Delhi High Court

Chief Secretary, Govt. Of Nct Of ... vs Shri Mahinder Singh Rana & Anr. on 6 April, 2011

Author: Indermeet Kaur

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                       Date of Judgment: 06.04.2011


+            RSA No.210/2008 & CM Nos.12993-94/2008


CHIEF SECRETARY, GOVT. OF NCT OF DELHI & ANR.
                                           ...........Appellants
             Through: Mr. S.P. Sharma & Mr. Ashwani
                        Bhardwaj, Advocates.

                  Versus

SHRI MAHINDER SINGH RANA & ANR.
                                               ..........Respondents
                  Through:    Mr. Raghubir Singh Rana, Advocate


      CORAM:
      HON'BLE MS. JUSTICE INDERMEET KAUR

    1. Whether the Reporters of local papers 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

INDERMEET KAUR, J. (Oral)

1 This appeal has impugned the judgment and decree dated

15.02.2008 which had modified the finding of the trial Judge dated

13.02.2007. Vide judgment and decree dated 13.02.2007, the suit

filed by the plaintiffs seeking permanent injunction against the

defendants restraining them not to close the rasta measuring 161/2

ft. in width and 130 ft. in length in front of the property of

plaintiffs i.e. property situated in Village & P.O. Tigirpur, Delhi had

been dismissed. The impugned judgment had reversed this finding.

The suit had been decreed in favour of the plaintiffs; the

defendants had been restrained from closing the aforenoted rasta

in front of the property of the plaintiff as depicted in red colour in

site plan Ex. PW-1/1.

2 This is a second appeal. It is yet at the stage of admission. It

is pointed out that the impugned judgment suffers from a

perversity for the reason that the land qua which the defendants

have been restrained is a gaon sabha land; it is also not the

contention of the plaintiffs that this land is owned by them; they

could not have been granted the relief which has been granted by

the impugned judgment; this finding is a perversity and is liable to

be set aside.

3 The case as is evident from the pleadings before the court

below is that the plaintiffs had alleged that the aforenoted rasta

which is in front of their house was the only mode of access to their

property; they were using the rasta for their ingress and egress

since 1952. In 1996 on a survey conducted, there was a threat to

close the rasta by erecting a boundary wall. The ADM had

intervened and the rasta was directed to remain untouched.

However, the plaintiffs were again facing threats from the

defendants; present suit was accordingly filed.

4 The defence was that the suit is barred under Section 185 of

the Delhi Land Reforms Act (hereinafter to be referred to as the

„DLRA‟); rasta being the Government land cannot be encroached

upon by the plaintiffs; they have no right to ingress or egress from

the aforenoted land.

5 On the pleadings of the parties, six issues were framed. Oral

and documentary evidence was led. PW-1 had categorically

deposed that he is using this rasta for access to his house since

1952 and this is the only mode of approach to his house; it is

required for the beneficial enjoyment of his property. He had

admitted that on the eastern side of his house,there is a road which

is 6 ft. blow the ground level and it cannot be used as rasta for

ingress and egress. This testimony of PW-1 has been highlighted by

learned counsel for the appellant to substantiate his submission

that admittedly from the eastern side, there was a mode of

approach to the house of the plaintiffs; in this view of the matter,

the disputed rasta qua which the injunction has been granted is

liable to be set aside as it is the admission of the plaintiff himself

that he had another mode of access to his property.

6 The trial Judge had returned a finding on issue no. 1 in

favour of the plaintiffs. It was held that the plaintiffs have got

easmentary right by way of prescription to use the rasta. The other

issue i.e. issue no. 3 was also decided in favour of the plaintiffs.

Issue no. 2 was however decided against the plaintiff. The trial

Judge relied upon a report of the BDO (not proved on record) to

return a finding that there was a suitable public passage towards

the eastern side of the property of the plaintiffs and this was a

suitable mode of access to the house of the plaintiffs.

7 Admittedly this passage on the eastern side is 6 ft. below the

ground level. This fact finding is not disputed even today.

8 The impugned judgment had reversed this finding of the trial

and in this context, it had held that the trial Judge had decided

issue no. 1 in favour of the plaintiff; it had noted that the trial

Judge had the recognized easmentary right by way of prescription

in favour of the plaintiffs; the conclusion of the trial Judge

dismissing the suit was contrary to this finding on issue no. 1. The

finding returned in the impugned judgment qua this dispute is

noted hereinbelow:-

"Thus the facts that have come forth before the Ld. Trial Court would reveal that there are high walls surrounding the property of the appellants and the so called alternate passage lying to the eastern side of the property of appellant no. 1 is not accessible to either of the appellants. The eastern passage is not a kaccha passage falling in the low level area into which mud could be filled to raise the level. The road on the eastern side is a pakka metaled road. Obviously such a pakka metaled road is leading from one place to another and cannot be filled in between to make it accessible to the appellants. There is no evidence on the basis of which it could be concluded that there was sufficient space available between the plots of the appellants and the low level metaled road which could be converted into gradient to provide access to the appellants to the metaled road. It is to be kept in mind that all the witnesses of the appellants have deposed that the properties were being used for parking their tractor may be the cattle could climb over any rough area and up any slope, however, tractors cannot move in that manner.

Therefore, without any evidence before it, the Ld. Trial Court could not have answered the issue no. 2 to hold that the appellants had an alternative passage to their properties. Without the need for summoning of the BDO, the uncontroverted testimonies, and the rather explanatory statements of the plaintiff's witnesses elicited during their cross examinations is sufficient to hold that there was no other rasta or passage available to the appellants except the one claimed in the suit. The Ld. Trial Court has accepted the position that the road on the eastern side is at a low level but has brushed aside the question of accessibility by observing that the appellants could approach the competent Civil authorities for leveling the same without even applying its mind to the question whether such leveling was at all possible over a metaled road.

In the circumstances, the findings returned in respect of issue no. 2 and in respect of issue no. 4 are liable to be set aside and are set aside.

These issues are now answered in favour of the plaintiffs/appellants that they do not have any other rasta to their properties except the rasta of 16 ½ feet width and 130 feet length as depicted in the site plan in the suit, and the subject matter of the suit. The issue no. 4 is answered holding the appellants / plaintiffs to be entitled to injunction in respect of the Rasta. However since there has been no evidence brought on the record regarding the threat of demolition no relief in respect of demolition of the property can be granted.

Thus the suit of the plaintiff/ appellants is partly decreed. Defendants / respondents, their officials, employees, servants etc. are restrained from closing the rasta measuring ½ feet width and 130 feet in length in front of the property of the appellant as shown in red in the site plan Ex. PW-1/ 1."

9 There is no perversity in this finding. It does not in any

manner call for any interference. Evidence on record clearly

suggests that although on the eastern side of the house of the

plaintiffs, there is a passage, yet admittedly this is 6 ft. below the

ground level; no person can be expected to access his house by

putting a ladder or any other artificial mode in order to reach his

property which is admittedly 6ft. over and above the ground level.

These facts were rightly construed in the impugned judgment; this

easmentary right by way of prescription was admittedly being

enjoyed by the plaintiff since 1952.

9 The substantial questions of law have been embodied on

page 2 of the body of the appeal.