Delhi District Court
Om Prakash & Ors. vs . Smt. Sumitra Devi & Ors. on 22 August, 2022
Om Prakash & Ors. vs. Smt. Sumitra Devi & Ors.
CS SCJ 94260/16
IN THE COURT OF MS. SONAM SINGHII, CIVIL JUDGE07, CENTRAL,
TIS HAZARI COURTS, DELHI
Civil Suit No. : 94260/16
CNR No. : DLCT030000341998
Date of Filing: 18.07.1998
Date of Reserving Judgment: 16.07.2022
Date of Decision: 22.08.2022.
1. Sh. Om Prakash,
S/o Sh. Nanak Chand
2. Sh. Tirath Ram,
S/o Sh. Nanak Chand
3. Smt. Jasbeer Kaur,
W/o Sh. Tirath Ram
4. Smt. Usha Dhingra,
W/o Sh. Om Prakash
(Plaintiffs no. 2 to 4 are being represented by
their Special Power of Attorney Sh. Om Prakash/Plaintiff no. 1)
.... Plaintiffs
-Versus
1. Smt. Sumitra Devi
W/o Sh. Satya Narain Garg
Page 1 of 23
(Sonam SinghII)
Civil Judge07, Central, Delhi
Om Prakash & Ors. vs. Smt. Sumitra Devi & Ors.
CS SCJ 94260/16
2. Smt. Anjali Garg,
W/o Sh. Satish Kumar Garg
3. Sh. Satya Narain Garg
S/o Not known
(Now deceased & application u/o XXII Rule 4 dismissed v.o.d 03.03.2021)
All R/o 1B, Punjab Garden,
East Punjabi Bagh,
New Delhi - 110 026
4. Municipal Corporation of Delhi
through its Commissioner,
Town Hall, Chandni Chowk,
Delhi - 110 006.
5. Smt. Bishan Wati,
W/o Sh. Banwari Lal Jain,
R/o C20, Bhagwan Das Nagar,
New Delhi110026.
Also At
2710/202, Onkar Nagar,
Tri Nagar, Delhi110035.
SUIT FOR PERMANENT AND MANDATORY INJUNCTION
Present : None for parties.
Page 2 of 23
(Sonam SinghII)
Civil Judge07, Central, Delhi
Om Prakash & Ors. vs. Smt. Sumitra Devi & Ors.
CS SCJ 94260/16
JUDGMENT
1. The present suit has been instituted by plaintiffs against defendants seeking the following reliefs: (a) a decree of permanent injunction thereby restraining the defendants, their agents, etc. from raising any unauthorized construction in the property bearing no. E20, Bhagwan Dass Nagar, East Punjabi Bagh, New Delhi - 110026 as shown in red colour in the site plan and further restraining defendants no. 1 to 3 from covering/closing the ventilators situated at first and second floors' kitchen of property bearing no. E21, Bhagwan Dass Nagar, East Punjabi Bagh, New Delhi - 110026 as shown in black colour, and (b) a decree of mandatory injunction thereby restraining defendants, their agents, etc. to remove the unauthorized construction raised by them upon property bearing no. E20, Bhagwan Dass Nagar, East Punjabi Bagh, New Delhi - 110026 in the interest of justice.
Averments made in Plaint:
2. In the Plaint it is averred that plaintiffs are the owners and in possession of property bearing no. E21, situated at Bhagwan Dass Nagar, East Punjabi Bagh, New Delhi 110026 & has been shown in green colour in the site plan. Plaintiff no. 1 (hereinafter P1) is the Special Power of Attorney Holder of plaintiffs no. 2 to 4 (hereinafter P2 to P4). It is averred that defendants no. 1 and 2 (hereinafter D1 & D2) have purchased the property bearing no. E20 situated at Bhagwan Dass Nagar, East Punjabi Bagh, New Delhi (hereinafter 'suit property') as shown in red colour in the site plan and defendant no. 3 (hereinafter D3) is the husband of D1 & a builder by profession and defendant no. 4 (hereinafter D4) is the authority concerned. It is averred that the plaintiffs have purchased the property bearing no. E21 in their joint names vide separate sale deeds & is built up to three storeys and there are two ventilators/windows constructed at the kitchens situated at first and second floors respectively in the said property of plaintiffs which are very old & Page 3 of 23 (Sonam SinghII) Civil Judge07, Central, Delhi Om Prakash & Ors. vs. Smt. Sumitra Devi & Ors.
CS SCJ 94260/16constructed on the wall adjacent to the suit property of D1 & D2 bearing no. E20. Hence, it is the easementary right of plaintiffs to enjoy the air and light from the said ventilators shown in black colour in the site plan as they are in existence for last more than 18/19 years. It is further averred that as D3 is builder by profession who has demolished some portions of suit property no. E20 and has started raising unauthorized construction upon the same thereby starting to encroach the service lane which is in existence at the backside/western side of the properties which is used by all the residents of locality. It is averred that it was objected by the plaintiffs on 15.07.1998 when the D3 was putting the shutter in order to put the roof/RCC slab & he gave an undertaking not to repeat the said illegal designs. It is averred that on 16.07.1998 D3 put/constructed the roof/R.C.C. of the ground floor and covered the service lane up to 4/5 feet and when it was objected by plaintiffs, he did not pay any heed & succeeded in his nefarious designs and also threatened the plaintiffs that he would construct the suit property no. E20 up to 4 th floor and would cover/close the ventilators of plaintiffs situated in their property. D3 further threatened the plaintiffs that he has good relations with the local authorities/officials and they cannot stop him, following which plaintiffs approached D4 but it flatly refused to accept any complaint against D3. Hence, the present suit.
Version of Defendants:
3. In their joint written statement (hereinafter WS) defendants no. 1 to 3 have raised preliminary objections as to maintainability of suit qua the cause of plaintiffs and have stated that they are undertaking construction work on their property known as E20, Bhagwan Dass Nagar, East Punjabi Bagh, New Delhi - 110026 in accordance with building bye laws and have rather alleged that the building plan of property of plaintiffs is not sanctioned as it does not form part of an approved colony. It is stated that the present suit has been filed by plaintiffs to harass the defendants and to extort money and is thus liable to be dismissed as plaintiffs have no personal interest in the same. It is stated that plaintiffs have already constructed a three storeyed Page 4 of 23 (Sonam SinghII) Civil Judge07, Central, Delhi Om Prakash & Ors. vs. Smt. Sumitra Devi & Ors.
CS SCJ 94260/16building on plot no. E21 which far exceeds the building bye laws and the construction work at the suit property i.e. E20 was taken up under the advice of registered Architect strictly in accordance with building bye laws. Apart from this the allegations leveled by plaintiffs in their plaint have been denied by these defendants and stated to be wrong.
4. In the WS filed by D4, preliminary objections have been raised qua bar under Sections 477/478 of the Delhi Municipal Corporation Act, 1957 for want of service of statutory notice upon D4, bar under Section 347E and suppression of material facts by plaintiffs and it is stated that the unauthorized construction on ground floor and first floor in the suit property has been regularized & building plan has been sanctioned in respect of second floor. It is stated that the owner of suit property E20 had carried out construction of three rooms, kitchen, toilet and stair case on ground & first floors and replacement of roof of shops at ground floor without any sanctioned building plan. The said unauthorized construction was duly booked vide File No. 451/B/UC/WZ/98 dtd 08.09.98 and a show cause notice was issued and served upon the owner/builder. In response to the show cause notice, the owner/builder filed a reply indicating that the structures at ground floor existed prior to the cutoff date i.e. 16.02.77 and accordingly the construction at ground floor and subsequent additions & alterations carried out on first floor are entitled to regularization in keeping with the standing committee resolution no. 1648 dtd. 24.05.79. On submission of the proof to this effect, the case of owner/builder was processed for regularization as per BBL & policy and guidelines contained in O.O No. 7/Bldg/HQ/86 dtd. 29.08.86 and other circulars vide no. 9/EE(B)/HQ/89 dtd. 23.06.89 & 11/Bldg/HQ/86 dtd. 27.10.86. After completing requisite formalities and procedure as laid down the aforesaid circulars, the unauthorized construction on ground & first floors have been regularized and building plan has been sanctioned in respect of second floor also as on 12.01.99 as per the details depicted in the chart filed as Annexure 'A' to this WS wherein it can be seen that upon levying Page 5 of 23 (Sonam SinghII) Civil Judge07, Central, Delhi Om Prakash & Ors. vs. Smt. Sumitra Devi & Ors.
CS SCJ 94260/16development charges, compounding fee & penalties to the extent of Rs 99,884/ the aforesaid regularization has been done. It is further stated that as regards averments relating to the encroachment at the suit property, a detailed report is filed at Annexure 'B' to this WS and as such, the allegations leveled against D4 are totally false & fabricated.
5. In the WS filed by defendant no.5 (hereinafter D5) preliminary objections have been raised as to suppression of true & material facts by plaintiffs, cause of action against D5 and it is stated that D5 purchased the suit property in October 2005 from D1 & D2 as per sanctioned plan approved by the competent authority and there were no ventilators/windows at the first & second floors of property no. E21. It is stated that plaintiffs has purchased the said property in the year 1993 & the present suit was filed in the year 1998 and there was no ventilator/window at first & second floors of property no. E21 in the year 1993 or in the year 2005. It is further stated that the claims of plaintiffs against D5 are barred by limitation and no relief has been sought by plaintiffs against this defendant. Apart from this, D5 has mainly denied the averments of plaint and stated them to be false.
Replications filed by Plaintiffs:
6. In their Replication filed to the WS of D1 to D3, plaintiffs have mainly denied its contents as wrong and stated that at the time of purchase of the suit property bearing no. E20 by D1 to D3 as well as prior to that, there was an open courtyard towards property no. E21 and it did not have any construction. Thus, the open courtyard on the north side of E20 i.e. adjoining property no. E21 was open to sky. It is stated that D1 to D3 had started unauthorized construction upon the suit property by encroaching service lane up to 45 ft. by constructing roofs/RCC of ground floor which was later removed during proceedings in the present case and had started construction in the open courtyard illegally without seeking any permission as required under Clause 6.1 and 6.7.1 of the Delhi Building Bye Laws 1983. It is Page 6 of 23 (Sonam SinghII) Civil Judge07, Central, Delhi Om Prakash & Ors. vs. Smt. Sumitra Devi & Ors.
CS SCJ 94260/16stated that plaintiffs are the owners of a threestoreyed old existing building on a free hold plot of land bearing no. E21 since its purchase in the year 1993 and prior to its purchase, they were tenants at ground floor of the same property. It is further stated that no registered architect as alleged can give defendants license to commit breach of the building bye laws. It is further stated that D1 & D2 had purchased the suit property which consisted of ground floor including five shops and a very small construction of part first floor, and as per building bye laws, an open courtyard which is open to sky cannot be covered & cannot be changed into living rooms. It is further stated that the WS filed by D1 to D3 has neither been signed nor properly verified in accordance with law & as such is liable to be rejected. Apart from this, plaintiffs have mainly reaffirmed the contents of plaint as correct.
7. In their Replication filed to the WS of D4, plaintiffs have mainly denied its contents as wrong and stated that no notice is required to be served under Section 478(3) of the Delhi Municipal Corporation Act, 1957 in existing circumstances of the case and when the acts/orders/directions of any municipal officer/employee are itself unlawful & unauthorized, then no protection is provided under Section 477 of the said Act. It is stated that a number of complaints were made to the municipal authorities and other authorities and when no preventive action was taken, then suit for injunction against defendants including MCD was filed bearing suit no. 590/98 and the present suit amongst others. It is stated that the unauthorized construction has been recently carried out in the suit property after passing of injunction order and the said construction was nonexistent prior to the filing of present suit. It is further stated that this Court has jurisdiction under Section 9 of CPC read with Specific Relief Act to try & decide the present suit in existing circumstances of the present case. It is further stated that the whole process of regularization is neither in accordance with law nor as per the provisions of the Delhi Municipal Corporation Act, 1957 and the Building Bye Laws made thereunder and D4 has knowingly concealed the alleged documents & not filed the same to mislead the Court. It is further stated that the WS filed by D4 is neither signed nor verified by a duly Page 7 of 23 (Sonam SinghII) Civil Judge07, Central, Delhi Om Prakash & Ors. vs. Smt. Sumitra Devi & Ors.
CS SCJ 94260/16authorized person and as such is liable to be rejected. Apart from this, plaintiffs have mainly reaffirmed the contents of plaint as correct.
8. In their Replication filed to the WS of D5, plaintiffs have mainly denied its contents and stated that as per the sale deed filed by D1 & D2, D5 has purchased a part of property no. E20 as a result of which D5 has stepped into the shoes of co defendants 1 & 2 who still remain as owners of remaining part of the said suit property. It is stated that even the actual existing construction of the suit property is against the building byelaws and different from alleged sanction. It is stated that an application under Order I Rule 10 of CPC was moved by plaintiffs after knowledge for the first time on 02.0.2012 as to sale by D1 & D2 to D5 who was then impleaded as a necessary party and relief has been sought against defendants including D5 being successorininterest of a portion of the suit property. It is stated that the defendants are liable to restore the old ventilators/windows of kitchen at first & ground floors of plaintiffs' property. It is stated that the property of plaintiffs is a threestoreyed old existing building on a free hold plot of land since its purchase in the year 1993. It is stated that D5 is in possession of a part of the said encroached and closed/obstructed part of suit property wherein old existing ventilators/windows of plaintiffs existed and were closed by defendants during pendency of the present suit illegally to deprive plaintiffs from their easementary rights. Apart from this, plaintiffs have mainly reaffirmed the contents of plaint as true & correct.
9. Before proceeding further it is pertinent to mention here that vide order dated 24.03.2004 the plaint of the present suit was rejected, however, subsequently vide order dated 19.07.2011, the Hon'ble Delhi High Court set aside the aforesaid order of rejection of plaint and directed the trial court to hear and dispose of the suit in accordance with law with respect to the cause of action of easementary rights to light and air as stated in the plaint and the reliefs claimed thereupon. Perusal of the said order also reveals that the Hon'ble High Court was not in agreement with the arguments of the Ld. Counsel for appellants that the suit must also continue with regard to the unauthorized construction and it was observed by the Hon'ble High Page 8 of 23 (Sonam SinghII) Civil Judge07, Central, Delhi Om Prakash & Ors. vs. Smt. Sumitra Devi & Ors.
CS SCJ 94260/16Court that MCD has given detailed particulars of allowing the sanction and the completion of requisite formalities by respondent no. 1 to 3 and therefore, there remains no illegal and unauthorized construction for the suit to continue with respect to that cause of action and relief related thereto. It was further directed by the Hon'ble High Court to the MCD to comply with directions of the trial court as contained in order dated 07.12.2002 for the sake of completion of the record. Perusal of record further reveals that vide order dated 07.12.2017 & 19.07.2018 the then Ld. Predecessor had issued notices to the DC to file detailed status report regarding existence of unauthorized construction in the properties of parties and action initiated, if any. Record further reveals that on 27.07.2018 the status report was filed on behalf of defendant no.4 MCD and it was observed by the then Ld. Judge that in view of order passed by the Hon'ble High Court qua stay of order dated 07.12.2017 and status report filed, no further status report was required. Record further reveals that vide order dated 04.12.2019 it was directed by the Hon'ble High Court that if status report has been filed, the same shall be considered at the stage of final hearing. Thereafter, vide order dated 12.01.2015 two issues were framed in view of the order of The Hon'ble High Court dated 19.07.2011.
Settlement of Issues:
10. As stated above vide order dated 12.01.2015 two issues were framed by the Court as under:
(i) Whether plaintiff has any easementary right in the suit property? OPP
(ii) Whether the defendant no. 1 to 3 and 5 have blocked the ventilations and windows of property no. E21 Bhagwan Das, Est Punjabi Bagh, New Delhi which defeat easementary right of the plaintiff, if any? OPP Evidence led by Plaintiffs:
11. On behalf of plaintiffs, two witnesses have been examined, namely: Sh. Om Prakash (Plaintiff no.1) as PW1 and Sh. Lalit Kumar, SSA, Building Department, Karol Page 9 of 23 (Sonam SinghII) Civil Judge07, Central, Delhi Om Prakash & Ors. vs. Smt. Sumitra Devi & Ors.CS SCJ 94260/16
Bagh Zone, North MCD, Delhi as PW2.
12. PW1: Sh. Om Prakash has filed his affidavit in evidence which is Ex. PW1/A and has relied upon the copy of sale deed dated 05.05.1993 executed by Sh. Vinod Kumar Bhatia and Sh. Virender Kumar Bhatia in favour of Sh. Tirth Ram, copy of another Sale Deed dated 05.05.1993 executed in favour of Smt. Usha Rani, third sale deed dated 04.02.1993 in favor of Sh. Om Prakash & sale deed dated 04.02.2993 in favor of Smt. Jasbir Kaur and they are exhibited as Ex. PW1/1 (collectively). It is to note that all the sale deeds except one in favour of Smt. Jasbir Kaur were brought in original, seen and were returned. PW1 has also relied upon the site plan showing ground floor, first floor and second floor of property no. E21 of Bhagwan Dass Nagar, New Delhi which is Ex.PW1/2. PW1 has also relied upon the RTI application dated 23.04.2014 along with receipt no. 2630572 dated 23.04.2014 and reply of MCD to the RTI application which are Ex.PW1/3 (colly running into 6 pages), 9 photographs showing unauthorized construction by defendant on ground floor in property no. E20 are Ex.PW1/4 (colly.) (objected by the Ld. Counsel for plaintiff on the ground of mode and manner of proof), 7 photographs showing unauthorized construction on the first floor are Ex.PW1/5 (colly) and 14 photographs showing unauthorized construction along with the newspaper are Ex.PW1/6 (colly).
In his crossexamination, PW1 has stated that he has filed a special power of attorney dated 16.07.1998 executed in his favour by plaintiffs no. 2 to 4 which is Ex. PW1/7 (subject to the production of original). He has stated that at the time of purchase of property it was constructed three storeyed i.e. ground floor, first floor and second floor and that he had asked from the previous owner as to which year the property was constructed who told him that it was constructed somewhere in 1974. He has further stated that he does not recollect the memory today that up to which storey it was constructed in 1974. Thereafter it was put to PW1 by the ld. Counsel for defendant if the property was constructed up to ground floor only in the year 1974, to which PW1 answered that he does not remember. It was further put to Page 10 of 23 (Sonam SinghII) Civil Judge07, Central, Delhi Om Prakash & Ors. vs. Smt. Sumitra Devi & Ors.
CS SCJ 94260/16PW1 if the first floor of the property was constructed in the years 1983, to which he again answered that he does not remember, however, he can say after going through the record. The witness was again put in crossexamination if the second floor of the property was constructed in the year 1987 to which he again answered that he does not remember, however, he can say after going through the record. PW1 has further stated that he has deposited the house tax. At this stage, PW1 was asked about the year of construction specified by him with respect to first and second floor of property while filing house tax return to MCD, to which PW1 answered that he does not remember as it is a matter of record. Thereafter PW1 was confronted with the photo copy of forms with respect to property no. E21 filed with the MCD dated 01.04.1975 which was marked as Mark A showing the construction of ground floor only in the property no. E21, to which PW1 answered that he cannot say anything. The said document was objected by the Ld. Counsel for plaintiff on the ground that the document put was neither original nor certified copy and was also not brought by summoning the government official. PW1 was then confronted with the photo copy of FormA with respect to property no. E21 filed with the MCD dated 01.04.1983 showing the construction of ground floor and first floor only and Form A dated 01.01.1987 showing the construction of ground floor, first floor, and second floor in the property no. E21 and same was marked as MarkB (colly), to which PW1 answered that he cannot say anything about these photostated documents. The said documents were objected by the Ld. Counsel for plaintiff on the ground that the document put was neither original nor certified copy and it was also not brought by summoning the government official. PW1 was then again confronted with the proforma of survey at property no. E21, Bhagwan Dass Nagar, East Punjabi Bagh, which was marked as MarkC and after seeing the photocopy, PW1 answered that he cannot say anything. PW1 was then asked if the signatures at point A on document MarkC belonged to him, to which it was answered that he cannot say so as the same is not clear. The witness has denied that the property was constructed only up to ground floor in the year 1975 and first floor was constructed in the year Page 11 of 23 (Sonam SinghII) Civil Judge07, Central, Delhi Om Prakash & Ors. vs. Smt. Sumitra Devi & Ors.
CS SCJ 94260/161983. The witness has further denied that the second floor was constructed in the year 1987. It was then put to PW1 that while filing the house tax in MCD he specified the year of construction of first floor and second floor as 1983, to which it was answered that he can clarify the same after seeing the original. PW1 has denied that he doesn't have easementary right with respect to the window situated on the first and second floor of the property and further denied that he has filed a false case. The witness has denied that he has deposed falsely.
13. PW2: Sh. Lalit Kumar, SSA, Building Department, Karol Bagh Zone, NDMC, Delhi in his examinationinchief has deposed that he has brought the summoned record of RTI application no. 308/RTI/EE(B/KBZ) (online no. 120590) and its reply and the certified copy of RTI application is Ex. PW2/1, its receipt no. 2757307 dated 04.06.2014 is Ex. PW2/2, certified copy of transfer letter dated 05.06.2014 is Ex. PW2/3, certified copy of internal forwarding letter dated 24.06.2014 is Ex. PW2/4, certified copy of reply to the aforesaid RTI application is Ex. PW2/5 and certified copy of forwarding letter of RTI reply dated 17.07.2014 is Ex. PW2/6. In his crossexamination, PW2 has stated that he was personally not the custodian of documents brought by him and the same are official documents.
Evidence led by Defendants:
14. On behalf of defendants, one witness Sh. Raj Kumar, LDC, House Tax Department, Karol Bagh Zone, North Delhi Municipal Corporation, Delhi has been examined as DW1. DW1 in his examinationinchief has deposed that he is the summoned witness and has brought the summoned record i.e. SelfAssessment Return Forms with respect to property no. E21, Bhagwan Dass Nagar, East Punjabi Bagh, Delhi for the period 20042005, 20162017, 20172018 and 20182019, House Tax Assessment Applications dated 01.04.1975, 01.04.1983 and 01.01.1987 with respect to the above said property and copies of the same are Ex. DW1/1 to Ex. DW1/5 (OSR). He has further stated that it is the entire record available with the department with respect to the above said property.
Page 12 of 23(Sonam SinghII) Civil Judge07, Central, Delhi Om Prakash & Ors. vs. Smt. Sumitra Devi & Ors.
CS SCJ 94260/1615. Arguments advanced by the Ld. Counsels have been heard. On behalf of plaintiffs a list of citations has been filed, and, on behalf of D3 written submissions along with one case law & notes on judgment have been filed. Record has been carefully perused.
Findings:
16. Both the issues i.e. 1 & 2 qua the easementary rights of plaintiffs in the suit property and its defeat by way of blocking the ventilations & windows of property no. E21 by D1 to D3 & D4 are taken up together and onus to prove them was on plaintiff. PW1 in his affidavit which is Ex. PW1/A has deposed that plaintiffs are the owners of a threestoreyed old existing building bearing no. E21, Bhagwan Dass Nagar, New Delhi since its purchase in the year 1993 and prior to the purchase, PW1 was a tenant therein at the ground floor. PW1 has relied upon four sale deeds which are Ex. PW1/1 (colly) executed in favor of plaintiffs on 05.05.1993, 05.05.1993, 04.02.1993 and 18.02.1993. Ex. PW1/7 is the SPA executed by P2 to P4 in favor of P1 on 16.07.1998. PW1 has deposed that on the southern side of E21, there lies property of Smt. Ram Piari bearing no. E20 which existed having construction only at the ground floor and a small portion at the first floor & the same was purchased by D1 to D3 in year 1996. PW1 has further deposed that on the southern side, there are two old existing windows/ventilators of the kitchen situated at first & second floors in property no. E21 and the said ventilators/windows being very old in plaintiffs' property, plaintiffs were enjoying air & light from the same and the said ventilators/windows have been the only source of emitting out the pollution/vapour from the said kitchens. It is further deposed by PW1 that at the time of purchase of property no. E20 by D1 to D3 as also prior to that there was an open courtyard towards property no. E21 and it didn't have any construction except the adjoining boundary wall, one WC, passage and stairs in the front portion after open courtyard and the courtyard was open to sky on north side and on west side there is a service lane of 10 ft. width meant for use of all. It is further deposed that D1 to D3 had Page 13 of 23 (Sonam SinghII) Civil Judge07, Central, Delhi Om Prakash & Ors. vs. Smt. Sumitra Devi & Ors.
CS SCJ 94260/16started unauthorized construction upon E20 by encroaching the service lane up to 45 ft. by constructing the roof/RCC of ground floor which was later removed and had started construction on the open courtyard illegally without seeking permission and when plaintiffs objected, they were threatened to close the windows/ventilators. It is deposed that D1 to D3 despite stay order carried out unauthorized construction in open courtyard thereby closing & obstructing the ventilators/windows of kitchens at first & second floors of plaintiffs' property.
From the aforesaid affidavit of PW1, it is clear that ownership of plaintiffs and defendants qua their properties bearing no. E21 and E20 respectively is not in dispute. In order to show easementary rights in favor of plaintiffs, PW1 has relied upon the sale deeds i.e. Ex. PW1/1 (colly) executed in their favor. The relevant portion of the said sale deeds on which reliance is placed is Clause 2 which states that the respective portions of E20 have been purchased by the plaintiffs along with easement rights. The said clause which is common to all the sale deeds except for the amount and details of shares sold out to plaintiffs is reproduced below:
"2. That the Vendors now in consideration of the sum of Rs ............paid to the vendors by the purchaser in the manner stated above hereby absolutely transfer, sell, convey and assign unto the purchaser the......... undivided share in the said three storeyed property and land measuring......... square yards with all its appurtenances, title easements, rights of ingress and egress, fixtures and fittings of water, electrical, sanitary and wooden or otherwise in or around the said property and the vendor has placed the purchaser in physical and proprietory possession of the said property for ever and absolutely TO HAVE AND TO HOLD the same unto and to the use of the Purchaser according to the true intent and meanings of these presents."
On reading of plaint, Clause 2 above and affidavit of PW1, it is clear that PW1 has relied upon the easementary rights existing in favor of plaintiffs mainly by way of grant as expressed in the sale deeds as stated above and also by way of prescription. It is therefore pertinent to look at the relevant provisions of The Indian Easements Act, 1882 for further discussion:
Page 14 of 23(Sonam SinghII) Civil Judge07, Central, Delhi Om Prakash & Ors. vs. Smt. Sumitra Devi & Ors.CS SCJ 94260/16
"Section 4: Easement 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; the land on which the liability is imposed is called the servient heritage, and the owner or occupier thereof the servient owner.
Section 15: Acquisition by prescription Where the access and use of light or air to and for any building have been peaceably enjoyed therewith, as an easement, without interruption, and for twenty years, and where support from one person's land, or things affixed thereto, has been peaceably received by another person's land subjected to artificial pressure or by things affixed thereto, as an easement, without interruption, and for twenty years, and where a right of way or any other easement has been peaceably and openly enjoyed by any person claiming title thereto, as an easement, and as of right, without interruption, and for twenty years, the right to such access and use of light or air, support or other easement shall be absolute.
Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested.
Explanation I.--Nothing is an enjoyment within the meaning of this section when it has been had in pursuance of an agreement with the owner or occupier of the property over which the right is claimed, and it is apparent from the agreement that such right has not been granted as an easement, or, if granted as an easement, that it has been granted for a limited period, or subject to a condition on the fulfilment of which it is to cease. Explanation II.--Nothing is an interruption within the meaning of this section unless where there is an actual cessation of the enjoyment by reason of an obstruction by the act of some person other than the claimant, and unless such obstruction is submitted to or acquiesced in for one year after the claimant has notice thereof and of the person making or authorising the same to be made.
Explanation III.--Suspension of enjoyment in pursuance of a contract between the dominant and servient owners is not an interruption within the meaning of this section. Explanation IV.--In the case of an easement to pollute water, the said period of twenty years begins when the pollution first prejudices perceptibly the servient heritage. When Page 15 of 23 (Sonam SinghII) Civil Judge07, Central, Delhi Om Prakash & Ors. vs. Smt. Sumitra Devi & Ors.CS SCJ 94260/16
the property over which a right is claimed under this section belongs to 3 [Government] this section shall be read as if, for the words "twenty years", the words "4 [thirty years]"
were substituted."
17. In view of the aforesaid Sections, plaintiffs herein are required to prove that their easementary rights as to light & air was: (i) peaceably enjoyed without interruption, and (ii) for twenty years. As discussed above, PW1 in his affidavit has deposed that plaintiffs have been enjoying air & light from the two ventilators/windows of kitchen situated at first & second floors of their property bearing no. E21 and the said ventilators/windows are very old. It is further deposed that plaintiffs purchased the property E21 in year 1993 and even prior to that, PW1 was a tenant therein at ground floor. Even though PW1 has filed sale deeds executed in favor of plaintiffs in the year 1993 showing their ownership, however, nothing has been brought on record by PW1 to show his tenancy and not even the date or period of tenancy has been stated by him to show that he was in occupation of property no. E21 for twenty years. The sale deeds Ex. PW1/1 (colly) produced on record by PW1 merely show that plaintiffs were in possession as owners since year 1993 whereas the present suit was filed on 18.07.1998. Not a single document has been produced by plaintiffs to show that they have been in possession of property no. E21 for last twenty years. Moving further, perusal of Ex. PW1/1 (colly) further shows that plaintiffs' property no. E21 is bounded on the South Side by Building No. E20 constructed on Plot no. 1. Apart from this description, no other details as to the number of floors constructed in property no. E20 (suit property) or open courtyard therein, etc. have been specified in the said sale deeds. PW1 has mainly relied upon Clause 2 of the sale deeds Ex. PW1/1 (colly) which merely specifies that property no. E21 was transferred by the vendors to plaintiffs with all its appurtenances, title, easements, rights of ingress & egress, etc. whatsoever in or around the said property. However, as stated above, nothing has been mentioned therein as to the nature of easements enjoyed by the previous owners/vendors qua the suit property Page 16 of 23 (Sonam SinghII) Civil Judge07, Central, Delhi Om Prakash & Ors. vs. Smt. Sumitra Devi & Ors.
CS SCJ 94260/16i.e. E20 and it is merely stated that the property sold i.e. E21 is bounded on southern side by construction of building no. E20. It is also pertinent to note here that the words mentioned in Ex. PW1/1 (colly) are: "SOUTH: Building No. E20, constructed on Plot No.1." Thus, there is no mention of the words courtyard or open to sky therein. It was for the plaintiffs to show that there was an open courtyard towards their property E21 and the same did not have any construction except the adjoining boundary wall, one WC, passage and stairs in front portion after open courtyard as alleged by them. Plaintiffs have further alleged that D1 to D3 have unauthorisedly constructed rooms in the open courtyard thereby closing & obstructing ventilators/windows of their kitchens at first & second floors of property bearing no. E21 and has relied upon Ex. 1/3 (colly 6 pages) being RTI application & its reply by MCD as well as certified copies of RTI Application, receipt, transfer letter, internal forwarding letter, reply & forwarding letter of RTI reply as Ex. PW2/1 to Ex. PW2/6 respectively and also relied upon various photographs which are Ex. PW1/4 (colly), Ex. PW1/5 (colly) and Ex. PW1/6 (colly). However, as already stated earlier the question relating to unauthorized construction need not be looked into as the same has already been regularized by D4/MCD details of which have also been provided in WS of defendant no. 4 and the said fact as to giving detailed particulars qua the sanction allowed by MCD and completion of requisite formalities by defendant no. 1 to defendant no. 3, have also been observed by the Hon'ble High Court in its order dated 19.07.2011. At this stage, I find it pertinent to reproduce the observations made by the Hon'ble Supreme Court in relation to easementary rights as under:
(i) Bachhaj Nahar v. Nilima Mandal (2008) 17 SCC 491:
"19. Easements may relate to a right of way, a right to light and air, right to draw water, right to support, right to have overhanging eaves, right of drainage, right to a watercourse, etc. Easements can be acquired by different ways and are of different kinds, that is, easement by grant, easement of necessity, easement by prescription, etc. A dominant owner seeking any declaratory or injunctive relief relating to an easementary right shall have to plead and prove the nature of easement, manner of acquisition of the easementary right, and the man Page 17 of 23 (Sonam SinghII) Civil Judge07, Central, Delhi Om Prakash & Ors. vs. Smt. Sumitra Devi & Ors.CS SCJ 94260/16
ner of disturbance or obstruction to the easementary right.
20. The pleadings necessary to establish an easement by prescription, are different from the pleadings and proof necessary for easement of necessity or easement by grant. In regard to an easement by prescription, the plaintiff is required to plead and prove that he was in peace ful, open and uninterrupted enjoyment of the right for a period of twenty years (ending within two years next before the institution of the suit). He should also plead and prove that the right claimed was enjoyed independent of any agreement with the owner of the property over which the right is claimed, as any user with the express permission of the owner will be a licence and not an easement. For claiming an easement of necessity, the plaintiff has to plead that his dominant tenement and the defendant's servient tenement originally consti tuted a single tenement and the ownership thereof vested in the same person and that there has been a severance of such ownership and that without the easementary right claimed, the dominant tenement cannot be used. We may also note that the pleadings necessary for estab lishing a right of passage is different from a right of drainage or right to support of a roof or right to watercourse. We have referred to these aspects only to show that a court cannot as sume or infer a case of easementary right, by referring to a stray sentence here and a stray sentence there in the pleading or evidence."
(ii) Justiniano Antao v. Bernadette B. Pereira (2005) 1 SCC 471:
"9. We have gone through the three judgments i.e. trial court, first appellate court and that of the High Court. We have gone through the evidence adduced. From this, it is more than clear that there is no specific averment in the plaint or in the statement of the witnesses showing that this access from the land of the defendants was used as of right for the last 20 years. The evidence very categorically shows that the plaintiff has an access on the southeast side and this was being used by her for a long time. It was pointed out that only in the year 1984 had the plaintiff started using the access through the property of the defendants. It is also admit ted that the defendants were during that time on board a ship and as soon as they came back and saw the use of their land by the plaintiff, they put obstructions to it. Therefore, it is clear that it is not the case that the plaintiff has been using the access as of right through the prop erty of the defendants for more than 20 years. Since the plaintiff has an access through the southern side of her property, we see no reason why the property of other persons be used as an access to her house. If the plaintiff had no access to her house except through that of the property of the defendants then perhaps we would have considered appreciating as easement of necessity. But in order to establish a right by way of prescription one has to show that the Page 18 of 23 (Sonam SinghII) Civil Judge07, Central, Delhi Om Prakash & Ors. vs. Smt. Sumitra Devi & Ors.CS SCJ 94260/16
incumbent has been using the land as of right peacefully and openly and without any inter ruption for the last 20 years. There should be categorical pleadings that since what date to which date one is using the access for the last 20 years. In order to establish the right of pre scription to the detriment of the other party, one has to aver specific pleadings and categori cal evidence...."
In the present case, plaintiffs have merely pleaded in their plaint that the said ventila tors are very old constructed on the wall adjacent to the property no. E20, hence, it is the easementary rights of plaintiffs to enjoy the air & light from the said ventila tors as same are in existence for last more than 18/19 years. It is further averred that plaintiffs have purchased the property bearing no. E21 vide separate sale deeds. As already discussed, the sale deeds which are Ex. PW1/1 (colly) were executed in the year 1993 in favor of plaintiffs thereby implying that plaintiffs are in possession of property no. E21 since 1993 as also specified in Clause 2 therein. Even though PW 1 has deposed in his affidavit that prior to 1993 he was a tenant in the said property, however, he has failed to prove the same and nothing to this effect has been averred in the plaint and even the date or period of tenancy has not been specified by PW1 in his affidavit or plaint. It is also to note that even the vendors/previous owners have not been examined by plaintiffs to show that the nature of easementary rights en joyed by them or to clarify the extent of easement or title easements transferred to plaintiffs as mentioned in the sale deeds particularly in Clause 2 therein or to even prove that the ventilators/windows are very old and existing in property no. E21 for last 20 years. As has been held by the Hon'ble Supreme Court, the Court cannot as sume or infer a case of easementary right by referring to a stray sentence here and a stray sentence there in the pleadings or evidence let by plaintiffs. Furthermore, the grant of easement as relied upon by PW1 by way of recitation in the sale deeds Ex. PW1/1 (colly) is generic in nature and is not supported by any other document or details of property surrounding the building of plaintiffs E21 nor have plaintiffs ex amined the previous owners/vendors to show the nature of easementary rights en joyed by them or to clarify the extent of easement or title easements transferred to Page 19 of 23 (Sonam SinghII) Civil Judge07, Central, Delhi Om Prakash & Ors. vs. Smt. Sumitra Devi & Ors.
CS SCJ 94260/16plaintiffs by them as mentioned in the sale deeds particularly in Clause 2 therein or to even prove that the ventilators/windows are very old and existing in property no. E21 for last 20 years. The Court is thus of the view that in absence of any detail or categorical proof to that effect, easementary rights cannot be said to have been exist ing in favor of plaintiffs by merely reading of the recitals of the sale deeds executed in favor of plaintiffs. It was for the plaintiffs to plead and prove the easementary rights enjoyed by them by way of grant or by way of uninterrupted enjoyment for a period of twenty years, however, they have failed to do so.
18. It is also pertinent to mention here that PW1 in his crossexamination has stated that he was told by the previous owner that the property no. E21 was constructed somewhere in 1974 and further stated that he doesn't recollect up to which storey it was constructed then. As already stated above, the previous owner has not been examined by plaintiffs to establish that the plaintiffs' property bearing no. E21 along with the ventilators/windows on first & second floors existed since 1974. On the contrary, PW1 in his crossexamination has not denied and has rather stated that he doesn't remember when it was put to him that his property E21 was constructed up to ground floor only in the year 1973, first floor was constructed in the year 1983 and second floor was constructed in the year 1987. In his cross examination, even though PW1 has admitted to have deposited house tax to MCD, however, he has not filed any receipt on record and has rather stated that he doesn't remember the year of construction specified by him qua first & second floor. Furthermore, when PW1 was confronted by the Ld. Counsel for defendants with photocopies of Forms filed with MCD dated 01.04.1975, 01.04.1983 and proforma of survey in respect of property no. E21, it was stated by him that he cannot say anything qua the said documents. Now, although the said documents confronted to PW1 have been marked as MarkA, B and C respectively and the same were objected by the Ld. Counsel for plaintiff, however, the said documents were subsequently summoned by defendants at the stage of Defendant Evidence and Sh. Raj Kumar, LDC, House Tax Department, Karol Bagh Zone, NDMC, Delhi was Page 20 of 23 (Sonam SinghII) Civil Judge07, Central, Delhi Om Prakash & Ors. vs. Smt. Sumitra Devi & Ors.
CS SCJ 94260/16examined as DW1, who deposed to have brought the entire record available with the department qua property no. E21 and exhibited the documents as Ex. DW1/1 to Ex. DW1/5 (OSR). Perusal of Ex. DW1/1 which is the selfassessment return form for year 20042005 qua property no. E21 shows the names of owner & occupier as that of plaintiffs and the year of construction of ground floor as 1974, first floor as 1983 and second floor as 1983. Ex. DW1/2 is the application bearing dated 01.04.1975 pertaining to the construction made on ground floor of property no. E21, Ex. DW1/3 dated 01.04.1983 is the application pertaining to the addition of first floor including 4 rooms, 2 verandah, kitchen & second floor qua staircase with mumty, shed & latrine only (i.e. without kitchen) in property no. E21. Further, Ex. DW1/4 dated 01.01.1987 is the application pertaining to further additions made on second floor including kitchen. Ex. DW1/5 pertains to details of payment of property tax from year 200809 to 201819. From these documents, particularly Ex. DW1/3 and Ex. DW1/4 it is quite apparent that the kitchens on the first & second floors in property no. E21were constructed/added in the year 1983 and year 1987 respectively, whereas, the present suit was filed by plaintiffs in the year 1998, thereby implying that the windows/ventilators at first & second floors in plaintiffs' property bearing no. E21 did not exist for twenty years as alleged by plaintiffs. Now, even though plaintiffs may have enjoyed the air & light from the said ventilators/windows, however, for the said easementary right to be absolute, plaintiffs have to expressly plead and categorically prove that the access & use of light & air by them was peaceably & uniterruptedly enjoyed by them in building no. E21 for twenty years, which they have clearly failed to so in the present case. Plaintiffs have thus failed to prove the easementary rights of air & light either by way of grant or by way of prescription in their favour. Once plaintiffs have failed to prove easementary rights of light and air in their property bearing no. E21, no question arises as to the defeat of such rights by D1 to D3 and D5. Accordingly, both the issues 1 & 2 are decided against plaintiffs and in favor of defendants.
Page 21 of 23(Sonam SinghII) Civil Judge07, Central, Delhi Om Prakash & Ors. vs. Smt. Sumitra Devi & Ors.
CS SCJ 94260/1619. As far as status reports filed by defendant no. 4 are concerned, perusal of the record shows that multiple reports have been filed by MCD in the present suit. As per status report dated 25.02.99 the construction of property no. E20 was being done within the plot/house boundary and it is further stated that there was no encroachment on public land. As per report dated 08.03.99 the building plan qua property no. E20 was sanctioned vide file no. 19/B/WZ/99 released on 12.01.99 and it is further stated that the first floor stair case was in contravention with the sanctioned building plan. Perusal of status report dated 05.03.2002 reveals that the said property was subsequently regularized by the MCD. A copy of regularization fee for property no. E20 has also been filed by MCD on record. Thereafter, another status report was filed dated 28.03.2018, however, same pertains to property no. E 21 and 1B and not the suit property. From the aforesaid reports filed on record, it thus transpires that the construction made in property no. E20 has already been regularized by MCD and there remains no illegal & unauthorized construction in the suit property so as to continue the suit qua the said cause of action and relief related thereto. The said fact has also been observed in the order dated 19.07.2011 of the Hon'ble High Court and pursuant to which it was directed that the present suit shall continue with respect to the the cause of action and reliefs claimed qua the easementary rights. Furthermore, the then Ld. Judge in order dated 18.10.2019 also observed that the sanction plan of the suit property is not a relevant document in view of the order of Hon'ble High Court dated 20.07.2017 wherein operation of order dated 07.12.2017 qua directions to bring on record the detailed status report & action taken report was stayed and also considering the fact that the matter in issue in the present suit relates only to the easementary rights of plaintiffs, and consequently, order dated 08.08.2019 qua directions to NDMC to file sanction report was recalled on 18.10.2019. Thereafter, multiple applications filed on behalf of plaintiffs seeking to lead additional evidence qua the sanction plan and unauthorized construction were dismissed by the Ld. Predecessor of this court as well as this court, in view of orders/directions passed earlier and also being no Page 22 of 23 (Sonam SinghII) Civil Judge07, Central, Delhi Om Prakash & Ors. vs. Smt. Sumitra Devi & Ors.
CS SCJ 94260/16longer necessary for determining the matter in controversy between parties in the present suit.
Relief:
20. As discussed in para no. 17 and 18 above, plaintiffs have neither been able to specifically plead or prove by way of categorical evidence that they have been enjoying the easementary rights of light & air by way of express grant in their favor through sale deeds, nor have they established that they were in open and uninterrupted enjoyment of the easementary rights of light & air for a period of twenty years. Accordingly, in view of the findings arrived on both the issues against plaintiffs and in favour of defendants, the present suit is hereby dismissed without costs.
21. Decree sheet be prepared accordingly.
22. File be consigned to Record Room after due compliance.
Digitally signed by SONAM SONAM SINGH SINGH Date:
2022.08.22 16:53:35 +0530 Pronounced in open court: (Sonam SinghII) Dated: 22.08.2022 Civil Judge07, Central, Tis Hazari Courts, Delhi Note: This Judgment contains twenty three pages and all the pages have been checked and signed by me.
(Sonam SinghII) Civil Judge07, Central, Tis Hazari Courts, Delhi Page 23 of 23 (Sonam SinghII) Civil Judge07, Central, Delhi