Delhi High Court
Sh. Rajinder Singh vs Sh. Mahinder Singh on 4 February, 2014
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA No.258/2013
% 4th February, 2014
SH. RAJINDER SINGH ......Appellant
Through: Mr. Manoranjan, Advocate.
VERSUS
SH. MAHINDER SINGH ...... Respondent
Through:
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
C.M. Nos.2262/2014 and C.M. No.2263/2014 (condonation of delay)
1. Appeal is restored by allowing the application under Order 9
Rule 9 of Code of Civil Procedure, 1908 (CPC) and also by condoning the
delay of 21 days in filing the application for restoration. Appeal is restored
to its original number.
C.M. stands disposed of.
C.M. No.18567/2013 (exemption)
2. Exemption allowed subject to just exceptions.
C.M. stands disposed of.
RSA No.258/2013 Page 1 of 5
+ RSA No.258/2013 and C.M. No.18566/2013 (stay)
3. This Regular Second Appeal has been filed by the
appellant/defendant against the concurrent judgments of the courts below; of
the trial court dated 22.9.2011 and the appellate court dated 11.9.2013; by
which the suit of the respondent/plaintiff has been decreed and the
appellant/defendant has been restrained from interfering with the peaceful
possession of the portion shown in red in site plan as Ex.PW1/2 and from
further demolishing the beam Mark 'B' and 'C', the pillar mark 'A' and the
wall mark 'E' and 'G' in the site plan Ex.PW1/2. All these aspects are with
respect to a passage of about 10 feet or so (as stated by counsel for the
appellant) in the property bearing No.CB-15-A, Gali No.2, Naraina Village,
Ring Road, New Delhi-110028. The passage with respect to which the
dispute exists forms part of 54 sq yds which fell to the share of the
respondent-plaintiff out of the property of the father which was of a total
area of 108 sq yds. The appellant/defendant has his own 54 sq yds, and
which is independent of the 54 sq yds which has fallen to the share of the
respondent/plaintiff. It is in the portion of 54 sq yds of the
respondent/plaintiff that there is the subject passage.
4. The facts of the case are that originally the total area of the
property was 250 sq yds and was owned by the father of the present parties,
RSA No.258/2013 Page 2 of 5
namely Sh. Banwari Lal alongwith one Sh. Bhanwar Singh. Sh. Bhanwar
Singh and Sh. Banwari Lal divided this property by taking 108 sq yds each
leaving behind a gali of about 5 feet wide between the two lateral portions of
108 sq yds which fell to the shares of Sh Banwari Lal and Sh. Bhanwar
Singh. Out of the 108 sq yds of Sh. Banwari Lal, an area of 54 sq yds in the
front portion fell to the share of the respondent/plaintiff and the back portion
of 54 sq yds fell to the share of appellant/defendant. For going to the back
portion of 54 sq yds of appellant/defendant a passage out of 54 sq yds of the
respondent/plaintiff has been made. The case of the respondent/plaintiff was
that the passage falling in the 54 sq yds portion of the respondent/plaintiff is
only to be used as an ingress and egress by the appellant/defendant to go to
his own portion of 54 sq yds and that the appellant/defendant cannot use the
passage to open windows or to install exhaust fan or demolish the pillar or
beam constructed by the respondent/plaintiff.
5. Both the courts below have held that once the subject passage
falls not in the area of 54 sq yds of the appellant/defendant, and which area
of 54 sq yds the appellant/defendant exclusively owns, then, the
appellant/defendant does not have right to make use of the passage except
for ingress and egress to his back portion comprising of 54 sq yds, inasmuch
RSA No.258/2013 Page 3 of 5
as the passage falls in the area of 54 sq yds which falls to the share of the
respondent/plaintiff.
6. I do not see any illegality whatsoever in the judgments of the
courts below; much less for any question of law or any substantial question
of law to arise; because once the admitted fact is that the subject passage of
about 10 feet long is only for ingress and egress, appellant cannot use the
same by putting exhaust fan or windows in the same etc.
7. To satisfy my judicial conscience, I asked the counsel for the
appellant to show me a copy of the plan of the total area of 108 sq yds, and
which plan was not filed with the appeal (whether deliberately or otherwise I
do not know) and a reference to this plan shows that in the portion of the
appellant/defendant which is at the back, there is considerable amount of
open space between the rooms on one side and staircase on the other side
and therefore the appellant/defendant has already sufficient light and air in
his portion. Further, Section 15 of the Easement Act, 1882 states that right
of easement can only be claimed if the same is enjoyed continuously without
interruption for 20 years and I do not find that even in pleadings, much less
evidence, on behalf of the appellant/defendant of having enjoyed his
easementary rights for 20 years for that right to become a vested right in
accordance with Section 15 of the Easement Act, 1882.
RSA No.258/2013 Page 4 of 5
8. In view of the above, since the appellant/defendant has no right
in the subject passage, except for ingress and egress, and appellant/defendant
already has exclusive ownership and possession of his 54 sq yds, I do not
find any illegality or perversity in the orders of the courts below for any
substantial question of law to arise under Section 100 CPC.
9. The appeal is therefore dismissed, leaving the parties to bear
their own costs.
FEBRUARY 04, 2014 VALMIKI J. MEHTA, J.
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