Delhi District Court
(8) Col. Surender Singh vs /13 Union Of India Vs. Jagdish Prasad ... on 28 July, 2014
ID No.02401C0023052012
IN THE COURT OF SHRI PANKAJ GUPTA, ADDL. DISTRICT
JUDGE (CENTRAL07), TIS HAZARI COURTS : DELHI.
RCA NO.11/2012
(1) Union of India
Through its Secretary,
Ministry of Defence,
South Block, New Delhi.
(2) Shri J. P. Mittal, DEO,
Delhi Cantt., Delhi.
(3) Shri K. M. Sabestain,
Director General, Defence Estate,
West BlockIII, R K Puram,
SectorI, New Delhi.
(4) Shri K. Subramaniam,
DDG (Land), R.K. Puram,
SectorI , New Delhi.
(5) Lt. Col. Dave, Photo Mapping Centre,
Kingsway Camp, Delhi.
(6) Maj. Herpal Singh,
C/o : Area Headquarters,
Delhi Cantt., Delhi.
(7) Captain Anil Kumar,
Army Photo Mapping Centre (502),
Kingsway Camp, Delhi.
(8) Col. Surender Singh,
C/o : Area Headquarters,
Delhi Cantt., Delhi. ............Appellants
Versus
1/13 Union of India vs. Jagdish Prasad Gupta
1. Shri Jagdish Prasad Gupta ( Now deceased)
Through his legal heirs :
(i) Smt. Prem Lata Gupta - (wife)
(ii) Rajat Gupta @ Raju - (son)
(iii) Ms. Sujata Jain (Daughter)
(iv) Ms. Sangeeta Gupta - (Daughter)
(v) Ms. Seema Jain - (Daughter)
2. Shri Mahesh Chand Gupta (M.C. Gupta)
3. Shri Dinesh Chand Gupta (Now deceased)
(i) Smt. Kusum Gupta - (wife)
(ii) Mohit Gupta - (son)
(iii) Ms. Gunjan - (Daughter)
(iv) Ms. Nikunj - (Daughter)
4. Shri Surender Kumar Gupta (S. K. Gupta)
5. Shri Umesh Chand Gupta (U. C. Gupta)
All sons of L. Kishan Lal Chandiwala,
All residents of :
45/6B, The Mall,
Civil Lines, Delhi. .............Respondents
Date of Institution : 17.01.2012
Date when the case reserved for order : 28.07.2014
Date of Order : 28.07.2014
J U D G M E N T
1. This appeal is preferred by the appellants against the judgment and decree dated 25.07.2011 passed by the then Ld. Senior Civil Judge cum Rent Controller (Central), Delhi (the trial court) whereby the suit for permanent in junction filed by the respondents was decreed in their favour and against the 2/13 Union of India vs. Jagdish Prasad Gupta appellants. For the sake of convenience, the appellants and the respondents shall be referred to as per their ranks in the plaint as the defendants and the plaintiffs respectively.
2. Brief facts relevant for the disposal of the present appeal are that the plaintiffs filed the suit for permanent injunction against the defendants on the ground that they were the owner of the bungalow no. 45/6 B, situated at plot no. 45, the Mall, Civil Lines, Delhi (the said property) and the defendants were interfering in their enjoyment of the passage leading to the said property and prayed that the defendants be restrained from disturbing them from using the passage leading to their said property. Vide the judgment and decree dated 28.03.2007, the suit was decreed in favour of the plaintiffs and the defendants. Being aggrieved by the same, the defendants preferred the appeal before the Ld. Predecessor of this court. Vide judgment dated 20.08.2009 passed by Ld. Predecessor of this court, the matter was remanded back. Vide the impugned judgment and decree, the suit was decreed in favour of the plaintiffs and against the defendants. Being aggrieved by the same, the defendants preferred the present appeal. The plaintiffs contested the appeal and prayed for its dismissal.
3. I have heard the ld. counsels for the parties and have perused the material available on record including the trial court record and the written submissions filed by the defendants.
4. Admittedly, the plaintiffs are the owner of property no. 45/6B, the Mall, Civil Lines Delhi i.e. the said property. It is also an admitted fact that the defendants are the owner of the plot no.39, Civil Lines, Delhi and the passage as shown red in the site plan Ex. PW1/18 is the part of plot no. 39 and is in the 3/13 Union of India vs. Jagdish Prasad Gupta ownership of the defendants and exclusively belongs to them.
5. In the suit, the dispute pertained to the passage as shown red in the site plan Ex. PW1/18 and the right of the plaintiffs to use the passage for their ingress and egress to the said property.
6. Before the trial court, the plaintiffs relied upon the site plan Ex.PW1/18 while the defendants relied upon the site plan Ex.DW2/2. The location of the properties and the disputed passage shown in both the site plans are almost same. Therefore, for disposal of the present appeal, I proceed with the site plan Ex.PW1/18 and the disputed passage i.e. the passage as shown red therein.
7. Case of the plaintiffs was that for last many decades, the passage as shown red in the site plan Ex. PW1/18 had been used earlier by the erstwhile owners and on purchase of the said property, by them for their ingress and egress to the said property and also as drive way. However, the defendants had been interrupting in their right to access the passage and the same amounted to violation of their easement rights.
8. Per contra, case of the defendants was that the passage was the part of plot no. 39 which was in their ownership and therefore, it exclusively belonged to them. Therefore, the plaintiffs had no right, title or interest on the passage or its usage. However, the plaintiffs had been trying to encroach the same, which could not be allowed.
9. Counsel for the defendants pleaded that the trial court wrongly held that the plaintiff had the easement of necessity regarding the passage and 4/13 Union of India vs. Jagdish Prasad Gupta thereby granted the relief of permanent injunction against the true owner i.e. the defendants.
10. On the other hand, counsel for the plaintiffs pleaded that the passage has been used for the last many decades by the occupants as drive way and also for their ingress and egress, therefore, the plaintiff claimed the easement of necessity. He further pleaded that the erstwhile owners were allowed to use to the same. He much relied upon the statement of DW5 and the sanction plan proved by him and pleaded that even in that sanction plan, the passage was shown as kachcha road (temporary road) which amounts to the defendants admission of the existence of the passage. He also pleaded that the plaintiffs never intended to encroach the passage and they simply intend to use the same for their ingress and egress and as drive way.
11. As laid down by the Hon'ble Delhi High Court in the judgment titled as "Sanjeev Kumar Jain vs. Sh. Raghubir Sara Charitable Trust & Ors., reported in 2004 VIII AD (Delhi) 398, the plaintiffs, to avail the benefit of section 13 of Easement Act, have to satisfy the following conditions:
(i) use of the passage was of necessity; and
(ii) no ingress and egress is possible to the said property except through the passage or if the sanctioned passage alone has to be used it would render at naught the utilization of the said property.
12. In the suit, the plaintiff claimed the easement of necessity on two grounds (i) that since decades the passage has been used for ingress and egress to the said property and (ii) that the passage is the only direct access to the plaintiffs property i.e. the said property.
5/13 Union of India vs. Jagdish Prasad Gupta
13. Before ascertaining as to whether the plaintiffs satisfied the conditions as mentioned above to claim the easement of necessity, it is inevitable to discuss the description of the plots no. 39 and 45 and the properties existing on the same and the right of the respective parties on those plots.
14. Plot no. 39: Admittedly, the plot no. 39 is located at the eastern end of the plot no. 45 and is in the ownership of the defendants. At a distance of of 62 feet from the end of the plot no. 45, CPWD Quarters (now the Delhi University Metro Station) exists on the front side while the defendants have allowed the usage of the back side of the same by Education Department. It is nowhere the case of the plaintiffs that from CPWD Quarters or the land allotted to the Education Department, any entrance exists towards the space left between the plot no. 45 and that construction. The space left in between is shown as the passage in the site plan Ex. PW1/18. As per site plan Ex.PW1/18, at the end of the passage from the main road, there is a wall and behind that there is defence establishment. The passage is the part of plot no. 39 and is in ownership of the defendants. As such, the passage is not the common passage.
15. Plot no. 45: At the western side of the plot no. 39, there is plot no.
45. Case of the plaintiffs is that the plot no. 45 admeasuring 3.2 acre belonged to Sh. R.S. Chaudhary Banarasi Dass who vide registered Will dated 04.01.1961 bequeathed the same in favour of his son namely Sh. Inder Prasad Chaudhary (IPC) who in turn sold the same to M/s. Rentiers & Financers Pvt. Ltd. (RFPL) vide registered sale deed dated 20.11.1960. RFPL raised the construction on the same in the year 196263 which is known as Riviera Apartments (RA) as shown 6/13 Union of India vs. Jagdish Prasad Gupta BlockC in site plan Ex.PW1/18. On 07.02.1973, RFPL applied for sanction plan for the remaining area of plot no. 45 with MCD and the same was sanctioned for the period up to 02.08.1975 for construction on four plots in Block B i.e. 45/3B, 45/4B 45/5B and 45/6B also. Vide sale deed dated 17.12.1973, RFPL sold plot no. 45/6B to Sh. Siya Ram Aggarwal (SRA) who in turn sold the said plot to the plaintiff vide the sale deed. Resultantly, the plaintiffs constructed two and a half storied building i.e. the bunglow no. 45/6B, the said property on the said plot. According to the plaintiffs, RFPL, in addition, delivered an additional land of 70 sq. yds. to SRA, however, the same was not proved.
16. Admittedly, at the eastern side of the said property, the plot no. 39 falls. Statement of DW5 reveals that the main entrance of the said property is at western end of the same. However, in the evidence, the plaintiffs tried to build up a case that they had the entrance at eastern side also i.e. towards the passage, but, the plaintiffs failed to prove that that was the main entrance of the said property and was sanctioned also. Hence, it can be held that the plot no. 39 as well as the passage falls at the back side of the said property and also the other properties no. 45/3B, 45/4B and 45/5B. Therefore, it is wrongly stated by the plaintiffs in the plaint that the passage falls at the front side of the said property. The entrance from the Mall Road to the plot no. 45 is separate and is direct from the Mall Road itself and is common for RA and the other properties situated therein including the said property. Hence, it can also be held that the main entrance of the said property is from the western side as per site plan Ex.PW1/18.
17. In view of the foregoing discussions, it can be held that the plot no. 39 is in the ownership of the defendants and is exclusively belongs to them and falls at the eastern side of the plot no. 45 and construction existing thereon.
7/13 Union of India vs. Jagdish Prasad Gupta Further, the back side of the bungalow no. 1 and the bungalows no. 45/3 B to 45/6 B, situated on the plot no. 45, acts as the boundary wall separating the plot no.45 from the plot no. 39 and the passage is the part of the plot no. 39. Therefore, it can be held that the plaintiffs are claiming the right to access from the back side of their property i.e. the said property through the passage falling in plot no. 39. Now the question arises as to whether the easement of necessity claimed by the plaintiffs pertaining to the passage is sustainable in law.
18. The question arises when the said property came in existence. It is the own case of the plaintiffs that RFPL constructed the RA in the year 196263; on 07.02.1973, RFPL applied for sanction plan to raise the construction in the remaining portion of the said plot; and the sanction was revalidated till 02.08.1975. In the meantime, on 07.12.1973 i.e. after applying for sanction, RFPL sold the said plot to SRA who in turn sold the said plot to the plaintiffs on 11.12.1980. It is the own case of the plaintiffs that they constructed the said property though no specific date is mentioned. Hence, it can be held that till 11.12.1980, the said property was not in existence on the said plot.
19. Regarding possession of the said plot, the plaintiffs tried to build up a case that otherwise, they had come into the possession of the said plot in 1976 vide an agreement to sell. However, the said agreement to sell was not proved. Even the date of the said agreement was not disclosed by the plaintiffs in the plaint. As such, the plaintiffs though pleaded that they came in possession of the said plot in the year 1976 through an agreement to sell but, they failed to prove the said fact.
20. Now the question arises whether the plaintiffs could open the gate towards the plot no.39 from the back side of the said property. Reliance is 8/13 Union of India vs. Jagdish Prasad Gupta placed upon the clause (ix) of sale deed Ex.PW1/D5A dated 17.12.1973 executed by RFPL in favour of SRA which provides that the vendee shall have the right to use and park his car on the 30 feet wide private road of the vendors and the vendee shall not make such changes in plot no. 6 or the building to be constructed thereupon which affect adversely the adjoining properties. Another sale deed dated 11.12.1980 Ex.PW1/D1 provides the description of the said plot wherein it was specifically mentioned that at the eastern side, there was a government land and at the western side, there was a 30 feet private road. It is nowhere the case of the plaintiffs that they were not aware about the sale deed dated 17.12.1973. In view of the foregoing discussions, it can be held that in the year 1973, not only a separate passage was provided in the plot no.45, but also it was made clear that no construction adverse to the plot no. 39 would be raised by the purchaser i.e. SRA from whom the plaintiffs purchased the said plot. It can also be held that the plaintiffs purchased the said plot knowing fully well that at the eastern side, there was a government land and at the western side, there was a 30 feet passage/road for usage of occupants of the plot no. 45 and they could not raise any construction towards the plot no.39 which adversely affect it. Hence, it can be held that the plaintiffs had no right to make an entry towards the plot no.39 from the back side of the said property.
21. Counsel for the plaintiffs pleaded that initially, the defendants had allowed the erstwhile owner to use the passage, therefore, the plaintiffs are also entitled to the same. As discussed above, the sale deeds mentioned above show that none of erstwhile owners claimed any right, title or interest on the passage or its usage nor made any representation to that effect to the plaintiffs. Rather, in view of the sale deeds Ex. PW 1/D1 and Ex.PW 1/D5A, the plaintiffs were debarred to raise any construction towards the plot no.39.
9/13 Union of India vs. Jagdish Prasad Gupta
22. Regarding usage of the passage, case of the defendants was that only 25 feet X 250 feet area as shown X3 X4 in site plan Ex.DW2/2 was allowed to be used by the occupants of the bungalows no.45 that too on temporary basis. The plaintiffs failed to rebut the same. Further, perusal of the letter dated 15.02.1977 Ex.PW1/1 reveals that only the original gate was allowed to be used by the owners of the bungalows no. 45 till a decision be taken by the competent authority. The defendants though pleaded that the said permission was withdraw later on but failed to prove the same. But it can be held that the said permission was not unconditional and was merely temporary in nature. Later on, vide letter dated 12.05.1979, the defendants stated that the said portion was allowed to use, however, it was found that the occupants had unauthorizedly occupied additional area of 226 additional also and called upon them to vacate the same. Subsequently, vide letter dated 22.12.1982 Ex.PW1/6, the defendants again reiterated that the said permission was granted subject to final decision. Hence, it can be held that at no point of time, any permission was granted to use the entire passage and the permission which was granted to use the limited portion X3 and X4 was temporary in nature. In the judgment titled as "Hero Vinoth v. Seshammal", reported in AIR 2006 SC 2234, it was held:
"29. An easement by grant does not get extinguished under Section 41 of the Act which relates to an easement of necessity. An easement of necessity is one which is not merely necessary for the reasonable enjoyment of the dominant tenement, but one where dominant tenement cannot be used at all without the easement. The burden of the servient owner in such a case is not on the basis of any concession or grant made by him for consideration or otherwise, but it is by way of a legal obligation enabling the dominant owner to use his land. It is limited to the barest necessity however inconvenient it is irrespective of the question whether a better access could be given by the servient owner or not. When an alternate access becomes available, the legal necessity of burdening the servient owner ceases 10/13 Union of India vs. Jagdish Prasad Gupta and the easement of necessity by implication of law is legally withdrawn or extinguished as statutorily recognized in Section 41. Such an easement will last only as long as the absolute necessity exists..........................."
23. In view of the foregoing judgment and discussion, it can be held that the temporary permission granted to use the portion X3 and X4 of the passage as shown in site plan Ex.DW 2/2, was of no consequence. It can also be held that the finding of the trial court that the passage was being used for ingress and egress to the said property for the last 4050 years is contrary to the judicial record because no such case was pleaded nor proved by the plaintiffs. Therefore, merely because the passage was shown as a temporary passage in the records as pleaded by the plaintiffs is of no consequence.
24. There is nothing on record to suggest that the occupants of RA ever pleaded about insufficient or inconvenient access to that apartment. The record suggests that the other occupants of bungalows situated on the plot no. 45 though initiated some litigation claiming access through the passage but later withdrew the same. Hence, it can be held that on the date of the institution of the suit, no other occupant of any property existing on plot no. 45 raised any plea as to insufficient or inconvenient access or drive way to his property.
25. Admittedly, the plaintiffs have a 30 feet wide metalled road in front of the main entrance of the said property at the western side and is being used by the occupants of the plot no. 45. It is not the case of the plaintiffs that the said passage is not convenient to approach the said property or caused any hindrance in the drive way. It is also not the case of the plaintiffs that if they are not allowed to use the passage the same would render the said property 11/13 Union of India vs. Jagdish Prasad Gupta useless. Their mere insistence is that the passage is a direct access to the said property. The plaintiffs have failed to explain once a metalled road with sufficient space having sanction of the competent authority approaching to the main gate of the said property is there and the plaintiffs have no sanction plan to open the gate at the back side towards plot no. 39, then why they are insisting for the passage only which according to them is temporary in nature and is not allowed in the sale deed in their favour also. It is not a case where the plaintiffs are seeking easement right on the basis that the plot no. 39 has blocked their right to air and sunlight but their case is that they be allowed to use the passage as drive way despite the fact that a permanent drive way with metaled road is available to them. Therefore, I am of the opinion that the plaintiffs failed to satisfy the conditions to claim the easement of necessity. Therefore, no easement of necessity can be granted only on the ground that it would be more convenient for the plaintiffs to use an alternative way to the said property despite the fact that a permanent, convenient and sanctioned road already existed to reach the said property. Therefore, the trial court erred in enforcing a right of way under section 13 of the Easement Act merely because it would be more convenient for the plaintiffs.
26. In view of the foregoing discussions, it can be held that the plaintiffs failed to discharge their onus to prove the issue no.3 in their favour. Therefore, there was no occasion for shifting the onus upon the defendants to rebut the same. However, the trial court decided the issue no.3 as if, the entire onus to prove the same was on the defendants and since they failed to do so, the plaintiffs became entitled for a relief which they themselves failed to prove. Therefore, the reasoning given by the trial court to grant the relief to the plaintiffs on the ground that the defendants failed to prove their defence is not sustainable in law.
12/13 Union of India vs. Jagdish Prasad Gupta
27. As discussed above, the plaintiffs failed to prove the easement of necessity. Therefore, no injunction can be granted against the true owner. Reliance is placed on the judgment passed by the Hon'ble Supreme Court in "Mahadeo Savlaram Shelke & Ors. vs. The Pune Municipal Corporation & Anr. JT 1995 (2) SC 504.
28. In view of the foregoing discussions, it is held that the judgment and decree dated 25.07.2011 passed by the trial court are not sustainable in law. Therefore, the appeal is allowed. The judgment and decree dated 25.07.2011 are set aside. Consequently, the suit filed by the plaintiffs is dismissed. No order as to cost. Decree sheet be drawn. TCR be sent back alongwith the copy of the judgment and decree.
File be consigned to Record Room.
Announced in the open court today, (PANKAJ GUPTA)
On 28th of July, 2014. ADJ(Central07)/DELHI
28.07.2014
13/13 Union of India vs. Jagdish Prasad Gupta
14/13 Union of India vs. Jagdish Prasad Gupta