Delhi District Court
Senior Civil Judge vs Sh. Krishan Chand Gahlot on 20 September, 2021
IN THE COURT OF HARVINDER SINGH,
SENIOR CIVIL JUDGE, SOUTH WEST DISTRICT,
DWARKA COURTS, NEW DELHI.
REGULAR CIVIL APPEAL
(1) V. N. Gupta
S/o Late Sh. A. L. Gupta
R/o Plot No.137,
Shivani Enclave, Part - II,
Kakrola, New Delhi - 110 078.
(2) Smt. Laxmi
W/o Sh. Janeshwar
R/o Plot No.137-A,
Shivani Enclave, Part - II,
Kakrola, New Delhi - 110 078.
(3) Smt. Kamla Devi
W/o Late Sh. Gour Singh
R/o Plot No.137-B,
Shivani Enclave, Part - II,
Kakrola, New Delhi - 110 078. .................Appellants
Versus
Sh. Krishan Chand Gahlot
(deceased) through LRs
(1) Smt. Anita (wife)
(2) Sh. Om Prakash (son)
(3) Kumari Pooja (daughter)
(4) Kumari Sangita (minor daughter)
(5) Lokesh (minor son)
(LR no.(iv) and (v) through their mother Anita being natural
guardian)
all R/o Plot No.126-A,
Shivani Enclave, Part - II,
Kakrola, New Delhi - 110 078. ................Respondents
DATE OF INSTITUTION OF APPEAL : 21.10.2019
DATE OF ARGUMENTS : 16.09.2021
DATE OF DECISION : 20.09.2021
JUDGMENT
V. N. Gupta & Ors. Vs. Krishan Chand Gahlot RCA No.19/2019 [20.09.2021] Page No.1 of 21 BRIEF INTRODUCTION
1. Vide this judgment, this Court shall decide this regular civil appeal filed against the judgment and decree dated 12.09.2019 passed by the Court of Ms. Medha Arya, the then Ld. Civil Judge, South-West District, Dwarka Courts, New Delhi in case titled as "V. N. Gupta & Ors. Vs. Krishan Chand Gahlot" having CS No.26589/2016. The appellants were plaintiffs in said suit before Ld. Trial Court and respondents are LRs of the deceased defendant Krishan Chand Gahlot of said suit. Said suit was dismissed vide judgment and decree dated 12.09.2019 (hereinafter referred to as Impugned Judgment) by Ld. Trial Court.
2. For the sake of convenience, the parties in this judgment henceforth are being referred to as per their respective litigative status as plaintiff(s)/plaintiff side and defendant(s)/defendant side before Ld. Trial Court. The appellant no.01 was plaintiff no.01, appellant no.02 was plaintiff no.02 and appellant no.03 was plaintiff no.03 before Ld. Trial Court.
BRIEF FACTS/PROCEEDINGS OF THE SUIT BEFORE LD. TRIAL COURT
3. In gist, the case of plaintiff side before Ld. Trial Court as discernible from plaint of plaintiffs was that the plaintiffs are V. N. Gupta & Ors. Vs. Krishan Chand Gahlot RCA No.19/2019 [20.09.2021] Page No.2 of 21 owners and in occupation of different portions of Plot No.137, Shivani Enclave, Part - II, Kakrola, New Delhi - 110 078, plaintiff no.01 being owner of front portion of that plot bearing Plot No.137 and plaintiffs no.2 and 3 are owners of back portions of plots bearing no.137-A and 137-B respectively. Defendant is owner and occupant of adjacent Plot No.126-A, Shivani Enclave, Part - II, Kakrola, New Delhi - 110 078. In between three plots of plaintiff and plot of defendant, there is gali of 8 feet width for exclusive use of owners of plot no.137, 137-A and 137-B as it was left by initial owner of land of joint plot no.137 while dividing and selling said plot as plots no.137, 137-A and 137-B for access to those plots and houses. Defendant has a road of 25 feet width on South side of his plot and another gali of 16 feet width in East of his plot/house. In recognition of rights of plaintiffs, the defendant did not open any window or door or nali or made any projection in 8 feet wide gali of the plaintiffs. Sometimes ago, defendant opened a door and window towards the gali of 8 feet width of plaintiffs without their consent. He also constructed a nali against their wishes. Defendant is now constructing a part of front portion of his house facing road of 25 feet width and gali of 8 feet width for marriage of his elder son living with him. The defendant is opening another V. N. Gupta & Ors. Vs. Krishan Chand Gahlot RCA No.19/2019 [20.09.2021] Page No.3 of 21 window in his new construction towards 8 feet wide gali of plaintiffs along-with a projection in form of chhajja towards said gali in disregard to protest of plaintiffs. In title documents of plots of plaintiffs, there is shown a gali of 8 feet width in East side of their plots whereas in documents of defendant, the same portion is shown as other's plot. The defendant was served with legal notice, but in vain. With these averments, the plaintiffs filed suit for permanent injunction against defendants restraining the defendants from opening doors and windows, constructing nali and further projections towards the gali of 8 feet width in West side of his plot. They also sought mandatory injunction against the defendant for directions to him to close the doors and windows already opened towards 8 feet wide gali, for demolition of projection of chhajja towards said gali and for closing the nali opened in said gali.
4. The deceased defendant filed written statement contesting the suit of the plaintiffs and in gist, the case of the defendant side as discernible from its pleadings before Ld. Trial Court was that the suit is liable to be dismissed for non-joinder of necessary party like MCD and previous owners of the plots of plaintiffs. The plaintiffs are not the owners of land of the street and have no exclusive right of using said street. He denied that said 8 V. N. Gupta & Ors. Vs. Krishan Chand Gahlot RCA No.19/2019 [20.09.2021] Page No.4 of 21 feet wide gali was left by initial owner of land of joint plot no.137 while dividing and selling it in parts. He averred that the land of plots of both parties belong to one Zamidar and at time of construction of his house adjoining plots were vacant. He constructed his house in year 1997 - 1998 and the previous owner of the plots of plaintiffs did not object to construction of door, window and chhajja. The colonizer has shown the 8 feet wide gali as street in his site plan filed with MCD. MCD has dug the street and has laid down water-pipes and has constructed nali in the street. The doors, window and chhajja were constructed in year 1997 - 1998 and now it is reconstructed using cement instead of sand. Earlier chhajja was constructed with slabs of red marble and now it is constructed with RCC lenter. Nali already existed there and has been constructed by MCD now. The plaintiff is using the gali since the date of purchase of his plot in year 1995. With these averments, the defendant side prayed for dismissal of the suit of plaintiff side.
5. The plaintiff side filed further pleadings in the form of replication to the written statement and submitted vide same that the plaintiffs no.01, 02 and 03 purchased their plots on 14.05.2002, 01.04.2002 and 07.06.2005 respectively. The house of defendant V. N. Gupta & Ors. Vs. Krishan Chand Gahlot RCA No.19/2019 [20.09.2021] Page No.5 of 21 on his plot was already constructed at that time, but he had not opened any door or window in gali of 8 feet width. No chhajja or projection was also constructed till that time. One door and two windows were opened towards 8 feet wide gali by defendant only after purchase of their plots by plaintiffs. Initial owner of plot of plaintiffs was alive at the time of opening said one door and two windows and he along-with plaintiffs strongly objected to such openings. The colony has still not been approved by government/DDA, therefore, question of taking over of the same by MCD does not arise. Laying down of water-pipe in gali for use by plaintiffs would not alter a status of private gali into a public gali. No nali existed earlier in said 8 feet gali on the side of defendant. The development work has been done for the users of the gali i.e. for the plaintiff only. The plaintiffs reiterated their averments of the suit and denied the other averments of the defendant in their said replication. On basis of pleadings of both sides, Ld. Trial Court framed following issues vide order dated 05.05.2014 : -
(i) Whether the plaintiffs are entitled to decree of permanent injunction as per prayer A of the plaint? OPP V. N. Gupta & Ors. Vs. Krishan Chand Gahlot RCA No.19/2019 [20.09.2021] Page No.6 of 21
(ii) Whether the plaintiffs are entitled to decree of mandatory injunction as per prayer B of the plaint? OPP
(iii) Whether the suit of plaintiff is liable to be dismissed for non-joinder of necessary parties?
OPD
(iv) Relief.
6. In order to discharge the onus of the issue, plaintiff side examined plaintiff no.01 as PW1, plaintiff no.02 as PW2 and plaintiff no.03 as PW3 in plaintiff side evidence. Defendant side examined one Sh. Narender Kumar as DW1, Sh. Om Prakash S/o of the defendant as DW2 and one Smt. Nirmal as DW3 in their evidence. Defendant evidence was closed vide order dated 14.02.2019 and matter was then fixed for final arguments. Vide impugned judgment/decree, Ld. Trial Court was pleased to dismiss the suit of the plaintiffs.
GROUNDS OF APPEAL 7.1 The impugned judgment has been assailed before this Court by way of present appeal by the plaintiffs and in gist they have raised following grounds of appeal : -
(a) The Ld. Trial Court has erred in giving findings in V. N. Gupta & Ors. Vs. Krishan Chand Gahlot RCA No.19/2019 [20.09.2021] Page No.7 of 21 para no.1 of page no.2 of its judgment that the appellants are claiming ownership rights over the suit property i.e. 8 feet wide gali as against their claim of having right of exclusive use of said gali since same is the only way for access to their plots, specially for plaintiff no.01 and 02. The original owner of joint plot no.137 while dividing it into plots no.137, 13-A and 137-B left a portion of
8 feet width as a gali to provide access to plots no.137-A and 137-B and has been duly mentioned as gali in title documents of all three plaintiffs.
(b) The Ld. Trial Court has not referred to orders dated 17.04.2014 passed by her predecessor under Order 39 Rule 1 and 2 of The Code of Civil Procedure, 1908 (hereinafter referred to as CPC) and other circumstances.
(c) The Ld. Trial Court erred in describing 16 feet wide gali in South side of plot of defendant at para no.3 of page no.2 of its judgment as against correct position of its being on East side.
(d) The Ld. Trial Court erred in para no.2 of page no.3 of its judgment in describing the chhajja as sun blocker/sunshade whereas it is a regular extension of upper roof of defendant into the 8 feet wide gali.
(e) The Ld. Trial Court erred in mentioning at para no.5 V. N. Gupta & Ors. Vs. Krishan Chand Gahlot RCA No.19/2019 [20.09.2021] Page No.8 of 21 of page no.5 of its judgment that plaintiffs have claimed water-pipe line in 8 feet wide gali being laid by them.
(f) The Ld. Trial Court erred in para no.15 of page no.9 of its judgment that defendant has himself admitted that suit property is for exclusive use of plaintiffs whereas plaintiffs have stated in their written arguments that it is established from documents of defendant himself that 8 feet wide gali in West side of his plot is shown as other's property and not a gali.
(g) The findings of Ld. Trial Court on the issue that plaintiffs are not owners of the suit property was neither relevant nor called for as it was never claimed that appellants are owners of suit property. The issue was whether the suit property is meant for exclusive use of appellants or not.
(h) The contradiction in cross-examination about existence of nali in the suit property is not at all relevant for deciding the fact of exclusive use/possession of suit property. The construction of water-pipe line by DJB or nali by MCD does not change the nature of suit property. The findings of Ld. Trial Court that the suit was liable to be dismissed for non-joinder of necessary parties i.e. MCD, DJB and GNCTD was not relevant at all.
(i) The plaintiffs confirmed in their cross-examination V. N. Gupta & Ors. Vs. Krishan Chand Gahlot RCA No.19/2019 [20.09.2021] Page No.9 of 21 that there was no door, window, nali or chhajja of the defendant towards the suit property prior to the purchase of plots by them. The plaintiffs purchased plots in years 2002 and 2005. The suit was filed in year 2014, so when plaintiffs stated that about certain number of years ago, the same has to be reckoned from the year 2014 and not from the year of their purchase. The non-taking of photographs of defendant's property at the time of purchase of plots cannot be considered a default on their part as they could not have comprehended any such action on the part of defendant.
(j) The PW1 has stated in cross-examination that the opening of door and window by the defendant towards the suit property for the first time was objected by them. PW3 has asserted that doors and windows of defendant were not in existence towards the suit property when property was purchased by PW3 in year 2005. PW3 has stated that door already existed about five years ago, but windows and chhajja were constructed during fresh construction, said cross-examination of PW3 was recorded on 06.04.2017 and hence, five years ago period has to be inferred to be of year 2012.
(k) All plaintiff side witnesses have asserted in their cross-examination about their right of exclusive use of suit property V. N. Gupta & Ors. Vs. Krishan Chand Gahlot RCA No.19/2019 [20.09.2021] Page No.10 of 21 and delay, if any in filing the suit does not give any right to the defendant. The plaintiffs can also not be faulted for not producing independent witnesses.
(l) DW1 Narender Kumar has admitted in his cross- examination that deceased defendant was his uncle and his deposition that suit property was not meant for exclusive use of plaintiffs was given to protect his uncle's case and cannot be given any weight-age.
(m) Both DW2 and DW3 have admitted in their cross- examination that suit property is closed one from the other side. DW3 has further admitted that the defendants have water and electricity connection from the 18 feet gali and not from the suit property.
7.2 Vide written submissions, in gist, it is submitted that appellants do not claim ownership right over suit property, they claim only right of its exclusive use, same is described as gali in title documents of all plaintiffs and other's property in title document of deceased defendant. The appellants had suit property only as way of assess to their plots especially plaintiff no.02 and 03 whereas the plot of defendant could be assessed through other streets also. The owner/zamidar who divides a plot into smaller V. N. Gupta & Ors. Vs. Krishan Chand Gahlot RCA No.19/2019 [20.09.2021] Page No.11 of 21 plots, leaves some portion for use as a gali to provide assess to plot holders and it is not practical for such landlord to mention about ownership or of its exclusive use in title documents of buyers of sub-divided plots. The layout plan produced by defendant side itself shows that all streets of colony are not of same width and where zamidar of only one plot left gali of eight feet and zamidar of adjacent plot has not left gali then the eight feet gali becomes street for exclusive use of sub-plot holders of zamidar who left eight feet gali. Some more submissions as are grounds of appeal have also been made vide written submissions by appellant side. 8.1 Per contra, in gist, the LRs of defendant have submitted vide reply that the eight feet gali i.e. suit property is not meant for the exclusive use of the plaintiffs. At the time of purchase of plot by the defendant, the same was mentioned as other's plot since it was vacant plot at that time. The door and windows were constructed by the defendant in his plot when the plaintiffs have not even purchased their plots. The defendant has only renovated/reconstructed the kacha portion into pakka portion and even chhajja was already in existence. There is no illegality or infirmity in the impugned judgment. The grounds of appeal raised by plaintiffs in the present appeal are baseless, therefore, appeal is V. N. Gupta & Ors. Vs. Krishan Chand Gahlot RCA No.19/2019 [20.09.2021] Page No.12 of 21 liable to be dismissed.
8.2 Vide written submissions, the defendant side has submitted that the plaintiffs had neither paid for the suit property nor have any document to show that they have right to exclusive use of the suit property. There is nothing wrong or illegality in the order of Ld. Trial Court.
CONTOURS OF FIRST APPEAL 9.1 Before proceeding further to decide the present appeal, it would be appropriate to discuss the scope and contours of the first appeal. Part VII (Sections 96 to 99A) of The Code of Civil Procedure, 1908 (hereinafter referred to as CPC) provides substantive provisions for appeals from original decrees and Order XLI of CPC provides procedural details for such appeals. 9.2 The Rules 31, 32, 33 of Order XLI of CPC provides as under : -
"31. Contents, date and signature of judgment. - The judgment of the Appellate Court shall be in writing and shall state
-
(a) the points for determination;
(b) the decision thereon;
(c) the reasons for the decision; and
(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled, and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein.
32. What judgment may direct. - The judgment may be for confirming, varying or reversing the decree from which the V. N. Gupta & Ors. Vs. Krishan Chand Gahlot RCA No.19/2019 [20.09.2021] Page No.13 of 21 appeal is preferred, or, if the parties to the appeal agree as to the form which the decree in appeal shall take or as to the order to be made in appeal, the Appellate Court may pass a decree or make an order accordingly.
33. Power of Court of Appeal - The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection [and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees:]"
9.3 Full bench of Hon'ble Supreme Court of India in matter of "Sanotsh Hazari Vs. Purushottam Tiwari (dead) By LRs", (2001) 4 SCC 179 has observed as under : -
"15.........................The appellate Court has jurisdiction to reverse or affirm the findings of the trial Court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate Court must, therefore, reflect its conscious application of mind, and record findings supported by reasons, on all the issues arising along-with the contentions put forth, and pressed by the parties for decision of the appellate Court. The task of an appellate Court affirming the findings of the trial Court is an easier one. The appellate Court agreeing with the view of the trial Court need not restate the effect of the evidence or reiterate the reasons given by the trial Court; expression of general agreement with reasons given by the Court, decision of which is under appeal, would ordinarily suffice. We would however, like to sound a note of caution. Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the appellate Court for shirking the duty cast on it. While writing a judgment of reversal the appellate V. N. Gupta & Ors. Vs. Krishan Chand Gahlot RCA No.19/2019 [20.09.2021] Page No.14 of 21 Court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial Court must weigh with the appellate Court, more so when the findings are based on oral evidence recorded by the same presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the appellate Court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate Court is entitled to interfere with the finding of fact. The rule is __ and it is nothing more than a rule of practice __ that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judges notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate Court should not interfere with the finding of the trial Judge on a question of fact. Secondly, while reversing a finding of fact the appellate Court must come into close quarters with the reasoning assigned by the trial Court and then assign its own reasons for arriving at a different finding. This would satisfy the Court hearing a further appeal that the first appellate Court had discharged the duty expected of it. We need only remind the first appellate Courts of the additional obligation cast on them by the scheme of the present Section 100 substituted in the Code. The first appellate Court continues, as before, to be a final Court of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the first appellate Court is also a final Court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate Court even on questions of law unless such question of law be a substantial one."
9.4 Hon'ble Supreme Court of India in matter of "Shashidhar & Ors. Vs. Ashwini Uma Mathod & Anr.", (2015) 11 SCC 269 has observed as under : -
V. N. Gupta & Ors. Vs. Krishan Chand Gahlot RCA No.19/2019 [20.09.2021] Page No.15 of 21 "4. The appellate court has jurisdiction to reverse or affirm the findings of the trial court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along-with the contentions put forth, and pressed by the parties for decision of the appellate court.
....................................... The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings."
9.5 Recently, full bench of Hon'ble Supreme Court of India in matter of "Malluru Mallappa (dead) through LRs Vs. Kuruvathappa", (2020) 4 SCC 313, while relying upon and reiterating above cited judgments has observed as under : -
"19. It is clear from the above provisions and the decisions of this Court that the judgment of the first appellate court has to set out points for determination, record the decision thereon and give its own reasons. Even when the first appellate court affirms the judgment of the trial court, it is required to comply with the requirement of Order XLI Rule 31 and non-observance of this requirement leads to infirmity in the judgment of the first appellate court. No doubt, when the appellate court agrees with the views of the trial court on evidence, it need not restate effect of evidence or reiterate reasons given by trial court. Expression of a general agreement with the reasons given by the trial court would ordinarily suffice."
9.6 So, precisely framing points for determination for this appeal, this Court needs to address itself to all issues of law and facts arising out of contentions put forth and pressed by the parties and further have to record findings on points of determination V. N. Gupta & Ors. Vs. Krishan Chand Gahlot RCA No.19/2019 [20.09.2021] Page No.16 of 21 supported with reasons. Hence, lets first chalk out points for determination and then discuss and decide them in light of facts, evidence and contentions raised.
POINTS FOR DETERMINATION
10. The following points for determination arise from issues raised and contentions put forth in this appeal : -
(a) Whether plaintiffs are entitled to decree of permanent and mandatory injunctions as prayed for and Ld. Trial Court has erred in dismissing their suit?
(b) Relief, if any.
DISCUSSION ON POINTS OF DETERMINATION/ DECISION/REASONS THEREOF Point of determination : - (a) 11.1 Now, if we go through the pleadings of the plaintiff side
and the grounds of appeal, it is correct that the plaintiffs have not claimed ownership right over the suit property and the observations/findings of Ld. Trial Court that the plaintiffs have claimed ownership right over the suit property are incorrect and are uncalled for. But, the anomility in the judgment of Ld. Trial Court ends here. The other anomilities pointed out by the appellant vide his appeal are minor incorrect statements of facts which can crept into any judgment or order given the length of the judgment. The V. N. Gupta & Ors. Vs. Krishan Chand Gahlot RCA No.19/2019 [20.09.2021] Page No.17 of 21 gist of the case of the plaintiffs before Ld. Trial Court was that the suit property was left out by the previous owner of joint plot no.137 for exclusive use of the plaintiffs. The plaintiffs have heavily relied upon the fact that the suit property is mentioned as gali in their documents of purchase and has been mentioned as other's property in the documents of the deceased defendant in support of their said case. It is to be noted that the documents of all the three plaintiffs are from different persons instead of one owner.
No document is produced on record by plaintiffs to show who was the owner of the joint plot no.137 and is even not mentioned or averred anywhere in the suit. No document has been produced on record by plaintiffs to show that at one point of time, the plots of the plaintiffs were jointly owned by one person. The case of the plaintiffs that their plots are part of bigger joint plot do not find any support from any document except from the fact that their plots are numbered as 137, 137A and 137B. The documents of the plaintiffs also does not mention the suit property as part of the joint property and has been left for the exclusive use of plaintiffs. The onus of proving their case was certainly upon the plaintiffs. It was incumbent upon the plaintiffs to produce reliable evidence to show that suit property was part of their plots which was left by the V. N. Gupta & Ors. Vs. Krishan Chand Gahlot RCA No.19/2019 [20.09.2021] Page No.18 of 21 erstwhile owner for their exclusive use as a gali, but they have failed to do so. The Ld. Trial Court has rightly observed that the mere fact that the title documents of the defendant pertaining to his property describing the suit property as other's property is not sufficient to discharge the onus which was placed upon the plaintiffs. Moreover, the DW1 who is predecessor in interest of plaintiff no.03 has deposed that the suit property was used by all residents of area. His said deposition is certainly an admission by a predecessor-in-interest and is binding upon plaintiff side as per Section 18 (2) of The Indian Evidence Act, 1872. His said deposition could not be discarded only due to the reason that he is of same Gotra as is defendant. Furthermore, the plaintiff no.02 and 03 have admitted in their cross-examination that the MCD has already constructed drains and has laid water-pipe line in the suit property. It is not the case of the plaintiffs that they have paid to the board established under The Delhi Water Board Act, 1988 for the same. The plaintiffs should have paid for the expenditures of laying drain and water-pipe line to the board as per Section 32 of The Delhi Water Board Act, 1988, if they had right of exclusive use of the suit property. By allowing the construction of public drain and water-pipe line in the suit property by MCD, the plaintiffs have V. N. Gupta & Ors. Vs. Krishan Chand Gahlot RCA No.19/2019 [20.09.2021] Page No.19 of 21 certainly acquiesced to the public use of suit property as against their claim of right of exclusive use of the suit property. Furthermore, even if we accept the submissions made by the plaintiffs vide grounds of appeal that the doors and windows were opened by the defendant side about few years ago from the filing of the suit, they objected to their opening, but by taking no legal steps to stop the defendant side from using the suit property, the plaintiffs have acquiesced to the use of suit property as a common gali instead of private passage for them only. The further deposition of DW2 to the fact that the doors, windows and chhajja of defendant side was in existence even during the time when he was owner of the suit property, which cannot be discarded lightly as has been observed earlier makes it clear that the right of exclusive usage of suit property by the plaintiffs/predecessors-in- interest, if any has been long forgone by the predecessors-in- interest of the plaintiffs. Hence, in view of above discussion, this Court is of the opinion that the Ld. Trial Court has rightly dismissed the suit of the plaintiffs. In view thereof, this point of determination is decided against the plaintiffs/appellants and in favour of defendant side/respondent side.
CONCLUSION/RELIEF V. N. Gupta & Ors. Vs. Krishan Chand Gahlot RCA No.19/2019 [20.09.2021] Page No.20 of 21
12. In view of above discussion, this Court is of the conclusion that there is no illegality or infirmity in the impugned judgment passed by Ld. Trial Court, accordingly judgment and decree dated 12.09.2019 of Ld. Trial Court are hereby affirmed. Present appeal stands dismissed. Decree-sheet be prepared accordingly.
13. The records of Ld. Trial Court be sent back along-with the copy of this judgment and decree in compliance of Order XLI Rule 37 CPC. Appeal file be consigned to Record Room after due compliance and after entry in Register of Civil Suits (if not already made). Digitally signed by HARVINDER HARVINDER SINGH SINGH Date:
Announced in the open Court 2021.09.21
16:54:56 +0530
on 20.09.2021.
(HARVINDER SINGH)
SCJ-cum-RC/South-West,
DWK/ND/20.09.2021
Note : - This judgment is having 21 pages and each page bears my Digitally signed signatures. HARVINDER by HARVINDER SINGH SINGH Date: 2021.09.21 16:55:06 +0530 (HARVINDER SINGH) SCJ-cum-RC/South-West, DWK/ND/20.09.2021 V. N. Gupta & Ors. Vs. Krishan Chand Gahlot RCA No.19/2019 [20.09.2021] Page No.21 of 21