Delhi High Court
Agricultural Produce Marketing ... vs Jaswant Singh & Anr. on 24 April, 2018
$~24
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgement delivered on: 24th April, 2018
+ RSA 50/2014
AGRICULTURAL PRODUCE MARKETING COMMITTEE
AZADPUR ..... Appellant
Through: Ms. Avnish Ahlawat, Mr. N. K. Singh
and Ms. Palak Rohmetra, Advocates.
Versus
JASWANT SINGH & ANR. ..... Respondents
Through: Mr. Nitish Chaudhary for Mr. Chetan
Lokur, Advocate for Respondent
No.2/DDA.
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
NAJMI WAZIRI, J (Oral)
1. This second appeal has impugned an order dated 10.12.2012 which
had decreed the respondents/plaintiffs suit, whereby the appellant has been
permanently restrained from building a boundary wall from point 'B' to
point 'C', as shown in the site plan, opposite the shop of the plaintiff at New
Subzi Mandi, Azadpur, Delhi. The facts are that the respondent-plaintiff had
been allotted a commercial shop ad-measuring 198 sq. ft, numbered as:
1507, New Subzi Mandi, Azadpur, Delhi. It is one of 16 shops in a row, in
the larger area known as New Subzi Mandi. The appellant's area is called
'Fruit & Vegetable Market' at Azadpur. It forms a part of the Scheme of
RSA-50/2014 Page 1 of 4
Development of New Subzi Mandi at Azadpur. The land allotted to the
appellant is sought to be secured by building a boundary wall to protect its
interests. The larger scheme of New Subzi Mandi Area at Azadpur, as
framed by the Delhi Development Authority (DDA), includes not just the
Fruit & Vegetable Market but also a Transport Nagar, which is adjacent to
the said market.
2. On 07.10.2015, the following questions of law were framed:-
"1. Whether the impugned judgment and decree suffers from
any perversity?
2. Whether the first appellate court was right in rejecting the
application under Order 41 Rule 27 CPC filed by the
appellant?
3. Whether the respondent-plaintiff could claim easementary
right in view of Section 15 of the Indian Easement Act, 1882?
4. Whether the evidence led by the power of attorney on behalf
of the plaintiff was admissible?"
3. In view of the aforesaid, the following corollary question also needs
to be adjudicated:-
"Whether in the absence of lapse of 20 years, the right of
ingress or egress, as required under section 15 of the Indian
Easment Act, 1882, the respondent would have a vested right
into their shops from the area owned by the appellant for
which they wish to secure the area by way of a boundary
wall?"
4. The appellant relies upon a Sanctioned Lay Out Plan, which clearly
shows that the area between the stalls/shops allotted to the appellant is
separated by a 23 feet wide public road. Three sides of the appellant's
RSA-50/2014 Page 2 of 4
property have already been secured by the boundary walls. The remaining
portion is sought to be secured and gates have to be installed to monitor the
ingress and egress of the people into the demarcated area allotted to the
appellant. Seeking to do so would be an exercise of the appellant's right and
also in the interest of the users of the Fruit & Vegetable Market. The
DDA's allotment of the shops to the respondent does not necessarily make it
a part of the Fruit & Vegetable Market. Although, their shops may be a part
of the Development of New Subzi Mandi Scheme at Azadpur. Since, the
respondents are across a public road from the appellants land their shops are
not included in the land allotted to the appellant. There can be no legal
impediment for the appellants to secure their lands and the market
constructed thereon, by erecting a boundary wall around it. The impugned
order evidently has erred in concluding that the respondents/plaintiffs were a
part of the Fruit & Vegetable Market. The DDA supports the case of the
appellant; it states that the land allotted to the appellant is clearly specified
and demarcated in the Sanctioned Lay Out Plan; the respondents' shops are
not a part of the appellants' land where the Fruit & Vegetable Market exists;
the appellants can secure their land by a boundary wall.
5. The respondent was allotted the land on 20.06.1975. The appellants'
started constructing the wall on 18.06.1993. The mere fact that the
respondents have possibly been using the earlier unsecured/unfenced area,
for easier access to their shops, would not necessarily give them an easement
right. Besides, the prescribed period under section 15 of the Indian
Easement Act, 1882, to infer right of easement, had not been completed.
The acquisition by prescription, of right of way through the appellants' land
as an easement, could be claimed only after establishment of such
RSA-50/2014 Page 3 of 4
uninterrupted peaceful and unhindered enjoyment by the
claimants/respondents for a period of twenty years. The prescribed period
had not been completed because the respondents were allotted the shop on
20.06.1975, they would have got its possession either on that date or some
time thereafter. The appellants started constructing the boundary wall on
18.06.1983. The respondents can, at best, be presumed to be in possession of
their allotted shops for eight years and the consequent user of the route for
the same period. This period is far short of the requisite twenty years, to
establish uninterrupted peaceful enjoyment of a precise route of easement, as
a right of way.
6. In view of the above, the impugned order as well as the decree have
erred and would not be sustainable. Consequently, the questions of law
framed are answered as under:-
i). Yes.
ii). No.
iii). This question as well as additional question of law are answered in the
negative.
iv). This question would be irrelevant.
7. In view of the above discussion, the judgment and decree in the suit as
well as the order of the First Appellate Court are set aside. The appeal is
allowed. The appellant shall be free to construct the boundary wall to secure
their land allotted by the DDA as per the Sanctioned Lay Out Plan for Fruit
& Vegetable Market at Azadpur, Delhi.
NAJMI WAZIRI, J.
APRIL 24, 2018/sb
