Delhi District Court
Narender Kumar Sharma vs Ram Kumar Sharma Ors on 6 December, 2023
IN THE COURT OF MS. PRIYANKA RAJPOOT,
ASCJ-JSCC-GJ, NORTH -WEST DISTRICT
ROHINI COURTS, DELHI
Suit No. 60859/16
Narender Kumar Sharma
S/o Late Sh. Hari Ram Sharma,
R/o C-2/82, Ashok Vihar, Phase-II,
Delhi-110052 ......Plaintiff
Versus
1) Ram Kumar Sharma
S/o Late Sh. Hari Ram Sharma,
R/o C-2/82, Ashok Vihar, Phase-II,
Delhi-110052
2) North Delhi Municipal Corporation,
Through its Deputy Commissioner,
Building Department, Civil Lines,
Rajpur Road, Delhi-110054
3) SHO, PS Ashok Vihar,
Delhi-110052 ......Defendants
Date of Institution : 19.11.2015
Date of Reserving of Order : 27.09.2023
Date of pronouncing Order : 06.12.2023
SUIT FOR PERMANENT AND MANDATORY
INJUNCTION
AVERMENTS IN THE PLAINT
1.The case of the plaintiff is that -
a. The plaintiff is the younger brother of the defendant SUIT NO. 60859/16 NARENDER KUMAR SHARMA V. RAM KUMAR SHARMA & ORS.
Page No. 1no.1.
b. Their father Late Sh. Hari Ram Sharma left a Will dated 06.08.1989, bequeathing specific portions of his property bearing H. No. C-2/82, Ashok Vihar, Phase-II, Delhi-110052 (hereinafter referred as 'suit property'), to his three sons - Krishan Kumar Sharma, Ram Kumar Sharma (defendant no. 1), and Narender Kumar Sharma (plaintiff).
c. As per the will dated 06.08.1989, Sh. Krishan Kumar Sharma, the elder son, is bequeathed the entire first floor with canopy. Ram Kumar Sharma (defendant no.
1) inherited the barsati floor and the front room on the ground floor, along with the right to use and enjoy the central courtyard, bath, and store (below the staircase).
The portion bequeathed to defendant no. 1 is marked in red colour in the site plan.
d. Narender Kumar Sharma (plaintiff), the younger son, received the portion of both the rear rooms with the rear courtyard. The portion bequeathed to the plaintiff is shown in yellow colour in the site plan.
e. Clause 4(iv) of the Will stipulates that the front open space on the ground floor, facing the main gate of the property, is designated for common use and enjoyment for all three sons--Krishan Kumar Sharma, Ram SUIT NO. 60859/16 NARENDER KUMAR SHARMA V. RAM KUMAR SHARMA & ORS.
Page No. 2Kumar Sharma (defendant no. 1), and Narender Kumar Sharma (plaintiff). The common area is shown in green colour in the site plan.
f. In the year 2007, the defendant no. 1 filed a civil suit for possession of his portion on the ground floor and for recovery of mesne profits against the plaintiff. The said suit was decreed in favour of the defendant no. 1 vide judgment and decree dated 29.11.2011 passed by Ld. ACJ/ARC(West), Tis Hazari Courts, Delhi.
g. On 13.01.2015, in the garb of the execution of the decree, the defendant no. 1 illegally constructed a wall in front of the doors and window opening within the central courtyard/common open area/shaft of the house, thereby depriving the plaintiff and his family members access to light, air, and common areas.
h. As per Will dated 06.08.1989, defendant no. 1 was only entitled to use and enjoy the central courtyard, latrine, bath, kitchen and store below the staircase. However, the defendant no. 1 exceeded his entitlement and raised boundary wall there, closing the window and door of the plaintiff.
i. The plaintiff moved an application before executing court of Ld. ACJ/ARC (West), Delhi for removal of the illegally constructed wall. On 23.09.2015, the plaintiff SUIT NO. 60859/16 NARENDER KUMAR SHARMA V. RAM KUMAR SHARMA & ORS.
Page No. 3had to withdraw the said application as he was advised to file a separate suit for enforcement of his rights.
j. The defendant no. 1 is not entitled to construct a wall and to install locks on doors facing the common open area/central courtyard/shaft of the house, or close the window and opening in the shaft.
k. The defendant no. 1 has infringed upon the plaintiff's easementary right to light and air and obstructed access to the common area.
l. Despite multiple requests by the plaintiff to have the wall and locks removed, the defendant no. 1 has not removed the same till date.
m. The plaintiff served a notice dated 11.09.2015 to defendant no. 1 in this regard but to no avail.
n. On 16.11.2015, the defendant no. 1 threatened to sell the barsati floor and the front portion of the house including the common open area shown in green colour.
o. The plaintiff has made the SHO PS Ashok Vihar, Delhi as a proforma party to the present suit because two police officials visited the site on 13.01.2015 when the defendant no. 1 was raising unauthorized wall.
SUIT NO. 60859/16 NARENDER KUMAR SHARMA V. RAM KUMAR SHARMA & ORS.
Page No. 42. The plaintiff has filed the instant suit seeking following reliefs:-
(a) a decree of permanent injunction may be passed thereby restraining the defendant no. 1 from selling, alienating or creating third party interest of any kind in respect of any part/portion of the suit property shown in red and green colour in the site plan.
(b) a decree of mandatory injunction may be passed in favour of the plaintiff and against the defendant no. 1 & 2 directing them to remove the unauthorized and illegal wall constructed/raised by the defendant on 13.01.2015 in front of doors and window of the portion of the plaintiff and also to remove the locks put on the doors of the room of the plaintiff.
WRITTEN STATEMENT
3. The defendant no. 1 was duly served and he filed written statement. The defendant no.1, in his written statement, has put forth the following defenses:
(a) the present suit is liable to be dismissed under order 7 Rule 11 of CPC as the suit is without cause of action.
(b) The present suit is liable to be dismissed under order 2 Rule 2 of CPC as the dispute between the parties has SUIT NO. 60859/16 NARENDER KUMAR SHARMA V. RAM KUMAR SHARMA & ORS.Page No. 5
already been decided by the Court of Ld. ACJ/ARC (West), Tis Hazari Court, Delhi vide judgment and decreed dated 29.11.2011.
(c) By virtue of the Will, the plaintiff was given the ingress and egress to his portion only from the rear portion/back door of the house. The plaintiff was not given any right to use the front gate or the portion of the defendant no. 1 for his entry to his portion of the property.
(d) The plaintiff had illegally encroached upon the entire ground floor portion of the property in the year 1991, and when he did not vacate the portion given to the defendant no. 1, as per Will of the father, the defendant no. 1 was forced to file a civil suit for possession which was decreed in favour of the defendant no. 1 and against the plaintiff.
(e) During execution proceedings, the defendant no. 1 got the possession of his portion and in order to avoid any future controversy and to partition the property, the defendant no. 1 constructed the wall in question.
(f) The plaintiff is adamant to use the portion marked as 'x' and 'y' for his ingress and egress to his portion. The plaintiff also wants to use the toilet situated in the central courtyard of the property. However, by virtue of Will, the defendant no. 1 was given exclusive right to use and occupy the central courtyard.
SUIT NO. 60859/16 NARENDER KUMAR SHARMA V. RAM KUMAR SHARMA & ORS.
Page No. 6(g) The Will clearly stipulates that the plaintiff shall construct separate kitchen, latrine, bath in the rear yard of the house at his own expense.
(h) The plaintiff was not given any right to use the central courtyard or the bedroom or toilet of the defendant no. 1.
(i) In the garb of the present false and frivolous suit, the plaintiff wants to again grab the portion of the defendant no.1.
(j) The plaintiff has covered the rear yard of the house which obstructed the free flow of light and air. Thus, now the plaintiff cannot take advantage of his own wrong.
(k) The site plan filed by the plaintiff is wrong and does not show the exact position of the property.
4. The defendant no. 2/MCD was duly served and its officials filed the written statement. The defendant no .2 has put forth the following defenses:
(a) The present suit is barred by the provisions of sections 477/478 of the DMC Act for want of service of statutory notice upon the defendant no. 2.
SUIT NO. 60859/16 NARENDER KUMAR SHARMA V. RAM KUMAR SHARMA & ORS.
Page No. 7(b) The suit is liable to be dismissed u/o 7 Rule 11 of CPC as the suit is without any cause of action.
(c) The suit property was inspected on 23.02.2016. According to the MCD, the inspection revealed that the property consists of the ground floor, first floor, and part of the second floor. The MCD claims that this construction lacks valid permission from the competent authority.
(d) The MCD states that an action under section 343/344 of the DMC Act has been initiated against the unauthorized construction. A show cause notice has also been issued to both the plaintiff and defendant no. 1.
5. Replications were filed on behalf of the plaintiff against the WS filed by defendant no. 1 and 2.
ISSUES
6. On completion of the pleadings of the parties, following issues were framed on 02.07.2016,
i) Whether the plaintiff is entitled to a decree of permanent injunction, as prayed for? (OPP)
ii) Whether the plaintiff is entitled to a decree of mandatory injunction, as prayed for? (OPP)
iii) Whether the present suit is barred by provisions of order 2 rule 2 of CPC? (OPD-1)
iv) Whether the present suit is barred by provisions of SUIT NO. 60859/16 NARENDER KUMAR SHARMA V. RAM KUMAR SHARMA & ORS.
Page No. 8 section 477/478 of DMC Act? (OPD-2) (v) Relief. PLAINTIFF'S EVIDENCE:
7. In order to prove his case, plaintiff examined total 06 witnesses. He examined himself as PW-1 and led his evidence by way of an affidavit Ex.PW-1/1. PW-1 relied upon following documents:-
i) Copy of Will Ex.PW1/A (admitted).
ii) Site Plan Ex. PW-1/B.
iii) Certified copies of judgment and decree dated
29.11.2011 of Ld. ACJ/ACJ(West), Tis Hazari Court, Delhi Ex.PW1/C (colly.).
iv) Certified copies of ordersheet of executing court i.e. Ld. ACJ/ARC (West), Tis Hazari Court, Delhi Ex.PW1/D (from page no. 40 to 46).
v) Legal notice Ex.PW1/E.
vi) Reply to the legal notice Ex.PW1/F.
vii) Copy of MCD notice with report dated 30.11.2015
Ex.PW1/H.
8. PW-1 was duly cross-examined by Ld. Counsel for the defendant no. 1. In his cross-examination, he admitted that his father Late Sh. Hari Ram Sharma was the owner of the property bearing no. C-2/82, Phase-II, Ashok Vihar, Delhi-110052 and Will Ex.PW1/A was executed by his father. He admitted that his brother Ram Kumar Sharma (defendant no. 1) had filed a civil suit against him i.e. suit no. 400/07 in which judgment SUIT NO. 60859/16 NARENDER KUMAR SHARMA V. RAM KUMAR SHARMA & ORS.
Page No. 9Ex.PW1/C was passed in favour of the defendant no. 1. He denied having disputed Will of his father in suit no. 400/07. He denied that suit no. 400/07 was filed in respect of the portion of the defendant. He admitted that even after judgment of the said suit, he did not vacate the portion of the defendant no.1. He deposed that the possession of defendant's portion was taken by the defendant no.1 by filing the execution petition. In Ex.PW1/B, his (plaintiff's) portion is shown in yellow colour. Now, entry and exit to his portion is from the point which is marked as AA. After vacating the portion of the defendant no. 1 in terms of judgment Ex.PW1/C, his entry and exit was from point mark A to A in the site plan Ex. PW-1/B.
9. After seeing photographs Ex.PW1/D-1 and Ex.PW1/D-2, PW-1 stated that he enters and exit from the back portion since the defendant no. 1 has raised the wall in question in front of his main entrance. He admitted that there is a window at the rear portion of the suit property. He again said that there is no window at the rear portion of the suit property and the said window/space has been left for exhaust fans which is already installed there. He admitted that he has covered the rear portion of the property with the fiber sheets as shown in photographs Ex.PW1/D-1 and Ex.PW1/D-2. He denied that proper ventilation is not there due to the fiber sheets. After seeing site plan filed by the defendant no. 1 i.e. Ex.PW1/D-3, PW-1 stated that green portion, shown at point A1 to A6, is in his possession. The portion shown in yellow colour in Ex. PW-1/D-3 is common for all the three brothers except staircase. One living room, kitchen and toilet shown in red SUIT NO. 60859/16 NARENDER KUMAR SHARMA V. RAM KUMAR SHARMA & ORS.
Page No. 10colour in Ex.PW1/D-3 is in the possession of the defendant no. 1 and the remaining portion is open space/central yard. He admitted that contents of para no. 5 (ii) & (iii) of Will Ex.PW1/A.
10. He denied that according to Will of his father, he was given right to way from the back side of the suit property. He acknowledged that the central courtyard, the uncolored portion including the yellow portion shown as 'Y' in the site plan Ex.PW1/B, was given to defendant no. 1 for use by his father through the Will. He volunteered stated that windows and doors of his portion opens in the central court yard. He admitted that central court yard was given to him by his father by Will for ingress and egress. He admitted that there are two ventilator /exhaust fans on the rear side. He volunteered that they were installed after defendant erected the wall in question in the central court yard. He denied that the photographs of the window and door Ex.PW1/D-1 do not belong to suit property. He denied that he has constructed a kitchen and bathroom in the back portion of the property. He volunteered that the kitchen and bathroom are temporary constructions and they existed since the time the suit property was originally constructed. He denied that the kitchen and bathroom were constructed after the passing of the judgment. He denied that the constructions were done after obtaining permission from the MCD. He denied that air and light circulation in his portion was affected after he put up a fiber sheet in the rear portion of the suit property.
11. PW-1 was also cross examined by Ld. Counsel for SUIT NO. 60859/16 NARENDER KUMAR SHARMA V. RAM KUMAR SHARMA & ORS.
Page No. 11defendant no. 2/MCD. He stated that the site plan Ex.PW1/C was got prepared by him at his residence by the draughtsman before 23.08.2017. He did not recall the exact date when the same was got prepared. He stated that he has not filed the negatives of the photographs in the Court. He has not filed any complaint in MCD regarding unauthorized construction raised by defendant no. 1 in central court yard/shaft. He has not made any written complaint regarding unauthorized construction in the police station. However, he made a telephonic call to police at 100 number. He denied that he has not made any written complaint in the PS as on 13.01.2015, no unauthorized construction was going on. He admitted that no notice u/s 477/478 DMC Act has been issued to MCD prior to filing of the present suit. He denied that he has impleaded MCD as a party in the present suit to solve his personal dispute with his brother. He volunteered that he has impleaded the MCD because he has received the notice from MCD and he also filed reply to the notice. The notice received from MCD is ExPW1/G. He admitted that the said notice was received after filing the present suit.
12. Sh. Anil Kumar Sharma, dealing Assistant/Section Officer, LAB (R), DDA, Vikas Sadan, INA, New Delhi was examined as PW-2. He brought the occupation certificate of the suit property which is Ex.PW2/A. He was also cross-examined by the counsel for defendant no. 2/MCD. He stated that the sanctioned plan of the building in question is available with AE, Building Section, DDA, INA, New Delhi.
SUIT NO. 60859/16 NARENDER KUMAR SHARMA V. RAM KUMAR SHARMA & ORS.
Page No. 1213. Sh. Mahipal Singh, AE Building, DDA, Vikas Sadan, INA, Delhi was examined as PW-3. He deposed that the summoned record has been transferred to MCD by DDA vide letter dated 03.08.1988, copy of which is Ex.PW3/A. He was not cross-examined by the defendants.
14. Sh. Sunil Mohan Gupta, Assistant Engineer, Building-II, Keshav Puram Zone, Delhi was examined as PW-4. He brought a note regarding non-availability sanction building plan and regulation plan from his office which is Ex.PW4/1. He was cross examined by Ld. Counsel for plaintiff. He stated that he has not brought the file related to sanction plan of property no. C-2/82, Ashok Vihar, Phase-II, Delhi. He denied that the department has received the building plan file of the suit property from DDA and he has deliberately not produced the same. He admitted that the property no. C-2/82, Ashok Vihar, Phase-II, Delhi is under the jurisdiction of NDMC.
15. SI Yogesh Sharma, PS Ashok Vihar was examined as PW-5. He brought the summoned record in respect of the written statement filed on behalf of PS Ashok Vihar, Delhi dated 30.11.2015 which is Ex.PW5/A. He was not cross examined by both the Ld. counsels for defendants.
16. Sh. Sanjay Kumar, JE (Building), Keshavpuram Zone, Delhi was examined as PW-6. He proved the sanctioned building plan of property no. C-2/82, Wazirpur, Phase-II, Delhi which is Ex.PW5/A. He stated that the none of the occupant/owner has SUIT NO. 60859/16 NARENDER KUMAR SHARMA V. RAM KUMAR SHARMA & ORS.
Page No. 13any right to modify the construction without prior permission of the competent authority and the co-owner. He was not cross examined by both the counsels for defendants.
DEFENCE EVIDENCE
17. Sh. Ram Kumar Sharma (defendant no. 1) examined himself as DW-1 and tendered his evidence by way of affidavit Ex. DW-1/1. He relied upon the documents Mark-A to Mark-J i.e. photographs of the suit property and site plan Ex. PW-/D-3. He was also cross-examined by the Ld. counsel for plaintiff.
18. Thereafter, final arguments were advanced by the Ld. Counsels of both the properties.
19. I have given due consideration to the submissions and I have perused the record.
ANALYSIS AND FINDINGS
20. The present dispute is regarding construction of the wall in the central court yard of the suit property by defendant no. 1 as well as regarding interpretation and enforcement of Late Sh. Hari Ram Sharma's Will dated 06.08.1989 Ex. PW-1/A, which outlined the distribution of his property among his three sons - Krishan Kumar Sharma, Ram Kumar Sharma (defendant no. 1), and Narender Kumar Sharma (plaintiff).
21. The suit property is so constructed that in the central portion there is a courtyard which is open to sky. It is this court SUIT NO. 60859/16 NARENDER KUMAR SHARMA V. RAM KUMAR SHARMA & ORS.
Page No. 14yard which is the subject matter of dispute qua which plaintiff has sought injunction against the defendants thereby directing the defendants to remove the wall raised in the courtyard adjacent to the yellow coloured portion, which is in possession of the plaintiff.
22. Considering the averments made in the pleadings of both the parties coupled with the evidence adduced on record, by the parties, it is undisputed fact that the plaintiff is residing in the back portion (shown in yellow in the site plan Ex. PW-1/B) and the defendant No. 1 is residing in the front portion (shown in red colour in the site plan Ex. PW-1/B) of the suit property.
23. It is undisputed fact that the in the year 2007, defendant no. 1 initiated a civil suit seeking possession of the portion allotted to him by his father through the Will Ex.PW1/A. The suit progressed over the years, and the judgment Ex. PW-1/C was passed in favor of defendant no. 1 in the year 2011. Despite the court's order, the plaintiff did not vacate the portion given to defendant no. 1. It is also undisputed that the defendant no. 1 obtained possession of his portion including the central courtyard, with the assistance of a bailiff during execution proceedings in the year 2015.
24. It is also undisputed that following the acquisition of possession of his designated portion, defendant no. 1 erected a wall within the central courtyard of the property, which resulted SUIT NO. 60859/16 NARENDER KUMAR SHARMA V. RAM KUMAR SHARMA & ORS.
Page No. 15in the segregation of the portion shown in yellow colour in Ex. PW-1/B, which is in the possession of the plaintiff.
25. Now, the plaintiff, Narender Kumar Sharma, alleges that the defendant no. 1, Ram Kumar Sharma, has violated the terms of the Will Ex. PW-1/A by illegally constructing a wall and installing locks, impeding the plaintiff's access to light, air, and common areas. On the other hand, the defendant no. 1 alleges that the construction of the wall within the central courtyard is justified and aligns with the intention and provisions outlined in the Will of Late Sh. Hari Ram Sharma, whereby defendant no. 1 was given exclusive right to use the central courtyard on the ground floor of the suit property.
26. The plaintiff has claimed existence of 'Easementary Rights of Light and Air' in his favour and has alleged that there is violation of the said rights by the defendant No.1 due to raising of the wall in question.
27. The issues no. 1 and 2 are inter-connected and can be decided together and are taken for consideration together.
i) Whether the Plaintiff is entitled to Permanent Injunction, as prayed for? OPP
ii) Whether the Plaintiff is entitled to decree of mandatory injunction, as prayed for? OPP SUIT NO. 60859/16 NARENDER KUMAR SHARMA V. RAM KUMAR SHARMA & ORS.
Page No. 1628. The burden to prove the issue is on the plaintiff. To prove these issues, the plaintiff has examined himself and appeared as witness/PW1 and has also examined 05 more formal witnesses.
29. Before delving into the merits of the case, it would be useful to refer to the decision of Hon'ble Madras High Court in K.Krishnamoorthy vs Nagammal (S.A.No.70 of 2007 dated 18.11.2014) wherein it held that -
'19. Easements may relate to a right of way, a right to light and air etc. Easements can be acquired by different ways and are of different kinds, that is, easement by grant, easement of necessity, easement by prescription, etc. A dominant owner seeking any declaratory or injunctive relief relating to an easementary right shall have plead and prove the nature of easement, manner of acquisition of the easementary right, and the manner of disturbance or obstruction to the easementary right.
20. The pleadings necessary to establish an easement by prescription, are different from the pleadings and proof necessary for easement of necessity or easement by grant. In regard to an easement by prescription, the plaintiff is required to plead and prove that he was in 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. For claiming an easement of necessity, the plaintiff has to plead that his dominant tenement and defendant's servient tenement originally constituted a single tenement and the ownership thereof vested in the same person and that there has been a severance of such ownership and that without the easementary right claimed, the dominant tenement cannot be used.' SUIT NO. 60859/16 NARENDER KUMAR SHARMA V. RAM KUMAR SHARMA & ORS.
Page No. 1730. In the instant suit, primary question that emerges for consideration is whether, in the given circumstances of the case, the plaintiff indeed possesses easementary rights of light and air through window and door on the southern side wall of the plaintiff's portion, which faces towards the central court yard of the suit property.
31. A bare perusal of the photographs of the suit property, available on record, shows that the construction activity (i.e. the raising of the wall in question), which was being carried out by the defendant no.1, is in close proximity to the structure including window, within in plaintiff's designated portion of the suit property. Simultaneously, it appears that construction of wall in question has obstructed light and air, which was coming to the portion of the plaintiff because of open central courtyard.
32. Nonetheless, the question arises whether the plaintiff has been denied access to light & air from other sources, as well. To ascertain this position, reference may be made to the site plan of the suit property, which has been annexed by the plaintiff himself as Ex.PW1/B as well as photographs of the rear portion suit property Ex. PW-/D1 and Ex.PW-1/D2, which were admitted by the plaintiff/PW-1 during his cross-examination. A study of the plan as well as photographs reveals that the house in question is open from two sides. On the front side is a road and on the back- side, there is a lane. The rooms occupied by the defendant no. 1 SUIT NO. 60859/16 NARENDER KUMAR SHARMA V. RAM KUMAR SHARMA & ORS.
Page No. 18open in the front lawn/canopy, facing towards the road side and the rooms occupied by the plaintiff are in the rear portion which open towards the rear lawn and back lane.
33. The plaintiff admitted that he has covered the rear lawn with fiber sheets. Further, a comparison of the sanctioned site plan (Ex.PW-5/1) and the site plan (Ex. PW-1/B) indicates that the plaintiff changed the location of doors and windows in the rear portion of the suit property. Therefore, it cannot be said that the plaintiff has been denied access to light & air, as the same was available to him certainly from the back portion. The changes made by the plaintiff, such as covering the rear lawn and altering the location of doors and windows shows that an attempt was made by the plaintiff to create a case of easement by necessity. However, the plaintiff cannot be permitted to take advantage of his own wrong.
34. It may further be noticed that it has come in evidence that there is one more brother of the plaintiff namely Krishna Kumar Sharma who has got certain portion of the suit property by virtue of the Will Ex.PW-1/A. The plaintiff has failed to examine his brother or any other independent witness to show that there is obstruction to light & air to the yellow colour portion of suit property, which is in possession of the plaintiff and there is no other alternative source of light and air or access to plaintiff's portion.
SUIT NO. 60859/16 NARENDER KUMAR SHARMA V. RAM KUMAR SHARMA & ORS.
Page No. 1935. It is also noteworthy that the plaint is silent as regards the period for which plaintiff has used the alleged right of easement of light & air from the open courtyard. Secondly, there is no pleading to state that light & air was enjoyed from the open courtyard openly, notoriously and as of right. As per Sec.15 of the Indian Easement Act, the right of easement can be claimed only if it was enjoyed for a period of more than 20 years, as a matter of right. The plaintiff has not alleged that over the last 20 years, while exercising easementary rights of light and air, he was conscious that the central courtyard belonged to defendant no. 1
36. From its very definition, easementary right is a right to burden another person's property for the more beneficial enjoyment of his own property. Thus, to claim easement, the plaintiff must admit the title of the defendant no. 1 over the suit property. However, it is apparent from the judgment Ex. PW-1/C that the plaintiff has disputed the ownership of the defendant no. 1 over the central court yard and front portion of the suit property in the civil suit for possession filed by defendant no. 1 against the plaintiff. The plaintiff has nowhere explained as to in what capacity he was occupying the entire ground floor of the suit property from the beginning or from the time of his father's death until possession of the central court yard and front portion was handed over to the defendant no. 1 in the year 2015. In the absence of any pleadings to this effect, plaintiff cannot claim the right of easement to have fructified.
SUIT NO. 60859/16 NARENDER KUMAR SHARMA V. RAM KUMAR SHARMA & ORS.
Page No. 2037. For the reasons stated above, this court is of the opinion that the plaintiff has also failed to establish that his easementary rights have been violated by the defendant no. 1.
38. As regards the prayer of permanent injunction for restraining the defendant no. 1 from selling, alienating or creating third party interest in respect of any part/portion of the suit property (shown in red and green colour in the site plan) is concerned, the plaintiff has failed to demonstrate the right, title, or interest he holds in the specified portions of the suit property for which he seeks the injunction. It is an admitted position that possession of the portion shown in red colour in the site plan (Ex. PW-1/B) on the ground floor was given to the defendant no. 1 based on the court's order (Ex.PW-1/C) and the Will (Ex. PW- 1/A). The said order has not been challenged before any appellate authority and hence, it has attained finality.
39. The plaintiff is seeking the same relief in respect of the second-floor potion (terrace and barsati) marked in in red colour in Ex. PW-1/B. However, it is the plaintiff's own case that by virtue of the Will Ex.PW-1/A, the defendant no. 1 became the owner of the said portion.
40. During the course of final arguments, Ld. Counsel for plaintiff drew attention of the court towards Clause 6 of the Will Ex. PW-1/A, asserting that it confers preemptive rights upon the SUIT NO. 60859/16 NARENDER KUMAR SHARMA V. RAM KUMAR SHARMA & ORS.
Page No. 21plaintiff in the specified portions of the suit property and thus, the defendant no. 1 should be restrained from alienating these portions to a third party. However, the said contention of the Ld. Counsel is liable to be rejected. It is settled law that the right of preemption is a weak right and not favored by the courts. Additionally, the cause of action for exercising the right of preemption arises only when a sale is complete. In the present case, there is no reference in the plaint that the defendant no. 1 has already sold the red and green colored portions in question to an outsider. As a result, the plaintiff does not have a valid cause of action for such a claim.
41. In view of my forgoing discussion, issue no. 1 and 2 are decided against the plaintiff. It is concluded that the plaintiff has failed to meet the burden of proof required to establish his entitlement to the reliefs sought in the suit. The court finds that the plaintiff has not demonstrated, based on the preponderance of probabilities, that he possesses an easementary right of light and air through the window and door facing the central courtyard. Moreover, the plaintiff has not established a valid cause of action for enforcing preemptive rights. Consequently, the reliefs sought by the plaintiff, namely, a permanent injunction and a mandatory injunction, cannot be granted. The suit is disposed off as dismissed. No order as to cost.
42. Decree sheet be prepared forthwith.
SUIT NO. 60859/16 NARENDER KUMAR SHARMA V. RAM KUMAR SHARMA & ORS.
Page No. 2243. File be consigned to Record Room after due compliance.
(Announced in the open Court) (Priyanka Rajpoot) on 06.12.2023 ASCJ-JSCC-GJ (NORTH-WEST) ROHINI COURTS DELHI SUIT NO. 60859/16 NARENDER KUMAR SHARMA V. RAM KUMAR SHARMA & ORS. Page No. 23