K. Deshaprabhu & Ors. vs Meera Abhichandani & Ors.
2011 Latest Caselaw 6220 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

+                              RFA No.17/2010

%                                                    19th December, 2011

K. DESHAPRABHU & ORS.                               ..... Appellants
                  Through:               Mr. Azhar Alam, Advocate with Mr.
                                         Sankalp Goswami, Advocate.

                      versus

MEERA ABHICHANDANI & ORS.             ..... Respondents

Through: Mr. Jai Gupta, Advocate with Ms. Sunit Yadav, Advocate and Mr. Rakesh Kumar, Advocate for respondent No.1.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. The challenge by means of this Regular First Appeal under

Section 96 of Code of Civil Procedure, 1908 (CPC) is to the impugned

judgment of the trial Court dated 24.12.2009 dismissing the suit as per the

admitted facts by exercising powers under Order 12 Rule 6 CPC. The suit

has been disposed of at the stage of disposal of the interim injunction

application in view of admitted facts.

2. The facts of the case are that respondent No.1 is the owner of

flat No.56, Pocket-C, (C-56-D) Alaknanda, New Delhi and which flat is

situated on the third floor in a block of flats having a total of eight flats. The

respondent No.1 and her husband are senior citizens who are living alone in

their flat. The flat is situated in a colony in which the flats are built by Delhi

Development Authority (DDA). In the block of flats where

respondents/defendants are owners of the flats, the appellants/plaintiffs also

own the flats, namely, 55-B and 55-C. As per the policy of the DDA, in the

open area adjacent to the staircase, a lift can be constructed on no objection

being given by the other owners of the flats in the block of flats. Such a no

objection was given by the appellants/plaintiffs on 18.1.2009 and pursuant to

which the respondent No.1 constructed the lift well and was in the process of

installing the lift when disputes were raised by the appellants/plaintiffs on

the ground that their rights of light and air will be affected in case of

construction of the lift and that instead of constructing a lift for carrying of

only two persons a larger lift is being installed. I may note that no objection

is being raised by the DDA and the DDA has in fact filed affidavit in this

Court supporting the stand of the respondent No.1. Even in the trial Court

counsel for the DDA stated that the lift was being constructed at the

earmarked place for installation of the lift as per the approved plan of DDA.

The respondent No.3 in this appeal was defendant No.3 in the trial Court

being the President of Resident Welfare Association and who has also

supported the respondent No.1 and has taken up a stand that such lifts exist

in various other blocks of flats in the area and no one has ever had any

difficulty with respect to the lifts.

3. Two issues were argued before this Court. The first argument

was that the appellants' easmentary rights were affected as a result of

construction of the lift, and therefore the lift should not be constructed. The

second argument was that suit could not have been decreed at the stage of

disposal of the interim application as there were disputed questions of facts.

4. In my opinion, both the arguments as raised on behalf of

appellants have no force. Obviously, this litigation is an endeavour to

unnecessarily harass the senior citizens who want to construct a lift to reach

their flat on the third floor. The reasonableness of the respondent No.1 can

be gauged from the fact that besides bearing the entire cost of construction

of lift, she is agreed to create an opening towards the flats on the first floor

of the appellants, however, this proposal was turned down on behalf of the

appellants/plaintiffs on the ground that they would have to climb seven steps

to reach their flats. The respondent No.1, however, states that the appellants

would only have to climb four steps and not seven steps. Be that as it may,

whether four steps or seven steps it is not such a big handicap for seeking to

prevent the construction of the lift, more so when the entire cost of the lift

and the opening towards the flats of the appellants is being borne by the

respondent No.1. Being choosy because of the few number of steps required

to reach the flats of the appellants, in my opinion, shows complete

unreasonableness and a sheer ego battle on behalf of the appellants who are

only benefitting by construction of the lift by the respondent No.1. I may

note that as already stated above, there is no objection to the construction of

the lift by the other flat owners in the block of flats. In fact, possibly even

NOC on behalf of other residents of block of flats may not be required

because the lift is situated on the portion which belongs to the DDA and

does not belong to any of the owners of the flats. In terms of Section 15 of

the Indian Easements Act, 1882, no right of light and air arises unless such

right is claimed uninterruptiously for 20 years and it is not the case of the

appellants/plaintiffs that they have uninterruptiously enjoyed light and air for

a period of 20 years from the limited area where the lift is being constructed.

In fact, I really fail to understand as to what can be loss of light and air, by

construction of the lift and in fact really there is none, and obviously

unnecessary disputes are being raised to armtwist senior citizens living all

alone on a third floor flat. I may note that lift is being constructed by the

respondent No.1 inasmuch as her husband, who is a senior citizen, is a

patient of acute vertigo and has difficulty in climbing on the flat at the third

floor of the respondent No.1. I may only add that even if there are no

medical problems but at the age at which the respondent No.1 and her

husband are (about 60 years) surely they are entitled to legally construct a

lift at a place earmarked for construction of a lift, because after all climbing

to a third floor is not at all easy, more so at an advanced age, and also

because a person may have to repeatedly go up and down. I may also

additionally note that flats of appellants have unrestricted access to light and

air to their complete flat and not even a single window or any opening of

even a minutest size is being affected as a result of the construction of this

lift, and which becomes crystal clear when we look at the plan of the entire

block of the eight flats. I therefore hold that the appellants do not enjoy any

right of easements as they have not claimed any right of easements in

accordance with Section 15 of the Indian Easements Act, 1882 and nor is

any such assumed easementary right being legally affected by construction

of the lift in question. The respondent No.1 is therefore entitled to construct

the lift of which the lift well has already been constructed. The appellants

are therefore estopped from seeking any relief of injunction having once

given the NOC dated 18.1.2009 and which was acted upon. The appellants

surely must introspect as to why they are seeking to unfairly obstruct the

construction of the lift and what is the purpose they will achieve by this

unnecessary litigation.

5. I may state that even during the course of hearing, I asked the

counsel for the appellants as to what really the problem was, and can the

problem be sorted out, as the respondent No.1 is bearing the entire cost of

the lift, however, counsel for the appellants pleads lack of instructions.

6. The second aspect as to whether the suit should have been set

down for trial is an aspect which seemed to have merit on the first blush,

however, in view of the fact that admittedly no legal right of easement

under the Indian Easements Act, 1882 is pleaded by the appellants, the lift

well is not being constructed on the property/land of the appellants, the DDA

admittedly has no objection to construction of the lift (and which entity is

the owner of the land where the lift is being installed), not a single opening

of light and air of the appellants is being blocked, and thus there are really

no disputed questions of facts which require trial as to whether or not by

construction of the lift the easementary rights or any other presumable rights

of the appellants are at all affected. .

7. No other issue is urged or argued before this Court.

8. In view of the above, there is no merit in the appeal, which is

accordingly dismissed, leaving the parties to bear their own costs. Interim

orders stand vacated.

VALMIKI J. MEHTA, J DECEMBER 19, 2011 Ne