Rajinder Singh v. Mahinder Singh

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. 2014:DHC:687 + 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, 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 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.

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. Ne