Delhi District Court
Mca No. 01/2016 Kasana Educational & ... vs . Pradeep Kumar Dubey on 15 February, 2016
Page 1 of 17
IN THE COURT OF Ms. SUNENA SHARMA
Addl. Distt Judge - 03 (SE)
SAKET COURTS COMPLEX: NEW DELHI
MCA No.01/2016
Unique Case ID No.02406C0010462016
Date of Institution : 12.01.2016
Arguments concluded : 11.02.2016
Date of decision : 15.02.2016
1. Kasana Educational & Culture Society
Through its President
Stanford Convent School,
D-55, Badarpur Extention,
New Delhi - 110044
2. Sh. Surjeet Singh Kasana
D-55, Badarpur Extention
New Delhi - 110044
VERSUS
1. Sh. Pradeep Kumar Dubey,
S/o Sh. Uday Narayan Dubey,
R/o D-75, Badarpur Ext.
New Delhi - 110044
2. South Delhi Municipal Corporation
Through its Deputy Commissioner
Dr. S.P.M. Civic Centre,
Minto Road,
New Delhi - 110002
3. Sh. Gagan Kasana
S/o Sh. Surjeet Singh Kasana
D-55, Badarpur Ext.
MCA No. 01/2016 Kasana Educational & Cultural Society & Anr. Vs. Pradeep Kumar Dubey
Page 2 of 17
New Delhi - 110044
JUDGMENT
1. The present miscellaneous appeal has been preferred against the impugned order dated 14.12.2015 passed by Ld. Senior Civil Judge (South District) whereby respondent's no. 1/plaintiff's application u/o 39 r. 1 & 2 CPC was allowed and appellants/ defendant no.1 & 4 were restrained from closing/locking the gate installed at the entrance of the disputed passage connecting the house of the plaintiff to the main road till the final disposal of the suit on merits.
2. Briefly facts of the case emerging out from the present appeal and the impugned order are recapitulated as under :-
Respondent is the resident of D-75, Badarpur Ext. New Delhi where he has been residing with his family since 1995. Appellant no.2 who is the President / Chairman of Appellant no.1, is the owner of the plot no. D-55 and D-56, Badarpur Ext. where appellants are running a private school in the name of Standford Convent School. Plot no. D-55 and D-56 are located opposite to each other and between said two plots there is a by-lane / approach road connecting the house of the respondent and other residents of the colony to the main road. Said by-lane/approach road/common road is the only way to access the main road by the MCA No. 01/2016 Kasana Educational & Cultural Society & Anr. Vs. Pradeep Kumar Dubey Page 3 of 17 respondent and the other residents of the colony who are having their houses at the back side of the appellant's school. Some time back the appellants illegally raised construction for connecting both the buildings situated on opposite plots i.e. Plot no. D-55 & D-56 thereby covering the common passage/ approach road at the entrance. Despite complaints and objections of respondent and other residents of the street, the concerned authorities did not take any action because appellant no.2 is a local politician and wife of his son is also a local Councellor. In said circumstances, respondent approached the Trial Court for seeking reliefs of mandatory and permanent injunction. It is pertinent to mention that in the suit before the Trial Court SDMC has been arrayed as defendant no.3 whereas, appellant no.1 & 2 as defendant no.4 & 1 respectively. The son of appellant no.2 who is herein arrayed as performa respondent no.3, has been arrayed as defendant no.2 in the suit before Trial Court.
3. Before trial court, appellant's contested the suit by filing a joint written statement wherein the plaintiff's claim for permanent injunctions has been resisted mainly on the ground that disputed gali/passage is the part of plots belonging to the appellant no.2 as the said passage was left as a common passage for the use of appellants and other residents of colony who were having their plots at the back side of appellant's plot no. D-55 & D-56. Appellants categorically denied that D-55 & D-56 were MCA No. 01/2016 Kasana Educational & Cultural Society & Anr. Vs. Pradeep Kumar Dubey Page 4 of 17 situated opposite to each other as alleged by the respondent and submitted that the said two plots were parallel/adjoining to each other as plot D-55 was located at the beginning/entrance of the approach road as was also evident from the building plan filed along with the written statement. It was further submitted that both the said plots were purchased by the appellant no.2 in the year 1995 and the entire building of the school was constructed at the same time upon said plots and some other plots which were subsequently purchased by appellant no.2. It was categorically denied that appellants had raised any illegal or unauthorized construction of the common roof connecting the two buildings of the school on opposite plots.
4. As per Trial Court record, a status report was called from SDMC. As per status report the front portion of the appellants property where a school is being run, is claimed to be property no. D-55 whereas back portion is D-56. Upon inspection, it was found that left hand side portion of D-55 consists of constructions from basement to third floor whereas right side portion comprises of ground floor to third floor and the school namely Standford is being run in property bearing no. D-55. In between two portions of D-55, there is a passage measuring 14"-08" which is used as an access to number of properties located at the rear side of D-55 whereas, D-56 consists of number of individual properties owned and occupied by different persons. The disputed portion of the MCA No. 01/2016 Kasana Educational & Cultural Society & Anr. Vs. Pradeep Kumar Dubey Page 5 of 17 passage is connected at first floor level of two portions of D-55. The status report further mentions that the properties are self numbered by the owners/occupiers as Badarpur extention is an unauthorized colony and all the structures are unauthorized and there remains nothing to be sanctioned or regularized. There is no approved lay out plan of the area so as to ascertain the precise status of land of common passage. The properties are self numbered and ownership of land is claimed on the basis of revenue document. Rough sketch showing the positioning of the structures of suit premises was also filed along with status report.
5. Perusal of the record shows that vide order dated 28.08.2015, Ld. Trial Court restrained the defendants from locking the gate installed at the entrance of the common passage/by lane/approach connecting the house of the plaintiff to the main road and further directed to keep the gate in question open at all hours, till the disposal of interim application on merits. While passing the aforementioned order, trial court also called for a fresh report from executive engineer SDMC regarding status of construction over plot no. 55 & 56 so as to ascertain whether there is any encroachment in the common passage between the two properties i.e. D-55 & D-56.
6. The aforementioned order dated 28.08.2014 was challenged in appeal before the Court of Ld. ADJ 01, South-East.
MCA No. 01/2016 Kasana Educational & Cultural Society & Anr. Vs. Pradeep Kumar Dubey Page 6 of 17 Record shows that on 30.09.2014, an agreement was arrived at between the parties before Ld. Appellate Court and in view thereof, the order of the trial court was modified to the extent that gate on the passage connected to the main road of appellant's school shall remain closed during school hours i.e. 7 AM to 3 PM.
7. Later on, vide impugned order dated 14.02.2015 Ld. trial court decided the interim application on merits and allowed the application in terms of its previous order dated 28.08.2014. Aggrieved from said order appellants have preferred the present appeal on following grounds :-
i) That the impugned order is bad and perverse in law and facts more particularly contrary to the order dated 30.09.2014 which was passed by the Ld Appellate Court in terms of consent of both the parties.
ii) That Ld. Trial Court wrongly proceeded in the matter despite the fact that it lacked the territorial jurisdiction to entertain the suit because the property in dispute falls under the jurisdiction of PS Badarpur.
iii) That Ld. Trial Court failed to appreciate that respondent is not the owner of the disputed portion of land claimed as common passage rather the same forms the part of appellants land in plot no. D-55 where the appellant no.1 society is running a private school.
iv) That Ld. trial court failed to appreciate that respondent MCA No. 01/2016 Kasana Educational & Cultural Society & Anr. Vs. Pradeep Kumar Dubey Page 7 of 17 approached the Court for seeking relief without filing any site plan or the title documents establishing his right on the disputed land.
v) That Ld. trial court failed to appreciate that the common passage is the part of appellants property and the gate remains closed in the school hours only to ensure the safety of the children studying in the school and no objection was ever raised by other residents of the area except the plaintiff.
vi) That Ld. trial court failed to appreciate that the security gate was installed by the appellant no.1 in the year 2006-2007 for the safety of school children and security guards were deployed on the gate round the clock who used to open the gate after proper verification.
vii) That the appeal against the trial Court's earlier order dated 28.08.2014 was disposed of in terms of consent of both the parties but the trial court failed to consider said order while disposing of interim application on merits and therefore, the impugned order is liable to be set aside and modified in terms of order dated 30.09.2014 of Ld. ADJ-01, South-East, Saket Courts.
viii) That no further directions were required to be passed by the trial court after passing of the consent order dated 30.09.2014 by the appellate Court of Ld. ADJ-01, South-East.
ix) That impugned order is adversely affecting not only the security of the students of the school but also the security of other local residents and therefore, the consent order dated 30.09.2014 may be confirmed and the impugned order may be set aside.
MCA No. 01/2016 Kasana Educational & Cultural Society & Anr. Vs. Pradeep Kumar Dubey Page 8 of 17
8. Only respondent no.1 filed his reply to the present appeal wherein he denied all the grounds of appeal as wrong and incorrect and reiterated his claim as averred in the plaint filed before the Trial Court. It is submitted that appellants have illegally erected the gate and stopped the way/passage for the residents including respondent no.1 to have free access to their houses situated behind appellant's school and thereby infringed the respondent no.1's right of easement/right of way/passage.
9. I have heard the arguments from both the sides and also perused the entire trial court record with the assistance of the counsels.
10. Counsel for appellants has argued that the respondent/plaintiff has nowhere raised any claim of easementary rights in the land in dispute/common passage and said plea which has been raised by respondent only at the appellate stage cannot be entertained as the same is beyond pleadings. It is further argued that the common passage forms the part of appellants property i.e. plot no. D-55 and D-56 which are not opposite to each other as alleged by the respondent but same are adjoining / parallel plots and D-55 is situated at the entrance of the common passage i.e. in front side of the school whereas, D-56 is situated behind D-55. He further argued that the two different parts of D-55 MCA No. 01/2016 Kasana Educational & Cultural Society & Anr. Vs. Pradeep Kumar Dubey Page 9 of 17 have been joined by the appellants by a common roof over common passage way back in the year 2007 and no objection was ever raised by any of the residents of the locality. It is further argued that plaintiff/respondent no.1 has failed to place on record even a single document in support of his claim that same is the public gali or a common passage left by the colonizors nor there is anything to show that the same has been illegally encroached upon by the appellants. Counsel further argued that the common passage is the part of plot no. D-55 which was left by the appellants from their property as a common passage for giving access to the occupants of the properties situated at the back side of the school and plaintiff/respondent no.1 or any other residents have never denied the right to use common passage to access their houses but plaintiff cannot be allowed an unrestricted right over the use of common passage at the cost of safety and security of students of the appellants' school.
11. Ld. Counsel for the respondent no.1 rebutted the arguments by submitting that respondent no.1 is entitled to have uninterrupted access to his house through common passage which is his right of easement by necessity and appellants cannot put any restrictions by putting a gate on the entrance of common passage. Counsel's other arguments were more or less on the lines of the impugned order passed by the Trial Court.
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12. The essential ingredients of an easement viz. there should be two different tenements a dominant and servient, the owner thereof should be different and right must relate to doing of an act upon a land not his own, should be satisfied for claiming an easement right. Easements are private rights belonging to determinate person or persons in respect of his or their land. Ownership and easement rights are inconsistant and cannot co- exist in same person. Easement has been defined u/Sec 4 of Indian Easement Act, 1882 which reads as under :-
"Easement defined- an easement is a right which the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done, in or upon, or in respect of, certain other land not his own.
Dominant and servient heritages and owners The land for the beneficial enjoyment of which the right exists is called the dominant heritage, and the owner or occupier thereof the dominant owner; the land on which the liability is imposed is called the servient heritage, and the owner or occupier thereof the servient owner.
Explanation.- In the first and second clauses of this section, the expression "land" includes also things permanently attached to the earth; the expression "beneficial enjoyment" includes also possible convenience, remote advantage and even a mere amenity; and the expression "to do something" includes removal and appropriation by the dominant owner, for the beneficial enjoyment of the dominant heritage, of any part of the soil of the servient heritage or anything growing or subsisting thereon.
13. Section 13 of Indian Evidence Act, 1882 talks about easement of necessity. According to Section 13, easement of necessity arises only where by a transfer, bequest or partition, a single tenement is divided into distinct and separate tenements and any of separate tenement is so situated that it cannot be used MCA No. 01/2016 Kasana Educational & Cultural Society & Anr. Vs. Pradeep Kumar Dubey Page 11 of 17 at all without enjoying an easement over other such tenement or tenements. However, the right of easement by necessity does not arise merely on account of the fact that property of dominant servient becomes useless without an easement being raised in favour of party claiming it in respect of property of servient owners. Thus, the right of easement of necessity is implied only in cases of tenements where unity of ownership of dominant and servient tenement at some time or other is essential.
14. It has been vehemently argued on behalf of appellants that Court cannot go into the issues which are not pleaded before the Court. It is argued further that in the entire plaint, plaintiff has nowhere raised any such claim of easementary right in the disputed land and therefore, this Court cannot go into said aspect of the matter. In support of his argument counsel placed reliance on the judgment Bachhaj Nahar Vs. Nilima Mandal & Anr. 2009 AIR (SC) 1103 wherein it was held that :-
"In the absence of a claim by plaintiffs based on an easementary right, the first defendant did not have an opportunity to demonstrate that the plaintiff's have no easementary rights. In absence of pleadings and an opportunity to the first defendant to deny such claim, the High Court could not have converted a suit for title into a suit for enforcement of an easementary rights................."
15. I have carefully gone through the aforementioned judgment relied upon by appellant's counsel. In the same very judgment it was further held that :-
"It is thus clear that a case not specifically pleaded can be MCA No. 01/2016 Kasana Educational & Cultural Society & Anr. Vs. Pradeep Kumar Dubey Page 12 of 17 considered by the Court only where pleadings in substance, though not in specific terms, contains the necessary averments to make out a particular case and the issues framed also generally cover the questions involved and the parties proceed on the cases that such case was at issue and had led evidence thereon. ............ But where the Court is not satisfied that such case was not at issue the question of not resorting to the exception to the general rule does not arise."
In the aforementioned case of Bachhaj Nahar (Supra), respondent had based his claim for possession of suit property on the basis of his title. The suit was partly decreed by the trial court against which an appeal was preferred by defendant where plaintiff also filed his cross-objection. The first appellate Court allowed the appeal filed by defendant and dismissed plaintiff's cross-objections and as a consequence the suit was dismissed. First Appellate Court, while allowing the appeal and dismissing the cross-objections held that plaintiff had failed to prove that suit property was part of their property purchased vide sale deed dated 29.12.1962 or that first defendant had encroached upon any portion of plaintiff's property. The second appeal preferred before Hon'ble High Court was however allowed and order of first Appellate Court was set aside by holding that though the plaintiff had failed to make out title of the suit property but had made out a case for grant of relief based on easement right of passage and granted a permanent injunction restraining defendant from interfering with plaintiff's use and enjoyment of the right to passage over the suit property. It is in this background of case, an appeal was preferred before Hon'ble Apex Court for challenging MCA No. 01/2016 Kasana Educational & Cultural Society & Anr. Vs. Pradeep Kumar Dubey Page 13 of 17 the order of Hon'ble High Court. Hon'ble Apex Court while allowing the appeals, set aside the judgment and order of Hon'ble High Court and observed as under :-
"Easement may relate to a right of way, a right to light and air, right to draw water, right to support, right to have overhanging eaves, right to drainage, right to a water course etc. Easements can be acquired by different ways and are of different kinds, that is, easement by grant, easement of necessity, easement by prescription, etc. A dominant owner seeking any declaratory or injunctive relief relating to an easementary right shall have to plead and prove the nature of easement, manner of acquisition of the easementary right, and the manner of disturbance or obstruction to the easementary right. The pleadings necessary to establish an easement by prescription, are different from the pleadings and proof necessary for easement of necessity or easement by grant. In regard to an easement by prescription, the plaintiff is required to plead and prove that he was in peaceful, open and uninterrupted enjoyment of the right for a period of twenty years (ending within two years next before the institution of the suit). He should also plead and prove that the right claimed was enjoyed independent of any agreement with the owner of the property over which the right is claimed, as any user with the express permission of the owner will be a license and not an easement. For claiming an easement of necessity, the plaintiff has to plead that his dominant tenement and defendant's servient tenement originally constituted a single tenement and the ownership thereof vested in the same person and that there has been a severance of such ownership and that without the easementary right claimed, the dominant tenement cannot be used. We may also note that the pleadings necessary for establishing a right of passage is different from a right of drainage or right to support of a roof or right to water course. We have referred to these aspects only to show that a Court cannot assume or infer a case of easementary right, by referring to a stray sentence here and a stray sentence there in the pleading or evidence."
16. Now reverting back to the facts of present case, it is pertinent to mention that alleged right of respondent no.1 for use MCA No. 01/2016 Kasana Educational & Cultural Society & Anr. Vs. Pradeep Kumar Dubey Page 14 of 17 of common passage to access his house situated at rear side of appellant's property is not based upon his title in the disputed land of common passage. Claim of respondent no.1 as set out in plaint is that said common passage/approach lane leading to the main road is the only access to his house bearing no.D-75, Badarpur Extention, Delhi. It is also an admitted position on record that respondent no.1 does not have any other access to his property except the common passage. As per plaint, respondent no.1 has been using said common passage to access his property since long time. The aforementioned pleadings of the case clearly indicate that plaintiff is claiming his right to have unhindered and uninterrupted access to his property through the common lane/approach road which he is not claiming to be his own, though, he is also not admitting appellants' ownership in the same. It has been further averred in the plaint that said common lane/common passage lies between appellants' two opposite properties D-55 & D-56. Whereas, as per SDMC's report, said two plots of land are adjoining / adjacent to each other as D-55 lies in the front while D-56 at the backside of D-55. It is further averred that the alleged connecting roof/floor over the common passage is connecting two distinct portions of D-55.
17. On the other hand, defendant no.1 & 4/ appellants have been raising their claim of ownership over property at D-55 & D-56 on the basis of sale documents viz. agreement to sell, GPA, Will & receipt executed in December, 1995 by the registered owner of MCA No. 01/2016 Kasana Educational & Cultural Society & Anr. Vs. Pradeep Kumar Dubey Page 15 of 17 the land Smt. Mohinder Kaur in favour of appellant no.2 in respect of the land in Khasra no. 226 admeasuring 2 bhiga 1 biswa on the south and Khasra no. 241/1 admeasuring 14 biswa on the north side in the village Tejpur Teh, Mehrauli, New Delhi and abdi known as Molarband Extension near Badarpur Border, New Delhi and further alleged that D-55 & D-56 are the part of said land purchased by him vide aforementioned sale documents. It is further claimed that common passage is a private gali left out by defendant no.1/appellant no.2 from his plot no. D-55 for use of the occupants of the houses situated at the back side of said gali. Defendant no.1 has further pleaded that initially the whole land belonged to defendant no.1 but later on some part of land was sold out to one Dharam Pal who subsequently sold it in small plots of 50 yrds to plaintiff and other 10-15 persons some time in the year 1996.
18. Hence, from the aforementioned pleadings in the WS, seem to appellants seem to have nowhere denied the use of said common passage by the plaintiff/respondent no.1 or other residents of houses at the back side of gali. But, it has been argued that respondent no.1 and the other occupants of the colony cannot be allowed an unfettered right to have free access to said common passage at the cost of safety and security of students of appellants' school especially when said common passage is the part of appellants own property.
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19. Undisputedly, properties of both appellants and respondent no.1 are situated in an unauthorized colony, which is also evident from the status report filed by SDMC on Trial Court's record. The question as to whether common passage is the part of appellants property or was carved out as common passage by the colonizors at the time of selling out the plots is the matter of Trial. But, considering the admitted position that it has been used as a common passage by respondent no.1 & other residents of colony living at the rear side of D-55 & D-56, who do not have only other way to access their properties, a prima facie case is definitely made out in favour of respondent no.1 and therefore, appellants cannot be allowed to restrict the access by keeping the gate closed at all the time throughout the day. But, at the same time safety and security of school children cannot be put to risk by allowing entry of all and sundry even during school hours.
20. Having regard to aforementioned circumstances of the case, I am of the view that till the time parties prove their respective claims by leading evidence, the ends of justice would be best met if the interim application is disposed of in terms of consented interim order dated 30.09.2014 passed by Ld. ADJ-01, South-East District in MCA No. 01/2014. Accordingly, interim order dated 14.12.2015 is modified to the extent that appellants/defendant no.1 & 4 are restrained from closing/locking the gate at the entry of the approach road/common passage, MCA No. 01/2016 Kasana Educational & Cultural Society & Anr. Vs. Pradeep Kumar Dubey Page 17 of 17 except during school hours i.e. from 7am to 3pm. During school hours, the gate shall remain closed but access through gate shall be allowed to plaintiff or his vehicle as and when required. Present appeal stands disposed of accordingly.
21. Before parting with this order, I may mention that nothing in this order shall tantamount to expression of opinion on the merits of the case.
22. Copy of this order be sent to Ld. Trial court. TCR he also remitted. Parties are directed to appear before Ld. Trial court on 25.02.2016.
23. After necessary compliances, file be consigned to record room.
(Sunena Sharma) Addl. Distt Judge-03/South-East Saket Courts Complex, New Delhi Announced & dictated in the Open Court on 15.02.2016.
MCA No. 01/2016 Kasana Educational & Cultural Society & Anr. Vs. Pradeep Kumar Dubey