Delhi District Court
Amit Aggarwal vs . Satyasheel & Ors. on 20 October, 2015
Amit Aggarwal Vs. Satyasheel & Ors.
IN THE COURT OF CIVIL JUDGE-02 (SOUTH)
SAKET COURTS COMPLEX, NEW DELHI)
In the matter of :
CS No. 340/13
Sh. Amit Aggarwal
S/o Sh. Om Prakash Aggarwal
R/o A4, Hauz Khas,
New Delhi ... Plaintiff
Versus
1. Sh. Satyasheel
S/o Late Sh. G.R. Khosla
R/o VillaD, Empire Estate,
Sultanpur, Mehrauli,
New Delhi
2. Sh. M.K. Subba
S/o Not Known
R/o Subba Farm, M.G. Road,
Manglapuri
New Delhi
3. Sh. Surander Singh
S/o Sh. Jagat Singh Lambardar
R/o 23, Baba Mohalla,
Aya Nagar,
New Delhi
4. Sh. Balraj Singh
S/o Sh. Ganga Ram
VillageBarampur,
P.O.Kadarpur,
Tehsil Sohna,
District Gurgaon ... Defendants
Date of Institution : 02.02.2012
Date of Reserving Judgment : 17.10.2015
Date of Decision : 20.10.2015
Final Decision : Dismissed
CS No. 340/13 Page 1 of 11
Amit Aggarwal Vs. Satyasheel & Ors.
J U D G M E N T
(on suit for Declaration, Mandatory and Permanent Injunction)
1. This suit was filed by the plaintiff for Declaration, Mandatory and Permanent Injunction against the defendants.
2. Briefly stated, case of the plaintiff is that the land measuring about 9 biswas situated in Khasra nos. 179/1, 180/1 and 181/1, situated in revenue estate of village Sultanpur, Tehsil Hauz Khas, New Delhi (hereinafter referred to as the 'suit property') is a public passage situated between Khilonewala Farm and Subba Farm. That the erstwhile owners of Khilonewala Farm have been using the said public passage since 1969. That the revenue records also show that the suit property is a passage. That the plaintiff and his brother purchased the Khilonewala Farm in the year 1993 and have been using the suit property since then. That the suit property is a metalled road connecting MehrauliGurgaon road and internal roads of other farm houses of that area. That the suit property has been used as a public passage for the last 40 years. That in 2003, defendant no. 1 alleged himself to be the purchaser of the suit property and tried to install gates at the same. That again in May 2011, defendant no. 1 constructed walls and gates at both ends of the suit property and a complaint dated 08.05.2011 was lodged by the plaintiff in this regard. That the aforesaid action of defendant no. 1 is entirely illegal. That the suit property has been continuously used as a public passage by the plaintiff and other local villagers of that area. That the plaintiff has a right of usage and access through the suit property. Hence, the present suit.
CS No. 340/13 Page 2 of 11Amit Aggarwal Vs. Satyasheel & Ors.
3. Upon service of summons of the present suit, defendants appeared. However only defendant no.1 filed his written statement (WS) denying the allegations as contained in the plaint. Defendant no.1 in his WS stated that the present suit is barred under the provisions of section 41 of The Specific Relief Act. That there is no cause of action for filing the present suit. That the present suit is barred by law and provision of resjudicata. Hence, the present suit be dismissed.
During the proceeding due to non appearance, defendant no.2 to 4 were proceeded exparte vide order dated 20.02.2014.
4. Plaintiff filed replication to the WS of the defendant no.1 denying the preliminary objections and other averments as contained in the WS. Averments as contained in the plaint were once again reiterated by way of the application.
5. On the basis of the pleadings of the parties, following issues were framed vide order dated 03.12.2013:
1. Whether the plaintiff is entitled to a decree of declaration against the defendants to the effect that plaintiff has easementary right of usage and access through public passage i.e. Land measuring around 450 square yards situated in Khasra no. 179/1, 180/1 and 181/1 village Sultan Pur, Tehsil Hauz Khas, New Delhi as prayed for? OPP
2. Whether the plaintiff is entitled to a decree of mandatory injunction for directing the defendants to remove any obstruction/encroachment from the above mentioned public passage as prayed for? OPP
3. Whether the plaintiff is entitled to a decree of permanent injunction for restraining the defendants from encroaching or blocking the said passage and for interfering in plaintiff 's use of the said passage as prayed for? OPP CS No. 340/13 Page 3 of 11 Amit Aggarwal Vs. Satyasheel & Ors.
4. Whether the present suit is barred by Section 41 of Specific Relief Act? OPD1
5. Whether the present suit is barred by the principle of resjudicata? OPD1
6. Relief if any.
6. In order to prove his case, plaintiff examined himself by stepping into the witness box as PW1 and tendered his evidence by way of an affidavit Ex.PW1/A. He also relied upon the documents Ex.PW1/1 (site plan), Mark PW1/2 Colly (revenue record/Khasra girdawari), Ex.PW1/3 (Sale deed dated 27.05.1993OSR), Ex.PW1/4 (Eicher City MapOSR), Mark PW1/5 (google map), Mark PW1/6 Colly (judgment/decree dated 20.04.1991), Ex.PW1/7 Colly (Photographs), Ex.PW1/8 (complaint dated 08.05.2011OSR), and Ex.PW1/9 Colly (suit titled Surender Singh Vs. Satyasheel). Plaintiff also examined one more witness namely Sh. Chattarpal Singh as PW2 and thereafter, closed his evidence.
On the other hand, defendant no.1 got examined himself as DW1 by tendering his evidence by way of affidavit Ex. DW1/A. He also relied upon the documents Ex.DW1/1 OSR (Sale deed dated 17.10.2002), Ex.DW1/2 OSR (mutation letter dated 13.05.2003), Ex.DW1/4 (certified copy of IA no. 6167/2003 in CS. No. 985/2003), Ex.DW1/5 (certified copy dated 23.01.2006), Ex.DW1/6 (certified copy of the decree dated 15.12.2010), Mark C (certified copy of the settlement deed dated 07.04.2003), Mark A (khatoni) and Mark B (certified copy obtain High Court of Delhi) and thereafter, defendant no.1 closed his evidence.
CS No. 340/13 Page 4 of 11Amit Aggarwal Vs. Satyasheel & Ors.
7. I have heard the contentions of both the sides and also gone through the record carefully. My issuewise findings are as under:
ISSUE NO. 5Whether the present suit is barred by the principle of res judicata? OPD1
8. I deem it appropriate to decide issue no.5 first before proceeding further. The onus to prove this issue was upon the defendant no.1. Ld. Counsel for defendant no.1 argued that plaintiff has filed the present suit as a proxy party in the form of proxy litigation on behalf of Raseel G Ansal against whom the suit was filed by defendant no.1 earlier and was finally decreed on the basis of settlement arrived between defendant no.1 and the subsequent purchaser of the property owned by Raseel G Ansal namely Shagun Choudhary and Sarika Pilot where the subject matter of the present suit i.e. the suit property was the same. It is further argued that the present proceedings are the motivated proceedings that have been initiated by the plaintiff on the behest of Raseel G Ansal who was the tenant of plaintiff at the time of filing of the suit. Hence, the present suit is barred by principle of res judicata.
On the other hand, Ld. Counsel for plaintiff argued that the plaintiff has filed the present suit on the basis of independent cause of action arisen in his favour and is nothing to do with Raseel G Ansal . It is further argued that the suit filed by defendant no.1 herein was decreed on the basis of settlement and was not decided on the merits of the case. Hence, the principle of res judicata does not apply here.
9. I completely agree with the argument put forth by Ld. Counsel for plaintiff that the earlier suit filed by defendant no.1 was decreed on the basis of settlement and the same was not decided on the merits. It is CS No. 340/13 Page 5 of 11 Amit Aggarwal Vs. Satyasheel & Ors.
further important to note here that the parties to the present suit are different than that of the earlier suit filed by defendant no.1 herein. Merely, that Raseel G Ansal was the tenant of the plaintiff does not mean that plaintiff has filed the proxy litigation or claiming the right under him rather there is an independent cause of action with the plaintiff. So it cannot be presumed that the earlier suit was between the same parties. In view of the same, the requirements for invoking the principle of Res Judicata does not complied with. Hence, the suit can be said to be barred by the law of resjudicata.
Accordingly, this issue stands decided against the defendant no.1 and in favour of the plaintiff.
ISSUES NO.1, & 4Whether the plaintiff is entitled to a decree of declaration against the defendants to the effect that plaintiff has easementary right of usage and access through public passage i.e. Land measuring around 450 square yards situated in Khasra no. 179/1, 180/1 and 181/1 village Sultan Pur, Tehsil Hauz Khas, New Delhi as prayed for? OPP & Whether the present suit is barred by Section 41 of Specific Relief Act? OPD1
10. Both these issues are taken up together being interlinked for the purpose of discussion and findings. The onus to prove first issue was upon the plaintiff and the onus for proving fourth issue was upon the the defendant no.1.
Ld. Counsel for plaintiff has argued that plaintiff has purchased the property measuring 5 bighas and 19 biswas, bearing khasra no.177/1 (314), 178/1 (25), Village Sultanpur, Tehsil Mehrauli, New Delhi in the year 1993 and since then, he has been using the passage admeasuring 450 square yards comprising khasra no.179/1 CS No. 340/13 Page 6 of 11 Amit Aggarwal Vs. Satyasheel & Ors.
(03), 180/1 (04) & 181/1 (02) i.e. the suit property herein. It is further argued that the suit property is a public passage i.e. being used by the public at large and even the predecessor in interest of the plaintiff has been using the same since the year 1969. It is further argued that by way of prescription the plaintiff has gained easementary right over the suit property by using for more than 20 years. It is further argued that defendant no.1 is trying to encroach upon the suit property and has installed illegal gates over the same restricting the use of the plaintiff. Hence, it is prayed that suit of the plaintiff be decreed. In support of his arguments, Ld. Counsel relied upon two judgments passed by Hon'ble High Court of Himachal Pradesh in case titled as Suresh Chand Vs. Hindu Mal & Ors. Decided on 23.06.1993 and Darshan Singh through his LRs Vs Smt. Rita Devi @ Geeta & Ors. Decided on 28.02.2012.
On the other hand, Ld. Counsel for defendant no.1 has raised three fold contentions. One that the suit property is a private passage and not used as public passage. Secondly, the plaintiff has failed to prove that he has any easementary right over the suit passage as neither he has resided in his property nor the suit passage has been used by his predecessor in interest. Thirdly, the documents relied upon by the plaintiff does not support the case of the plaintiff be it khasra girdawari or the maps filed on record. Arguing further Ld. Counsel submitted that no cogent evidence has been led by the plaintiff to prove that the village persons or the public at large has been using the suit property so question of easementary rights does not rise. It is further argued that the suit property has been purchased by the defendant no.1 in the year 2002 vide registered sale deed and he has every right to secure his property by installing gates or by any other means. Hence, the suit of the plaintiff is liable to be dismissed.
CS No. 340/13 Page 7 of 11Amit Aggarwal Vs. Satyasheel & Ors.
11. Let us see the evidence led by both the parties and deal the contentions one by one.
Firstly, the plaintiff has claimed that the suit property is a public passage. Plaintiff has relied upon khasra girdawaries i.e. Ex.PW1/2 Colly and Ex.PW2/1 Colly. The girdawari only reflects the status of the land pertaining to its usage. The word 'Raasta' mentioned in the girdawaries does not proves that the same is a public passage. No witness to prove that the suit passage is a public passage has been examined by the plaintiff in the present case. Whereas the defendant no. 1 has filed on record the registered sale deed Ex.DW1/1 alongwith other relevant documents such as mutation letter etc. showing that the defendant no.1 is the registered and absolute owner of the suit property. So at least the suit passage being a private property has been established on record.
The second contention raised by the plaintiff is that he has been using the suit property for more than 20 years as he has purchased the Khilonewala Farm on 27.08.1993 and the erstwhile owner of the Khilonewala Farm has been using the suit passage since the year 1969. The suit has been filed on 02.02.2012 that means since purchasing of the Khilonewala Farm till filing of this suit the period of 20 years falls short. The claim of the plaintiff that the erstwhile owners have been using the suit passage since the year 1969 could not be established for the reason that neither the erstwhile owner has been examined by the plaintiff on record nor the alleged village people who have been using the suit passage have been brought in witness box by the plaintiff. In his cross examination PW1 admitted that he was informed by the earlier owners of Khilonewala Farm that the suit passage is being used since 1969 that means he was not having the personal knowledge of the usage and for proving his claim plaintiff should have examined the erstwhile owner in CS No. 340/13 Page 8 of 11 Amit Aggarwal Vs. Satyasheel & Ors.
this regard. Hence, the fact of usage of suit passage for more than 20 years have not been established.
Thirdly, the plaintiff has relied upon a document Ex.PW1/6 i.e. a judgment passed by Sh. S. S. Handa, the then Ld. SubJudge Delhi whereby some Manorath Singh was granted the relief of injunction qua the suit passage against some Suman Arora & Others. PW1 has admitted in his cross examination that he does not claim the right on the basis of Ex.PW1/6. Even the contents of the judgment shows that the suit passage was claimed to be common private passage and its usage was claimed on the basis of ownership in the ratio of 50:50. This fact also establishes that the suit passage has never been used as public passage and has always been a private property.
12. It is very important to note here that defendant no.1 has filed a suit in the year 2003 qua the suit passage before the Hon'ble High Court of Delhi against one Raseel G. Ansal which was compromised and settled with the subsequent purchaser of property comprising khasra no.78/17, 78/74, 78/76 and 96/27 namely Sarika Pilot and Shagun Choudhary in the year 2010. The documents filed on record by the plaintiff such as Ex.PW1/2, Ex.PW1/6 etc. are stated to have been procured from the villagers but the plaintiff has failed to state the name of the persons from whom the documents have been procured. Whereas the plaintiff has admitted that at the time of filing of the present suit Mr. Raseel G Ansal was his tenant which supports the plea of defendant no.1 that the documents have been procured by the plaintiff from said Raseel G Ansal although the suggestions put to PW1 qua the same have been denied. The plaintiff has concealed this fact in his plaint. It cannot be believed that the plaintiff was unaware about the dispute or the litigation qua the suit passage pending before Hon'ble High Court of CS No. 340/13 Page 9 of 11 Amit Aggarwal Vs. Satyasheel & Ors.
Delhi between the defendant no.1 and the tenants of the plaintiff as in his averments in plaint he referred the dispute of year 2003. It is also established on record that the suit passage has not been mentioned as the part of property purchased by plaintiff by way of registered sale deed. The maps filed on record by the plaintiff cannot be considered as evidence in itself and does not prove the easementary right over the suit passage by the plaintiff rather it merely reflects the status of the property.
13. The essential ingredients for proving the easementary right by way of prescription as per Section 15 of The Easements Act, 1882 have not been established by the plaintiff by leading any substantial and cogent evidence on record. It is proved on record that interruptions have been there on the peaceful enjoyment of the passage in the year 2003 and finally in the year 2011 which gave the cause of action to the plaintiff for filing the suit. The suit property is a private passage so the plaintiff cannot claim the easementary right over the same as a right. Further, the period of usage of the suit passage for more than 20 years or more by the plaintiff has not been established. The judgments relied upon by the plaintiff does not apply in the present facts and circumstances of the case as the facts of both the case distinguishable.
14. It is a settled principle of law that one who seeks equity must come before the Court with clean hands. This Court is of the view that the conduct of the plaintiff disentitle him to any such relief as prayed herein. The onus lying upon the shoulders of the plaintiff remained undischarged. In view of the evidence led and the observations given above, both the issues stands decided against the plaintiff and in favour of the defendants.
CS No. 340/13 Page 10 of 11Amit Aggarwal Vs. Satyasheel & Ors.
ISSUES NO. 2 & 3Whether the plaintiff is entitled to a decree of mandatory injunction for directing the defendants to remove any obstruction/encroachment from the above mentioned public passage as prayed for? OPP & Whether the plaintiff is entitled to a decree of permanent injunction for restraining the defendants from encroaching or blocking the said passage and for interfering in plaintiff 's use of the said passage as prayed for? OPP
15. Both these issues are taken up together being interlinked for the purpose of discussion and findings. The onus to prove both these issues was upon the plaintiff but in view of the finding given in the preceding issues, it is evident that plaintiff has not been able to establish his easementary right over the suit passage, hence, he is not entitled to the discretionary relief of injunction. Therefore, the abovesaid issues are decided in favour of defendants and against the plaintiff.
Relief:
16. As a consequence to my findings on the above mentioned issues, suit of the plaintiff is hereby dismissed. Parties to bear their own costs. Decree sheet be prepared accordingly.
17. File be consigned to the record room after due compliance.
Announced in the open Court
on 20.10.2015 (Vishal Pahuja)
CJ02 (South)/Saket Courts
New Delhi/20.10.2015
CS No. 340/13 Page 11 of 11