Delhi High Court
Hari Kishan vs Shri Shiv Narain on 13 May, 2010
Author: Aruna Suresh
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA 300/2007
Date of Decision: May 13, 2010
HARI KISHAN ..... Appellant
Through: Mr. V.P. Katiyar, Adv.
versus
SHRI SHIV NARAIN ..... Respondent
Through: Mr.Ashish Middha, Adv. with
Mr. Shashank Prabhakar, Adv.
%
CORAM:
HON'BLE MS. JUSTICE ARUNA SURESH
(1) Whether reporters of local paper may be
allowed to see the judgment?
(2) To be referred to the reporter or not? Yes
(3) Whether the judgment should be reported
in the Digest ? Yes
JUDGMENT
ARUNA SURESH, J. (Oral)
RSA 300/2007 and CM APPL.16430/2007 (stay)
1. Respondent, Shiv Narain (Plaintiff in the suit) filed a suit for
permanent injunction seeking restraint order against the appellant
(defendant in the suit); for restraining him from fixing six beams in
the wall of the respondent in the disputed portion shown 'Red in the
Site Plan' forming part of property No.593, situated in Gali
Chhawalian, Najafgarh, New Delhi. Houses of the plaintiff and
defendant are adjacent to each other. Defendant started constructing
a house on his plot and intended to fix six beams in the wall of the
plaintiff for construction of the house. It was pleaded that appellant
had no right, title or interest in the said wall. The said suit was duly
contested by the appellant.
2. Trial Court vide its judgment and decree dated 4.11.2004 while
declining the relief of permanent injunction to the plaintiff,
restrained the defendant from making any hole beyond 9 inches on
the common wall between the said two properties.
3. Aggrieved by the said order of the Trial Court, respondent filed first
appeal before the Additional District Judge (A.D.J.). The said appeal
was disposed of by the Appellate Court in terms of its order
contained in para 9 of the impugned judgment dated 23.08.2007.
4. Aggrieved by the said order of the ADJ, appellant has filed this
appeal raising a substantial question of law, "Whether the Appellate
Court can reverse the judgment and decree of the lower court by
brushing aside the document and evidence produced during the trial
and the specific admissions made by the plaintiff on the facts."
5. Formation of question itself suggests that no substantial question of
law is involved. The answer to the question is within the question
itself. First Appellate Court has every right to reverse the judgment
and decree of the lower court on re-appreciation of evidence of the
parties produced by them during the trial of the case.
6. During the pendency of the suit and the first appeal, appellant had
already constructed the property up to the first and second floor. On
2.7.2007, the Appellate Court passed the following order:-
"It has been agreed to between the
parties if the wall of the house of the
appellant towards the house of the
respondent is found to be 19 inches
width at the second floor then the
respondent shall be entitled to use 4.5
inches of that wall for carrying out the
construction of the second floor.
However, if the width of the wall is
found to be 9 inches at the second floor
then the respondent shall be left with no
claim for using the wall of the house of
the appellant on their side at the second
floor. Both the parties agreed to
aforesaid understanding and submit that
a local commissioner may be appointed
who may measure the width of the wall
of the second floor of the property
bearing no. 593, Gali Chawlian
Nazafgarh, Delhi. Shri Vinod Kumar,
advocate (contact no. 9810085320) is
appointed as a Local Commissioner who
shall visit the suit property on 12.8.2007
at 12 noon. He may take assistance of
Architect who shall submit his report on
the next date of hearing which is fixed as
17.8.2007. Fees of the local
commissioner are fixed as Rs.8,000/- to
be born out by both the parties in equal
share and fee of the Architect shall also
be born out in equal share. Copy of this
order be given to both the parties."
7. Thus, it is clear that it was with the consent of the parties that a
Local Commissioner was appointed to visit the spot, measure the
width of the wall of the second floor of the property bearing No.593,
Gali Chawlian Nazafgarh, Delhi. The Local Commissioner was
authorised to take assistance of an Architect. The Local
Commissioner submitted his report dated 16.08.2007 after inspection
of the suit property in the presence of the parties. According to his
report, the wall adjacent to the property of the respondent was
having length of 54 feet and 9 inches, out of which width of the wall
from Point A to D as shown in the site plan prepared by the Local
Commissioner is about 14.5 inches, whereas the width of rest of the
wall is only 9 inches. None of the parties objected to the report of the
Local Commissioner.
8. The Appellate Court after considering the report of the Local
Commissioner and after understanding the site plan prepared by him,
which has also been copied in para 7 of the judgment, held:-
"9. Even otherwise, taking the facts
as they are, there is nothing on record
which may go to show that the
intervening wall was either a common
wall or was provided with common at
the first floor. In these circumstances, the
respondent cannot be said to have any
legal right to interfere into the wall
belong to the house of the appellant
merely because, some holes have been
dug by the respondent at some point of
time in the wall in question. It was not
proved that the respondent has a right to
use the said wall or that the wall is a
common wall. The respondent has
constructed the ground floor and the first
floor of the property by using beams and
the lanter. He can do so even by raising
construction at the second floor or that
the third floor. However, for doing so, he
cannot use the wall belonging to the
appellant as matter of right without the
consent of the appellant for the reasons
that the appellant even if had constructed
the wall on the common portion. He has
acquired a right of easement which has
become the absolute on account of time
lapsed between the date of construction
and the filing of the suit therefore, the
respondent cannot interfere with the right
of the appellant in the wall in question.
Moreover, when there is nothing on
record to show that the wall is a common
wall or the respondent had any legal
right to use the same for the purpose of
carrying out construction in his portion.
Thus, I allow the appeal to the extent that
the respondent shall not be able to use
the wall at the third floor even for
inserting the gutter to the extent of 9
inches, as has been ordered by the trial
court, without permission of the
appellant. However, nothing stated
herein would have any effect on the
construction raised at the ground floor or
at the first floor and the appellant shall
not cause any interference
therein..........."
9. Judgment of the Trial Court as well as of the Appellate Court in no
manner can be considered bad in law. Since the Appellate Court
fairly considered the fact finding report of the Local Commissioner
and other evidence on record while passing the impugned order, the
appellant cannot invoke the jurisdiction of this court under Section
100 CPC by filing this appeal.
10. No substantial question of law arises in this appeal. It is pertinent
that while disposing of the appeal, the Appellate Court directed the
appellant to use wall at the third floor, even for inserting the beams
to the extent of 9 inches only, with the permission of the respondent.
11. The judgment is well balanced and the relief of injunction which is
an equitable relief has been granted by the Court keeping in mind the
equities of this case based on facts.
12. Hence, appeal being without any merit is hereby dismissed.
(ARUNA SURESH)
JUDGE
MAY 13, 2010
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