Delhi District Court
Chandro vs Prewati Anr on 24 December, 2025
IN THE COURT OF SH. SUNIL BENIWAL,
DISTRICT JUDGE-06, SOUTH DISTRICT,
SAKET COURTS, NEW DELHI.
CS DJ No.5951/2016
CNR No.DLST01-000006-2016
Smt. Chandro,
w/o Shri Ram Lal,
r/o Khasra No.42,
Village Bhati,
New Delhi. .....Plaintiff
Versus
(1) Smt Prem Wati (since deceased)
Through her legal heirs:
(a)Shri Harichand
S/o Shri Harbal
Village Fatehpur Beri,
New Delhi.
(b)Shri Raj Pal
S/o Shri Hari Chand
Village Fatehpur Beri,
New Delhi.
(c)Shri Dharmpal
S/o Shri Hari Chand
Village Fatehpur Beri,
Page 1 of 50
New Delhi.
(d)Smt. Murti Devi
W/o Shri Nepal,
D/o Shri Hari Chand,
R/o Village Ladpura Kasna,
Greater Noida, UP.
(2)Smt.Angoori Devi
W/o Shri Hari Dutt
Village Fatehpur Beri,
New Delhi. .....Defendants.
Date for institution of suit : 29.05.2006
Date of judgment : 24.12.2025
Suit for permanent and mandatory injunction
JUDGEMENT
1. Case of the plaintiff in brief is that the plaintiff along with her husband Shri Ram Lal is the owner of land falling in Khasra No.42 (Min) (4-13) in Village Bhati, Tehsil Mehrauli, New Delhi, which was purchased by virtue of Sale Deeds dated 30.12.1994 duly executed by previous owners namely Smt. Shashi and Shri Sukesh Chand, Shri Vijay Kumar, Shri Subhash Chander and Smt. Kiran Bala. That the said sale deeds were registered in the office of Sub- Registrar, New Delhi vide document No.3790 in Additional Book No.1, Volume 8715 at pages 140-149 on 05.05.1995; vide document No.3791 in Additional Book No.1, Volume 8715 at Page 2 of 50 pages 150 to 157; vide document No.3792 in Additional Book No.1, Volume No.8715 at pages 156 to 168 on 05.05.1995. That the plaintiff and Shri Ram Lal's names have already been recorded in the revenue records which also shows the plaintiff's possession over the above said land. That the plaintiff has filed the present suit as a co-owner/co-sharer in the above said land.
2. It is further averred in the plaint that defendants No.1 & 2 are the owners of land falling in Khasra No.41, Village Bhati, New Delhi. That the defendants are trying to encroach upon the Pathway/Rasta of 32 ft unlawfully and illegally. That there exists a Road/Rasta/Pathway of 32 ft from the main road which goes to the property of the plaintiff. that out of this 32 ft Rasta, the Metallic road is on 17 ft and on the right hand side and left hand side of Metallic Road there is Kacha Rasta of approximately 8 ft on one side and 6 ft 7 inches on the other side.
3. It is further stated that the plaintiff has filed a site plan on record in order to show and indicate that how the defendant is trying to encroach upon the Rasta/road by constructing a wall on the one side of the road by encroaching the Kacha portion of the road. That along with the present suit, the plaintiff has also filed photographs on record in order to show and indicate that the defendants are aiming to raise the Wall by encroaching upon the Kacha portion of the Road/Rasta in dispute. Further that the defendants have no right to encroach upon the Rasta/Road in any Page 3 of 50 manner. Even the photographs also clearly show and indicate that the defendant is intentionally encroaching upon the Kacha Rasta/Road for grabing the said Kacha Portion which is a part of the Rasta/Road.
4. It is further stated in the plaint that at one stage of time there was a litigation and the matter came up before the Sub-Divisional Magistrate, Hauz Khas, New Delhi and SDM passed following order dated 20.05.1997 under section 133 Cr.P.C in the case titled "Dharamvir v/s Ramm Lal & Anr:
Whereas a complaint has been received from Shri Dharmvir Batra, s/o Late Shri Ch. Aishi Ram Batra r/o W-11, Greater Kailash, Part-II, New Delhi wheras he has submitted an application dated 20.05.97 stating therein that One on 32′ reaches to Shri Ram Lal and his son Shri Bharam Singh are errecting pillers wide Road i.e public passage, stituated on Khasra No. 41 and 42 of village Bhatti, which their farm house situated in khasra No. 897, 900, 901, 902, 909, 913 and 914 of Village Fatehpurberi, New Delhi. The said persons are also trying encroach upon the abovesaid plublic passage by putting a gate to on the above said 32' wide road, the complainant says.
I the have gone through complaint filed by the complainant and hereby order that STATUS QUO IS TO BE MAINTAINED till further orders. S.H.O. Mehrauli is directed to take necessary action in the matter and submit compliance report today positively. He is also directed to inform both the Page 4 of 50 parties to attend the court on 28.05.97.
5. Further that the above said order clearly shows and indicates that the Road/Rasta of 32' exists at site.
6. Plaintiff further stated that at one stage of time the defendant was trying to dismantle the gate of the plaintiff which was at Khasra Nos. 42 (min) (4-13), 43 (min) (2-10), 50 (min) (2-10) Village Bhatti Tehsil Mehraul, New Delhi. That as such the plaintiff was constrained to file a suit which was registered as Suit No. 239/97 and in continuation of the said suit, an appeal was also filed before the Appellate Court. That during the proceedings before the Appellate Court in MCA No. 353/97 the Court was pleased to appoint a Local Commissioner also for verifying the width of the Road along with other factual postion. That accordingly Shri M.K. Kasturi, Advocate visited the site and submitted the report before the concerned Court on 16.06.1997. Copy of the said report is also stated to have been filed along with the present suit. That the said report also clearly shows and indicates that the width of the above said Road was 30 ft 7 inches i.e approximately 32 ft. The Plaintiff does submit and states that in fact the Road/Rasta is of 32 ft and Kacha portion and Kacha Rasta exists on both sides of the Metallic Road.
7. It is further averred in the plaint that even in the Khasra- Girdawari also the Rasta has been duly mentioned. That during the Page 5 of 50 proceedings of the Suit No. 1651/97 titled "Asha Narang & Ors v. Ramlal & Ors" the Ld. Local Commissioner visited the site and submitted a report before the Hon'ble High Court, and the said report also clearly shows and indicates that the said Metallic Road was coming from main road to Khasra No. 42 (min).
8. Plaintiff further stated that defendant cannot encroach upon the Kacha Rasta/Road which exists at site for the last about 30 years. That this Pathway/Rasta/Road of 32 ft comes from Main Road and goes from Khasra No. 41 and ends at Khasra No. 42 (min), Village Bhatti, New Delhi (at Plaintiff's land).
9. Further that during the earlier proceedings of Suit No. 235/97, the defendant filed a Written Statement on record and admitted that the Metallic Road/Public Passage existed through Khasra No.41. That plaintiff's valuable rights are going to be affected in case if defendant encroaches upon Kacha Rasta/Road. That the defendant has collected stones for construction of wall on said Rasta for encroaching/grabbing 8 inches Kacha Rasta.
10. Plaintiff further stated that the defendant started the construction stone wall on 04.02.2005, and immediately the plaintiff and other neighbours made a protest then the defendant stopped the construction of stone wall. Further that on 05.02.2005 and 06.02.2005, the plaintiff has come to know that the defendant is intending to restart the construction of Stone Wall for grabbing Kacha Rasta/Road with the connivance of local police. That as Page 6 of 50 suich, the plaintiff was constrained to file a suit which was registered as Suit No.169 of 2005 titled as "Smt. Chandro Versus Smt. Prem Vati". That after filing of the said suit, the defendant stopped the encroachment over the above said Rasta, therefore, the plaintiff could not pursue the earlier suit. The said suit No.169 of 2005 was dismissed in default on 10.11.2005. That the plaintiff has not pursued the suit No.169 of 2005 only because the defendant stopped the illegal construction over the Rasta at that stage of time.
11. Plaintiff further stated that the defendant No.1, the moment she came to know that the suit No.169 of 2005 has been dismissed on account of non-prosecution, again started making attempt to encroach upon the said Rasta. The defendant started this illegal action on 15/16-5-2006 and immediately the plaintiff approached S.D.M. and made a request that the site should be inspected and it was also requested that the necessary steps should be taken for restraining the defendants No.1 & 2 from encroaching upon the Rasta.
12. Plaintiff has filed the present suit seeking following reliefs:
(1)Permanent injunction in favour of the plaintiff and against the defendant, her agents, attorneys, employees, associates thereby restraining them from interfering in the peaceful possession/enjoyment of the Pathway/Rasta/Road of 32 ft which goes from Khasra No. 41, Village Bhatti and ends at Khasra No. Page 7 of 50 42 (min) (at Plaintiff's land), Village Bhatti, New Delhi.
(2)Permanent and mandatory injunction in favour of the plaintiff and against the defendant, her agents, attorneys, employees, associates thereby restraining them from encroaching upon the Kacha portion of the Rasta/Road which comes from Main Road and goes from Khasra No. 41, Village Bhatti New Delhi and ends at Khasra No. 42 (min), (at plaintiff's land), Village Bhatti, New Delhi and direct that defendant should not raise any construction/stone wall at 32 ft pathway/Rasta/Road which goes from Khasra No. 41 and ends at Plaintiff's land (at Khasra No. 42 (min), Village Bhatti, New Delhi and in case if defendant succeeds in encroaching upon Kachha Rasta/Road of 32 ft, necessary directions be passed for removal of such construction/wall from 32 ft Rasta/Road/Pathway as shown in the Site Plan which ends at plaintiff's land.
13. Summons of the suit were issued to the defendants. Both defendants filed written statement.
14. Defendants stated that the suit is liable to be dismissed being barred under Order II Rule 2 and Section 10 of the CPC. That the plaintiff is a habitual litigant and keeps on indulging in frivolous litigation without any provocation. However, in the present case, the plaintiff has intentionally indulged in commission of Criminal Contempt of Court under the provisions of the Contempt of Courts of Act, 1971 in as much as on the same cause of action and seeking Page 8 of 50 the similar relief, the plaintiff filed a suit in February 2005 against the answering defendants vide suit bearing CS(OS) No. 169/2005 titled as 'Smt. Chandro Vs. Smt. Premwati'. That in the said suit also the plaintiff sought the relief of temporary injunction alongwith the main relief of permanent injunction but after having failed in her attempt to seek an ex-parte ad-interim injunction against the defendants, the plaintiff malafidely kept on seeking adjournments from the Hon'ble Court on 08.02.2005, 09.02.2005, 03.05.2005, 15.07.2005, 26.09.2005 and 10.11.2005. That the Court was pleased to issue summons/notices to the defendants returnable on 03.03.2005 but no process fee was filed by the plaintiff in the said suit pursuant to the order dated 09.02.2005. Similarly on subsequent dates also i.e. 03.03.2005, 15.07.2005 and 26.09.2005, the plaintiff intentionally did not file the process fee and the matter came up before the Court on 10.11.2005 whereby suit of the plaintiff was dismissed for non-prosecution. Plaintiff neither preferred any appeal nor took out any proceedings for the recall of the said orders dated 10.11.2005, thus resulting in assumption of finality to the said order. That the plaintiff has now filed the present suit purportedly in May 2006 seeking similar reliefs from this Court.
15. It is further stated by defendants that the plaintiff is guilty of suppressio veri and suggestio falsi as she has not approached this Court with clean hands and is guilty of deliberately, intentionally Page 9 of 50 and mischievously suppressing the material and relevant facts in order to mislead this Court.
16. Further that the suit of the plaintiff is bad for non-joinder of the necessary and proper parties and, therefore, the same cannot be proceeded without joining all the co-owners of the land bearing Khasra No. 41. It is submitted that in the land bearing khasra no. 41, Village Bhati, there are four other co-owners also whose names are (i) Sh. Hari Chand son of Late Sh. Harbal, (ii) Sanjay, (iii) Anil, and (iv) Sunil, all sons of Late Sh. Hari Dutt. It is further stated by defendants that the aforesaid four persons are also the co- owners of Khasra No. 41 alongwith the defendants. Hence the suit of the plaintiff is is barred under order 1 rule 9 CPC.
17. It is further stated that the land comprising in Khasra No. 41, Village Bhatti is having a total area ad-measuring 8 bighas and 16 biswas and the entire land belong to the defendants as also the aforesaid four persons. The land ad-measuring 6 bighas and 12 biswas of the said Khasra number had been purchased by the defendants from its previous owner by way of two registered sale deeds dated 16.08.1989 and 31.08.1989. On the basis of the said sale deeds, the land ad-measuring 6 bighas and 12 biswas had been mutated in favour of the defendants by the Revenue Authorities and the remaining land comprising in Khasra No. 41, ad- measuring 2 bighas and 4 biswas had been inherited by the aforesaid four persons i.e. Sh. Hari Chand son of Late Sh. Harbal, Page 10 of 50 Sanjay, Anil and Sunil all sons of Late Sh. Hari Dutt. The defendants i.e. Smt. Premwati and Smt. Angoori Devi alongwith Sh. Hari Chand, Sanjay, Anil and Sunil all sons of Late Sh. Hari Dutt are jointly the co-owners of the above said land and are in joint possession of the said land. Except the aforesaid persons, no other person has any right, title or interest over any part of the land bearing Khasra No. 41 situated in Village Bhatti. In the Revenue records i.e. Khatuni, Khasra Gidawari and Ask Shijra, the said land is clearly shown as a private land belonging to the above said persons and there is no public passage in the said land. Hence, the suit of the plaintiff is not maintainable and is liable to be dismissed.
18. Defendants further stated that the defendants No. 1 and 2 are the co-owners in respect of the portion of Khasra No. 41, Village Bhati, New Delhi. That the defendants No. 1 and 2 purchased 1/4th share (i.e. 2 Bighas and 4 Biswas) in Khasra No. 41 comprising of a total area of 8 Bighas and 16 Biswas by way of registered Sale Deed dated 16.08.1989 executed by the previous owner Shri Suraj Mal in their favour. Thereafter, by another registered Sale Deed dated 31.08.1989, the answering defendants No. 1 and 2 purchased another 1/2 share of Khasra No. 41 from the previous owner Shri S.R. Minocha and 5 others. This second Sale Deed dated 31.08.1989 in favour of the defendants No. 1 and 2 constitute 4 Bighas and 8 Biswas out of the total 8 Bighas and 16 Biswas.
Page 11 of 50Therefore, the defendants No. 1 and 2 are the co-owners of Khasra No. 41 to the extent of 6 Bighas 12 Biswas on the basis of the aforesaid two sale deeds dated 16.08.1989 and 31.08.1989. The remaining 1/4th share comprising in Khasra No. 41, Village Bhati, New Delhi admeasuring 2 Bighas 4 Biswas which originally belonged to Shri Harbal (father-in-law of the answering defendants) devolved upon his legal heirs in the respective shares computed in accordance with law of inheritance. That according the legal heirs who inherit their respective shares include Shri Hari Chand son of Late Shri Harbal alongwith the legal heirs of Late Shri Hari Dutt i.e. Sanjay, Anil and Sunil (all sons of late Shri Hari Dutt who pre-deceased in 1983).
19. Further that the land bearing Khasra No. 41 is adjacent to land bearing Khasra No.44 which also belong to the defendants and other co-owners. The land comprising in Khasra No. 44 falls behind the land of Khasra No. 41. There is no way leading from main road to the land of Khasra No. 44 and thus, in order to conveniently and shortly egress and ingress to the land of Khasra No. 44 by their co-owners, the defendants and other co-owners of the land bearing Khasra No. 41 use the Rasta from the land of the khasra No. 41. The said Rasta is the private land of the defendants alongwith other four co-owners i.e. Sh. Hari Chand son of Late Sh. Harbal, Sanjay, Anil and Sunil all sons of Late Sh. Hari Dutt. Except these persons, no other person has any right, title or interest Page 12 of 50 over the said land wherein defendants have their private Rasta. Therefore, the suit of the plaintiff stated to be a malicious attempt on the part of the plaintiff to encroach and grab the land of the defendants and other co-owners.
20. That since the answering defendants and other co-owners of the land bearing Khasra No. 41 are the absolute owners and in possession of the entire land of khasra No. 41 including the said private passage which is in exclusive use and possession of the defendants and it's other co-owners, therefore, the plaintiff or any other person can not claim any passage, much less 32 fts. in width and 339 fts in length approximately which amounts to a mammoth 1206 Sq Yards approximately and having a value of more than Rupees One Crore. Therefore, the plaintiff has no right to use the land of the defendants and above mentioned other co-owners which squarely falls in Khasra No. 41, wherein the answering defendants alongwith other co-owners have their own private way/ Rasta.
21. That the plaintiff has conveniently and intentionally concealed from this Court that the other persons whose land is situated near the land of Khasra No. 41, with the consent of the defendants and other co-owners of the land bearing Khasra No. 41, used to have access to the above said private way/ Rasta which is in personal use of the co-owners of the land of said Khasra number. It is submitted that previously there was a dispute between the Page 13 of 50 husband of the plaintiff namely Late Sh. Ram Lal and other land owners regarding the land bearing Khasra no. 42 of village Bhatti. The land of khasra No. 42 is also owned and possessed by one Sh. Manish Arora having 5 bighas and 13 biswas in the said khasra number and the plaintiff and her husband have only 4 bighas and 13 biswas land in Khasra no. 42 of village Bhatti. That Sh. Manish Arora developed a private passage in the land bearing Khasra No.
42. Sh. Manish Arora and other land owners having the land in the vicinity of the land bearing khasra no. 42 requested the defendants and other co-owners of the land bearing khasra no. 41 to use the private passage/ Rasta of the defendants, since the said Rasta is convenient to approach the main road leading from Chattarpur to Bhati Mines. Sh. Manish Arora, Sh. Dharam Vir Batra and Smt. Asha Narang were using the above said private passage of the defendants falling in Khasra no. 41 and also used to pay the user charges to the defendants and other co-owners. However, when disputes arose between the husband of the plaintiff and Sh. Manish Arora, then Late Sh. Ram Lal husband of the plaintiff closed the passage which leads from Khasra No. 42 and in these circumstances, the above said persons stopped using the private passage belonging to the defendants. Thereafter, the defendants and other co-owners are using the said land for their own use and no other person including the plaintiff have any right, title and interest over the said private passage belonging to the defendants Page 14 of 50 and other co-owners. That the defendants alongwith other co- owners also own other Khasras of land in the same vicinity as that of Khasra No. 41 and therefore, since there are other co-owners also alongwith the defendants with whom there are cordial relations, the private Rasta comprising in Khasra No. 41 is being used to have access to the other Khasras belonging to the defendants and other co-owners. Thus, looked from any perspective, the said private passage exclusively belongs to the defendants and other co-owners.
22. Defendants further stated the land comprising in Khasra No. 42 of Village Bhatti did not have any passage from the land of Khasra No. 41. The passage for the land of Khasra No. 42 exists from the Har Swaroop Colony (Fatehpur Beri Ext.). But the plaintiff, in the garb of the present suit, wants to grab the land of khasra no. 41 which exclusively belong to the defendants and its other co-owners and no other person including the plaintiff have any right, title and interest over the same. Hence the suit filed by the plaintiff is not maintainable and liable to be dismissed.
23. Further that the present suit is also liable to be dismissed on the ground of lack of cause of action in favour of the plaintiff. Infact, no cause of action has arisen in favour of the plaintiff and against the defendants to file the present suit. Hence, the suit of the plaintiff is liable to be dismissed under Order 7 Rule 11 C.P.C.
24. Defendants further stated that the suit of the plaintiff is barred Page 15 of 50 under Sections 41 (i) and (j) of Specific Relief Act, 1963. The conduct of the plaintiff clearly disentitle her to get the equitable relief from this Hon'ble Court as the averments alleged by the plaintiff in the present suit are totally false and frivolous. Hence the suit of the plaintiff is not maintainable and is liable to be dismissed.
25. Further that that in the year 1991, the husband of the plaintiff namely Late Shri Ram Lal S/o Late Shri Shah Mal filed a suit for Permanent Injunction against one Shri Kashmiri Lal Bhutani and Shri Raj Pal son of Shri Hari Chand before the Senior Civil Judge, Delhi being suit No. 274/91 in regard to the subject matter of the present suit. In the said suit, Shri N.P. Kaushik the then Ld Sub- Judge, Delhi appointed a Local Commissioner namely Shri P.N. Mehra, Advocate who filed his report dated 03.08.1992 and in his report he clearly stated to the following effect:-
The passage left by the defendant from his gate which is on the northern side of the plot is a private part and can not be used by other person in its front there was gate and wall on the back, although both were broken and there was no sign of any path, further leading upon the land/house of the plaintiff.
26. On the basis of the said report, Shri S. S. Handa the then Ld Civil Judge, Delhi also observed vide order dated 18.09.1992 that there was no public passage leading from the land of the defendants.
Page 16 of 5027. That in the year 1997, the husband of the plaintiff also filed a suit for Permanent Injunction against the present defendant and one Shri Rohit Khullar before the Sub-Judge, Delhi, wherein the husband of the plaintiff stated that there is no public path/passage in the land bearing Khasra No. 42, 43 and 50 of Village Bhatti. The said suit was registered as Suit No. 21/97 and in the said suit, Shri M. L. Kasturi, Advocate was also appointed as a Local Commissioner and he found that there is no public passage over the said Khasra Nos. 42, 43 and 50 of Village Bhatti.
28. That Smt. Asha Narang and another also filed a suit for Permanent Injunction against the husband of the plaintiff namely Shri Ram Lal & Ors. being Suit No. 1651/1997 and in the said suit, the husband of the plaintiff stated that there is no passage over the land bearing Khasra No. 42 of Village Bhati. In the said suit, Court also appointed a local commissioner on 22.08.1997 and the said local commissioner filed his report and submitted that there was no Rasta/road passing through Khasra No. 42 of Village Bhati.
29. That in the year 2001, the husband of the plaintiff Late Shri Ram Lal again filed a suit for Permanent Injunction against one Shri Dharam Vir Batra being suit No. 1753/2001 titled as Ram Lal Versus Dharam Vir Batra. In the said suit, the husband of the plaintiff stated that there is no passage in the land bearing Khasra No. 42 situated in Village Bhati and also stated that the defendant in that suit were forcibly trying to construct a road/Rasta/ path Page 17 of 50 from the private land of the plaintiff falling in Khasra No. 42 of village Bhati to facilitate direct entry to the land bearing Khasra No. 901 & 902 of Village Fatehpur Beri, Delhi. After coming into force the amendment to the pecuniary jurisdiction of Hon'ble High Court Court, the said suit was transferred to the District Judge, Delhi and assigned to the Court of Shri Rakesh Kapoor, ADJ, Delhi. After the death of Shri Ram Lal, his legal heirs did not file any application for impleading them as parties and the said suit stood dismissed being abated.
30. Further that the entire facts stated by the husband of the plaintiff namely Late Shri Ram Lal in suit No. 1753/2001 and the facts stated in the present suit are identical, but the relief sought by the husband of the plaintiff Late Shri Ram Lal and relief sought by the plaintiff in the present suit are contrary to each other.
31. It is further stated that the above said facts clearly show that the plaintiff has not come clean before the Court and concealed the true and material facts from the Court. Hence, the plaintiff is not entitled to any discretionary relief as prayed in the present suit. Defendants have sought dismissal of the suit.
32. Replication was filed to the Written Statement. Contrary averments were denied as false and incorrect and the stand pleaded in the plaint was reiterated and reaffirmed as correct.
33. Vide order dated 03.05.2010 following issues were settled:
(1)Whether the suit is barred by Order II Rule 2 and Section 2 of Page 18 of 50 the CPC?OPD (2)Whether the suit is liable to be rejected under Order VII rule 11
(a) of CPC?OPD (3)Whether the plaintiff is entitled to permanent injunction, as prayed for?OPP (4)Whether the plaintiff is entitled to mandatory injunction, as prayed for, if so, to what effect?OPP (5)Relief.
34. On 26.08.2017, PW1 Sh. Braham Singh tendered his evidence by way of affidavit Ex.PW1/A on the lines of averments made in plaint. He relied upon documents Ex.PW1/1 to Ex.PW1/12 i.e. SPA Ex.PW1/1, original sale deed dated 30.12.1994 as Ex.PW1/2, copy of Khasra Girdawari as Ex.PW1/3, site plan as Ex.PW1/4, certified copy of order dated 20.05.1997 of SDM, Hauz Khas as Ex.PW1/5, copy of report of Sh. M.L.Kasturi, Adv as Ex.PW1/6, copy of report of Local Commissioner in suit no.1651/97 as Ex.PW1/7, copy of application as Ex.PW1/8, certified copy of demarcation report as Ex.PW1/9, certified copy of Patwar's report as Local Commissioner as Ex.PW1/10, photographs of site showing Rasti at the land in question as Ex.PW1/11 and endorsement of copying agency that certified copies of suit no.235/97 were not available as the records of the case was destroyed in June 2018 as Ex.PW1/12. However, since Page 19 of 50 document marked as Ex.PW1/6 in his evidence affidavit was a photocopy of Local Commissioner's report, the same was de- exhibited and marked as Mark A. He was cross examined and discharged.
35. On 03.10.2018, PW1 Sh. Braham Singh tendered his additional evidence by way of affidavit Ex.PW1/A1. He relied upon documents Ex.PW1/13 (colly), Ex.PW1/14 and Ex.PW1/15. He was cross examined and discharged.
36. On 20.07.2019 also PW1 recalled and examined for additional evidence in compliance of order dated 12.07.2019. He tendered certified copy of amended plaint in suit No.76/95 titled as Parsandi through legal heirs vs. Hari Chand & Ors, as Ex.PW1/X1, certified copy of amended written statement of Hari Chand in the said suit as Ex.PW1/X2, certified copy of amended written statement of defendants no.2 to 6 namely Sanjay Kumar, Anil Kumar, Sunil Kumar, Smt. Anguri Devi and Smt. Premwati as Ex.PW1/X3, other pleadings and proceedings related to the said suit as Ex.PW1/X4 (colly).
37. PW2 Sh. Khilar Singh tendered his evidence by way of affidavit Ex.PW2/A. He stated that Rasta/pathway in dispute is a common Rasta/pathway, which exists for a long time may be more than 20 years, and being used by all villagers of Fatehpur Beri. He deposed on the lines of plaint in support of plaintiff's version. He was cross examined and discharged.
Page 20 of 5038. PW3 Sh. Shripal tendered his evidence by way of affidavit Ex.PW3/A on the lines of plaint, supporting the version of the plaintiff. He was cross examined and discharged.
39. PW4 Sh. Jagdish Chand Nagar (grand son of late Ram Lal and Smt. Chandro) tendered his evidence by way of affidavit Ex.PW4/A stating that pathway/Rasta in question is a public road and does not belong to the defendants. He was cross examined and discharged.
40. PW5 Ms. Anju Tanwar d/o late Sh. Ram Lal (daughter of late Ram Lal and Smt. Chandro) tendered her evidence by way of affidavit Ex.PW5/A. She stated that pathway/Rasta in question is common Rasta being used by villagers, and that on number of occasions family members of defendants made an attempt to encroach upon said pathway/Rasta/passage. She was cross examined and discharged.
41. PW6 Sh. M.L. Kasturi was a summoned witness. He deposed that he was appointed as Local Commissioner in the case of Ramlal v. Premwati. He visited the site and filed his inspection report Ex.PW1/6. He was cross examined and discharged.
42. PW7 Sh. B.S. Maan, Advocate deposed that copy of written statement purportedly filed by Smt. Premwati in case titled as Ram Pal vs. Premwati & Ors reflects his name and also his signatures purportedly. That signatures at point A of written statement Mark PW7/A are not his signatures. That he was never engaged as an Page 21 of 50 Advocate by Smt. Premwati. That he was advocate of Sh. Dharambir Batra. That said written statement was not filed by him in the Court. That he does not remember if some Rohit Khuller was a party to the said suit titled as Ram Pal v. Premwati & Ors.
43. DW1 Sh. Raj Pal tendered his evidence by way of affidavit Ex.DW1/A. He relied upon documents i.e. certified copy of sale deed dated 16.08.1989 Ex.DW1/1 (OSR), certified copy of the sale dated 31.08.1989 Ex.DW1/2, certified copy of Khasra Girdhawari regarding Khatoni Khata No.25 Village Bhatti, Tehsil Hauz Khas, Delhi as Ex.DW1/3 (colly) and certified copy of Khatoni Ex.DW1/4. He was cross examined and discharged.
44. DW2 Sh. Anil Kumar Sharma (son of defendant no.2) tendered his evidence by way of affidavit Ex.DW2/A on the lines of their defence and relied upon documents already exhibited as Ex.DW1/1 to Ex.DW1/4. He was cross examined and discharged.
45. DW3 Sh. Kali Ram tendered his evidence by way of affidavit Ex.DW3/A. He was cross examined and discharged.
46. DW4 Sh. Nem Chand tendered his evidence by way of affidavit Ex.DW4/A. He was cross examined and discharged.
47. I have heard arguments and perused the record.
48. My issuewise findings are as under.
Issue No.1: Whether the suit is barred by Order II Rule 2 and Section 2 of the CPC?OPD Page 22 of 50
49. It is contended by defendants that on the same cause of action and seeking the similar relief, the plaintiff had filed a suit against the defendants before the Hon'ble High Court bearing CS (OS) No.169/2005 titled as Smt. Chandro v. Smt.Premwati. That in the said suit also the plaintiff had sought the relief of temporary injunction along with the main relief of permanent injunction but after having failed in her attempts to seek an ex parte ad interim injunction order against the defendants, the plaintiff kept on seeking adjournments. That the Hon'ble High Court had issued summons of the suit to the defendants but plaintiff not filed process fee despite repeated directions and as such vide order dated 10.11.2015, said suit of the plaintiff was dismissed for non prosecution. Defendants further contended that now the plaintiff has filed the present suit seeking similar relief, and as such suit of the plaintiff is liable to be dismissed being barred under Order II rule 2 and section 10 of the CPC.
50. On the contrary, the plaintiff has contended that after filing of CS (OS) No.169/2005 titled as Smt. Chandro v. Smt. Premwati by the plaintiff, the defendants had stopped making encroachment over the said Rasta/passage, therefore, the plaintiff could not pursue the earlier said suit. Further that it was also on account of intervention of the common persons who assured the plaintiff that the defendants stopped her illegal action over the site in question and will not do so in future, therefore, the plaintiff could not pursue Page 23 of 50 suit bearing CS(OS) No.169/2005. Further that since, defendants again started encroachment on the Rasta/passage, the plaintiff was constrained to file the present suit.
51. Onus was upon the defendants to prove this issue. However, during trial or final arguments, defendants failed to controvert the version of the plaintiff that defendants had started fresh encroachment on the disputed Rasta/passage and as such fresh cause of action accrued for the plaintiff to file fresh suit.
52. Further, rule 4 of Order IX of CPC specifically says that where a suit is dismissed under rule 2 or rule 3, the plaintiff may (subject to the law of limitation) bring a fresh suit. Since said earlier suit of the plaintiff was dismissed for failure to pay the court fee or postal charges for issuance of summons to the defendant in terms of rule 3 of order IX of the CPC, the plaintiff was well within his right to file fresh suit as provided in rule 4 of order IX of the CPC.
53. Moreover, having regard to the facts that trial has concluded in this case which pertains to the year 2006, and the principle that a case has to be decided on merits, instead of dismissing the same on technical grounds, this Court is also of the considered opinion that ends of justice would met if the present suit, which pertains to the year 2006, has to be decided on merit.
54. In view of above, Issue no.1 is decided in favour of the plaintiff and against the defendants.
Page 24 of 50Issue No.(2)Whether the suit is liable to be rejected under Order VII rule 11 (a) of CPC?OPD
55. Insofar as issue no.2 regarding cause of action is concerned, the onus to prove this issue was upon the defendants. The meaning of expression "cause of action" has been explained by the Hon'ble Supreme Court of India in the case of 'Rajasthan High Court Advocates Union vs Union of India 2001 (2) SCC 294: AIR 2001 SC 416' in the said case the Hon'ble Supreme Court had observed that the expression cause of action in its restricted sense was used to refer to the circumstances forming infraction of the right of a party or the immediate occasion for the action. Further, the term cause of action, in its wider sense, has been used to describe every fact which would be necessary for the plaintiff to prove in order to support his right to a judgment in its favour from a court of law.
56. The Hon'ble Supreme Court of India in the case of 'M/s South East Asia Shipping Ltd. Vs M/s Nav Bharat Enterprises Pvt.Ltd. 1996 (3) SCC 443' held that the cause of action consists of a bundle of facts which give cause to enforce the legal right for redressal an injury in a Court of law and it includes every fact, which would be required to be proved by the plaintiff in order to support her right to a judgment from the Court.
57. In the light of observations made by Hon'ble Supreme Court of India in the above cited cases of Rajasthan High Court Page 25 of 50 Advocates Union v/s Union of India (Supra) and M/s South East Asia Shipping Ltd. v/s M/s Nav Bharat Enterprises Pvt. Ltd. (Supra), this Court is of the considered view that it can safely be said that a cause of action is a bundle of facts on the basis of which a right accrues in favour of one party to sue another party, and to claim the relief in respect of the infringement of his rights by another party from a Court of law. Furthermore, the cause of action refers to a set of facts which are required by the respective parties to be proved for obtaining a favourable judgment from a court of law.
58. Now coming to the present case, the plaintiff has averred in detail regarding same in plaint as well as evidence affidavit. The plaintiff has derived his right to sue the defendants by elaborately explaining in the plaint alleged transaction and documents relied upon by her.
59. In view of above, this Court is of the considered opinion that the present suit has been filed by the plaintiff having cause of action as elaborated in detail in the plaint.
Issue No.(3):Whether the plaintiff is entitled to permanent injunction, as prayed for?OPP Issue No.(4):Whether the plaintiff is entitled to mandatory injunction, as prayed for, if so, to what effect?OPP
60. Defendants have contended that suit is liable to be Page 26 of 50 dismissed for non joinder of necessary parties i.e. other co-owners of Khasra no.41.
61. Rule 9 of Order I says that no suit shall be defeated by reason of the mis-joinder or non-joinder of parties, and the court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.
62. In the present case, the plaintiff has sought relief against the defendants only, stating that defendants are encroaching upon Kacha Rasta/passage adjacent to metalled 17 feet road, and it is not case of the plaintiff that other co-owners of Khasra no.41 are encroaching said Kacha Rasta/passage. Accordingly, this Court is of the considered opinion that since matter in controversy is regarding encroachment upon Kacha Rasta/passage by defendants only, other co-owners of Khasra no.41 are not necessary parties to the suit.
63. Plaintiff's version is that defendants who own adjoining land in Khasra No.41 are trying to construct a stone wall on their side Kacha portion of 32 feet vide public Rasta/passage (17 feet metalled with Kacha portions/berms of 8 feet on one side and 6 ft 7 inches on the other side) going to the land of plaintiff i.e. Khasra No.42. Further that said Rasta/passage is in existing for well over 30 years (now 50 years) and being used openly as public passage by all persons.
64. Defendants' version is that said Rasta/passage is a private Page 27 of 50 Rasta/passage within Khasra No.41 which is co-owned by the defendants and created by defendants for their own use.
65. PW1 has filed certified copies of Khasra Girdawari of the years 1993-94 as Ex.PW1/13 (colly) and for the year 1994-95 Ex.PW1/10A, which reflects entry regarding 'Germumkin Sarak' (disputed Rasta/passage herein) in Khasra No.41.
66. As per report of Patwari Ex.PW1/10, Rasta/passage in dispute was being used by general public. Further report Ex.PW1/9 also mentions about existence of Rasta/passage in dispute.
67. Further, order dated 20.05.1997 by Sub Divisional Magistrate, Hauz Khas, New Delhi Ex.PW1/5, clearly mentions about public passage situated on Khasra Nos.41 and 42 of Village Bhatti.
68. Sh. M.L. Kasturi, Adv/Local Commissioner appointed in Suit No.21/1997 (Mark A) in the matter Sh. Ram Lal vs. Smt. Premwati also stated about existence of metalled road with Kacha portion on both sides of the same, he also gave measurements of the same.
69. Further, as per report of Ms. Susmita Lal, Advocate/Local Commissioner in Suit No.1651/1997 titled as Smt. Asha Narang vs. Ram Lal & Ors Ex.PW1/7, she found 100 metres metalled road coming from the main road and ending in front of Khasra No.42 (i.e. Rasta/passage in dispute herein).
70. In Ex.PW1/14 which is letter written by Shri Hari Chand Page 28 of 50 (husband of deceased defendant Premwati) to Sub Divisional Magistrate, Hauz Khas, Mehrauli, Shri Hari Chand stated that "The farmers have ben using some portion of my land in Khasra No.41 for their egress and ingress until the Chakbandi of the village is done. The total land is approximately 10-15 Biswas which is being used for road................There is a gate fixed on the boundary of 41 and 42 we do not want to block the road of any person or the farmhouse but we also do not want that the said land for which we have made provision for our private road is got done by anybody as the GAON SABHA land our own land which is used as road be also not done as the GAO SABHA land because at the time of chakbandi the road will automatically be made. " As such from the contents of letter Ex.PW1/14 it is apparent that Rasta/passage was being used by general public since a long and there was no objection from the side of Hari Chand (owner of the land/Rasta) in this regard.
71. Plaintiff in support of her version that Rasta/passage in dispute is a public passage being used by general public since last many years has examined PW2, PW3, PW4 and PW5.
72. PW1 during his cross examination specifically stated that said Rasta leading from main road to Fatehpurberi is a public Rasta. PW1 further stated that "Other villagers/persons had also raised objections against the construction. Khillar Singh, Shri Pal, Rajender, Madan Lal among others raised objections against the Page 29 of 50 construction."
73. PW2 stated that 'Rasta' in dispute is in existence for a long time may be more than 20 years and the same is public 'Rasta' meant for the use for all villagers. He further stated that 'Rasta' in dispute cannot be claimed by any individual including plaintiff and defendants. PW2 was cross examined by Ld counsel for defendants but he remained consistent during his cross examination that 'Rasta' in dispute is a public 'Rasta'.
74. PW3 stated that defendants tried to encroach the 'Rasta' in dispute about 10-12 years ago and in this regard dispute arose. PW3 was cross examined on behalf of defendants but defendants could not extract anything to creditworthiness of this witness and only suggestions in general were given to the witness.
75. PW4 stated that defendants raised a boundary wall in their area and 'Rasta' in dispute goes from the side of the said boundary wall. That the same is a public passage and villagers/residents of the said area using said Rasta/passage regularly. PW4 stated that he was present when dispute regarding said 'Rasta' arose. PW4 was cross examined but nothing contrary to the case of plaintiff could be extracted and only suggestions in general were put during his cross examination which he denied.
76. PW5 stated that all the villagers using said 'Rasta' for going to Fatehbur Beri. She further stated that on number of occasions family members of defendants made attempts to encroach upon Page 30 of 50 said Rasta/passage. PW5 was cross examined but herein again nothing contrary to the case of plaintiff could be extracted and only suggestions in general were put during his cross examination which were denied by witness.
77. PW6 (Local Commissioner) proved his inspection report Ex.PW1/6.
78. PW7 stated that signatures at point A of written statement Mark PW7/A are not his signatures. That he was never engaged as an Advocate by Smt.Premwati. That he was Advocate of Sh. Dharambir Batra. That said written statement was not filed by him. He was not cross examined by Ld counsel for defendants.
79. Witnesses examined by the plaintiff supported the version of the plaintiff and remain consistent during their cross examination. Said witnesses were cross examined but nothing contrary to the version of plaintiff could be extracted by defendants.
80. Defendants in support of their version examined DW1, DW2, DW3 and DW4.
81. DW1 relied upon certified copy of Khasra Girdhawari regarding Khatoni Khata No.25 village Bhatti, Tehsil Hauz Khas Ex.DW1/3, certified copy of Khatoni Ex.DW1/4.
82. DW1 during cross examination stated "It is wrong to suggest that Ex.DW1/3 (colly) is a procured document, manipulated by the Patwari at my behest as entries at page 1 from column no.9 to 19 and at page 2 from column no.12 to 19 pertaining to Khasra No.41 Page 31 of 50 are not filled." This suggestion was given to witness by plaintiff alleging that Ex.DW1/3 (colly) was manipulated by defendants through Patwari.
83. DW1 stated that he cannot admit or deny suggestion that streets also started coming up simultaneously with coming into being farms houses in the year 1981 and that he cannot say exact number of farms houses in village Bhati. Such admission on the part of DW1 that farms houses have starting coming into existence and also streets, affirms the version of plaintiff that Rasta/passage in dispute herein being used by owners of farm houses and general public.
84. DW1 stated that "There is no Pakka road in Khasra No.41, however, there is a Kaccha passage which is the private passage. It is wrong to suggest that there is a pakka road in Khasra No.41. It is correct that Dharamveer Batra, Manish Arora and Asha Narang have used the alleged road, which is kaccha passage according to my case, in khasra no.41. (Vol. They used to use it occasionally prior to year 1997)....It is correct that alleged road in Khasra no.41, which is kaccha passage according to my case, leads to the main road". Such statement by DW1 proves that Rasta/passage in dispute herein is in use by public.
85. DW1 stated "It is correct to suggest that my father has given it in writing before the SDM that the alleged road in khasra no.41, which is kaccha passage according to my case, is the passage.
Page 32 of 50(Vol. However, my father has not stated therein that it is the common passage. My father has stated that it is the private passage which should not be vested into gram sabha land). I cannot say if my father has also stated that the aforesaid passage should not be disturbed till consolidation". This statement of DW1 further affirms the version of plaintiff that Rasta/passage in dispute is public passage being used by general public.
86. DW1 stated that "The alleged road in khasra no.41, which is kaccha passage according to my case, is only used by me and my family members". Such statement of DW1 is contradicted to his earlier statement that Dharamveer Batra, Manish Arora and Asha Narang, prior to 1997, used it for some period thereafter the said Rasta was closed in Khasra no.42. DW1 also stated that they used to charge for above said persons for using said Rasta/passage. However, defendants did not examine said persons namely Dharamveer Batra, Manish Arora and Asha Narang in support of his case for the reasons best known to defendants, nor could state amount which was being charged from said persons nor could prove that said persons ever paid any amount to defendants for using Rasta/passage in dispute.
87. DW1 during cross examination stated that " prior to 1997 these persons used to come to their farm houses through the alleged road in khasra no.41, which is kaccha passage according to my case. I do not know how many cars can go through this Page 33 of 50 alleged road in khasra no.41, which is kaccha passage according to my case at a same time. Prior to year 1997 the aforesaid three persons used to come in their cars to their farm house though this alleged rasta. I cannot say that farm house of Manish Arora, Asha Narang and Dharamvir Batra comes after the land/farm house of the plaintiff. I have never taken any user charges from the plaintiff and her family members." Such statement of DW1 further goes to affirm the version of plaintiff that Rasta/passage in dispute is in use for public.
88. Further, plaintiff stated that as per demarcation report, it was recorded therein that road from Khasra No.1 leading to main road exists since 1989. It is further stated that Naib Tehsildar/SDM prepared site plan in those proceedings and said site plan (Ex.PW1/9) shows alleged Rasta from Khasra No.41.
89. Sh. Anil Kumar Sharma son of defendant no.2 entered into witness box as DW2 but failed to produce any authorised in his favour to depose on behalf of defendant no.2. DW2 stated that "I do not have any written authority of my mother for deposing in the present case, however, I was authorised by my mother orally." He relied upon the documents already relied by DW1. DW2 was stated to be 12 year old at the time of purchase of land by defendants. Ex.P1/A i.e. copy of Khasra Girdawari for 1994-95 pertaining to Khasra no.41 recorded "Gair Mumkin Sadak" under column 18 was put to DW2 but he failed to depose about same.
Page 34 of 5090. DW2 stated "The owners of Khasra no.44 used Khasra No.41 for ingress and egress before the year 1989. It is correct that same passage in khasra no.41 was being used for ingress and egress by the owners of khasra no.44 before the year 1989, which is the subject matter of dispute in the present suit...It is incorrect to suggest that passage going to khasra no.44 is made out of a portion of khasra no.41 and 42........I cannot admit or deny the suggestion that my mother and my aunt had admitted in suit no.239/1997 titled as Ram Lal v Premwati & Ors that a metallic road/public passage passing through khasra no.41 and 42 existed at the site, as I am not aware about the same ". This part of statement of DW2 establishes that Rasta/passage in dispute was being used by public.
91. DW2 during cross examination stated that photographs Ex.DW1/P4 (colly) do not belong to Rasta/passage in dispute. DW2 further denied photographs of Rasta in dispute i.e. mark DW2/P2 to DW2/P5. Such denial of photographs by DW4 shows that he is lying about the same and as such is not trustworthy witness.
92. DW3 stated that "This passage is existing in khasra no.41 since the time defendants owned the said property. I cannot specify the particular time and cannot admit or deny that this passage is 30 years old.....(vol. It is a private passage existing before 1982)." DW3 as such has supported the version of plaintiff that Page 35 of 50 Rasta/passage in dispute was in existence since a long and being used by public.
93. DW4 in his evidence affidavit stated that passage left in Khasra no.41 is the private way/Rasta of defendants and their family members but during cross examination he stated that "There is no passage in Khasra No.41". From the perusal of contents of evidence affidavit and cross examination, it is apparent that DW4 is an interested witness of defendants having no creditworthiness to be believed, as in evidence affidavit he stated that Rasta/passage is a private Rasta/passage, on the other hand during cross examination he stated that there is no Rasta/passage.
94. Ld counsel for the plaintiff has contended that general public are using Rasta/passage in question for last several years without any objections from the side of defendants, and as such there is presumption that said Rasta/passage to have been dedicated as a street for the general public by the defendants. Ld counsel for the plaintiff in this regard has relied upon judgment of the Hon'ble Supreme Court in the case of M/s Gobind Pershad Jagdish Pershad vs. New Delhi Municipal Committee - (1993) 4 SCC 69 wherein the Hon'ble Supreme Court has held:
8. It would be useful to refer to the following paragraph from Halsbury's Laws of England, 3rd Edn., Vol. 19 at page 49:
"The fact that a way has been used by the public so long Page 36 of 50 and in such a manner that the owner of the land, whoever he was, must have been aware that the public believed that the way had been dedicated, and has taken no steps to disabuse them of that belief, is evidence (but not conclusive evidence) from which a court or jury may infer a dedication by the owner."
9. The trial court and the lower appellate court on appreciation of the evidence came to the conclusion that the verandah was a passage accessible to the public. The courts below found as a fact that the verandah was being used for about two decades by the public for passing and repassing. It was held that the verandah was a "street" in terms of Section 3(13)(a) of the Act. The Division Bench of the High Court upheld the findings of the courts below on the following reasoning:
"It has been held in this case by all the three courts that the plaintiffs' verandah was a 'street' and it had been so used since the very beginning. On evidence all the courts have come to the conclusion that the verandahs were a passage accessible to the public. These were used by members of the public as a means of access and the owners had no 'right at all hours to prevent other persons from using this space. The plaintiff Jagdish Pershad appeared in the witness box. He deposed that there was no dedication of verandahs to the public use and the owners could always stop any passerby from using the same. In cross-examination he admitted that the owners never stopped anybody from passing and repassing through these spaces. This course of conduct on the part of the owner is inconsistent with any other theory than that he intended a dedication. This is a reasonable inference of intent that may be drawn from evidence. On evidence the courts have found that the public used these verandahs without any let or hindrance.... In our opinion the question whether a particular place is a 'street' or not is essentially a question of fact. Long user can be evidence of dedication. Dedication can be inferred from public uninterrupted user for a substantial period of time. A way shall be presumed to have been dedicated as a Page 37 of 50 street where it has been used by the public for twenty years as in this case. The public have availed themselves of this dedication and have used verandahs as streets because these were thrown open to the public use tacitly, if not expressly. From user of long duration an inference of dedication to the public would naturally arise. It is true that 'a single act of interruption by the owner is of much more weight upon a question of intention, than many acts of enjoyment' (Poole v. Huskinson' per Baron Parke). But in this case there is not a single instance where there was an interruption by the owner which can be said to be a negation of the idea of dedication ... That the land was devoted to the public use is the finding of all the courts. The presumption arising from long uninterrupted user of a way by the public is so strong as to dispense with all inquiry into the actual intention of the owner of the soil, and it is not even material to inquire who the owner of the soil was.... On evidence the courts have uniformly come to the conclusion that the public has a right to pass and repass in the verandahs in question and the same are 'streets within the meaning of the term as defined in The finding of fact in this fourth court."
10.We see no ground to differ with the concurrent findings of Courts below and hold that the appellant has dedicated the verandah in dispute to the public use. It is being used for passing and repassing by the public at large and as such is a "street" in terms of Section 3(13)(4) of the Act. The appellant has, thus, surrendered his rights in the property for the benefit of the public. The user of the property is and always shall be with the public. Any space, passage, verandah, alley, road or footway dedicated to public by the owner for passing and repassing, partakes the character of a "street" and no longer remains under the control of the owner. The owner has no right at all times to prevent the public from using the same. When the owner of the has, by his own volition permitted his property to be converted into a "street", then he has no right to claim any compensation when the same property is made a "public street" under Section 171(4) of the Act.
Page 38 of 5095. Ld counsel for the plaintiff has further contended that Kacha Rasta/passage in question adjacent to metalled road also becomes part of metalled road for the use of general public and defendants cannot be encroached upon the same. In this regard, he relied upon the judgment of the Hon'ble Supreme Court in the case of Municipal Board, Manglaur v. Sri Mahadeoji Maharaj - Civil Appeal No.841 of 1962, wherein the Hon'ble Apex Court observed and held:
6.The facts are not in dispute. There is a metalled road running through plot No. 3211. On either side of the metalled road there is open space and on either side of the open space there is a drain. Admittedly, public have been using the road for decades. The Municipal Board has been maintaining the road and the drains. It is, therefore, reasonable to hold that the entire pathway between the two drains was dedicated to the public. It is a common feature of metalled roads in towns that open spaces are left on either side of them. The fact that the entire pathway is not metalled cannot possibly detract from the totality of the dedication. The circumstance that the vacant spaces are on either side of the metalled road and between the two drains maintained by the Municipal Board leads to an irresistible inference that the strips of vacant spaces form part of the public pathway. The fact that only a part of the pathway is metalled does not necessarily limit the width of the pathway, but it is evidence of the user of the pathway by the public and its maintenance by the Municipality. We, therefore, hold that the suit site is part of the public Page 39 of 50 pathway.
7. At this stage it is necessary to notice briefly the relevant aspect of the law of highways. In "Pratt and Mackenzies Law of Highways", 20th Edn., at p. 4, it is stated :
"Subject to the right of the public to pass and repass on the highway, the owner of the soil in general remains the occupier of it, and as such may maintain trespass against any member of the public who acts in excess of his right."
8.In Halsbury's Laws of England, 3rd Edn., Vol. 19, at p. 49, rules of presumption and proof of dedication are stated thus:
"The fact that a way has been used by the public so long and in such a manner that the owner of the land, whoever he was, must have been aware that the public believed that the way had been dedicated, and has taken no steps to disabuse them of that belief, is evidence (but not conclusive evidence) from which a court or jury may infer a dedication by the owner."
9.The learned author proceeds to observe, at p. 55:
"A dedication may also be inferred when a highway authority has used a strip of land adjoining an admitted highway for the deposit of stones or by cutting grips, or has, as of right and without permission, piped in and levelled the site of a roadside ditch."
10.In Harvey v. Truro Rural District Council(1), Joyce, J., makes the following interesting observations which are relevant to the present enquiry:
"In the case of an ordinary highway running between fences, although it may be of a varying and unequal width, the right of passage or way prima facie, and unless there be evidence to the contrary, extends to the whole space Page 40 of 50 between the fences, and the public are entitled to the entire of it as the highway, and are not confined to the part which may be metalled or kept in order for the more convenient use of carriages and foot passengers."
11.Adverting to the open strips of land on the sides of the road, the learned Judge observed :
"........ as Lord Tenterden observed in Rex v. Wright(2), 'The space at the sides' (that is of the hard road) is also necessary to afford the benefit of air and sun. If trees and hedges might be brought close up to the part actually used as road it could not be kept sound."
12.These observations indicate that the fact that a part of the highway is used as the actual road does not exclude from it the space at the sides of the road. Suhrawardy J., in Anukul Chandra v. Dacca Dt. Board(1), after considering the relevant English decisions on the subject, summarized the English view thus :
"The expression "road" or "highway" has been considered in many cases in England and it seems that the interpretation put there is not confined to the portion actually used by the public but it extends also the side lands."
13.The learned Judge applied the English view to the construction of the words "public street or road" in Art. 146-A of the Limitation Act, and stated :
"I am of opinion that "road" in that article includes the portion which is used as road as also the lands kept on two sides as parts of the road for the purposes of the road."
14.So too, a Division Bench of the Allahabad High Court in Municipal Board of Agra, v. Sudarshan Das Shastri(2) defined "road" so as to include the side lands. Therein it was observed :
"............ in our opinion all the ground, whether metalled or Page 41 of 50 not, over which the public had a right of way, is just as much the public road as the metalled part. The court would be entitled to draw the inference that any land over which the public from time immemorial had been accustomed to travel was a public street or road, and the mere fact that a special part of it was metalled for the greater convenience of the traffic would not render the unmetalled portion on each side any the less a public road or street."
15.That a public street vests in a Municipality admits of no doubt Under s. 116(g) of the U.P. Municipalities Act, 1916 (U.P. Act 11 of 1916), "all public streets and the pavements, stones and other materials thereof, and also all trees, erections, materials implements and things existing on or appertaining to such streets' vest in and belong to the Municipal Board. A Division Bench of the Madras High Court in S. Sundaram Ayyar v. The Municipal Council of Madura and The Secretary of State for- India in Council(3) dealt with the scope of such vesting under the Madras Dis- trict Municipalities Act, 1884. The head-note therein brings out the gist of the decision, and it reads:
"When a street is vested in a Municipal Council, such vesting does not transfer to the Municipal authority the rights of the owner in the site or soil over which the street exists. It does not own the soil from the centre of the earth usque ad caelum, but it has the exclusive right to manage and control the surface of the soil and so much of the soil below and of the space above the surface as is necessary to enable it to adequately maintain the street as a street. It has also a certain property in the soil of the street which would enable it as owner to bring a possessory action against trespassers."
16.The, law on the subject may be briefly stated thus :
Inference of dedication of a highway to the public may be Page 42 of 50 drawn from a long user of the highway by the public. The width of the highway so dedicated depends upon the extent of the user. The side lands are ordinarily included in the road, for they are necessary for the proper maintenance of the road. In the case of a pathway used for a long time by the public, its topographical and permanent landmarks and the manner and mode of its maintenance usually indicate the extent of the user.
96. Ld counsel for the plaintiff has placed reliance upon the judgment of the Hon'ble High Court of Lahore in the case of Usman v. Rahmat & Ors decided on 25.03.1936 -
MANU/LA/0031/1936 wherein it was observed:
1.....Their suit was for an injunction restraining the defendants from obstructing the public pathway and for directing them to remove the obstruction that they had placed on the pathway by constructing a chhapper thereon. The suit was decreed by the trial Judge but has been dismissed by the District Judge of Mjanwali on appeal. The District Judge has proceeded on the assumption that the plaintiffs have to prove an uninterrupted user as of right of the pathway for 20 years as provided by Section 26, Lim. Act. The plaintiffs however did not claim a right of easement. On the other hand they claimed that the pathway in question was a public pathway and in order to establish a right to use such a pathway it is not necessary for the plaintiffs to prove 20 years' user. A right of easement is claimable on the land of another by the owner of land. It is not a personal right but it attaches to land and is exercisable over another's land. A public pathway however may be on another's land but the exercise of a right of passage over it does not necessarily require that the person claiming it must prove that he is the owner of some land. In other Page 43 of 50 words the existence of a dominant tenement is not necessary.
This question was discussed in detail in Ganpat Singh v. Kangra Valley State Co. (1898) 62 PR 1898 in which the implications of a public pathway were discussed and it was clearly laid down that it was not necessary to prove the user and the exercise of right of way for 20 years or even for any fixed number of years. The learned District Judge appears to have been misled by an unnecessary issue (Issue. 2) framed by the trial Judge, which was "whether the right of easement has been established by user." It may be that it was the alternative claim of the plaintiffs. If so it has been negatived by the District Judge but the plaintiffs' real case was that the passage in question was a public pathway which they had a right to use. The learned District Judge has found that the passage was a shamilat land.
2. The evidence leaves no doubt that the pathway has been used by all the residents of the village. An examination of the plan clearly shows that the passage cannot he but a public pathway. On both sides of it abut houses of the residents of the village. The presumption therefore, is that the passage has been kept for the common use of the residents of the village and is therefore a public pathway. Under such circumstances there must be a presumption of dedication of the land under the passage for a public pathway and as I have already stated user for any number of years is not necessary to establish a right to pass over the public pathway, user on the other hand is merely an evidence of original dedication in such cases. In my opinion, therefore, the plaintiffs had clearly established their right for the decree that they had claimed. I accept this appeal, set aside the decree of the District Judge and restore that of the trial Court with costs throughout.
97. Reliance is also placed upon the judgment of the Hon'ble High Court of Kerala at Ernakulam passed in the case of Mariam Beevi vs. The Secretary, Athirampuzha Grama Panchayath & Ors, W.P. (C) No.6384 of 2015 (W) wherein it was observed:
Page 44 of 5018. If a pathway is within the confines of a house, however sprawling it may be, whatever lies therein may be private in character and private in use. Once it is meant to connect somebody else's, thus becoming part of a network of roads or paths, however short or insignificant its extent and reach may be, it is to subserve the public purpose of providing access to and fro.
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24. Once a property assumes the character, say, a road or a path, having the potential of being a public utility, it ceases to have any exclusivity, for the individual interest is to yield to the common good. John Donne declares: No man is an island entire of itself; every man is a piece of the continent, a part of the main. The legislative wisdom has ensured that there should not be private fiefdoms and zones of exclusivity shutting out access to the general public.
25. Viewed from another angle, it is axiomatic that if a piece of land is to be plotted out, it is statutorily mandatory that proper roads and other amenities are shown. Just because the whole of the property once was private, it could not be said that it would bear the same character forever. The logical fallacy is very evident if we examine the fact that, by the same token, if roads in a layout are to be treated as the private property of the purchasers, the other statutory lung spaces and spaces for public utility are also required to be treated as private properties. If every layout has only private roads barring access to the general public, we will end up with a series of private estates without a connecting thread of roads, forcing the people to jump and hop from place to place--
ludicrous as it sounds.
98. In the present case, it is admitted case of both the parties that Rasta/passage in question is there in existence. It is also admitted that middle portion of the said Rasta/passage is metalled and both Page 45 of 50 sides of said Rasta/passage has Kacha Rasta/passage.
99. Plaintiff through his witnesses as well as documents particularity certified copies of Khasra Girdwaris filed on record and as referred above, has been able to prove that said Kacha Rasta/passage was being used for as far as 30 years by the public. From the record and testimony of witnesses, it has come on record that Rasta/passage was passing through Khasra No.41 and 42 but plaintiff who is stated to be owner of Khasra no.42 put gate at Khasra No.42, and thereafter disputes arose and multiple litigations started.
100. Defendants admitted existence of Kacha Rasta/passage but stated that the same is private Rasta/passage, but miserably failed to prove that the same is private Rasta/passage. Defendants filed on record Khasra Girdawari stated to have been issued by Patwari, as per which there is no said "Rasta Germumkin" entry in the same. However, perusal of same reveals that the same is not certified copy issued by concerned authority and as such is not reliable, further plaintiff alleged that the same is manipulated document by defendant through Patwari concerned by leaving column no.18 blank. On the other hand certified copy of Khasra Girdawari filed by plaintiff duly bearing signatures and stamp of issuance authority. As such this Court is not going to rely upon copy of Khasra Girdawari filed by defendants, and rather certified copies of Khasra Girdawari filed by plaintiff appears to be issued Page 46 of 50 by concerned authorities.
101. Furthermore, since it is admitted case of the parties that number of farm houses came into existence in the vicinity and Rasta/passage in question was being used, then without any doubt there is presumption that Kacha Rasta/Passage in dispute is/was in use by public, as having been mutually agreed Rasta/Passage from main road for going to other farm houses and village/colonies. If there would not have been Rasta/passage in existence, no one would have taken nearby farm houses and plots in the nearby colonies. Furthermore, there is not even a single instance that defendants have ever raised any objection to any body for using the said Rasta/passage.
102. From the preponderance of probabilities, the version of the plaintiff is more believable rather than the version of the defendant, and it is held that the defendants impliedly dedicated said 32 feet Rasta/passage (metalled Rasta/passage as well as Kaccha Rasta/passage which is both side of metalled Rasta/passage) in dispute to the public and now defendants have no right to claim it to be their private property or passage.
103. In view of above discussion, having regard to the pleadings of the parties, testimonies of the witnesses, documents of the parties and above referred case laws, it is held that the plaintiff has been able to establish that Rasta/passage in dispute is being used by general public since a long without any objection by defendants Page 47 of 50 or any other person, and that entire stretch of Rasta/passage in question stated to be 32 feet falls in the category of public Rasta/passage, and as such defendant cannot encroach upon it in any manner nor can restrain or create any kind of hindrance to the public for using said Rasta/passage.
104. Accordingly, plaintiff is held entitled to decree of permanent injunction against the defendants, their agents, attorneys, employees, associates thereby restraining them from interfering in the peaceful possession/enjoyment of the Pathway/Rasta/Road of 32 ft which goes from Khasra No. 41, Village Bhatti and ends at Khasra No. 42 (min) (at Plaintiff's land), Village Bhatti, New Delhi, as prayed for in prayer clause (a) of the plaint.
105. Plaintiff is further held entitled to decree of permanent and mandatory injunction against the defendants, their agents, attorneys, employees, associates thereby restraining them from encroaching upon the Kacha portion of the Rasta/Road which comes from Main Road and goes from Khasra No. 41, Village Bhatti New Delhi and ends at Khasra No. 42 (min), (at plaintiff's land), Village Bhatti, New Delhi and to direct that defendant should not raise any construction/stone wall at 32 ft pathway/Rasta/Road which goes from Khasra No. 41 and ends at Plaintiff's land (at Khasra No. 42 (min), Village Bhatti, New Delhi and in case if defendant succeeds in encroaching upon Kachha Rasta/Road of 32 ft, necessary directions be passed for removal of Page 48 of 50 such construction/wall from 32 ft Rasta/Road/Pathway as shown in the Site Plan which ends at plaintiff's land, as prayed for in prayer clause (b) of the plaint.
106. Accordingly, Issues no.3 and issue no.4 are decided in favour of the plaintiff.
Relief.
107. In view of above discussion, suit is decreed in favour of the plaintiff and against the defendants.
108. Plaintiff is held entitled to decree of permanent injunction against the defendants, their agents, attorneys, employees, associates thereby restraining them from interfering in the peaceful possession/enjoyment of the Pathway/Rasta/Road of 32 ft which goes from Khasra No. 41, Village Bhatti and ends at Khasra No. 42 (min) (at Plaintiff's land), Village Bhatti, New Delhi, as prayed for in prayer clause (a) of the plaint.
109. Plaintiff is further held entitled to decree of permanent and mandatory injunction against the defendants, their agents, attorneys, employees, associates thereby restraining them from encroaching upon the Kachha portion of the Rasta/Road which comes from Main Road and goes from Khasra No. 41, Village Bhatti New Delhi and ends at Khasra No. 42 (min), (at plaintiff's land), Village Bhatti, New Delhi and that defendant shall not raise any construction/stone wall at 32 ft pathway/Rasta/Road which Page 49 of 50 goes from Khasra No. 41 and ends at Plaintiff's land (at Khasra No. 42 (min), Village Bhatti, New Delhi and in case if defendant, during pendency of trial, has succeeded in encroaching upon Kachha Rasta/Road of 32 ft., directions is passed for removal of such construction/wall from 32 ft Rasta/Road/Pathway as shown in the Site Plan which ends at plaintiff's land, as prayed for in prayer clause (b) of the plaint.
110. Decree sheet be prepared accordingly.
111. No order as to cost.
112. Since, suit has been disposed of, all the pending applications in the suit stand disposed of accordingly.
113. File be consigned to record room.
Announced in the open court on 24.12.2025.
Sunil Digitally signed by Sunil beniwal (Sunil Beniwal) beniwal Date:
2025.12.24 16:12:29 +0530 District Judge-06(South), Saket Courts, New Delhi Page 50 of 50