Smt. Neerja Chawla vs Delhi Development Authority
2011 Latest Caselaw 4634 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RSA No.154/2011

%                                                  20th September, 2011

SMT. NEERJA CHAWLA                                           ...... Appellant
                          Through:    Mr. Dinesh Agnani, Sr. Adv. with
                                      Ms. Leena Tuteja &
                                      Mr. Rahul Arora, Advs.
                          VERSUS

DELHI DEVELOPMENT AUTHORITY                              ...... Respondent
                   Through:           None.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

    1.   Whether the Reporters of local papers may be
         allowed to see the judgment?

    2.   To be referred to the Reporter or not?

    3.   Whether the judgment should be reported in the Digest?


VALMIKI J. MEHTA, J (ORAL)

1.            The challenge by means of this Regular Second Appeal is to the

two concurrent judgments of the Courts below, the first of the Original Court

dated 7.1.2011, the second of the Appellate Court dated 22.7.2011, and by

which judgments the suit of the appellant/plaintiff for permanent injunction

against the respondent/DDA seeking restraint against making of a wall was

dismissed.

2.            The appellant/plaintiff laid out a case that the construction of the

wall by the DDA on its land will close the access of the appellant/plaintiff to

her property bearing no.A-49, Rajeev Nagar, Phase-II, Village Karala, Delhi
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 and      therefore   the   suit   for   injunction   was   filed   stating   that   the

appellant/plaintiff would have no ingress and egress to her property as the

ingress and egress to the property was from the road on the side of which

wall was being constructed and thereby allegedly closing the entry points to

the property of the appellant/plaintiff.       The appellant/plaintiff claimed that

there was a road adjoining her property to the east for last 40 years and

construction of the wall by the respondent/DDA would result in closing of the

access to this road which was in existence for 40 years and therefore

injunction was prayed.

3.            Indubitably the subject property is situated in an urban village in

Delhi.    In none of the urbanized villages in Delhi, there has been proper

plotted development by a proper lay out plan, and village Karala where the

subject property is situated is one such example.

4.            The Courts below have dismissed the suit by holding that by

construction of the wall, it cannot be said that the appellant/plaintiff will have

no access at all to her property inasmuch as to the south side of her

property, there is a road.        The Courts below have further found that the

respondent/ DDA is fully entitled to construct the wall in its own property and

it is not open to the appellant/plaintiff to prevent the respondent/DDA to

construct the wall.

5.            Learned senior counsel for the appellant/plaintiff invited the

attention of this Court to a site plan prepared by the Local Commissioner

who was appointed before the Trial Court and which site plan is exhibited as
RSA No.154/2011                                                       Page 2 of 6
 Ex.P2. On the basis of this site plan, it was argued that the road to the east

shown therein is existing since 40 years and this was the only road for entry

and exit to the property.

6.          I am unable to agree with the argument as advanced by the

learned senior counsel for the appellant.      Firstly, the Appellate Court has

referred to the sale deed by which the appellant/plaintiff purchased the

subject property bearing no.A-49, Rajeev Nagar, Phase-II, Village Karala,

Delhi and the bounding of the property of the appellant/plaintiff is shown as

under:-

            "North :     Plot No. A-47      South :     Road 20 ft.
            East   :     DDA Land           West :      Plot No. A-48"

            Two important aspects arise from this location of the property.

Though, the appellant/plaintiff claimed that there is only a gali, really there is

a road 20 feet wide to the south of the suit property from which the

appellant/plaintiff has ingress and egress to her property.      Of course, this

road may be narrow, which is the position in most of the urban villages in

Delhi on account of construction without any lay out plan of the colony,

however, that cannot mean that there would be stopped all ingress and

egress to the property of the appellant/plaintiff if the DDA constructs the wall

to the eastern side of the property of the appellant/plaintiff. Secondly, the

description stated above shows that to the east of the property of the

appellant/plaintiff, what is shown to be existing is DDA land and no metalled

road is shown as abutting east of the property as is the case being argued by

RSA No.154/2011                                                  Page 3 of 6
 the appellant.    Therefore, the sale deed of the appellant negates two very

important aspects of her case that it was not as if by making of the wall by

DDA there would be no entry and exit to the property as there is very much

a    road   20   feet wide   for    entry   and   exit    to   the   property   of   the

appellant/plaintiff   and    that   to   the   east      of    the   property   of   the

appellant/plaintiff, existence of a road not shown but existence of the land of

the DDA/respondent has been shown.             I therefore reject the argument as

advanced on behalf of the appellant/plaintiff that by making of the wall by

respondent/DDA, the appellant/plaintiff would have no point of entry and exit

to her property. While on this aspect, I must note that the Appellate Court

has also relied upon the fact that in the site plan relied upon by the

appellant/plaintiff herself, there is not shown any opening to the eastern

side, and which would have been if really on the eastern side, immediately

abutting the property of the appellant/plaintiff there was a road.

7.           The Appellate Court has referred to an additional fact to hold that

the appellant/plaintiff is dis-entitled to the relief of the injunction and which

is that the existence of a road could have been established by the

appellant/plaintiff by summoning the witness from the Municipal Corporation

of Delhi (in short „MCD‟) to show that it was the MCD who had in fact

constructed this road.        No witness was summoned on behalf of the

appellant/plaintiff from the MCD to show existence of the road, and

therefore, unless the road is shown to be an actually sanctioned and built-up

road as a metalled road, the appellant/plaintiff cannot rely upon any road to
RSA No.154/2011                                                        Page 4 of 6
 say that through that road there is an automatic right to enter and exit her

property, which in any case has another road of a 20 feet for entry and exit

to the property.

8.          Learned senior counsel for the appellant sought to rely upon two

judgments, one of the Supreme Court in the case of The Municipal Board,

Manglaur vs. Mahadeoji Maharaj AIR 1965 SC 1147, and other of a

learned single Judge of the Madras High Court in the case of Damodara

Naidu & Ors. vs. Thirupurasundari Ammal & Anr. AIR 1972 Madras

386 to argue that there is a right of easement from a road maintained by a

municipality. There is no dispute to the proposition with respect to a right of

easement from a road built by municipality, however, the existence of this

road and abutting of the same to the property of the appellant/plaintiff was

an issue of fact, and which issue of fact has not been established by the

appellant/plaintiff in the present case inasmuch as both the Courts below

have rightly held that not only no road is proved of the MCD to the east of

the property and there is in fact a road 20 feet to the south of the property of

the appellant from which she has an entry and exit to her property.

Therefore since the appellant/plaintiff failed to prove the existence of a duly

sanctioned road because no person was called for from the MCD to prove the

construction of the road, the judgments as relied upon by learned senior

counsel for the appellant cannot have any application in the facts of the

present case.


RSA No.154/2011                                                 Page 5 of 6
 9.         Before a Second Appeal is entertained under Section 100 CPC, it

is necessary that a substantial question of law must arise. Findings of facts,

and that two concurrent findings of facts showing entry and exit to the

property of the appellant from a road of 20 feet and that there was no road

as existing abutting east to the property of the appellant/plaintiff duly

constructed by the MCD, and therefore, I do not find that any substantial

question of law arises for this Court to interfere with the impugned judgment

under Section 100 CPC. Dismissed.




SEPTEMBER 20, 2011                              VALMIKI J. MEHTA, J.

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