Delhi District Court
Smt. Tilak Jain vs Smt. Prem Lata Jain on 24 May, 2022
Smt. Tilak Jain v. Smt. Prem Lata Jain & Anr.
IN THE COURT OF HELLY FUR KAUR : CIVIL JUDGE - 08
(CENTRAL), ROOM NO.231, TIS HAZARI COURTS, DELHI
SUIT NO : 96221/16
CNR NO.DLCT030002712011
In the matter of :
1. Smt. Tilak Jain
W/o Sh. Kimti Lal Jain,
C/o M/s Guru Kripa Enterprises,
At 246, First Floor, Katra Pyare Lal,
Chandni Chowk, Delhi1100006 ...PLAINTIFFS
VERSUS
1. Smt. Prem Lata Jain
W/o Sh. Chandan Mal Jain
2. Smt. Rita Jain
W/o Sh. S.K. Jain,
D/o Chandan Mal Jain
Both at 246, First floor,
Katra Pyare Lal, Chandni Chowk,
Delhi110006. ...DEFENDANTS
Date of institution : 27.09.2011
Date of judgment : 24.05.2022
SUIT FOR PERMANENT & MANDATORY INJUNCTION
JUDGMENT
1. Vide this judgment, I shall decide a suit for permanent and mandatory injunction.
CS No.96221/16 Pg 1 of 31
Smt. Tilak Jain v. Smt. Prem Lata Jain & Anr.
BRIEF FACTS OF THE PLAINT:
2. The brief facts of the plaint as alleged by the plaintiff which are necessary for the disposal of the suit are that the defendant No.1 is the motherinlaw of plaintiff and defendant No.2 is the sisterinlaw of the plaintiff. That both the parties were running their respective business in their respective premises since more than 50 years in the capacity of tenant under the landlordship of Mrinal Kant Nautiyal who was receiving rent from tenants on behalf of owner of said property Anurang Chandra. That thereafter Sh. Anurag Chandra sold the shops of that property to different persons through his SPA Sh. Mrinal Kant Nautiyal. Accordingly, defendant No.1 and plaintiff purchased the shops in their possession and occupation. It is stated that shop in possession of the defendant No.1 was purchased by her in the year 2010 in her own name but business is being run by defendant No.2 who is her daughter. Similarly, plaintiff purchased the shop, against sale consideration, which was in her possession vide sale deed dated 02.06.2011 duly registered as document No.4459, Book No.1, Volume No. 3848 Pages 54 to 61 on 02/06/2011 with the office of the SubRegistrar, Kashmere Gate, Delhi. That at the time of selling shops to the parties, it was made clear by the owner of said property that the Chhajja of first floor is common for all the CS No.96221/16 Pg 2 of 31 Smt. Tilak Jain v. Smt. Prem Lata Jain & Anr.
shops owners for the purpose of easement. The Chhajja situated at first floor of the property bearing No.246, Katra Pyare Lal, Chandni Chowk, Delhi110006 is shown in red Colour in the site plan. That since considerable period, both the parties to the present suit i.e. plaintiff and defendant were using the said Chhajja for putting/storing their goods upto the height of three feet without any hindrance from any corner and even remained continue with this arrangement. It is stated that the plaintiff and other occupant of first floor had been putting their goods on Chhajja since last more than 50 years and same is being used commonly by all the occupants for putting goods as well as easement rights. That on 07.06.2011 the plaintiff alongwith her family members except husband gone to Bombay. On 12/06/2011 it being holiday, the defendants with sole motive to grab the common space/Chhajja installed the iron Channel in the Chhajja after removing the goods of plaintiff lying over there. After having knowledge of this fact, the plaintiff and other family members tried to resolve this issue amicably with the help of relative and friends but all their efforts turned to futile then having no other option, plaintiff's husband made written complaint dated 05/07/2011 to the Committee of Katra Pyare Lal for his grievances. That after complaint, a meeting of common friends of the business community CS No.96221/16 Pg 3 of 31 Smt. Tilak Jain v. Smt. Prem Lata Jain & Anr.
were arranged by parties on 22.07.2011 and in this meeting, in the presence of common friends and relatives, matter was settled amicably and both the parties agreed to use that space for storage of their goods jointly after receiving the half cost of iron channel. After receiving the settled amount both the parties started using the said Chhajja jointly for putting their goods upto height of 3 Ft and there was no hindrance or obstacle of whatsoever nature from any corner. That on 20.09.2011, when plaintiff's son was about to put his goods, the defendants did not allow him to put goods and stated that the said portion belongs to her exclusively and no person other than them can use and utilize the said portion of Chhajja. The plaintiff sought indulgence of the relatives who were present in the meeting but all their efforts turned to futile due to dishonest intentions of the defendant. That on 22.09.2011, the defendant No.2 with intent to convert the said Chhajja into store room started collecting the building material. After having knowledge of this fact plaintiff requested defendant No.2 that as per settlement she had paid half cost of Chhajja alongwith iron channel and thus, she has equal rights as of her to use the said Chhajja but the defendant No.2 threatened the plaintiff's son with dire consequences of implicating her in false case and to ruin his prestige in market. The plaintiff's son for the CS No.96221/16 Pg 4 of 31 Smt. Tilak Jain v. Smt. Prem Lata Jain & Anr.
sake of his reputation went to his shop and written a complaint and visited the police station on 23.09.2011 but police officials refused to entertain the said complaint on the pretext that it is civil dispute and only civil court has jurisdiction. That on 25.09.2011, when plaintiff's son reached at shop and shocked to saw that two carpenter were working over there and already fixed the wooden frame fitted with plastic sheet upto 3ft height. They tried to cover the entire Chhajja with plastic sheet and wooden frame. The plaintiff's son immediately interfered and called the Police by dialing 100. Local Police came there and get the stop work at site as such defendants could not succeed in their nefarious designs. It is stated that the plaintiff sought indulgence of neighbour for saving the easement rights for all but due to quarrelsome and abusive nature of defendant No.2 no one dared to interfere. The plaintiff requested the defendants for not converting Chhajja into room because it will not only infringe her right to use the Chhajja but also the easement right of light & air of plaintiff will be affected adversely. The plaintiff has exhausted all the legal remedies available to him but all her efforts turned to futile because defendant No.2 is openly threatening the plaintiff that she will get said work done as such she has left with no other efficacious remedy except to approach this Court by way of present suit for her grievances.
CS No.96221/16 Pg 5 of 31 Smt. Tilak Jain v. Smt. Prem Lata Jain & Anr.
That the cause of action for filing the present suit arose in favour of plaintiff and against the defendants when defendants put iron channel on the Chhajja in the absence of plaintiff. The cause of action further arose when complaint was made to the Committee of Katra Pyare Lal. Cause of action further arose in favour of the plaintiff and against the defendant when meeting was arranged by & between parties and again when the defendants accepted half cost of the Chhajja as well as iron Channel from plaintiffs and allowed her to make second way to her shop. The cause of action further arose on each and every day when the plaintiff and defendants used the said Chhajja jointly for keeping their goods. The cause of action further arose on 20.09.2011 when defendants did not allow plaintiff's son to put her goods at the disputed place. The cause of action further arose when defendants collected material for converting the said Chhajja into room and again on 25.09.2011 when they deputed carpenter for making wooden frame of door. The cause of action is still continuing and subsisting as the defendants are adamant to convert Chhajja into room and if, the defendants succeed in their nefarious design, then plaintiff would be deprived of her easement rights of natural light and air to the shop. Hence, the present suit for following reliefs: CS No.96221/16 Pg 6 of 31 Smt. Tilak Jain v. Smt. Prem Lata Jain & Anr.
● Pass a decree of permanent injunction in favour of the plaintiff and against the defendants thereby restraining them, their heir, successor, nominee, servant, agent, assignees, attorney or any other person acting on their behalf from interfering in the easement rights of light and air to the first floor and also from raising further construction on Chhajja situated at first floor of property No.246, Katra Pyare Lal, Chandni Chowk, Delhi, which is more specifically shown in Red colour in the site plan annexed with the plaint; and ● Pass a decree of mandatory injunction in favour of plaintiff and against the defendants thereby directing them, their heirs, successors, nominees, agents, representatives, attorney or any other person acting on his behalf in any capacity to remove the construction raised by them and further be pleased to not to create nuisance, obstacle and hindrance in peaceful use and occupation of the Chhajja of the first floor of property No.246, Katra Pyare Lal, Chandni Chowk, Delhi - 110 006, more particularly shown in red colour in the site plan annexed with the plaint. WRITTEN STATEMENT OF THE DEFENDANTS:
3. The defendants filed their written statement controverting the claim of the plaintiff while submitting in preliminary objections that the present written statement is being filed on behalf of the both the defendants i.e. defendants No.1& 2 who are related being mother and daughter, respectively. The defendant No.1 is the owner of the shop premises etc. situated at No.246, Katra Babu Pyare Lal, Chandni Chowk, Delhi 110006 as per the sale deed dated 04.11.2010. However, the business is being run by her husband namely Shri Chandan Mal Jain and the defendant No.2 being the daughter of defendant No.1 looks after and manages day to day affairs of the said business. The suit as framed is CS No.96221/16 Pg 7 of 31 Smt. Tilak Jain v. Smt. Prem Lata Jain & Anr.
not maintainable and that plaintiff has taken inconsistent and contradictory plea. Further, the suit as framed is not maintainable in the present form.
4. In reply on merits, the averments made in paragraph 1 of the plaint have been stated to be false. It is further submitted that the plaintiff is attempting to gain undue sympathy by way of making false claim as to the relationship being that of the motherinlaw and daughterinlaw. That the plaintiff may kindly be asked to specifically admit or deny that the name of her husband is Mr. Kimti Lal Jain whose mother's name is Late Paan Kanwar and his stepmother's name is Smt. Rukmani Devi. Further, Late Shri Khoob Chand Jain was the father of the plaintiff's husband. Therefore, it is surprising to find the averments as made in para 1 of the plaint. The plaintiff is attempting to paint a picture as if it is a family dispute where a motherinlaw and her daughter are attempting to harass the daughterinlaw. The statement made by the plaintiff in this para is false to her own knowledge. That the averments made in paragraphs 2 and 3 of the plaint are stated to be false. The plaintiff is aged about 50 years and has come to the family of her husband after marriage. It is also wrong and is denied that the parties were under the landlordship of Mrinal Kant Nautiyal. The averments made in CS No.96221/16 Pg 8 of 31 Smt. Tilak Jain v. Smt. Prem Lata Jain & Anr.
corresponding paragraph of the plaint are not very relevant for the purpose of adjudication of the present controversy and as such the defendants crave leave and seek indulgence not to detail out the entire sequence of events leading to the acquisition of the ownership rights which are otherwise set out in the sale deed dated 04.11.2010 in favour of the defendant No.1 A copy of the sale deed has been placed on record by the plaintiff herself. However, peculiarly the plaintiff has not placed on record the copy of the sale deed allegedly dated 02.06.2011 in her own favour. The plaintiff may be directed to place the same on record so that the respective rights, title and interest may properly be ascertained and adjudicated between the parties. Further, the Map annexed with the sale deed dated 04.11.2010 is not true to its original and as such the answering defendants crave leave and seek indulgence of this Hon'ble Court to place the same on record. That the averments made in paragraph 4 and 5 of the plaint are stated to be false. As a matter of fact, there are four owners of the properties at the first floor in respect of specific portions. Further, the defendant No.1 is the first person to acquire ownership with respect to her shop and other portions in the year 2010 and the other three including the plaintiff has acquired the shop by way of ownership after more than seven months, i.e. in June CS No.96221/16 Pg 9 of 31 Smt. Tilak Jain v. Smt. Prem Lata Jain & Anr.
2011. In the circumstances, there could be no occasion for the alleged assurance with respect to 'Chhajja' inasmuch as the erstwhile owner has already transferred all the rights, titles and interest in respect of the same in favour of the defendant No.1. Further, it is stated that the defendant No.1 on one hand, while the plaintiff and her husband on the other hand, discussed and finalized that the portion shown as computer room alongwith the shop of the plaintiff which portion is a part of the old 'Chhajja' may be taken by the plaintiff and her family. It was agreed that the portion shown as store though the part of old 'Chhajja' may be transferred to the defendant No.1 as the owner thereof, which portion was already under her exclusive use and enjoyment through her husband. This part indicated as store in the Map attached to the sale deed was already used as a store exclusively by the defendants. Therefore, it does not lie in the mouth of the plaintiff to make averments as contained in paragraphs under reply. The use was not common but was exclusive as stated hereinabove. The plaintiff has used the expression of easement in paragraphs under reply. However, the plaintiff has failed to state the origin of the right, i.e. whether statutory, by way of prescription or express/implied grant. Needless to state that there had been neither prescription nor grant apart from the fact that there is no CS No.96221/16 Pg 10 of 31 Smt. Tilak Jain v. Smt. Prem Lata Jain & Anr.
statutory origin as well. As a matter of fact, there is no right of easement with reference to the beneficial enjoyment of dominant heritage as defined and understood. That the averments made in paragraphs 6 and 7 of the plaint have been denied and it is submitted that the defendants alongwith Shri Chandan Mal Jain, were in actual physical possession of the portion even before the execution of the sale deed in their favour and the title was perpetuated as owner thereof with the execution of sale deed. Under the circumstances, there was no controversy and the question as to resolution of the issue as alleged in paras under reply do not arise. The defendants are not aware of any complaint to the Katra Committee as alleged. However, the complaint if any, made to the Katra Committee must be on concocted facts by way of Peshbandi inasmuch as the plaintiff and her family members have turned dishonest and desire to grab the defendants' property. There had been no meeting as alleged by the plaintiff 22.07.2011 and the allegations in this regard are absolute fabrication. Further, it is submitted that the defendant No.1 has paid the consideration for acquisition of the ownership rights, therefore it is ridiculous to allege or even imagine that she would give up her rights by way of receiving half the costs of the iron channel. As already stated, the parties are in exclusive possession and use of their respective portions CS No.96221/16 Pg 11 of 31 Smt. Tilak Jain v. Smt. Prem Lata Jain & Anr.
of the old chhajja which portions are indicated by way of computer room and store. The parties had been in possession and use of the respective portions prior to the execution of the sale deed and was so discussed and settled between the parties while acquiring ownership of the premises. That the averments of paras 8 & 9 of the plaint have been denied. It is correct that ever since the execution of the sale deed in favour of the defendant No.1, the defendants had been asserting their rights as owners and could have permitted the plaintiff's son and/or husband only as a good gesture by way of permissive use. However, the plaintiff cannot claim any right, title or interest over the same. It is submitted that there could be no occasion for such a situation particularly in view of the averments with regard to the sequence of events as stated hereinabove. The complaint to the local police on 23.09.2011 as alleged in paras under reply is concoction, fabrication and by way of Peshbandi. That the averments made in paragraph 10 of the plaint have been denied. As a matter of fact, the defendant No.2 was attending the affairs at the shop when the plaintiff's son attempted to create nuisance and mischief. It is further submitted that it was the defendant No.2 who called for the police help. It is malicious and defamatory to allege that the defendant No.2 is of quarrelsome or CS No.96221/16 Pg 12 of 31 Smt. Tilak Jain v. Smt. Prem Lata Jain & Anr.
abusive nature. It is further submitted that the plaintiff has not laid the necessary foundation to claim the right of easement in any manner whatsoever. Firstly, the plaintiff has failed to state the origin of right. Secondly, the plaintiff cannot claim both, i.e. ownership and the right of easement. It is an inconsistent and contradictory plea which is not permissible in law. Thirdly, it may also be appreciated that there could be absolute right of access of light and air. The plaintiff has not made necessary pleadings in this behalf. Therefore, in respectful submission of the petitioner, no right of easement can be claimed by the plaintiff. That the averments made in paragraph 11 of the plaint have been denied. There had been no occasion for exhausting the legal remedies inasmuch as the plaintiff has no right, title or interest in the premises, namely chhajja/store in question which premises are exclusively owned, used and enjoyed by the defendants. That the averments made in paragraph 12 of the plaint have been denied and it is submitted that there is no cause of action in favour of the plaintiff and/or against the defendants as alleged. That the averments made in paragraph 13 of the plaint relates to the territorial jurisdiction of this learned court and are not denied. However, the fact remains that there is no cause of action in favour of the plaintiff and/or against the defendants as such the present suit is not CS No.96221/16 Pg 13 of 31 Smt. Tilak Jain v. Smt. Prem Lata Jain & Anr.
maintainable. The plaint may be rejected. That the averments made in paragraph 14 of the plaint have been denied. The suit has not been properly valued for the purposes of court fees and the jurisdiction. Admittedly, the plaintiff is neither the owner nor is in possession of the premises in dispute. Therefore, the plaintiff is required to pay the ad valorem court fees on the market value of the premises in question. REPLICATION:
5. Plaintiff filed replication to the written statement of the defendant denying the case of the defendant; reiterating and reaffirming the case as set up by the plaintiff in the plaint. However, it has been specifically stated that defendant No.1 has in utter violation of the easementary rights of the plaintiff and other occupants of the building on the first floor and with malafide intention in connivance with the erstwhile owner, has illegally bought the portion shown red in the site plan i.e. the Chhajja for common use and meant for fresh air and light in the first floor which is necessary for all the occupants of the first floor as otherwise the entire common area of the first floor as well as shops on the first floor would be rendered dark and cold detrimental to the health of the customers as well as occupants of the shops.
CS No.96221/16 Pg 14 of 31
Smt. Tilak Jain v. Smt. Prem Lata Jain & Anr.
ISSUES:
6. From the pleadings of the parties, following issues were framed vide order dated 15.12.2012 by ld. Predecessor:
1. Whether the plaintiff is entitled for decree of permanent injunction? OPP.
2. Whether the plaintiff is entitled for decree of mandatory injunction? OPP.
3. Relief.
PLAINTIFF'S EVIDENCE:
7. In order to prove, plaintiff examined following witnesses:
● PW1 was plaintiff herself whose examination in chief was by way of affidavit Ex.PW1/A. PW1 relied upon following documents:
1. Ex.PW1/1 (OSR) is copy of sale deed.
2. Ex.PW1/2 is site plan.
3. Ex. PW1/3 is address form.
4. Ex. PW1/4 (colly.) Is photographs (eight in numbers).
● PW2 was Sh. Arpan Jain whose examination in chief was by way of affidavit Ex.PW2/A. PW2 relied upon the documents already exhibited and relied by PW1.
● PW3 was Sh. Vaibhav Massey, Local Commissioner. PW3 deposed that he was appointed Local Commissioner by the court and visited the CS No.96221/16 Pg 15 of 31 Smt. Tilak Jain v. Smt. Prem Lata Jain & Anr.
suit premises on 05.10.2011 in the evening time. There he inspected the suit premises and prepared report. The same was Ex.PW3/A. However, vide order dated 19.05.2016, Ld. Predecessor of this court had stopped the cross examination while holding that the report of local commissioner is not relevant for the purpose of deciding the conflict in the suit. It was clearly ordered that the report shall not be read in evidence.
DEFENDANT'S EVIDENCE:
8. On the other hand, defendants to prove their case examined Smt. Rita Jain as DW1 whose examination in chief was by way of affidavit Ex.DW1/A.
9. I have heard the arguments and perused the record.
10. Plaintiff has relied upon following judgments: ● AIR 2009 (NOC) 2579 (Raj) LRs of Late Ganga Singh v. Jethmal & Ors.
● AIR 1994 HP 56 Suresh Chand v. Hindu Mal & Ors.
● AIR 1988 Calcutta 320 Bhaskar Ghosh v. Santosh Kumar Ghosh. ● AIR 1989 Raj 1 Heera Lal v. Ramjeevan.
● AIR 2003 Madras 174 Periya Gounder v. Chinna Gounder. ● Vidhyadhar v. Manikrao & Anr. 1999 SCC (573).
CS No.96221/16 Pg 16 of 31 Smt. Tilak Jain v. Smt. Prem Lata Jain & Anr.
11. Defendants have relied upon following judgments: ● AIR 1987 Madras 102 E. Elumalaichetty v. Naina Mudali & Ors. ● AIR 1966 Punjab 502 (V 53 C 125) Devinder Kumar v. Chatro Devi. ● AIR 1996 Punjab 506 (V 53 C 126) M.P. Shreevastava v. Veena. ● 1959 Patna 517 (V 46 C 149) Bansidhar & Anr. v. Matru Mal & Ors. ● AIR 1914 Privy Council dated 11.05.1914 P.C.E Paul & Anr. v. W. Robson & Ors.
● AIR 1988 Kerala 298 C. Mohammed v. Ananthachari.
● AIR 1985 Orissa 90 Laxman Patnaik v. Cuttack Municipal Council Cuttak & Ors.
12. Issuewise findings as follows:
FINDINGS:
ISSUE NO.1 Whether the plaintiff is entitled for decree of permanent injunction? OPP.
13. In specific terms, plaintiff has sought relief of permanent injunction that defendants be restrained from interfering in the easement rights of light and air to the first floor and also from raising further construction on Chhajja situated at first floor of property No.246, Katra Pyare Lal, Chandni Chowk, Delhi110006.
CS No.96221/16 Pg 17 of 31 Smt. Tilak Jain v. Smt. Prem Lata Jain & Anr.
14. Before proceeding to give any findings, it is pertinent to note preliminary facts as set up in the plaint. It is claimed that the plaintiff and defendant No.1 purchased their respective shops in their possession in 2011 and 2010, respectively from Sh. Anurag Chandra. Further that both the parties were running their business in respective shops since more than 50 years in capacity of tenant of the said owner. It is further averred that at the time of sale of shop, it was made clear by the owner that Chhajja of first floor shall be common for all the shop owners for the purpose of easement. That the plaintiff as well other occupants of first floor had been putting their goods on Chhajja since 50 years. The Chhajja as shown in site plan relied upon by the plaintiff is a portion adjoining a store which is shown as part of plaintiff's shop. It is alleged that the defendant has installed an iron channel in the Chhajja after removing goods of plaintiff lying over there. Besides, it is stated that the parties agreed to use that space for storage of goods jointly after plaintiff paid half cost of iron channel to the defendant. Plaintiff has also asserted easement right of light and air emanating from the said Chhajja.
15. Having noted that, since the pleadings of the plaintiff are ambiguous and obscure, the claim of the plaintiff in the plaint regarding the first floor, specifically the Chhajja, is attempted to be delineated into three limbs for CS No.96221/16 Pg 18 of 31 Smt. Tilak Jain v. Smt. Prem Lata Jain & Anr.
the sake of convenience: firstly, plaintiff had right to use the Chhajja as it was agreed with the owner of the property at the time of the purchase of shop that the Chhajja shall be used in common by all the owners/occupants of the first floor; secondly, plaintiff has easementary right to use the Chhajja on account of use for a considerable period and lastly, that the plaintiff had paid half cost of the iron channel put by the defendant no.2 on the Chhajja against which it was agreed that plaintiff would also have right to jointly use the space for storage of their goods.
16. Nonetheless, considering the relief sought by the plaintiff concerning the present issue, the court has to basically determine, firstly, whether the plaintiff is entitled to easementary right of light and air to the first floor against the defendants or not and secondly, whether the plaintiff has any such right in or to use Chhajja which could entitle her to the relief restraining defendant from raising any further construction or not.
17. At this very point, I must first consider that on one hand the plaintiff alleges right to use Chhajja by virtue of an agreement with the owner of the property and on the other hand, plaintiff claims easement right in the said Chhajja. In the opinion of this court, both the claims are antithetical to each other since while former arises out of a permission leading to a relationship of licencor and licencee, the latter emanates from either CS No.96221/16 Pg 19 of 31 Smt. Tilak Jain v. Smt. Prem Lata Jain & Anr.
prescription, necessity etc. and presumes existence of a dominant and servient heritage. For this purpose, I am strengthened by following observation of Hon'ble Supreme Court of India in Bachhaj Nahar v. Nilima Mandal & Ors. (Civil Appeal No.57985799 of 2008; 23.09.2008):
"..In regard to an easement by prescription, the plaintiff is required to plead and prove that he was in peaceful, 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...."
18. Nevertheless, I still proceed to adjudicate the plaintiff's claims on merits one by one.
19. Insofar as, common right to use the Chhajja by way of agreement with original owner of the property is concerned, the sale deed brought in evidence by the plaintiff certainly refers to a common portion shown in yellow in the site plan. However, it cannot be lost sight of that it is the own contention of the plaintiff that the defendant had purchased another shop at the first floor of the property in 2010 i.e., prior to the plaintiff and it has nowhere been brought on record that the original owner of the CS No.96221/16 Pg 20 of 31 Smt. Tilak Jain v. Smt. Prem Lata Jain & Anr.
property agreed with the defendant and other coowners too that the Chhajja i.e., the suit property has to be used in common. In fact, contrary to that, the exclusive right of the defendant over the suit property has been admitted by the plaintiff in the replication. It has been averred that defendant No.1 has bought the portion shown in red colour in the site plan filed by the plaintiff (i.e. Chhajja). Further, the sale deed relied upon by the plaintiff, in absence of any other evidence regarding common use of the Chhajja binds only the parties to the sale deed i.e., the vendor and the plaintiff. More so, once the exclusive right of the defendant over the Chhajja is admitted by the plaintiff, the agreement with the previous owner as to any common right to use the Chhajja becomes inconsequential. It is also worth noting that PW1/plaintiff had deposed during crossexamination that negotiations about sale and purchase of the property referred to in para 4 of the plaint concerning common use of Chhajja were held between seller and the husband of the plaintiff and not herself.
20. As regards easement, one of the claims of the plaintiff is that the plaintiff and other occupants of the first floor had been putting their goods on Chhajja since last 50 years. Secondly, plaintiff has asserted easement right to light and air from the Chhajja.
CS No.96221/16 Pg 21 of 31 Smt. Tilak Jain v. Smt. Prem Lata Jain & Anr.
21. It is in the fitness of the circumstances to first consider the meaning of easement as Indian Easements Act, 1882. Section 4 of the Act reads as under :
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.
22. As per the explanation appended to the provision, the term 'beneficial enjoyment' includes possible convenience, remote advantage, and even a mere amenity.
23. A very plain reading of the main body of the section is suggestive that the easement is something that exists or arises for beneficial enjoyment of land of the dominant (i.e., the one who asserts easement over other's land), and not for any personal enjoyment or use independent of the land of the dominant. In the present factual matrix, if for a moment, the aspect of light and air is left aside, the substantial claim of long and uninterrupted use of the Chhajja is on the strength of merely storing of goods. It may be borne in mind here that Chhajja is not claimed to have been part of the common passage to the shop of the plaintiff. In the considered opinion of this court, merely storing of goods in other's CS No.96221/16 Pg 22 of 31 Smt. Tilak Jain v. Smt. Prem Lata Jain & Anr.
property can by no stretch of imagination be taken to be a right for the beneficial enjoyment of plaintiff's own property, unless specifically shown otherwise. If merely this kind of use of someone's land is covered within the ambit of easement, it would dilute the whole concept of easement and rather it would lead to chaos and might cause disturbance in law and order.
24. Since the claim of the plaint is based upon long and uninterrupted use of Chhajja for more than 20 years, Section 15 of the Indian Easements Act also assumes significance which deals with easement by prescription and the relevant portion is extracted hereby:
"...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 CS No.96221/16 Pg 23 of 31 Smt. Tilak Jain v. Smt. Prem Lata Jain & Anr.
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."
25. The claim of the plaintiff of long drawn enjoyment of the Chhajja by storage of goods can at best be considered under the term 'other easement' as used in this provision. However, as per the explanation, the term 'enjoyment' does not cover any usage in pursuance of an agreement with the owner unless the right by agreement has been granted as an easement. It bears repetition to say that the plaintiff has alleged common use of Chhajja by virtue of an agreement with the original owner, at least, since 2011 when the plaintiff purchased the shop on the first floor of the property. In as much as, grant of right as an easement is concerned, it has already been observed above in context of Section 4 of the Act which defines the term easement, that the use of Chhajja defined by the plaintiff does not qualify for an easement in the first place.
26. Therefore, if both the provisions i.e., Section 4 and Section 15 of Indian Easements Act are read conjointly in the backdrop of the claims of the plaintiff, it emerges that actually plaintiff has no easement in her favour CS No.96221/16 Pg 24 of 31 Smt. Tilak Jain v. Smt. Prem Lata Jain & Anr.
to use the Chhajja for storage of goods etc.
27. Even otherwise, the plaintiff had to in fact prove her claim of the easement over Chhajja by way of prescription. Notably, the claim of the plaintiff in plaint is that she has been using the Chhajja for last 50 years. To the contrary, PW1 deposed during crossexamination that the suit property was in tenancy of fatherinlaw for about 50 years before purchase in 2011 by the plaintiff, however, it was also stated that neither fatherinlaw nor grandfather in law of the plaintiff ever carried on any business in the suit property. Further that plaintiff neither resides nor carries on business in the shop claimed to be in the possession of the plaintiff since only the husband of the plaintiff carries on business. On being asked about the meaning of the words 'considerable period' in Para no.5 of the plaint which refers to use of the Chhajja, PW1 deposed that the said period refers to period post purchase of shop in 2011. Moreover, the age of the plaintiff as per record must be 53 years at the time of institution of suit thereby questioning her own claim of personal use of shop and Chhajja for 50 years. It may be recalled that there is not even a whisper in the plaint about use by fatherinlaw or husband. Further, it can also not be lost sight of that defendant No.1 is motherin law of the plaintiff who would rather be in better position to use and claim CS No.96221/16 Pg 25 of 31 Smt. Tilak Jain v. Smt. Prem Lata Jain & Anr.
easment, if any, over the Chhajja than the plaintiff.
28. Therefore, the claim of the plaintiff regarding long and continuous use of Chhajja stumbles and is not reliable, especially in absence of any evidence of husband of the plaintiff. Ergo, the plaintiff could not prove easement by way of prescription by use for more than 20 years.
29. Besides, the claim of the plaintiff that Chhajja was also agreed to be used jointly by the parties to the suit in a meeting held on 22.07.2011, has not been proved by the plaintiff. To the contrary, plaintiff deposed during cross examination that the plaintiff was not present at the meeting and that the alleged payment in return of that agreement might have been made by her husband or son. Therefore, plaintiff has herself contradicted her own claims and the evidence with respect to this fact is in fact a hearsay evidence.
30. Now taking up the claim of the plaintiff over Light and Air, as per Section 28 of Indian Easements Act, 1882, the extent of prescriptive right to light or air is that quantity of light or air which has been accustomed to enter that opening during the whole of the prescriptive period irrespectively of the purposes for which it has been used. It bears repetition to say that the plaintiff had admitted that shop which is claimed to be the dominant heritage for the purpose of easement was never run by the plaintiff nor CS No.96221/16 Pg 26 of 31 Smt. Tilak Jain v. Smt. Prem Lata Jain & Anr.
the plaintiff resides in the said building. As a matter of natural corollary, the plaintiff was not a competent witness to testify with respect to the extent of light and air enjoyed by the plaintiff for 20 years. At this juncture only, taking a pause, I must advert to the fact that on being confronted with a site plan Ex.DW1/PX1, PW1 deposed that the whole area marked X1, X2 , X3 and X4 was the Chhajja. If the said site plan is read with the site plan of the plaintiff (Ex.PW1/2), the said portion X1, X2, X3 and X4 consisted the Chhajja (suit property) as well as the portion which was purchased by the plaintiff alongwith the shop. However, it was stated that she did not know when were the suit property and that portion divided and if there is any door installed between them. By stating so, plaintiff has further weakened here case by revealing lack of knowledge about the suit property, its history and use, which was substantial herein in view of the claim of prescriptive use. More so, as per the testimony of the plaintiff, even her grand fatherinlaw or fatherinlaw did not carry on the business at the said shop despite being claimed that the use of the shop prior to purchase in 2011 was on account of tenancy of father in law. Additionally, though, it is stated by plaintiff that her husband carried on business at the shop, even if for the sake of argument it is deemed that the plaintiff enjoyed the light and air after purchase of the shop in CS No.96221/16 Pg 27 of 31 Smt. Tilak Jain v. Smt. Prem Lata Jain & Anr.
2011, no prescriptive right arises in her favour as the suit was filed in September 2011 and use/enjoyment for at least 20 years is a sine qua non as per Section 15 of the Act. In fact, even as on date also, 20 years have not lapsed since the purchase of shop. It may be noted that the plaintiff also did not call her husband as a witness who might have actually enjoyed the Light and Air from the Chhajja in question. Accordingly, the very factum of use and enjoyment of any light and air from the Chhajja remains unestablished, let alone the extent and the period of enjoyment.
31. In addendum, it cannot be ignored that plaintiff admitted during cross examination that there is a window between points X and X1 in a portion shown in Site Plan (Ex.PW1/2) which is a store adjoining plaintiff's shop, meaning thereby that it is not that the plaintiff's shop is completely deprived of the air and light due to blockage of Chhajja, if any. This fact bears relevance since the extent of air and light enjoyed, if so, for 20 years has not been proved by the plaintiff. In this regard, court finds favour with the argument of the defendant side that the plaintiff is not entitled to all the air and light in the world.
32. Since the plaintiff has claimed permanent injunction which is governed by Section 38 of Specific Relief Act, 1963, it was essential on the part of CS No.96221/16 Pg 28 of 31 Smt. Tilak Jain v. Smt. Prem Lata Jain & Anr.
the plaintiff to show an obligation existing in her favour which may be or might have been breached. The upshot of the above analysis is clear that the plaintiff could not prove any obligation or right in her favour which could entitle her to permanent injunction as sought for against the defendant. Nonetheless, as regards any act of the defendants which might have constituted breach also, it is astonishing to note that PW 1/plaintiff admitted during crossexamination that she was never present at the time of incidents as alleged to have happened in the plaint on, 20.09.2011, 22.09.2011 and 25.09.2011. Therefore, none of the ingredients of the section have been proved.
33. Before parting with the issue, in the fairness to the plaintiff, I must state that I had gone through the citations filed by the plaintiff. However, in view of the circumstances discussed above, none of the citations came to aid of the plaintiff for one reason or another. To be specific, all judgments deal with the situation when prescriptive use has been proved for more than 20 years which is not the case here.
34. Though, banal to say, it may also be mentioned that plaintiff has to stand on his own legs and cannot draw strength from weakness in the case of the defendants. Therefore, flaw or incoherence, if any, in the case of defendants herein, pale into insignificance as plaintiff could not CS No.96221/16 Pg 29 of 31 Smt. Tilak Jain v. Smt. Prem Lata Jain & Anr.
discharge the onus in the first place.
35. Hence, this issue is decided against the plaintiff and in favour of defendants.
ISSUE NO.2 Whether the plaintiff is entitled for decree of mandatory injunction? OPP.
36. By way of mandatory injunction, plaintiff prays for restraining the defendants thereby directing them, their heirs, successors, nominees, agents, representatives, attorney or any other person acting on his behalf in any capacity to remove the construction raised by them and further be pleased to not to create nuisance, obstacle and hindrance in peaceful use and occupation of the Chhajja of the first floor of property No.246, Katra Pyare Lal, Chandni Chowk, Delhi - 110 006, more particularly shown in red colour in the site plan annexed with the plaint.
37. As per Section 39 of Specific Relief Act, 1963, mandatory injunction can be granted to compel performance of certain acts by the defendant only to prevent breach of an obligation existing in favour of the plaintiff. It has already been concluded in issue no.1 that the plaintiff failed to establish any obligation existing in her favour as regards Chhajja, at least relatively as against the defendant, defendant cannot be compelled to do any act at the instance of the plaintiff.
CS No.96221/16 Pg 30 of 31 Smt. Tilak Jain v. Smt. Prem Lata Jain & Anr.
38. Hence, this issue is decided against the plaintiff and in favour of defendants.
RELIEF
39. In view of the discussion herein above on the issues, it is held that plaintiff has failed to prove her case. Therefore, suit of the plaintiff is dismissed. No order as to costs.
40. Decree sheet be prepared accordingly.
Digitally
41. File be consigned to Record Room. HELLY signed by HELLY FUR KAUR FUR Date:
(This judgment contains 31 pages KAUR 2022.05.25 10:00:04 +0530 and each page has been signed by me.) Announced in the open court (HELLY FUR KAUR) on 24.05.2022 Civil Judge - 08 (Central)/Delhi CS No.96221/16 Pg 31 of 31