Delhi District Court
Mrs. Anita Jain vs ) Sh. Yogender Garg on 20 December, 2012
In the Court of Sh. Satish Kumar Arora: Commercial Civil Judge cum
Additional Rent Controller (North East District) Karkardooma Courts Delhi.
UNIQUE I.D. NO.: 02402C0365662005
CIVIL SUIT NO. 770/09
IN THE MATTER OF:
Mrs. Anita Jain
w/o Sh. Anil Jain
R/o D-107, Preet Vihar,
Delhi-110092 ..........................Plaintiff
Versus
1.) Sh. Yogender Garg s/o Sh. Mewa Ram Garg r/o H. No. 135, West Guru Angad Nagar, Delhi-110092
2.) Municipal Corporation Of Delhi, Through Commissioner of MCD Town Hall, Chandni Chowk, Delhi-110006
3.) Delhi Development Authority, Vikas Sadan, INA, New Delhi (Through its Vice-Chairman)
4.) The Commissioner Of Police, Delhi Police, Police Head Quarters, I.P. Estate, New Delhi-110002 ............................. Defendants Date of Institution of the Suit : 27.06.2005 Arguments Heard : 03.12.2012 Date of Judgment : 20.12.2012 SUIT FOR PERMANENT & MANDATORY INJUNCTION Judgment:
1. The brief facts as alleged in the plaint are that the plaintiff Anita Jain CS No. 770/09, Anita Jain vs. Yogender Garg & Ors. Page No. : 1/17 is an owner of property no. 89, New Rajdhani Enclave, Delhi-92 having purchased it in the year 1994 from the defendant no.3 DDA. Plaintiff is a resident of H.No.107, Preet Vihar, Delhi, however, she also occasionally resides at property no. 89. Yogender Garg, the defendant no.1, started raising construction in the adjoining property bearing no.88, New Rajdhani Enclave, Delhi by claiming himself to be the owner thereof and on 19.06.2005 plaintiff noticed that the construction being carried out in the adjoining property was unauthorized and illegal as it was violative of the sanctioned lay out plan of the locality as approved by the defendant no.3 DDA which mandates leaving of an open space on the left side adjacent to the plaintiff's property beside some open space in the front and rear and to the right side which is adjoining the main road Vikas Marg. Plaintiff also noticed that just adjacent to the drive way in her property, defendant no.1 had raised a Jaal of iron pillars in order to cover the open space which otherwise is to be left open in terms of the sanctioned lay out plan. The unauthorized construction is continuing despite the plaintiff's request to the defendant no.1 and to the other authorities, which are defendant no.2 to 4 respectively, to stop it. The sanction of building plan of the defendant no.1 property by the Head Quarters of the MCD is not only contrary to the sanctioned lay out plan of New Rajdhani Enclave but it also breaches the easement right of privacy and security of the plaintiff. Thus, a prayer is made by the plaintiff to direct the defendant no.1 to remove the illegal and unauthorized construction raised by him in the property no.88, New Rajdhani Enclave, Delhi and to raise the construction strictly in accordance with the sanctioned lay out plan of the locality as approved by the DDA/defendant no.3 and to further direct the defendant no.2 to 4 to ensure that no unauthorized construction is allowed to be done by the defendant no.1 and to book him for unauthorized construction by demolishing and CS No. 770/09, Anita Jain vs. Yogender Garg & Ors. Page No. : 2/17 sealing his property forthwith. Plaintiff also prays for restraining the defendant no.1 and his agents/ associates from raising any further construction in the adjoining property no.88 in violation of the sanctioned lay out plan of the locality and to also direct the defendant no.2 to 4 to stop any further construction in the suit property. Plaintiff also makes a prayer for mandating the MCD to withdraw the sanction granted vide file no.
61/B/HQ/2003 dated 05.04.03 in respect of property no. 88, New Rajdhani Enclave, Delhi-110092.
2. All the defendants contested the suit of the plaintiff by filing their Written Statements.
3. The defendant no.1 in his written statement raised the preliminary objection that plaintiff has no legal right to sue the answering defendant for violation of any legal right as the construction carried out by the defendant no.1 in the adjoining property is after obtaining the sanction plan approved by the concerned department of MCD and further no easement right of the plaintiff is violated as the easement of light and air can also be acquired through an aperture and easement cannot be prescribed for in respect of light and air over an open space. In his reply on merits, it was stated that the construction work in the property was started long back and the plaintiff was very much aware of it as some of the building material was also stored in the plaintiff's house after getting prior permission of her and her husband. Further, that the adjoining property is used by the plaintiff's husband as a godown to store their material for the purposes of business. While denying the other averments made in the plaint, it was stated that the sanction plan was duly sanctioned by the MCD after considering all the present and future aspects of development of the area and as per the building bye laws of MCD. Prayer was thus made to dismiss the suit of the plaintiff with costs.
CS No. 770/09, Anita Jain vs. Yogender Garg & Ors. Page No. : 3/17
4. The defendant no.2 which is the Municipal Corporation of Delhi (in short, 'the MCD') also filed its written statement therein raising a preliminary objection of the suit of the plaintiff being barred u/s 477 /478 of DMC Act for want of service of statutory notice. It was also stated that the suit of the plaintiff is also not maintainable as the building plan of the adjoining property no.88, New Rajdhani Enclave, Delhi was sanctioned by the MCD vide file no. SBP No.61/B/HQ/2003 dated 05.04.03 and some deviation carried out in the property was already booked vide file no. 44/B/UC/SH/S/2005 dated 16.06.05. The rest of the contents of the plaint were also denied and a prayer was made to dismiss the suit of the plaintiff with costs.
5. The defendant no.3 which is the Delhi Development Authority (in short 'DDA') in its written statement stated that the building activities of the area pertaining to New Rajdhani Enclave, New Delhi stood transferred to MCD and the area stands denotified. It was further stated that now the property in dispute is within the jurisdiction of MCD to initiate appropriate legal proceedings for any illegal construction raised by the defendant no.1 in contravention of building plan. Rest of the contents of the plaint were also denied for want of knowledge and a prayer was accordingly made to dismiss the suit of the plaintiff with costs.
6. The defendant no.4 is the Commissioner of Police, Delhi Police through SHO PS Preet Vihar. In its written statement, a preliminary objection was raised that the suit of the plaintiff has not been filed u/o 27 R 5(a) CPC. Further, the suit of the plaintiff is also not maintainable as no notice u/s 140 of the DP Act was issued by the plaintiff to the answering defendant. It was also stated that the plaintiff has not come to the court with clean hands as the answering defendant had already informed the officials of MCD regarding the unauthorized construction. It was also stated CS No. 770/09, Anita Jain vs. Yogender Garg & Ors. Page No. : 4/17 that the suit of the plaintiff besides being bad for mis-joinder / non-joinder of necessary parties is also not maintainable u/s 41(d) of the Specific Relief Act as the answering defendant cannot be restrained from instituting / prosecuting any proceeding in a criminal matter. The rest of the contents of the plaint were also denied and a prayer was made to dismiss the suit of the plaintiff with costs.
7. Plaintiff filed the replication to the written statement of all the defendants therein denying the averments made in their written statements and reiterating and reaffirming the averments made in the plaint.
8. It is pertinent to note here that plaintiff preferred an application u/o 6 R 17 r/w S. 151 CPC for amendment of the plaint which was partially allowed vide order dated 13.10.05 and the plaintiff was permitted to claim the relief of mandatory injunction by way of amendment and to make the necessary amendments in the proposed plaint accordingly.
9. Following issues were framed on the pleadings of the parties:
(i) Whether the plaintiff is entitled to decree of mandatory injunction as prayed for? OPP.
(ii) Whether the plaintiff is entitled to decree of permanent injunction, as prayed for?OPP.
(iii) Whether the plaintiff has any cause of action to file this suit? OPD1
(iv) Whether the suit is maintainable in its present form? OPD.
(v) Relief.
10. In support of her case, plaintiff examined five witnesses.
PW1 Satya Pal is the Secretary of New Rajdhani Cooperative House Building Society Ltd. He produced the DDA approved layout plan of New Rajdhani Cooperative House Building Society known as New Rajdhani CS No. 770/09, Anita Jain vs. Yogender Garg & Ors. Page No. : 5/17 Enclave and proved it as Ex.PW1/A. PW2 Ram Babu, LDC, Building Department, Headquarters, Town Hall, MCD, Delhi brought the certified copies of notings in the original file no. 61/B/HQ/2003 pertaining to the sanction plan of the building in dispute and proved the same as Ex.PW2/A and 2/B respectively.
PW3 V. K. Gaur, Office in Charge, Building, Shahdara South Zone, MCD Karkardooma, Delhi brought the record pertaining to the notings on file no.44/B/UC/SH/S/2005 and proved it as Ex.PW3/A (running into 8 pages).
PW4 Anita Jain is the plaintiff and she examined herself by way of affidavit Ex.PW4/1 and relied upon following documents:-
(a) Ex.PW4/A which is the letter dated 29.10.05 addressed to Executive Engineer, MCD, Delhi with its courier receipt as Ex.PW4/B;
(b) Ex.PW4/C which is the letter dated 24.11.05 addressed to DC, MCD, with its courier receipts as Ex.PW4/D to F respectively;
(c) Ex.PW4/G which is the letter dated 26.11.05 addressed to DC, MCD;
(d) Ex.PW4/G1 to O and P1 to P10 are the photographs showing the alleged unauthorized construction in the property in dispute and the properties existing in the area of New Rajdhani Enclave built according to the sanctioned layout plan approved by the DDA;
(e) Ex.PW4/Q is the payment receipt dated 23.06.05;
(f) Ex.PW4/R is the site plan;
(g) Mark A is the photocopy of lease deed dated 08.06.1995;
(h) Mark B and C are the copy of the electricity bills;
(i) Mark D, E, F and G are the copy of the complaints dated
20.06.05.
PW5 Virender Singh is the UDC, Cooperative Society Cell, Vikas CS No. 770/09, Anita Jain vs. Yogender Garg & Ors. Page No. : 6/17 Sadan, Delhi. He produced the layout plan of New Rajdhani Cooperative House Building Society approved by the Department of Land & Building, DDA. He proved the same as Ex.PW5/1.
11. Whereas no witness was examined by the defendant no.2 to 4, defendant no.1 examined himself as DW1 by way of affidavit Ex.DW1/A in his defence.
12. Ld. counsel for the parties were heard and the judicial file was carefully perused.
13. Findings on the issues are given as herein under:-
Issue no.(iii) and (iv) are taken up first as they are concerning the preliminary objections raised by the defendants.
Issue no.(iii):
This issue concerns the plaintiff having no cause of action to file the present suit and the onus to prove it was placed upon the defendant no.1.
The contentions of ld. counsel for the defendant no.1 were more concerning the maintainability of the suit against the defendants rather than the plaintiff not having the cause of action qua the defendant no.1. Plaintiff filed the present suit primarily on two grounds, first, that the construction raised by the defendant no.1 adjoining her property is in violation of the sanctioned layout plan of the locality and secondly, the said construction is unauthorized as it also violates the easements rights of the plaintiff in her property. On these two grounds, when the plaintiff is apprehending infraction of her rights or the municipal laws by the defendant no.1 in allegedly raising an unauthorized construction in the adjoining property, the plaintiff has the cause of action to bring a suit in the Court of law. Reference can also be made to the judgment of Hon'ble Apex Court in K. Ramdas Shenoy vs. Chief Officer, Town Municipal Council, Udipi, (1975) 1 SCR 680 wherein it was observed 'an illegal construction of a CS No. 770/09, Anita Jain vs. Yogender Garg & Ors. Page No. : 7/17 cinema building materially affects the right to or the enjoyment of the property by persons residing in the residential area. The municipal authorities owe a duty and obligation under the statute to see that the residential area is not spoiled by unauthorized construction.' Reference can also be made to the judgment of Hon'ble Supreme Court in Shiv Kumar Chadha & Ors. vs. MCD & Ors., (1993) 3 SCC 161 wherein it was held that 'it cannot be urged that the provisions of the Act (DMC Act) have created any right or liability and for enforcement thereof remedy has been provided under the Act itself. The Act purports to regulate the common law right of the citizens to erect or construct buildings of their choice. This right existed since time immemorial. But with the urbanization and development of the concept of planned city, regulations, restrictions, on such common law right have been imposed. But as the provisions of the Act intend to regulate and restrict a common law right, and not any right or liability created under the Act itself, it cannot be said that the right and the remedy have been given uno flatu i.e. 'in the same breath'. It was further held 'it is well known that in most of the cities building regulations and bye-laws have been framed, still it has been discovered that constructions have been made without any sanction or in contravention of the sanctioned plan, and such constructions have continued without any intervention. There cannot be two opinions that the regulations and bye-laws in respect of buildings, are meant to serve the public interest. But at the same time, it cannot be held that in all circumstances, the authorities entrusted with the demolition of unauthorized constructions, have exclusive power, to the absolute exclusion of the power of the Court'.
Thus, in view of the aforesaid, it is held that the plaintiff had the cause of action to file the present suit. This issue stands disposed of accordingly.
CS No. 770/09, Anita Jain vs. Yogender Garg & Ors. Page No. : 8/17 Issue no.(iv) This issue concerns the maintainability of the suit in its present form and the onus to prove it was on the defendants.
Ld. counsel for the defendant no.1 while relying on the written submissions separately filed contended that the present suit of the plaintiff has been filed inter-alia with a prayer for mandatory injunction against the defendant no.1 on the one hand and defendant no.2 to 4 on the other hand, which are the concerned departments / agencies of the government. It was submitted that defendant no.2 which is the MCD, defendant no.3 which is the DDA and the defendant no.4 which is the Commissioner of Police, Delhi Police are all public institutions / authorities / public servants and by virtue of S.478 of the DMC Act, S.53B of the Delhi Development Act and S.80 of the CPC, before impleading such authorities as parties to the suit, necessary notice as prescribed under the relevant provisions shall be given to the concerned authorities and in the absence of any such notice, which is admittedly the case in the present suit, the suit of the plaintiff is not maintainable and is without any cause of action.
No submissions were made by ld. counsel for the plaintiff to counter the arguments as advanced by ld. counsel for the defendant no.1. Nonetheless, it is to be seen that admittedly in the present suit, no prior notice was issued to either the defendant no.2 MCD, defendant no.3 DDA or to the defendant no.4 Delhi Police. Insofar as the prior notice u/s 477, 478 of Delhi Municipal Corporation Act (in short 'DMC Act') and that u/s 53B of Delhi Development Act, 1957 (in short 'DDA Act') is concerned, the provisions are pari materia and provide the issuance of two months prior notice in writing before the institution of any suit against it or its officials in respect of any act done, or purporting to have been done, in pursuance of the Act or any rule, regulation or bye-law made thereunder.
CS No. 770/09, Anita Jain vs. Yogender Garg & Ors. Page No. : 9/17 Notwithstanding the issuance of two months notice in writing prior to the filing of the suit, clause (3) of the aforesaid provisions carves out an exception by providing that in a suit in which the only relief claimed is an injunction of which the object would be defeated by the giving of the notice or the postponement of the institution of the suit, the condition of issuance of two months notice in writing prior to filing the suit would stand waived off.
Coming on to the facts of the present case, suit of the plaintiff is for permanent and mandatory injunction and the same in terms of clause (3) of S.478 of DMC Act and S.53B of DDA Act, gives the liberty to the plaintiff not to issue the notice prior to filing of the suit. The facts as stated by the plaintiff in her plaint were such which exempted the issuance of notice upon the defendant no.2 & 3 otherwise there was every possibility of the very object of filing the suit by the plaintiff being defeated.
However, coming on to the issuance of notice to the defendant no.4 which is Delhi Police through its Commissioner, it is to be seen that the defendant no.4 has no role to play in the alleged raising of unauthorized construction by the defendant no.1 in his property except informing the concerned authorities which in the present case was done as in the written statement of the defendant no.2 MCD, it was stated that certain constructions beyond the sanctioned plan were noticed / informed and the defendant no.1 was accordingly proceeded against for demolition and sealing of the property. Thus, insofar as the defendant no.4 is concerned, suit of the plaintiff is not maintainable being without any cause of action.
In view of the aforesaid, the issue stands disposed of accordingly.
Issue no.(i) & (ii) These issues are with respect to the plaintiff's prayer for grant of CS No. 770/09, Anita Jain vs. Yogender Garg & Ors. Page No. : 10/17 decree of mandatory and permanent injunction. The onus to prove these issues was on the plaintiff. As already noted, plaintiff examined five witnesses to substantiate her case that the construction carried out by the defendant no.1 in the adjoining property no.88, New Rajdhani Enclave, Delhi was unauthorized and illegal on the following two grounds:-
(a) That the building sanction plan of the defendant no.1 as granted by the defendant no.2 MCD was violative of the sanctioned layout plan of the locality as approved by the defendant no.3 DDA.
(b) That the alleged construction done by the defendant no.1 was also violative of the plaintiff's easement right of privacy and security.
The sanctioned layout plan of the locality i.e New Rajdhani Enclave was proved by the plaintiff through the testimony of PW1 and PW5 as Ex.PW1/A and PW5/1 respectively.
The proceedings done by the concerned officials of the MCD while making relaxations in the building sanction plan of the defendant no.1's property were proved by the plaintiff through the testimony of PW2 Ram Babu and PW3 V. K. Gaur as Ex.PW2/A & B and Ex.PW3/A respectively.
The plaintiff in her testimony recorded as PW4 by way of affidavit Ex.PW4/1 reiterated that the sanctioned building plan of the plot no. 88 in the name of Daroga Mal Jain vide file no.66/B/HQ/2003/7/AE(B)/VII/2003 dated 05.09.03 is contrary to the layout plan sanctioned by DDA as the same is not subject to change by the MCD and further the sanction has been obtained by way of misrepresentation and fraud. What was the misrepresentation and the fraud, testimony of the plaintiff offered no help, however, the same could be gathered from the amended plaint filed on 07.11.05 wherein it was stated that the intention of the person who had applied for sanction of building plan was dishonest since the very beginning CS No. 770/09, Anita Jain vs. Yogender Garg & Ors. Page No. : 11/17 and the excuse of Delhi Metro Rail Corporation (in short, 'DMRC') was knowingly and wrongly taken so as to procure the sanction by way of misrepresentation and fraud. Thus, the plaintiff through her examination-in- chief by way of affidavit Ex.PW4/1 agitated that the alleged letter issued by the DMRC is an excuse and the sanction plan as granted by the concerned department of the MCD is violative of the building laws and of the layout plan of the locality. Contrary to this, in her cross-examination plaintiff showed ignorance about the site plan Ex.PW4/R despite the same having been filed and proved by her. She stated that she had no knowledge of the site plan Ex.PW4/R and further admitted that it was her husband who got prepared the said site plan. She further stated that she does not know whether a property being three side open had to leave drive way towards the main road of 150 ft. towards left side. She further stated that she also does not know whether the layout plan of the society as approved by DDA is only meant for the purpose of cutting of the plot and developing the colony and not for the construction of the house. In her further cross- examination, she admitted that the defendant no1 had left the parking space towards the main road (left side) and she does not know whether the defendants have committed any negligence by constructing the property as per the sanction plan sanctioned by MCD.
The aforesaid testimony of the plaintiff reveals that someone, who may be the husband of the plaintiff or some other person, under the mask of the plaintiff filed the present suit against the defendant no.1 and the other defendants. The cross-examination of the plaintiff buttresses this view as not only she had no idea of the site plan Ex.PW4/R, she was also ignorant as to how the construction carried out by the defendant no.1 was an unauthorized and an illegal construction. Further, no expert witness was examined by the plaintiff that the NOC issued by the DMRC did not warrant CS No. 770/09, Anita Jain vs. Yogender Garg & Ors. Page No. : 12/17 any change by the MCD in the sanctioned layout plan as approved by the DDA for the property in dispute and other properties existing in the locality of the New Rajdhani Enclave. Also, as is to be seen from the notings made in the file no. 61/B/HQ/2003 dated 13.01.13 which is Ex.PW2/A, the grounds for making certain relaxations in the building plan of the defendant no.1 property were specifically mentioned and considered. The relevant portion thereof can also be taken note of and which I quote 'as per the report of JE(B) HQ, the DMRC has issued conditional NOC with 7.5 mtrs. width of plot shown as no construction area. Since the major part of the plot under review is shown as no construction area by DMRC and on the resultant plot size the ground coverage is not achievable, the side setback of 4"(four feet) towards Vikas Marg on resultant plot may not be insisted upon and the relaxation of side setback towards plot no.89 may be considered by the BPC. However, no relaxation in the front setback is recommended and the front setback i.e. 15" (fifteen feet) be maintained". In the further notings of the same file which is Ex.PW2/B, there is a letter dated 31.01.03 of Executive Engineer (Bldg.) HQ, MCD addressed to the Chief Manager (Management), DMRC, Delhi regarding the clearance / comments to be given by DMRC for the purposes of building sanction plan of property no.88, New Rajdhani Enclave, Delhi. In response to the said communication, there is a letter titled as 'Restricted NOC' issued by DMRC vide letter no. DMRC / Land / 15/506/391 dated 18.02.03 to the Executive Engineer (Bldg.) HQ, MCD. In the said restricted NOC, it is stated that the necessary clearance in respect of MRTS project is granted for P No.88, New Rajdhani Enclave, subject to the condition that no construction shall be allowed on 7.5 mtrs strip towards Vikas Marg as shown on sketch enclosed and with further subject to the condition that DMRC reserves its right to acquire the said property if required in future for MRTS purpose. As per the further notings CS No. 770/09, Anita Jain vs. Yogender Garg & Ors. Page No. : 13/17 and in terms of the restricted NOC given by DMRC, the matter was considered by the BPC of MCD and it was decided that 10 ft side setback towards adjoining property no.89 be waived off to enable applicant to achieve the permissible ground coverage and the building plan was sanctioned subject to it and other compliance / corrections as per file. It is also to be seen that before the building plan was sanctioned by BPC, the matter was also taken up by the CTP wherein it was mentioned that "applicant has submitted fresh plans showing proposal of basement, ground floor, first floor and second floor showing front setback 15 ft. and rear setback 10 ft as per approved LOP and 7.5 mtrs strip has also been shown as no construction area as per DMRC clearance. Applicant wants the BPC to waive off 10'-0" wide side setback towards plot no.89 shown in the approvals LOP so as to enable him to achieve permissible ground coverage of 50% which otherwise is not achievable if 10'-0" side setback is left as per LOP towards plot no.89. This is further to point out that even if 10'-0"
side setback is waived off, only 30% ground coverage shall be achievable. Therefore, Town Planning Department has recommended to relax this side setback." These notings made in the building sanction plan file of the disputed property reveals that relaxation in the sanctioned layout plan of the locality with respect to the disputed property was necessitated because of the conditional clearance given by the DMRC requiring 7.5 mtrs. wide strip towards Vikas Marg to be left as no construction zone. There is nothing in the office notings or the consideration which weighed in the minds of the concerned officials sanctioning the building plan of the disputed property, that the building sanction plan was sanctioned with some ulterior motives or mala fide reasons. Thus, insofar as the plaintiff's case of the defendant no.1 raising the construction in his property no. 88, New Rajdhani Enclave, being in violation of the sanctioned layout plan approved by DDA is CS No. 770/09, Anita Jain vs. Yogender Garg & Ors. Page No. : 14/17 concerned, the same merits rejection as the sanctioned building plan of the defendant no.1's property rightly considered the restricted clearance issued by the DMRC regarding the no construction zone concerning the said property no.88, New Rajdhani Enclave, Delhi and allowed for the relaxations to the sanctioned lay out plan of the locality as approved by the DDA.
Coming on to the aspect of violation of the easement rights of the privacy and security of the plaintiff, again, the testimony of the plaintiff is not at all convincing as there is nothing in her testimony to show or establish as to how the construction done by the defendant no.1 in the adjoining property would have affected the access and use of light or air by the plaintiff in her property. Nonetheless, it is to be seen that S.4 of the Indian Easement Act, 1882 (in short, 'the Act') defines the easement as '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. S.5 of the Act further provides for the easements to be either continuous or discontinuous and apparent or non apparent. S.15 of the Act, which is the relevant provision for the purposes of the present issue, provides for the acquisition of easement by prescription. It inter-alia provides that '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 20 years, the right to such access and use of light or air shall be absolute. Coming on to the facts of the present case and the testimony of the plaintiff, as rightly submitted by the ld. defence counsel, plaintiff has never been in continuous occupation of property no.89, New Rajdhani Enclave, Delhi as is also apparent from her affidavit Ex.PW4/1 tendered by her in her examination in chief wherein she had shown herself to be residing at D-107, Preet Vihar, CS No. 770/09, Anita Jain vs. Yogender Garg & Ors. Page No. : 15/17 Delhi-110092 and not at the aforesaid address of 89, New Rajdhani Enclave. Further, there is nothing in the testimony of the plaintiff or elsewhere that she had the access and use of light or air to and for her property and had peaceably enjoyed it without interruption for 20 years. Ld. defence counsel rightly referred to the judgment of Hon'ble Madras High Court in Ponnaiyan @ Ponnusami Gounder & Ors. vs. Karuppakkal @ Ponnayal & Ors., AIR 2002 Madras 443 wherein it was held that 'the rules for the acquirement of right of an easement are rules of positive prescription. When a person exercise a right of easement for certain item, he becomes entitled to it. We can infer from S.15 of the Easements Act that the condition under which such an easement could be acquired by prescription. The said acquisition of right of easement by prescription is as follows. A person claims prescription should prove to have continued for a period of 20 years upto a time within two years next before the institution of the suit where the claim is contested. There must be a peaceable and open enjoyment by the person claiming title thereto as an easement and as of right, without interruption, and for 20 years'. Ld. defence counsel also rightly pointed out in his written arguments that the plaintiff in her own evidence had admitted that there is a 105 ft. wide road towards left of her property and thus, she has an alternative easement right of light and air from the said portion. Moreover, as is to be seen, before sanctioning any building plan of a property, the concerned department of the MCD takes care of the existing rights of the neighbours and if there is any violation, the same is also addressed to before sanctioning the building plan. In the present case, as is to be seen from the notings made by the concerned officials of the MCD vide Ex.PW2/A, 2/B and Ex.PW3/A, all the relevant consideration were taken note of before sanctioning the building plan of the defendant no.1 for his property no.88, New Rajdhani Enclave, Delhi-110092.
CS No. 770/09, Anita Jain vs. Yogender Garg & Ors. Page No. : 16/17 Not only that, some deviations to the sanctioned plan were booked for demolition and sealing of defendant no.1's property vide file no. 44/B/UC/SH/S/2005 dated 16.06.05. Thus, the plaintiff had even failed to establish as to how her right to access of use of air and light was adversely affected due to the construction carried out by the defendant no.1 in his adjoining property.
Thus, the issues under consideration are decided against the plaintiff accordingly.
14. Relief In view of the foregoing, suit of the plaintiff is dismissed. However, it is made clear that any construction carried out by the defendant in his property no.88, New Rajdhani Enclave, Delhi shall be in compliance and confirmity of the building plan as sanctioned by the MCD and in terms of the restricted NOC as given by the DMRC. Any breach thereof shall be liable to be taken up by the concerned officials of the MCD and demolished / sealed accordingly. Parties are left to bear their own costs. Decree sheet be drawn accordingly. File be consigned to record room.
Announced in the open court
on 20.12.12 (Satish Kumar Arora)
CCJ-cum-ARC(NE), Court No. 64,
Karkardooma Courts, Delhi
CS No. 770/09, Anita Jain vs. Yogender Garg & Ors. Page No. : 17/17