Sumant; Birmi Devi v. Harvir Singh

10. The Plaintiff claimed that such opening of the gate was an illegal act of criminal trespass and direct encroachment, contrary to the law. The Plaintiff had approached the Police, but no action has been taken.

11. Hence, the Plaintiff filed the Suit for Mandatory Injunction for directing the Defendant to remove the iron gate and for Permanent Injunction for directing the Defendant not to open any gate towards the Suit passage.

12. The Defendant in his Written Statement took a preliminary objection that Plaintiff is neither the owner of House No.8 nor of the passage in dispute, which is situated in Khasra No.277, Devli Village, New Delhi.

13. The Defendant explained that the parties to the Suit are descendants of Late Sh. Tirkha. As per the Revenue Records, namely, the Khatoni of Village Devli for the year 1985–86, Sh. Beg Ram, the first son of Late Sh. Tirkha, is recorded as the owner of land measuring 0–16 Biswas in Khasra No. 277 Min. Sh. Karan Singh, son of Sh. Chunni and grandson of Late Sh. Tirkha, is recorded as the owner of land measuring 0–17 Biswas in the said Khasra. Similarly, Sh. Kannu, son of Sh. Budh Ram and grandson of Late Sh. Tirkha, is recorded as the owner of land measuring 0–17 Biswas therein. Thus, the three branches of Late Sh. Tirkha collectively owned land measuring 2 Bighas and 10 Biswas in Khasra No. 277 Min.

14. At the time of construction of their respective houses, the ancestors of the Plaintiff and the Defendant by mutual consent, left the passage out of their Khasra No.277 Min., for ingress and egress of their respective houses. The said passage is for common passage for use and enjoyment of the three branches of Late Sh. Tirkha and had always been so used since its inception. House Nos. 8A, 8B, 8C and 1/1 (as shown in the Site Plan filed by the Defendant), was owned by LRs of Shri Karan Singh and have their gates in the passage in dispute. Likewise, House No.9 and other houses owned by Sh. Satpal S/o Sh. Kannu have the gates of their houses opening in this passage. Similarly, House No.8 and other houses of Sh. Shish Ram have their gates in the passage in dispute.

15. The Defendant further submitted that this passage has sewage line and manholes. The dirty water and filth of the house goes to the sewage line, in the passage. The electricity cables and as well as the T.V Cables of the houses leading to the houses of LRs of Sh. Tirkha, also runs through the passage in dispute. By no stretch of imagination can this passage be termed as a private or personal passage of the Plaintiff or his father Sh. Shish Ram. The entire village including the family of the parties have been using this passage.

16. The Defendant further stated that after the demise of Sh. Beg Ram, the land measuring 0–16 Biswas comprised in Khasra No.277 Min. devolved upon his two sons, Sh. Om Prakash and Sh. Shish Ram, in equal shares. Sh. Shish Ram, the father of the Plaintiff, is still alive and continues to hold a one-half share therein. It was, therefore, contended that the Plaintiff could not claim ownership over the passage situated in Khasra No.277, Devli Village.

17. The Suit is claimed to be barred under Section 41(h) Specific Relief Act as there is an equally efficacious remedy of partition of the common passage available, which can be obtained by the father and uncle of the Plaintiff.

18. Further objections were taken that the Suit is bad for non-joinder of necessary parties; it had not been valued correctly for the purpose of Court fee and jurisdiction and that Plaintiff had not approached the Court with clean hands and has concealed material facts. The Plaintiff is not in exclusive possession of the passage in dispute and is not entitled to the discretionary relief of injunction.

19. On merits, it was denied that Plaintiff is the owner of House No.8, Khasra No.277, Devli village or that the passage was left by his father while constructing the House No.8 in the year 1986-87. All the averments made in the Plaint were denied and the assertions made in the preliminary objections, were reiterated. It was submitted that the Suit is liable to be dismissed.

20. In the first round of litigation, learned Civil Judge vide Judgment dated 31.01.2015 rejected the Plaint under Order VII Rule 11(d) read with Section 41(h) Specific Relief Act on the ground that there was an alternate efficacious remedy of Partition available to the Plaintiff.

21. Regular First Appeal No. 56/2017 was filed by the Plaintiff/Appellant. The learned ADJ vide Judgment dated 25.07.2015 noted that there were two separate properties, namely one in Khasra No.277 and the other in Khasra No.276 involved, while the passage had been carved out from Khasra No.277. Mere shifting of residence by one of the members in Khasra No.276, did not divert the rights in passage to occupants of Khasra No.276. Moreover, the concept of partition as invoked by the learned Civil Judge, would not apply, but the concept of co-sharer would apply. The findings of learned Civil Judge were found to be perverse and were set aside. The Appeal was allowed and the case was remanded back for trial on merits.

22. The Plaintiff filed his Replication, wherein he reiterated the assertions made in the Plaint.

23. The issues on the pleadings were framed on 29.07.2015, as under:

(i) Whether the plaintiff is entitled to decree of mandatory injunction as prayed in clause (a)? OPP

(ii) Whether the plaintiff is entitled to decree of permanent injunction as prayed in clause (b)? OPP

(iii) Relief.

24. The Plaintiff in support of his case examined himself as PW[1] and tendered his evidence as Ex.PW1/A. He proved the documents Ex.PW1/1, Ex.PW1/3 to Ex.PW1/15 in support of his case.

25. PW[2] Sh. Om Prakash, corroborated the testimony of the Plaintiff.

26. The Defendant No.1 Sh. Sumant examined himself as DW[1] and deposed by way of Affidavit Ex.DW1/A, on similar lines as his defence taken in the Written Statement.

27. The learned Civil Judge observed that the Plaintiff had admitted that in the Revenue Records instead of his name, the name of his father has been recorded, and thus, concluded that the Plaintiff had failed to establish his ownership over the Suit passage.

28. It was further observed that PW[1] Sh. Harvir, the Plaintiff during his cross-examination, had admitted that the passage shown in the Site Plan Ex.PW1/3 was being used by the occupants of the Houses at Points X, Y, Z, 8, 8A, 8B and 9. He also admitted that House No. Y, B and 8B belonged to the Defendants and that he was not in exclusive possession of the passage. It was thus, concluded that the Plaintiff was not in exclusive possession of the passage as claimed by him.

29. Furthermore, PW[1] and PW[2] in their respective cross-examination, admitted that Defendants have not created any obstruction by tying their cattle in the Suit passage, which is blatantly contradictory to the assertions of the Plaintiff. The photographs relied upon by the Plaintiff also had not been proved, in accordance with law. Even then on bare perusal of the photographs, it was reflected that no cattle are shown tied in the suit passage.

30. On the other hand, it was proved that the Defendants have been using this passage for the last several years being the occupants of the adjacent houses, as admitted by the Plaintiff in the cross-examination. Merely because the Defendants had purchased a house in Khasra No.276, would not debar them from using the suit passage by opening the back gate, unless it creates hindrance to free access of the Plaintiff. No such hindrance or obstruction was proved to be placed by the Plaintiff by opening of the gate. Consequently, the Suit of the Plaintiff was dismissed by the learned Civil Judge vide Judgment dated 22.04.2017.

31. Aggrieved by the dismissal of his Suit vide Judgement and Decree dated 22.04.2017 by the learned Civil Judge, the RCA No.56/17 was preferred by Harvir Singh, the Plaintiff.

32. The learned ADJ observed that it was the admitted case of the parties that the suit passage situated in Khasra No.277 had been left by its co-owners for the common use and beneficial enjoyment of their respective properties. It was further held that the Defendants had failed to establish that any person other than the owners of properties situated in Khasra No.277 had any right to use the said passage.

33. The learned ADJ further observed that Defendant No.2, Smt. Birmi Devi, who owned House No.1/1 situated in Khasra No.276, had neither entered the witness box to prove that the disputed gate existed prior to the purchase of the house nor produced the GPA allegedly recording the existence of such gate, while the erstwhile owner of House No.1/1 had also not been examined. On the other hand, the photographs Ex.PW1/4 and Ex.PW1/5 indicated that the opening in the rear wall of House No.1/1 towards the suit passage had been made only recently. It was thus concluded that while Defendant No.1 was entitled to use the suit passage for the beneficial enjoyment of his property situated in Khasra No.277, no corresponding right could be claimed in respect of House No.1/1 situated in Khasra No.276.

34. The learned ADJ consequently concluded that the learned Civil Judge had erred in dismissing the Suit on the premise that the Plaintiff had failed to establish exclusive possession over the suit passage, when the Plaintiff had asserted only a common right of user therein along with the other co-owners of Khasra No.277.

35. The Judgement of the learned Civil Judge dated 22.04.2017 was set aside and the Suit of the Plaintiff/Appellant for Mandatory Injunction was decreed by directing the Respondent to close the gate in the back wall of House No.1/1, as shown in the Site Plan Ex.PW1/3 at Point W in Site Plan Ex.DW1/1. The Respondents were also permanently restrained from opening any gate in the back wall of House No.1/1 that abuts to the suit passage.

36. Aggrieved by the Judgment of the Learned ADJ dated 19.02.2018, the present Regular Second Appeal No.81/2018 has been filed by the Defendants/Appellants.

37. The grounds of challenge are that the evidence adduced by the parties, has not been appreciated correctly. There were material contradictions in the testimony of the Plaintiff, which has been completely over looked. It is a case of inter-conflicted findings returned by the learned Civil Judge and learned ADJ and, therefore, the impugned Judgment of dated 19.09.2018 of learned ADJ, is liable to be set aside.

38. It is asserted that the documents on the record, have not been appreciated. The learned ADJ has believed the averred assertions in regard to the enjoyment of the property in question, which is a common share holding of the properties which was let out by all the co-owners of Khasra No.277, who have raised construction on their respective plots. There is no exclusive right that can be claimed by the Plaintiff to the exclusion of the Appellants/Defendants and the villagers.

39. The learned ADJ ought to have held that the suit passage as common for all the holders of the common Khasra Numbers, and no Injunction could have been granted against the Defendants. The findings about the efficacious remedy to ask for partition, has not been considered. Even otherwise, since the passage has been in continuous uninterrupted usage over a period of time, no preventive orders could have been passed against the Defendant, to restrain the common use and enjoyment of the passage. The findings given by the learned ADJ, are incorrect on the face of it and the easement rights available to all the common shareholders of the ancestral property, has been ignored.

40. It has not been appreciated that the passage was left out from the common shareholding in Khasra No. 277, Devli Village, and no independent rights could have been asserted by the Plaintiff in this common passage. The evidence of the parties has not been appreciated correctly. The Plaintiff had made an unequivocal admission in his cross-examination that he was not the exclusive owner of the passage and also the Defendant had not created any obstruction by tying his cattle on this common passage.

41. The Appellants have further contended that the learned ADJ failed to appreciate the admissions made by the Plaintiff during his crossexamination that he was not the exclusive owner of the suit passage; that the Defendants had not created any obstruction by tying their cattle in the passage; and that the doors of the houses of Karan Singh also opened towards the suit passage, which was being used by the occupants of the adjoining houses under their joint ownership.

42. It is accordingly contended that the findings returned by the learned ADJ are contrary to the evidence on record and the impugned Judgment dated 19.02.2018 is liable to be set aside. Submissions heard and record perused.

43. The present case involves an interesting question concerning the rights of the adjoining house owners, in the private lane/passage carved out of their own property by the owners of the adjoining Khasra.

44. The Plaintiff, Harvir Singh claimed that the rasta/lane in front of his house and the adjoining houses located in Khasra No. 277, Devli Village, New Delhi, was their private passage. The Defendant, Sumant, was a resident of a house in Khasra No. 276 and had no right to open the door of his house, into this private rasta, in front of the houses falling in Khasra NO. 277, Devli Village.

45. The factual matrix is that originally, the property in the area was owned by Trikha who was survived by three sons, namely, Beg Ram, Chunni and Budh Ram, who further had four sons and thereafter, the grandsons. Originally, the land was owned by Trikha and his property got divided amongst his three sons which thereafter devolved upon the third and the fourth generation. The Plaintiff, Harvir Singh and Sumant are all the great grandson of Trikha.

46. Admittedly, the three branches of late Trikha owned land admeasuring 2 Bighas and 10 Biswas in Khasra No. 277. At the time of construction of their respective houses, the ancestors of Plaintiff and Defendant, by mutual consent left a passage in front of their houses in Khasra No. 277, for ingress and egress to their respective houses. The common passage was for use and enjoyment of those who had their houses in Khasra No. 277.

47. It was explained that houses No. 8A, 8B, 8C and 1/1 were owned by LRs of Sh. Karan Singh and their gates opened in the disputed passage. Likewise, house No. 9 and other houses were owned by Sh. Satpal S/o Sh. Kannu and had their gates of the house in the passage in dispute.

48. The dispute arose when the Defendant Birmi Devi on purchase of the house No. 1/1, which fell in Khasra No. 276, broke the back wall of the house and opened the door therein, which faced the passage of the Plaintiff. She, therefore, claimed the right to use the gali in front of the houses falling in Khasra No.277.

49. The grievance of the Plaintiff, Harvir Singh was that this rasta which had been carved out of a portion of Khasra No. 277, was a part of their privately owned land, had been left for a private rasta/passage, in which the residents of houses in Khasra No. 276 had no right, title or interest. Therefore, an endeavour made by Smt. Birmi to open a gate to get an access to their private passage, was encroachment of their rights. Thus, the Plaintiff sought Mandatory Injunction for directing the Defendant from closing their doors opening towards gali in Khasra No. 277.

50. The Substantial question of Law which arises is: What are the rights of the parties in a common passage, in terms of the Indian Easement Act, 1882.

51. It would be pertinent to refer to Section 4 of the Indian Easement Act, 1882 (hereinafter referred to as the “Easement Act”), which reads as under:

52. Thus Section 4, defines Dominant Heritage, which is the right of a person to enjoy his own property, owned by him. The Servient Heritage, however, is a right which a person may claim in the property owned by other person, for the purpose of enjoyment of his own property.

53. The easementary right, therefore, is essentially a right claimed by the owner of the land (the dominant heritage) upon the other land owned by someone else (servient heritage), so that he may be able to enjoy the property in the most beneficial manner.

54. It is not in dispute that the owners of Khasra No.277, while constructing their respective houses in this Khasra, left a common passage (which is in question) for the access and enjoyment of their respective property/Houses. The Plaintiff Harvir Singh, therefore, had the dominant heritage in the houses that were owned by them and fell in Khasra No. 277. The passage left by them from a portion of their land in Khasra No. 277, was for the absolute enjoyment of their dominant heritage.

55. The Plaintiff Harvir Singh in his testimony as PW[1], had further explained that the house of the Defendant was located in Khasra No. 276 beyond the passage and there was no opening of the houses located in Khasra No. 276, towards the passage in question and that those houses had a separate passage in front of their house towards the West direction, as is evident in Site Plan Ex. PW1/3.

56. The Defendant Sumant as DW[1], admitted in his testimony, that their houses fall in Khasra No. 276 and that their houses have their back wall towards the lane in question and also that none of these houses had the entry towards the land in dispute. He further admitted that the passage in question, had been left by the occupants of the house in Khasra No. 277 from their own property. There was also no denial that the house of the Defendant, which is a part of Khasra No. 276, has a separate access lane in front of their house.

57. The Defendant by way of insisting on opening a door towards the private lane of the Plaintiff, had in fact, asserted an easementary right of using the passage.

58. As has been discussed above, this passage had been left from the private property of the Plaintiff and others forming part of Khasra No. 277 and was being used by the residents of those houses for their ingress and egress.

59. Section 13 of the Easement Act provides for easement of necessity and quasi-easement. It reads as under:

60. It provides that if the easementry rights and immovable property are necessary for enjoyment of their own property, then they are entitled to the right of easement.

61. As has emerged from the evidence of the parties, the Defendant has a separate access from the lane in front of their houses and the claim to the passage in dispute is an additional right being claimed by the Defendant. It is not a right of easement by necessity, as protected under Section 13 of the Easement Act.

62. Section 15 of the Easement Act provides for acquisition of easementary rights by prescription. It reads as under:

63. It provides for eastmentary right by prescription and states that where a right of access and use of air and light for any building has been enjoyed peacefully without interruption for 20 years, then the right to such access, becomes absolute.

64. In the present case, the Plaintiff had asserted that the Defendant had opened this door in the back of their house on 23.03.2012 and had sought an Injunction as the opening was a breach of his right to enjoy the private lane and also there was an element of nuisance, as it was asserted that the Defendant had tied his two buffalos in front of the door in the back wall of the passage. The house of the Plaintiff was facing the back of the house of the Defendant and extreme nuisance was created for him, which was a breach of the peaceful enjoyment of his property.

65. The Defendant had on the other hand, asserted that this door was existing since prior to the purchase of the property by his mother Birmi Devi, from the erstwhile owner. However, the Defendant failed to give any cogent evidence in respect of the door existing since prior to their purchase of the property by the mother, vide GPA dated 01.03.2013. The Defendant also admitted in his cross-examination that there was no mention in the GPA about the existence of the door in the back wall of the house of the Defendant.

66. Moreover, there was no cogent averment in the Written Statement or in the evidence to reflect that this backdoor existed for more than 20 years or has been peacefully enjoyed by the Defendant. The vague assertion has been made that it had already been in existence, but no date since when the gate was existing had been mentioned even in the sale documents of 2013 on which reliance has been placed, that there is the opening of the backdoor in the house of the Defendant, opening towards the back passage in dispute.

67. The evidence of the Defendant/Appellant was deficient in establishing the easmentary right by prescription, as well.

68. Similar facts as involved in the present case, came up for consideration in the case of Manisha Mahendra Gala and Others v. Shalini Bhagwan Avatramani and Others (2024) 6 SCC 130 wherein it was observed that Section 15 of the Easement Act was categorical in providing that for acquiring an easementary right by prescription, it must have been peacefully enjoyed as the servient heritage, without interruption for over 20 years. In the said case as well, the Plaintiff had claimed the easementary right by prescription in the gali. It was found not only that there was another passage/connectivity for the house of the Plaintiff aside from the gali in question, but it was also found that the Plaintiff had failed to produce any evidence that he had been peacefully enjoying the right of passage through the disputed gali. It was thus, held that no right of usage to gali can be claimed either under Section 13 or 15 of the Easement Act.

69. In the present case as well, first fact which is established is that it was a private rasta left by the owners of Khasra No. 277 in front of their houses, for having an ingress and egress from their houses. Even though there may have been sewage or water lines, electricity poles erected, but that is not sufficient to make it a public rasta or to give any easementary right to the Defendant Sumant and others.

70. The Defendants admittedly have their independent access to their respective houses, from the gali in front of their house. No evidence has been led that they have ever had their doors opening in the gali in question or have been using it for more than 20 years. The claim of the Defendants of servient heritage, i.e., on the gali of the Plaintiff for the beneficial use of their houses, i.e., dominant heritage, has not been proved.

71. The learned District Judge in the impugned judgement, therefore, rightly held that the Defendant had no right to open their door in the back wall of their house and to have an access to the gali, which is part of Khasra No. 277 which is owned by Plaintiff and others.

72. The Suit of the Plaintiff Harvir has been rightly decreed against the Appellant and directions have been rightly given to the Appellant, to close the door in the back wall of the house, and has rightly restrained the Appellant Sumant and others, from opening any gate in the back wall of their house No. 1/1, which abuts the passage in question.

73. There is no merit in the present Appeal, which is hereby dismissed.

74. Pending Applications, if any, also stands disposed of.

JUDGE JULY 24, 2026 va/N