Singh
S/o Sh.Lal Singh
R/o C­3K, CCA Barracks
Upper Anand Parbat
New Delhi­110005.
                                            ... Appellant
                     Versus
1.     Sh.Alok Gupta
       S/o Sh.Virender Gupta
2.     Vanita Gupta
       W/o Sh.Alok Gupta
3.     Sh.Sandeep Gupta
       S/o Sh.Virender Gupta
       All residents of
       C­3, CCA Barracks
       Upper Anand Parbat

                                                       1/34
                                            RCA No. 22/13
                                               60912/16
                     Rajbir Singh Vs. Alok Gupta and Ors.


     New Delhi­110005.
4.   SHO
     PS Anand Parbat
     New Delhi­110005.
                                      ... Respondents

Date of institution of appeal    : 02.07.2013
Date on which judgment reserved   :09.12.2019
Date on which judgment pronounced :13.12.2019

                     JUDGMENT

1. The appellant/plaintiff is aggrieved by the judgment dated 01.05.2013 (hereinafter referred to as the impugned judgment) of the Ld.Trial Court vide which the suit filed by the plaintiff/appellant for permanent and mandatory injunction was dismissed.

2. The brief facts which are relevant for deciding the present appeal are that plaintiff/appellant is the owner and in possession of property bearing no. C­3K, CCA Barracks, Anand Parbat, New Delhi (hereinafter referred 2/34 RCA No. 22/13 60912/16 Rajbir Singh Vs. Alok Gupta and Ors.

to as suit property) since the year 1972 when the suit property was initially allotted in the name of father of plaintiff/appellant as a licencee by the erstwhile owner Ramjas Foundation, Estate Office, Anand Parbat, New Delhi.

3. It was averred that the entire area was acquired by DDA and the Ramjas Foundation had handed over the symbolic possession to DDA and plaintiff/appellant being the resident of area is a deemed licencee of the Delhi Development Authority.

4. It was averred that defendant no.1/respondent no.1 is residing in the adjoining house alongwith with defendant no.2/respondent no.2 and defendant no.3/respondent no.3, being the wife and brother of defendant no.1/respondent no.1.

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Rajbir Singh Vs. Alok Gupta and Ors.

5. It was further averred that the passage shown in yellow colour in the site plan is used by plaintiff/appellant and his family member as dominant heritage since 1972 and the suit property is attached with three windows i.e. points A to C affixed for the purpose of natural light and air in the suit property.

6. It was averred that windows are clearly shown in red colour in the site plan. The area shown at point D is open passage for having access in the backyard for the plaintiff/appellant which has now been encroached and blocked by the respondents no.1 to 3/defendants no.1 to 3 by installing an iron gate.

7. It was averred that respondents no.1 to 3/defendants no.1 to 3 have also unlawfully and in an arbitrary manner blocked the access of plaintiff/appellant to the septic tank and rain water tank shown at point E in the site plan 4/34 RCA No. 22/13 60912/16 Rajbir Singh Vs. Alok Gupta and Ors.

thereby restricting the entry of plaintiff/appellant and his family members on the left side of his house.

8. It was averred that respondents no.1 to 3/defendants no.1 to 3 have been creating nuisance for the plaintiff/appellant from last almost one year and plaintiff/appellant had made number of complaints to defendant no.4 but all went in vain as respondents no.1 to 3/defendants no.1 to 3 are bent upon disturbing the peace and harmony of plaintiff/appellant and have now closed the windows by putting temporary sheets and have even installed an iron gate to prevent plaintiff/appellant from approaching in the backyard through the passage, which plaintiff/appellant has been enjoying from day one, when the father of plaintiff/appellant late Captain Lal Singh occupied the suit property.

9. It was averred that plaintiff/appellant is in 5/34 RCA No. 22/13 60912/16 Rajbir Singh Vs. Alok Gupta and Ors.

Govt.Service and during the day time, plaintiff/appellant remains in the office and respondents no.1 to 3/defendants no.1 to 3 create nuisance for the wife of plaintiff/appellant, who remains alone at the suit property.

10. It was averred that there is always a constant threat to the life and property of plaintiff/appellant at the hands of respondents no.1 to 3/defendants no.1 to 3.

11. It was averred that plaintiff/appellant requested respondents no.1 to 3/defendants no.1 to 3 to remove the iron gate and not to block the windows but defendant no.1/ respondent no.1 threatened the plaintiff/appellant that he would construct a wall and put an iron gate in front of main gate of suit property and will not allow any person to use the common passage as the property belongs to him. Hence, the present suit was filed.

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Rajbir Singh Vs. Alok Gupta and Ors.

12. In the written statement, it was submitted by respondents no.1 to 3/defendants no.1 to 3 that plaintiff/appellant has no locus standi to file the suit. It was submitted that the plaint does not show any cause of action, which would have accrued and the suit is not maintainable in the present form.

13. In reply on merits, it was submitted that Umesh Kumar Verma does not have any barrack there and it was he, who was trying to occupy the portion of defendants/respondents unlawfully and by way of abuse of process of law showing that he was a tenant under them.

14. It was submitted that a false case was got registered against respondents no.1 to 3/defendants no.1 to 3 by Sh.Umesh Kumar Verma.

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Rajbir Singh Vs. Alok Gupta and Ors.

15. It was submitted that the portion of plaintiff/appellant has nothing to do with the said open portion which has always been used and enjoyed by respondents no.1 to 3/defendants no.1 to 3.

16. It was submitted that the room, bathroom, toilet and septic tank belonging to respondents no.1 to 3/defendants no.1 to 3 are also situated in the said space.

17. It was further submitted that the iron gate at point D is very old and has been in existence at the site for the last about more than 44 years and plaintiff/appellant has unlawfully and unauthorizedly tried to open the windows towards the open space behind their house only with a view to harass respondents no.1 to 3/defendants no.1 to 3.

18. It was submitted that the said open space is not the 8/34 RCA No. 22/13 60912/16 Rajbir Singh Vs. Alok Gupta and Ors.

part of barrack allotted to plaintiff/appellant by Ramjas Foundation.

19. It was submitted that plaintiff/appellant has failed to bring anything on record to ascertain as to which portion was allotted to him by Ramjas Foundation.

20. Further, respondents no.1 to 3/defendants no.1 to 3 denied all the allegations of the plaintiff/appellant made in the plaint and prayed that suit of the plaintiff/appellant be dismissed.

21. In replication, plaintiff/appellant re­affirmed the averments made in the plaint and denied all the allegations made by defendants in the written statement and again made a prayer for decreeing the suit of plaintiff/appellant.

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Rajbir Singh Vs. Alok Gupta and Ors.

22. From the pleadings of parties, the following issues were framed vide order dated 12.09.2012:­­ (1) Whether no cause of action accrued against the defendant? OPD (2) Whether the suit of plaintiff is not maintainable in its present form? OPD (3) Whether the plaintiff has no locus standi to file the present suit? OPD (4) Whether the defendant is in exclusive possession of passage of open space? OPD (5) Whether the suit of plaintiff is barred for non­joinder of necessary parties? OPD (6) Whether the plaintiff is entitled to a decree of permanent injunction as prayed? OPP (7) Whether the plaintiff is entitled to a decree of Mandatory Injunction, as prayed? OPP (8) Relief.

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Rajbir Singh Vs. Alok Gupta and Ors.

23. To prove his case, plaintiff/appellant examined himself as PW1. PW1 reiterated the facts mentioned in the plaint and relied upon documents i.e. rent receipts Mark A and B, voter identity of plaintiff Mark C, site plan Ex.PW1/4, Copy of FIR No. 185/2003 Mark D, copies of police complaints Mark E to G, photographs Ex.PW1/10 to Ex.PW1/16.

24. In defence evidence, respondents no.1 to 3/defendants no.1 to 3 examined defendant no.1 i.e. Sh.Alok Gupta as DW1, who relied upon documents i.e. site plan filed by defendant Ex.PW1/3, photographs Ex.DW1/2 & Ex.DW1/4 (colly).

25. Thereafter, the Ld.Trial Court after hearing arguments, had vide impugned judgment, dismissed the suit of plaintiff/appellant.

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Rajbir Singh Vs. Alok Gupta and Ors.

26. Aggrieved by the dismissal of suit, plaintiff/appellant has approached this court in appeal.

27. Notice of the appeal was issued to respondents and respondents no.1 and 2/defendants no.1 and 2, who on being served, had filed written submissions.

28. Further, respondent no.3/defendant no.3 despite service did not appear and accordingly, he was proceeded exparte vide order dated 06.08.2015.

29. I have heard Sh.N.K.Jha, Ld.counsel for appellant/plaintiff and have perused the written submissions filed by respondents no.1 and 2/ defendants no.1 and 2.

30. It was submitted by ld.counsel for appellant/plaintiff that appellant had filed the suit for permanent and 12/34 RCA No. 22/13 60912/16 Rajbir Singh Vs. Alok Gupta and Ors.

mandatory injunction praying that respondents no.1 to 3/defendants no.1 to 3 be permanently restrained from creating any disturbance/nuisance in the peaceful enjoyment of common passage for accessing septic tank of the appellant/plaintiff situated in the backyard of the suit property and a decree of mandatory injunction directing respondents no.1 to 3/defendants no.1 to 3 to remove the unlawful blockage from the windows installed in the property of appellant/plaintiff and to remove the gate erected in the common passage.

31. With regard to erection of gate in common passage, it was submitted by ld.counsel for appellant/plaintiff that Ld.Trial Court wrongly observed, vide the impugned judgment that appellant/plaintiff has not placed on record any document to show existence of common passage as shown in yellow colour in the site plan.

13/34 RCA No. 22/13 60912/16

Rajbir Singh Vs. Alok Gupta and Ors.

32. It was submitted that no documents are required to prove the existence of common passage and Ld.Trial Court failed to appreciate the fact that common passage is the only way available to appellant/plaintiff to inspect his septic and water tank installed in the backyard.

33. It was further submitted that in this regard, no suggestion was given by respondents no.1 to 3/defendants no.1 to 3 in the cross examination of appellant/plaintiff. Therefore.,this fact stood proved.

34. It was further submitted that the Ld.Trial Court failed to appreciate the fact that respondents no.1 to 3/defendants no.1 to 3 by installing an iron gate in the common passage, had blocked the access of appellant/plaintiff to his septic tank.

35. It was further submitted that Ld.Trial Court wrongly 14/34 RCA No. 22/13 60912/16 Rajbir Singh Vs. Alok Gupta and Ors.

held that passage beyond point D as shown in the site plan is not the common passage as in the said passage, a bathroom and one room in possession of respondents no.1 to 3/defendants no.1 to 3 exist.

36. It was submitted in this regard that Ld.Trial Court did not consider this aspect that respondents no.1 to 3/defendants no.1 to 3 had unlawfully encroached upon the common passage to construct a toilet and one room. Therefore, it cannot be said that just because one room and a toilet was in existence, in the common passage in possession of respondents no.1 to 3/defendants no.1 to 3, the same was not a common passage.

37. It was further submitted that with regard to blocking of windows shown at point A,B and C in the site plan, the Ld.Trial Court has wrongly observed in the impugned judgment that they are not the only source of light and air 15/34 RCA No. 22/13 60912/16 Rajbir Singh Vs. Alok Gupta and Ors.

to the appellant/plaintiff.

38. It was submitted in this regard that Ld.Trial Court had failed to appreciate the fact that windows are in existence at points A, B and C for the past 40 years and easementary rights had been created in favour of appellant/plaintiff to use the windows for the purpose of light and air.

39. Lastly, it was submitted that Ld.Trial Court has not given any finding on issue no.4 as to whether respondents no.1 to 3/defendants no.1 to 3 are in exclusive possession of the passage as shown in yellow in the site plan or not.

40. Since this issue was never proved by respondents no.1 to 3/defendants no.1 to 3 and further, without there being finding on this issue, impugned judgment is not sustainable. Accordingly, a prayer was made to allow the 16/34 RCA No. 22/13 60912/16 Rajbir Singh Vs. Alok Gupta and Ors.

appeal and set aside the impugned judgment and decree dated 01.05.2013 of the Ld.Trial Court and suit of the appellant/plaintiff be decreed.

41. I have also considered the written submissions filed on record by respondents no.1 and 2/defendants no.1 and

2.

42. In the present case, appellant/plaintiff has based his case for permanent and mandatory injunction, on the basis of easementary rights to common passage, as shown in yellow colour in the site plan Ex.PW1/4 and easementary right of light and air with regard to three windows i.e. A,B and C in his property as shown in Ex.PW1/4.

43. Before proceeding to discuss the evidence which was lead on record before the Ld.Trial Court, it is relevant to state the law with regard to easementary rights.

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Rajbir Singh Vs. Alok Gupta and Ors.

44. Easement is defined in Section 4 of the Indian Easements Act, 1882 (hereinafter referred to as Easements Act, 1882) which reads as follows:­ "Easement" defined An easement is a right which the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done, in or upon, or in respect of certain other land not his own.

Dominant and servient heritages and owners:

The land for the beneficial enjoyment of which the right exists is called the dominant heritage, and the owner or occupier thereof the dominant owner; and land on which the liability is imposed is called the servient heritage, and the owner or occupier thereof the servient owner.
18/34 RCA No. 22/13 60912/16
Rajbir Singh Vs. Alok Gupta and Ors.
Explanation : In the first and second clauses of this section the, expression "land" includes also things permanently attached to the earth; the expression "beneficial enjoyment" includes also possible convenience, remote advantage, and even a mere amenity; and the expression "to do something" includes removal and appropriation by the dominant owner, for the beneficial enjoyment of the dominant heritage, or any part of the soil of the servient heritage, or anything growing or subsisting thereon.

45. Easementary rights can be acquired by way of necessity as mentioned in Section 13 of the Easements Act, 1882 or by way of prescription, as mentioned in Section 15 of the Easements Act, 1882.

46. Easement of necessity as mentioned in Section 13 of the Easements Act, 1882 are created on the transfer or bequeath of immovable property to any person whereas easement by prescription is created where the access and use of light or air and for any building have been 19/34 RCA No. 22/13 60912/16 Rajbir Singh Vs. Alok Gupta and Ors.

peaceably enjoyed continuously without interruption, for twenty years.

47. In the present case, Section 13 of the Easements Act, 1882 has got no application, as it is not the case of appellant/plaintiff that the suit property in question has been transferred or bequeathed by the transferor or the testator and he is claiming any kind of easementary rights in other immovable property of the transferor or the testator. Therefore, the case of appellant/plaintiff is based upon acquisition of easementary right by prescription, as provided in Section 15 of the Easements Act, 1882.

48. It is the case of appellant/plaintiff that the suit property was initially let out to the father of appellant/plaintiff as licencee by the erstwhile owner Ramjas Foundation, Anand Parbat, New Delhi in the year 1972 and since then, appellant/plaintiff has been enjoying 20/34 RCA No. 22/13 60912/16 Rajbir Singh Vs. Alok Gupta and Ors.

uninterrupted use of common passage, as shown in yellow in the site plan Ex.PW1/4 and right of light and air through windows at points A,B and C, as shown in the site plan Ex.PW1/4.

49. The said fact was denied by respondents no.1 to 3/defendants no.1 to 3. Therefore, the onus was upon appellant/plaintiff to have proved that he is enjoying the passage and windows for the past more than 20 years continuously and without any interruption.

50. There is no documentary evidence produced on record by appellant/plaintiff showing the existence of common passage or the existence of windows for the past more than 20 years. Therefore, the entire case of appellant/plaintiff is based upon oral evidence.

51. Since respondents no.1 to 3/defendants no.1 to 3 had 21/34 RCA No. 22/13 60912/16 Rajbir Singh Vs. Alok Gupta and Ors.

denied existence of common passage and the windows for the past more than 20 years, therefore, onus was upon the appellant/plaintiff to have proved the same.

52. The appellant/plaintiff could have proved existence of common passage and the existence of windows by examining any witness from the neighbourhood or by examining any witness from the Ramjas Foundation, Anand Parbat, New Delhi, who was the erstwhile owner of the suit property.

53. However, no such witness was examined to prove the existence of common passage or the windows as shown in site plan Ex.PW1/4 even when respondents no.1 to 3/defendants no.1 to 3 have suggested in the cross examination of appellant/plaintiff that the said room and the common passage were never constructed either by Ramjas Foundation, Estate Office, Anand Parbat, New 22/34 RCA No. 22/13 60912/16 Rajbir Singh Vs. Alok Gupta and Ors.

Delhi or by DDA and the rooms have been illegally constructed upon encroached government land by appellant/plaintiff. Therefore, appellant/plaintiff had failed to prove the existence of easementary rights with regard to passage and windows.

54. Further, appellant/plaintiff had also failed to establish on record that yellow portion shown in site plan Ex.PW1/4 was a common passage.

55. The appellant/plaintiff is claiming easementary rights of common passage to access his septic tank.

56. As per evidence of appellant/plaintiff, at the end of common passage, there exist a septic tank and a toilet which was shown by appellant/plaintiff in the site plan Ex.PW1/4. However, during the course of cross examination, appellant/plaintiff admitted that apart from 23/34 RCA No. 22/13 60912/16 Rajbir Singh Vs. Alok Gupta and Ors.

septic tank and the toilet of the respondents no.1 to 3/defendants no.1 to 3, there also exists one bathroom and one room which are in possession of respondents no.1 to 3/defendants no.1 to 3 in the said common passage and the same were not shown by appellant/plaintiff in the site plan Ex.PW1/4.

57. Further, appellant/plaintiff had also placed on record photographs of common passage and the rooms built in the same which were exhibited as Ex.PW1/10 to Ex.PW1/14.

58. From the said photographs, it is apparent that common passage being claimed by appellant/plaintiff beyond point D in the site plan Ex.PW1/4, is not a common passage but is the portion in the exclusive use and occupation of respondents no.1 to 3/defendants no.1 to 3.

24/34 RCA No. 22/13 60912/16

Rajbir Singh Vs. Alok Gupta and Ors.

59. The very fact that in the said common passage, there exists a toilet, bathroom, one room and septic tank of respondents no.1 to 3/defendants no.1 to 3, it goes to show that it is not the common passage beyond point D as per Ex.PW1/4.

60. Further, injunction is a discretionary relief and party approaching the court has to approach with clean hands and is required to disclose all material facts on the basis of which injunction is being claimed.

61. In the present case, appellant/plaintiff had suppressed the material facts while claiming easementary rights of common passage.

62. Appellant/plaintiff had not disclosed about existence of one room and one bathroom in the common passage in 25/34 RCA No. 22/13 60912/16 Rajbir Singh Vs. Alok Gupta and Ors.

the possession of respondents no.1 to 3/defendants no.1 to 3 and this fact was only admitted during the course of cross examination. Therefore, appellant/plaintiff had filed a wrong site plan Ex.PW1/4 and the room and the bathroom which were in possession of respondents no.1 to 3/defendants no.1 to 3 were concealed in the site plan Ex.PW1/4, to show that it was the common passage. Therefore, on this ground, Ld.Trial Court had rightly held that appellant/plaintiff is not entitled to relief of injunction as correct site plan was not filed on record.

63. Further, as per Section 35 of the Easements Act, 1882 injunction can be granted to restrain disturbance of an easement and what is disturbance of an easement has been defined in Section 33 of the Easements Act which is being reproduced as follows:­­

33. Suit for disturbance of easement The owner of any interest in the dominant 26/34 RCA No. 22/13 60912/16 Rajbir Singh Vs. Alok Gupta and Ors.

heritage, or the occupier of such heritage, may institute a suit for compensation for the disturbance of the easement or of any right accessory thereto:

provided that the disturbance has actually caused substantial damage to the plaintiff.
Explanation I : The doing of any act likely to injure the plaintiff by affecting the evidence of the easement, or by materially diminishing the value of the dominant heritage, is substantial damage within the meaning of this section and section 34.
Explanation II: Where the easement disturbed is a right to the free passage of light passing to the openings in a house, no damage is substantial within the meaning of this section unless it falls within the first Explanation, or interferes materially with the physical comfort of the plaintiff, or prevents him from carrying on his accustomed business in the dominant heritage as beneficially as he had done previous to instituting the suit.
Explanation III: Where the easement disturbed is a right to the free passage of air to the 27/34 RCA No. 22/13 60912/16 Rajbir Singh Vs. Alok Gupta and Ors.
openings in a house, damage is substantial within the meaning of this section, if it interferes materially with the physical comfort of the plaintiff, though it is not injurious to his health.
64. As per Section 33 of the Easements Act, 1882 suit is maintainable with regard to disturbance of an easement if it has caused substantial damage to the plaintiff and as per Explanation I,II and III, damage is substantial if it materially diminishes the value of the dominant heritage i.e. land on which easement is claimed or it interferes materially with the physical comfort of the plaintiff, or prevents him from carrying on his accustomed business in the property of which easementary right is claimed or it interferes materially with the physical comfort of the plaintiff.
65. The appellant/plaintiff was required to prove and 28/34 RCA No. 22/13 60912/16 Rajbir Singh Vs. Alok Gupta and Ors.

establish that there has been substantial injury or deprivement of his right sufficient to render use and occupation of his house inconveniently or uncomfortable according to ordinary requirements of mankind.

66. Appellant/plaintiff was required to establish that curtailment of right has been so substantial as to render a comfortable living or use of residence of course judged by ordinary notions, impossible.

67. In the present case, appellant/plaintiff had failed to establish any substantial injury due to disturbance of an easement. Although appellant/plaintiff had failed to prove that installation of iron gate in common passage by respondents but even assuming that respondents no.1 to 3/defendants no.1 to 3 have denied the entry of appellant/plaintiff in the common passage by putting a gate at point D as per site plan Ex.PW1/4, then also it will 29/34 RCA No. 22/13 60912/16 Rajbir Singh Vs. Alok Gupta and Ors.

not be a substantial damage in the enjoyment of suit property of appellant/plaintiff with regard to inspection of septic tank installed in the common passage as it has come in the evidence of appellant/plaintiff that he can access the septic tank from point Y which is a room in his possession as per Ex.PW1/4.

68. Therefore, appellant/plaintiff has failed to prove any disturbance in the easementary right of common passage and hence, was not entitled to injunction.

69. As far as easementary right of light and air with regard to three windows at points A,B and C as per Ex.PW1/4 is concerned, appellant/plaintiff had failed to establish acquisition of easementary right by way of prescription, as he had failed to prove such right being enjoyed by him for the past 20 years uninterruptedly without any disturbance whatsoever.

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Rajbir Singh Vs. Alok Gupta and Ors.

70. Appellant/plaintiff had not examined any witness from Ramjas Foundation, Anand Parbat, New Delhi or DDA to prove existence of windows since the year 1972 nor any neighbour was examined in this regard.

71. Further, appellant/plaintiff had also failed to establish on record substantial injury or deprivation of his right to render use and occupation of his house inconvenient or uncomfortable according to ordinary requirements of mankind, due to light and air being blocked by respondents no.1 to 3/defendants no.1 to 3.

72. Appellant/plaintiff had failed to prove on record that the only source of light and air in the suit property was from windows at points A, B and C as per site plan Ex.PW1/4.

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Rajbir Singh Vs. Alok Gupta and Ors.

73. On the contrary, site plan Ex.PW1/4 shows that in room no.1, there exists a door and a window apart from window at point A and in room no.2, there also exists a door and the same is also the position of room no.3 plus in front of room no.2, there exists a verandah and in front of room no.1, there is a common passage and in front of room no.3, there is also an open space. Therefore, appellant/plaintiff was getting sufficient light and air for comfortable habitation from other sources which are in his possession.

74. Further, appellant/plaintiff had failed to establish that windows at points A,B and C as per site plan Ex.PW1/4 were only the source of light and air and the same were necessary for the beneficial enjoyment of the suit property.

75. The Ld.Trial Court has also rightly held that if 32/34 RCA No. 22/13 60912/16 Rajbir Singh Vs. Alok Gupta and Ors.

appellant/plaintiff is allowed to open his windows at points A to C as per site plan Ex.PW1/4 in the verandah which is in exclusive possession of respondents no.1 to 3/defendants no.1 to 3, then privacy of respondents no.1 to 3/defendants no.1 to 3 will also get jeopardized.

76. Therefore, appellant/plaintiff had failed to establish any kind of disturbance to easementary right of light and air and he also failed to establish the acquisition of easementary right of light and air by way of prescription.

77. The contention of ld.counsel for appellant/plaintiff that Ld.Trial Court has not decided issue no.4 and, therefore, impugned judgment is required to be set aside is not acceptable as impugned judgment reflects that issue no.4 has been collectively decided with issues no.6 and 7. Therefore, there is no force in the said contention of Ld.counsel for appellant/plaintiff. Accordingly, the same is 33/34 RCA No. 22/13 60912/16 Rajbir Singh Vs. Alok Gupta and Ors.

rejected.

78. Therefore, Ld.Trial Court had rightly dismissed the suit of appellant/plaintiff for permanent and mandatory injunction and I do not find any illegality or infirmity in the impugned judgment of the Ld.Trial Court. The appeal is accordingly, dismissed. No order as to costs.

79. Decree sheet be prepared accordingly.

80. Trial Court Record be sent back to the Ld.Trial Court alongwith a copy of judgment.

81. Appeal file be consigned to record room.

                                         VIKAS      Digitally signed by VIKAS
                                                    DHULL

                                         DHULL      Date: 2019.12.16 14:37:11
                                                    +0530




Announced in the open court         (Vikas Dhull)
Dated: 13.12.2019     Additional District Judge­01
                                 THC, West, Delhi


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