Smt. Santosh Deswal vs Krishan Kalra And Others
2016 Latest Caselaw 4501 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RSA Nos.176/2014 & 48/2015

%                                                                13th July, 2016

1.           RSA No.176/2014

SMT. SANTOSH DESWAL                                               ..... Appellant
                 Through:                Mr. Gagan Gupta, Advocate with Mr.
                                         Ananta Prasad Mishra, Advocate.
                          versus

KRISHAN KALRA AND OTHERS                         ..... Respondents

Through: Mr. Amresh Mathur, Advocate with Mr. Dharmender Arya, Advocate and Kapil Gupta, Advocate.

2.       RSA No.48/2015

KRISHAN KALRA & ORS.                                            ..... Appellants
                 Through:                Mr. Amresh Mathur, Advocate with Mr.
                                         Dharmender Arya, Advocate and Kapil
                                         Gupta, Advocate.
                          versus

SMT. SANTOSH DESWAL                                             ..... Respondent
                 Through:                Mr. Gagan Gupta, Advocate with Mr.
                                         Ananta Prasad Mishra, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)

RSA No.176/2014

1. In view of the fact that by the judgment being passed hereinafter in

RSA No.48/2015 filed by the respondents in the present appeal is being dismissed,

counsel for the appellant accordingly does not press the present appeal.

RSA No.48/2015

2. Challenge by this Regular Second Appeal filed under Section 100 of

the Code of Civil Procedure, 1908 (CPC) is by the appellants/defendants to the

concurrent Judgments of the courts below; of the Trial Court dated 14.5.2011 and

the First Appellate Court dated 15.4.2014; by which the courts below have held

that the passage 9 feet wide which runs adjacent to the property of both the parties

in the North side will be a common passage as a whole right from the entry gate on

the road to the extent of the complete passage ending at the end point of the plot of

the appellants/defendants. Putting it in another words the portion of the passage

adjoining the property of the appellants/defendants is a common passage for the

benefit of the respondent/plaintiff also i.e the respondent/plaintiff in addition to

having rights in the passage adjoining his portion of the plot also has rights in the

passage which adjoins the portion of the plot with the appellants/defendants and

which portion of the passage is also a common portion of the passage.

3. The crux of the matter is the interpretation of the applicable paras of

the sale deeds from the original predecessor-in-interest of the entire plot which was

divided into two parts and the two parts sold to the father of the appellants and the

first predecessor-in-interest of the respondent. In the original sale deed by the

original owner in favour of the predecessor of the appellants and the respondent the

relevant clause is Clause 10. The respondent/plaintiff is a successor-in-interest

through a chain of title deeds and the appellants are effectively the first purchasers

because they are the legal heirs of the first purchaser Sh. Bakshi Ram Kalra.

Therefore tracing of title by sale deeds so far as the appellants/defendants are

concerned, is not necessary because appellants/defendants claim under the

first/original Sale Deed dated 8.1.1968 executed by the five original owners,

namely Sh. Bhima, Sh. Mohinder, Sh. Savachand, Sh. Deep Chand and Sh. Hari

Singh. The flow chart and flowing of title to the present respondent/plaintiff will

be as under:-

(i) Original five owners sold the property to Smt. Shashi Balla by the Sale Deed

dated 8.1.1968.

(ii) Smt. Shashi Balla sold the property to Smt. Sarla Devi by the Sale Deed

dated 9.2.1972.

(iii) Smt. Sarla Devi sold the property to Sh. Amit Kumar by the Sale Deed dated

31.10.2002.

(iv) Sh. Amit Kumar sold the property to Smt. Santosh Deswal

(respondent/plaintiff) by the Sale Deed dated 15.4.2005.

4. Clause 10 of the sale deeds dated 8.1.1968 executed by the five

original owners in favour of the predecessor-in-interest of the respondent/plaintiff

and also to the father of the appellants/defendants, is identical, and this Clause 10

alongwith the boundaries otherwise mentioned in these sale deeds read as under:-

"Clause 10. Shrimati Sashi Balla and Shri Bakshi Ram have purchased the said house commonly i.e. equal share and the both Vendees have agreed to leave nine feet wide passage for their own use on the side of North, the both Vendees have equal share to utilize the same passage under the said house i.e. House No.187, Ward No.2, Mehrauli, New Delhi-30.

     Boundaries of Sale               Deed   with     predecessors-in-interest     of        the
     respondent/plaintiff
     North    ....     House of Shri Suban, House No.189.

South.... House of Shri Prithvi Singh House No.188 and House of Shrimati Soni Bai and Dharam Devi, House No.186.

West.... Galli.

East.... Portion of the Vendor‟s sold to Shri Bakshi Ram.

     Boundaries of Sale               Deed   with     predecessors-in-interest     of        the
     respondent/platinff
     North    ....     House of Shri Suban, House No.189.

South.... House of Shrimati Soni Bai and Dharam Devi, House No.186. West.... Remaining portion of Vendors sold to Shrimati Shashi Bhalla. East.... House of Shri Faquir Chand Pandit and Shri Suban. (emphasis is mine)

5. It is this Clause 10 which is the contentious clause and which

essentially calls for interpretation, of course with the similar clauses in the

subsequent sale deeds in favour of predecessors-in-interest of the

respondent/plaintiff.

6. The clauses and the boundaries of the relevant sale deeds in favour of

the predecessors-in-interest of the respondent/plaintiff are as under:-

"Clause 10 and boundaries of Sale deed by Smt. Shashi Balla in favour of Smt. Sarla Devi dated 9.2.1972

10. Shrimati Sarla Devi and Shri Bakshi Ram have equal share in nine feet wide passage for their own use on the side of North and both will utilise equally that

passage under the said house i.e. house No.187, Ward No.2, Mehrauli, New Delhi-

30. Boundaries North.... House of Shri Suban, House No.189 South.... House of Shri Prithvi Singh House No.188 and House of Shrimati Soni Bai and Dharam Devi, House No.186.

     West....           Galli
     East...            House of Shri Bakshi Ram, house No.187/

Clause 9 and boundaries of the sale deed between Smt. Sarla Devi and Sh. Amit Kumar dated 31.10.2002

9. Shri Amit Kumar and Shri Bakshi Ram have equal share in nine feet wide passage/gali for their own use on the side of north and both will utilise that passage/gali.

     Boundaries
     East :             Property of Shri Bakshi Ram
     West :             Road
     North       :      Gali 9 Ft. wide
     South       :      Other property

Clause 9 and boundaries of sale deed between Sh. Amit Kumar and Smt. Santosh Deswal (respondent/plaintiff) dated 15.4.2005

9. Smt. Santosh Deswal and Shri Bakshi Ram have equal share in nine feet wide passage/gali for their own use on the side of north and both will utilise equally that passage/gali.

     Boundaries
     East:       Property of Shri Bakshi Ram
     West:       Road
     North: Gali 9 Ft. wide
     South: Others property"

7. The aforesaid paras and the boundaries are called in question so as to

determine as to whether the respondent/plaintiff has a right in the passage being a

gali of 9 feet wide right till the end of the passage running right upto the end points

adjoining the plot of the appellants/defendants or the right of the

respondent/plaintiff stops in the 9 feet wide gali where the plot of the

respondent/plaintiff stops and the plot of the appellants/defendants begin. In order

to appreciate this position, I would at this stage for a better understanding of the

issue seek to reproduce the admitted site plan between the parties and which is

exhibited as Ex.PW1/1. The said site plan is scanned and reproduced as under:-

8. The courts below have accepted the interpretation of the

respondent/plaintiff that the common passage will run right till the end points in

the passage upto and adjoining the plot of the appellants/defendants and the

respondent/plaintiff will have a right in the common passage not in that portion of

the passage adjoining only the property of the respondent/plaintiff but even in the

passage thereafter which runs adjoining to the plot of the appellants/defendants. A

reference to the aforesaid site plan would show that both the courts below have

held that entitlement of the respondent/plaintiff is not only to the portion CDAB

but onwards from AB to the end points in the passage at the end of the plot of the

appellants/defendants i.e the respondent/plaintiff will have a right to the complete

length of the passage of approximately 62 feet and not only to 30 feet passage of 9

feet width being CDAB.

9. Learned counsel for the appellants/defendants very strenuously sought

to argue with reference to Clause 10 of the Sale Deeds dated 8.1.1968 reproduced

above that this clause does not give right to the respondent/plaintiff till the end of

the passage i.e in the passage adjoining the portion of the appellants/defendants.

To buttress such argument, reference is invited to the boundaries stated in the four

sale deeds in favour of the respondent/plaintiff and her predecessors-in-interest that

when the earlier sale deeds, especially the Sale Deeds dated 31.10.2002 and

15.4.2005, refer to entitlement of the respondent/plaintiff, the same is to a gali of 9

feet width and that would only mean the portion of the gali falling only to the

North of the plot of the respondent/plaintiff but will not continue thereafter.

10. This is a second appeal under Section 100 CPC. I can only interfere

with the concurrent findings of the courts below if there arises a substantial

question of law. If two views are possible on preponderence of probabilities, a

substantial question of law cannot be said to arise. In my opinion, there is no

perversity or in any manner absurdity in the concurrent findings of the courts

below with respect to the entitlement of the respondent/plaintiff to have common

rights in the complete passage having length of about 62 feet. This finding is

additionally correct for the reason that when we look at the original Clause 10 in

the Sale Deeds dated 8.1.1968, and which is the really operative clause, inasmuch

as relevant clauses in the subsequent sale deeds necessarily and directly only can

and do flow from the rights created under Clause 10 of the Sale Deeds dated

8.1.1968, and which is to be so also taken because the flow chart of narration of

facts mentioned in each of the sale deeds refer to the earliest Sale Deeds dated

8.1.1968, wherein it is seen that Clause 10 makes it abundantly clear that the

passage runs adjoining the entire/complete plot comprising of the entire house

no.187, Ward No.2, Mehrauli, New Delhi as originally existed and thereafter sold

in two parts. Whereas the portion which fell to the share of the respondent/plaintiff

became 187/1 on account of the purchase by the respondent/plaintiff and her

predecessors-in-interest, the portion which fell to the share of the

appellants/defendants became 187/2. Therefore, once the passage is to run across

the entire original house no.187, surely it has to run through the entire plot right

from the road till the end of the original undivided plot and which end of the plot is

the end of the plot at the last points adjoining the ending of the plot which fell to

the ownership of the appellants/defendants. I may note that Clause 10 of the Sale

Deeds dated 8.1.1968 twice uses the expression „both vendees‟ when reference is

made to the common passage i.e the common passage is the common passage in

the lands of both the vendees i.e the common passage is also out of the land which

fell to the share of the appellants/defendants. In any case, whatever is the doubt

gets removed from the last two lines of Clause 10 which specifies the passage to be

under the said original house as a whole i.e the whole house no.187. Also, it is

relevant to note that the boundaries of the plot even if there is any confusion in

reading of the same, though in my opinion there is no confusion, will necessarily

have to be read with the more specific language contained in Clause 10 of the Sale

Deed dated 8.1.1968.

11. Clearly therefore both the courts below have arrived at correct

findings and which do not call for any interference much less under Section 100

CPC as no substantial question of law arises. I therefore hold that the contentions

urged on behalf of the counsel for the appellants/defendants are misconceived that

respondent/plaintiff would not have right in the entire portion of the length of 62

feet and a width of 9 feet. Dismissed.

JULY 13, 2016                                            VALMIKI J. MEHTA, J
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