IN THE COURT OF SH. APOORV SARVARIA, CIVIL JUDGE14, CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI UID No. : 02401C0006141998 [CASE NUMBER] [ENTITY] W/o Sh. [ENTITY], R/o 526, Bhai Parmanand Colony, Delhi110009. PLAINTIFF VERSUS 1.
[ENTITY], Since Deceased Through his legal heirs 1(a) [ENTITY], W/o Late Sh. [ENTITY], 19, Bhai Parmanand Colony, Delhi110009.
1(b) [ENTITY] S/o Late Sh. [ENTITY], 19, Bhai Parmanand Colony, Delhi110009.
1(c) [ENTITY] W/o Sh. Satish Kumar Sidhana, 5/21, Swargashram, Opp. Mukherji Nagar (West), Delhi110009.
[CASE NUMBER] 1(d) [ENTITY], W/o Sh. [ENTITY], 24, Rajdhani Enclave, Near Britania Biscuit Factory, Lawrence Road, Delhi110034.
1(e) [ENTITY], M1/16, Moden Town, Delhi110009.
1(f) [ENTITY], M2/53, Model Town Delhi110009.
1(g) [ENTITY] S/o M/s. Bajaj T.C. Center, Moden Town, Samalkha, (Dist. Panipat, Haryana) 1(h) [ENTITY] 641, Model Town, Panipat (Haryana)
2. [ENTITY], R/o 487, Bhai Parmanand Colony, Delhi110009.
3. [ENTITY], R/o 525 (GF), Bhai Parmanand Colony, Delhi110009.
4. Mata Ram Ditti Charitable Trust, Having Registered Office at R/o 526, Bhai Parmanand Colony, Delhi110009. DEFENDANTS Date of institution of suit : 11.03.1993 Date of reserving Judgment : 10.09.2015 Date of pronouncement : 30.11.2015 SUIT FOR DECLARATION, RECOVERY OF ARREARS OF RENT AND PERPETUAL INJUNCTION Judgment
1. In the present suit, the plaintiff has prayed for the following reliefs:
"(a)Grant a decree for permanent injunction may please to be passed in favour of the plaintiff and against the defendants restraining them from carrying out any construction in the premises No. 525, Bhai Parmanand Colony, Delhi110009, which may obstruct or interfere with free, uninterrupted and unhindered premises No. 525, Bhai Parmanand Colony, Delhi 110009 and clear approach passages to the portions of plaintiff on first floor and second floor of the No. 525, Bhai Parmanad Colony, Delhi110009 and further restraining them from carrying out any construction in the front 10 feet wide passage on the first floor passage in the premises No. 525, Bhai Parmanad Colony, Delhi110009.
(ai) A decree of declaration, declaring that the transfer of the portion marked yellow and blue in the site plan, owned by the plaintiff, to the defendant No.4 is bad and defendant No.4 has no right, title or interest on the said portion, owned by the plaintiff.
(b) A decree for declaration declaring that plaintiff is landlady qua defendant No.3 of the portion one room 13' X 5'6' and adjoining from verandah 19' X 5'6' shown yellow and blue in the site plan on the ground floor of premises No. 525, Bhai Parmanad Colony, Delhi 110009 and presently in occupation of defendant No.3 as tenant.
(bi) Pass a decree for permanent injunction restraining the defendant Sh. [ENTITY] from paying the rent to the legal heirs of defendant No.1 or to the defendant No.4 or to third party and from parting with the possession of the premises to any one else and/or the other defendants and/or persons claiming under them and/or from carrying out any unauthorized construction in the suit premises.
(c) A decree for recovery of Rs.350/ in favour of the plaintiff and against the defendant No.1 as arrears of proportionate rent for February & March 1993 received by him from defendant No.3 for the portion of tenanted premises falling in plot No. 526 owned by the plaintiff.
(d) A decree of mandatory injunction directing the defendant No. 1 to 3 to regularly pay a sum of Rs. 175/ p.m to the plaintiff w.e.f. 01.04.1993 as aforesaid proportionate rent."
Plaintiff's case
2. It is stated in the plaint that the plaintiff is the owner and in occupation of property 21/2 Storeyed Kothi Built on the plot no. 526, measuring 80 sq. yards, in Bhai Parmanand Colony, Delhi110009. The defendant no.1 is the owner of the adjoining property as plot no. 525, Bhai Parmanand Colony, Delhi110009 and defendant no.2 allegedly claims himself to be the owner of the second floor terrace over the first floor of the building constructed over the said plot no.
525. The defendant no.3 is the tenant in a portion of the ground floor of the premises at plot no. 525, Bhai Parmanand Colony, Delhi 110009. The details of the existing property over the plots no. 525 & 526, Bhai Parmanand Colony, Delhi are shown in the site plan placed at Annexure "A" alongwith the plaint.
2. It is further stated that the semi constructed plot no. 525 measuring 80 sq. yards. at Bhai Parmanand Colony, Delhi110009 was allotted by DDA to defendant no.1 more than 25 years back. The adjacent semi constructed plot no. 526, Bhai Parmanand Colony, Delhi110009 was allotted by DDA to Sh. [ENTITY], son of the defendant no.1 almost at the same time. Therefore, two adjacent plot no. 525 & 526, Bhai Parmanand Colony, Delhi belonged to father and son and for all practical purposes were treated by them as one plot. The then existing construction on the said two plots was demolished and new construction for the ground floors of the two plots was raised somewhere in early seventies soon after the allotment of the same and it was so designed that the said premises were to be used as a composite unit. The first floor on the two plots were constructed somewhere in 197778 and second floor of plot no. 526 was constructed about 7 to 8 years back. Some portion of the building was rented out to different tenants from time to time whereas the defendant no.1, his son and other family members were in joint occupation of remaining portion. That is why one main staircase 3 feet wide was provided on the right hand side of plot no.525, Bhai Parmanand Colony, Delhi110009 for use of all the occupants. However, a small subservient stair case of 18' width was also provided upto first floor only on the left hand side of plot no. 526, Bhai Parmanand Colony, Delhi110009 through which for a hefty individual it is even difficult to climb easily. It is stated that the said staircase serves no useful purpose of a staircase. The main staircase is shown as green and subservient staircase is shown as red in the site plan. It is further stated that the main stairs up to second floor have been and are in use of all the occupants of the portions constructed on different floors of both the plots right from very beginning.
3. It is further stated that about 10' space on the first floor of plot no. 525 was left open without any portion separating it from adjoining first floor of plot no. 526 in order to provide a passage from the main stairs for the use of the first floor occupants of plot no. 526, Bhai Parmanand Colony, Delhi110009 which enables them to move in and out of their portion through the main stair case. Similarly, on the second floor, some portion was constructed on the plot no. 526 leaving a terrace in front, whereas, the entire second floor of plot no. 525 is lying as terrace without any construction. At second floor also, the partition wall separating the two terraces is constructed in such a way so as to provide about 5 feet wide approach passage from the main staircase going from first floor to second floor and meant for and being used by the occupants of second floor portion constructed on plot no. 526 right from the days of construction on each floor. Therefore, it is stated that the plaintiff has an established vested easement right to freely use the main staircase and the passage on the first and second floors as described above without any interference, interruption or objection from anybody.
4. It is further stated that as per the records of DDA, the plots no. 525 and 526 and the construction thereupon stood in the names of two separate individuals of the same family. Though the construction on different floors on plot no. 526 has been carried out as it ought to be carried out over a plot of 80 sq. yards, yet the room marked yellow measuring 10'X5'6' (shown blue) on the ground floor of the plot no. 526 is in the use of defendant no.3 residing on the ground floor of plot no. 525. This was so because virtually both the plots belonged to the same family.
5. It is further stated that after the death of aforesaid Sh. [ENTITY], the plot no. 526, Bhai Parmanand Colony, Delhi110009 and tenements constructed thereon were transferred and mutated by DDA on 06.12.1990 in their records in the name of Smt. [ENTITY], widow of Sh. [ENTITY].
6. It is further stated that the plaintiff was in occupation of the complete first floor portion of House no. 526, Bhai Parmanand Colony, Delhi 110009 as a tenant of Smt. [ENTITY] since 1986. Since then, plaintiff is stated to have been enjoying the easement right of uninterrupted use of the main staircase of passage/open spaces as mentioned above as a vested right. Smt. [ENTITY] with her family and defendant no.1 were in occupation of the premises at the ground floor and second floor plot no. 526, Bhai Parmanand Colony, Delhi110009 till 05.01.1993. However, in January 1993 the plaintiff purchased the said property from Smt. [ENTITY] after paying the full agreed consideration of Rs. 1,00,000/ (Rupees One Lakh Only) to her. Necessary documents were executed with respect to sale and transfer of the said property to the plaintiff and physical possession of the premises was handed over to the plaintiff except for the portion marked yellow and blue in the site plan of which the constructive possession was handed over to the plaintiff.
7. It is further stated that it was agreed by Smt. [ENTITY] and the defendant no.1 that tenancy for the portion shown yellow and blue in the site plan forming part of the plot no. 526, Bhai Parmanand Colony, Delhi110009 and in use and occupation of defendant no. 3 as tenant will be attorned by defendant no, 3 to the plaintiff and proportionate rent of Rs. 175/ per month for the said portion will be paid by defendant no.3 to the plaintiff w.e.f 05.11.1993. The defendant no.3 was accordingly informed by all the parties concerned i.e. Smt. [ENTITY], plaintiff and defendant no. 1. Defendant no. 3 expressed his consent to attorning the tenancy of the said portion shown yellow and blue in the site plan to the plantiff and pay the proportionate rent of Rs. 175/ per month to the plaintiff w.e.f 05.01.1993. Therefore, it is stated that w.e.f. 05.01.1993, the plaintiff had become the defacto and ostensible owner of complete plot no, 526, Bhai Parmanand Colony, Delhi110009 measuring 80 sq. yards and the complete structure of 2 1/2 storeyed building standing over the said plot. Besides this, the plaintiff had also acquired the vested easement right of beneficial, un interrupted and unhindered enjoyment of the main staircase from ground floor to second floor and approach passages of the first and second floors of building No.525 Bhai Parmanand Colony, Delhi 110009 for free access to the plaintiff and her family members, relations, quests etc. through the main staircase to her portion on the first and second floors. The plaintiff is stated to be enjoying and exercising all these rights for the last more than seven years, firstly as tenant in first floor portion upto 05.01.1993 and thereafter as the owner of the complete building over the plot no. 526, Bhai Parmanand Colony, Delhi110009.
8. It is further stated that however, the defendant no.3 [ENTITY] is liable to hand over the possession of the portions marked yellow and blue in the site plan of the property in question under his possession to the plaintiff in accordance with the [ACT]. As such, he is also liable to be restrained from parting with the possession of the portions marked yellow and blue, to anyone else. The plaintiff further submits that the defendant no.1 and 2 have no right, title or interest to claim the above said rent from the said [ENTITY] and / or take possession of any part of the property owned by the plaintiff. Accordingly, the above said tenant Sh. [ENTITY] is liable to be restrained from paying the rent to anybody except the plaintiff.
9. It is further stated that the defendant no.1 is interested in disposing of his plot no. 525, Bhai Parmanand Colony, Delhi110009 and the building constructed over it. As a first step defendant no.1 has already sold to defendant no.2, the roof/terrace rights of second floor i.e. above the first floor structure on plot no. 525, Bhai Parmanand Colony, Delhi110009. The defendant is now stated to be planning to carryout the construction on the second floor terrace/roof purchased by him. He has threatened the plaintiff to block the staircase approach of the plaintiff to second floor and also erect a partition wall in the front portion of the second floor terrace so as to block the approach passage of plaintiff to her second floor portion. On 20th February, 1993 the defendant no.2 is stated to have brought some masons to assess the construction when he was appraised of the total situation and advised to plan his construction in such a way so as not to obstruct the staircase and also to leave a passage of about 5 feet on the second floor just above and similar to the front passage on the first floor of premises over plot no. 525, Bhai Parmanand Colony, Delhi110009. However, defendant no. 2 has refused to pay heed to the request of the plaintiff and is adamant in constructing the premises which will block the plaintiff's use of the main stair case and approach passage to her portion of the premises, in violation of her legal and vested right of easement conveyed to her along with the property no. 526, Bhai Parmanand Colony, Delhi110009.
10.It is further stated that the portion marked yellow in the site plan consisting of room approx. 13'X 5'6' and adjoining partially covered verandah approx. 10X5'6' in from shown blue forming a part of the premises No. 526, Bhai Parmanand Colony, Delhi110009 is in the occupation of defendant no.3. The defendant no.3 therefore is a joint tenant of the plaintiff and defendant no.1 in respect of the premises under his occupation as detailed above. Having attorned the tenancy of the portion marked yellow and blue in site plan to the plaintiff, the defendants no. 1 and 3 have filed to honour their undertaking to pay the proportionate rent of R. 175/ per month to the plaintiff.
11. It is further stated that the Trust "Mata Ram Ditti Charitable Trust"
was admittedly formed subsequent to the filing of the written statement by the deceased defendant no. 1 against the provisions of law. It is submitted that neither the trust, which is claimed to have been set up after filing of the Written Statement by the deceased defendant no.1 has any locus standi and/or right title or interest to raise objections to the claim of the plaintiff. The defendant no.4 cannot claim any interest directly in the portion of the property owned by the plaintiff.
12.It is further stated by the plaintiff that it is an admitted case of the defendant that the alleged trust has come into existence only after filing of the Written Statement of the deceased defendant no.1 and not prior to the same. Hence, admittedly, the said transfer of the portion, owned by the plaintiff to the defendant no.4, by deceased defendant no.1 had been made, during the pendency of the present suit. Therefore, under the doctrine of "lis pendens", the alleged trust is bound by the illegal transfer by the defendant no.1, during the pendency of the suit. In view of the doctrine of lis pendens, defendant no. 4 is stated to have no right, title or interest, to claim and receive any rent from the defendant no.3 in respect of the portion owned by the plaintiff. The defendant no.4 further has no right, title or interest to take possession of any part of the property owned by the plaintiff. Accordingly, the defendant no.3 is liable to be restrained from paying the rent to anybody except the plaintiff.
Defendants' Case
13.Defendant No. 1(d) (e) & (h) and defendant No.4 have filed a joint written statement.
14. It is stated in their written statement that the suit filed by the plaintiff is not maintainable on the ground that the plaintiff is not the legal owner even according to her own allegations in the plaint. It is stated that the plaintiff claims herself to be the owner on the basis of an agreement to sell. It is submitted that the agreement to sell does not create any right or interest in the property according to [SECTION] of the Transfer of Property Act. Admittedly, no sale deed has been executed. Even otherwise, according to [ACT] a property valuing more than Rs. 100/ can be transferred only by a written agreement duly registered with the office of the subregistrar and if the document is not registered, in that event no transfer can be said to have taken place. Therefore the plaintiff has got no locus standi to file the present suit.
15.It is further stated that the plaint does not show any cause of action in favour of the plaintiff and against the defendants. It is further stated that the suit of the plaintiff is not valued properly.
16.It is further stated that the suit of the plaintiff even otherwise does not show any cause of action even according to the alleged agreement to sell which does not confer any legal right and the property mentioned therein is bearing no.526 whereas the plaintiff wants relief in respect of adjoining property bearing no. 525, Bhai Parmanand Colony, Delhi 110009. Therefore, the suit of the plaintiff on the face of it is not maintainable and thus the same is liable to be dismissed. It is stated that even otherwise, the alleged lady Smt. [ENTITY] was neither the owner nor had any interest, right or title in the property bearing no. 526, Bhai Parmanand Colony, Delhi110009 and the alleged lady Smt. [ENTITY] who herself had got no title or claim over the property, cannot confer better title on any person as per the provisions of law.
17. It is further stated that the plaintiff wants to grab the property of the defendant No.1. Defendant No.3 is a tenant of defendant No.1 and the tenancy premises have nothing to do with the plaintiff and the plaintiff has got no legal right, title or interest to the tenanted premises under the occupation and possession of Shri [ENTITY].
18. It if further stated that after the institution of suit and filing of the written statement, late Shri [ENTITY] defendant No.1 has formed a charitable trust namely Mata Ram Ditti Charitable Trust through a registered trust deed and the tenanted premises in question was given to the aforesaid Mata Ram Ditti Charitable Trust. The trust started receiving the rent from defendant No.3 in place of Shri [ENTITY] defendant No.1 after the the formation of trust and defendant No.3 started paying the rent to the aforesaid Mata Ram Ditti Charitable Trust after the formation of the trust and this fact is well known to the plaintiff and others.
19.It is further stated that the stairs case which is constructed/situated in tenement No. 525, Bhai Parmanand Colony, Delhi is only for the occupation and use for the occupants of tenement No. 525, and it has nothing to do with the occupiers of the property No. 526 or for any other occupier of any property. It is further stated that the occupier of tenement No. 526 have constructed their own stair case on the left hand side of plot No. 526 Bhai Parmanand Colony, Delhi according to their own convenience.
20.It is further stated that the tenanted premises/portion in occupation of defendant No.3 is owned by the defendants and Sri [ENTITY] has abandoned his claim in favour of the defendants because he has taken some other extra land from the defendants in Village Sahu, Near Mandi Ukhlana. It is further stated that the defendant no.1(d), (e) and
(h) have been declaring themselves as owner of the entire portion in occupation of defendant no.3 since the year 1971 and they are the owner under the provisions of law for more than twenty years.
21. It is denied that in January, 1993 the plaintiff purchased the said property from Smt. [ENTITY].
22.In fact the defendant no.3 had already shifted from the suit premises and handed over possession to his landlord.
23.It is denied that the defendants have threatened the plaintiff to block the staircase approach of the plaintiff to second floor or that they have threatened to erect a partition wall in the front portion of second floor terrace. It is further stated that even otherwise the plaintiff has no right on the staircase or the alleged passage.
24.Replication was filed by the plaintiff to the written statement of the defendants.
Issues
25.On 02.09.1997, the following issues were framed:
(1) Whether the plaintiff is entitled for the relief claimed? OPP (2) Relief.
Evidence led by the parties
26.Plaintiff produced herself as PW1 and she was examined in chief. PW 1 relied upon the documents Ex. PW1/1 to Ex. PW1/9. After which PW1 was crossexamined. Plaintiff produced PW2 Sh. [ENTITY], husband of plaintiff who was examined in chief. PW2 also relied upon documents Ex. PW1/8 and Ex. PW1/1 which were already relied by PW1. Thereafter, PW2 was crossexamined. After which plaintiff closed the evidence.
27. Defendant produced DW1 Sh. [ENTITY], husband of Defendant no. 1(d) and DW1 was examined in chief. He relied upon document Ex. DW1/1. Thereafter, DW1 was crossexamined. Defendant produced DW2 Sh. [ENTITY]. However, during his cross examination, the evidence of DW2 was struck off from the record vide order dated 26.02.2001.
28.This court has heard Ld. Advocate for plaintiff and perused the record.
Written arguments have been filed on behalf of defendants.
Findings
29.Issuewise findings of this court are as under:
Issue no. 1: Whether the plaintiff is entitled for the relief claimed? OPP
30.Onus to prove this issue is on the plaintiff. The plaintiff is seeking permanent injunction against the defendants restraining them from carrying out any construction in the premises No. 525, Bhai Parmanand Colony, Delhi110009, which may obstruct or interfere with free, uninterrupted and unhindered premises and clear approach passages to the portions of plaintiff on first floor and second floor of the No. 525, Bhai Parmanad Colony, Delhi110009 and further restraining them from carrying out any construction in the front 10 feet wide passage on the first floor and 5 feet front portion of second floor terrace just above first floor passage in the premises no. 525, Bhai Parmanand Colony, Delhi110009. The plaintiff is also seeking declaration that the transfer of the portion marked yellow and blue in the site plan which is allegedly owned by the plaintiff to the defendant no. 4 is bad and defendant no. 4 has no right, title or interest on the said portion since it is owned by the plaintiff. The plaintiff is also seeking declaration declaring that plaintiff is landlady qua defendant No.3 of the portion one room 13' X 5'6' and adjoining front verandah 19' X 5'6' shown yellow and blue in the site plan on the ground floor of premises No. 525, Bhai Parmanad Colony, Delhi110009 and presently in occupation of defendant No.3 as a tenant. The plaintiff is also seeking permanent injunction restraining the defendant Sh. [ENTITY] from paying the rent to the legal heirs of defendant No.1 or to the defendant No.4 or to third party and from parting with the possession of the premises to any one else and/or the other defendants and/or persons claiming under them and/or from carrying out any unauthorized construction in the suit property. The plaintiff is further seeking recovery of Rs.350/ against the defendant No.1 as arrears of proportionate rent for February & March 1993 received by him from defendant No.3 for the portion of tenanted premises falling in plot No. 526 owned by the plaintiff. Another relief is sought directing the defendants no. 1, 2 and 3 to regularly pay a sum of Rs. 175/ per month to the plaintiff w.e.f. 01.04.1993 as the proportionate rent.
31. For proving her case, PW1 Smt. [ENTITY] has deposed that she had occupied the first floor of the premises no. 526, Bhai Parmanand Colony, Delhi in 1986 as a tenant of Smt. [ENTITY] W/o Late Sh. [ENTITY] who was owner of the property. PW1 further deposed that she had purchased the total premises at 526, Bhai Parmanand Colony, Delhi for consideration of Rs. 1,00,000/. She deposed that she is using the staircase for her approach to the first floor as well as second floor premises since 1986. She further deposed that the construction of property no. 525 and property no. 526 was a composite construction as the same belonged to Sh. [ENTITY] and his father Sh. [ENTITY]. She further deposed that these two properties were alloted to the owners by the DDA about 25 years back in semi constructed condition and as the plots belonged to father and son, the semi constructed building was demolished and reconstructed as composite construction about 20 years back. She deposed that staircase on the right side of premises no. 525 had been used since then by all the occupants of premises no. 525 and 526 i.e. by all the tenants, their families as well as the owners etc. She deposed that there was only one small store constructed on the second floor of property no. 525 whereas one room and store was constructed on the second floor at property no. 526. She deposed that the aforesaid construction on the second floor of both the premises were already there before she came into the premises in 1986. She deposed that there is a passage of about 10 feet left on the first floor of property no. 526 for approach to first floor and similarly on the second floor there is a passage about 6 feet left for approach to the room at the second floor of 526. She deposed that from 19861993, she was in occupation of the first floor of property no. 526 as a tenant and the ground floor and second floor of the premises were in occupation of Smt. [ENTITY] and her family including her fatherinlaw Sh. [ENTITY]. She deposed that property no. 525 was in occupation of the tenants on the ground floor as well as first floor. She deposed that when the composite construction was done, a small portion of property no. 525 was used for composite construction of the room in 525 which extended into property no. 526 and is in occupation of Sh. [ENTITY], defendant no. 3. PW1 deposed that when she purchased the property no. 525, Smt. [ENTITY] and Sh. [ENTITY] had agreed that the portion of property no. 526 used as a part of property no. 525 will be vacated by Sh. [ENTITY] and handed over to her and Sh. [ENTITY] also agreed for the same. She deposed that it was further agreed that till then, Sh. [ENTITY] will pay portion of the rent to the plaintiff which was also earlier being paid to Sh. [ENTITY] and the amount of the portion was agreed as Rs. 175/ per month till the time the said portion of the room pertaining to property no. 526 is handed over back to her. PW1 further deposed that partition wall between two plots in front of verandah is also constructed in such a way that a small portion of her property no. 526 makes part of property no. 525. She deposed that it was agreed by all the parties that said portion of verandah will be handed over back to her. She further deposed that before her occupation as a tenant in 1986, the first floor of property no. 526 was in occupation of a tenant and the said tenant was also using the staircase in property no. 525 as passage and approach to the first floor as well as second floor of property no. 526. She further deposed that the user by the tenants, owners and their family members is for more than 20 years. She relied upon the site plan Ex. PW1/1 in which the main staircase is shown in green boundary.
32.PW1 further relied upon the request letter written by Smt. [ENTITY] to DDA Ex. PW1/2 and mutation letter dated 06.12.1990 Ex. PW1/3. She further relied upon the agreement to sell Ex. PW1/4, Affidavit Ex. PW1/5 and Will Ex. PW1/6, all three dated 05.01.1993 and receipt of Rs. 1,00,000/ Ex. PW1/7. She also relied upon General Power of Attorney executed in favour of her husband Sh. [ENTITY] Ex. PW1/8, indemnity bond Ex. PW1/9. She further deposed that since 1986, first as a tenant of the property and thereafter the owner of the property no. 526, she along with her family and other tenants of property no. 526 and 525 have been enjoying the easement rights of uninterrupted use of the staircase shown as green in the site plan from ground floor to the second floor as well as approach passage on the first floor and second floor of property no. 525, Bhai Parmanand Colony, Delhi through the main staircase to property no. 526.
33.During her crossexamination, PW1 admitted that initially the property no. 526 was owned by Sh. [ENTITY]. She also admitted that after the death of Sh. [ENTITY], his wife, son and daughters became the owner of property no. 526. She was given the suggestion during her crossexamination that son and daughters of Sh. [ENTITY] did not execute any document relating to property no. 526 in her favour. To this, PW1 deposed that documents relating to purchase have been filed in the file. She admitted that defendant no. 3 has not paid rent to her till date. She also admitted that Sh. [ENTITY] was inducted as tenant by Sh. [ENTITY] in respect of a portion under his occupation and tenancy. She also deposed that she did not know that after the death of Sh. [ENTITY], defendant no. 3 is paying rent to Mata Ramditti Charitable Trust. She also admitted that there is a board of Mata Ramditti Charitable Trust but the same has been affixed only in February, 1998 in property no. 525. She deposed that the trust was created after the death of Sh. [ENTITY].
34.PW2 Sh. [ENTITY] has deposed on the lines of deposition of PW1. During his crossexamination, PW2 deposed that he was referring to agreement to sell or other documents present in the file as sale deed. PW2 further deposed that Sh. [ENTITY] was survived by a son and daughters besides his wife.
35. From the above deposition, what can be inferred is that the plaintiff is claiming the right of ownership in the property no. 526, Bhai Parmanand Colony, Delhi110009 on the basis of agreement to sell dated 05.01.1993, affidavit, indemnity bond, Will, Receipt all dated 05.01.1993 executed by Smt. [ENTITY] in favour of the plaintiff. The plaintiff has also relied upon General Power of attorney executed by Smt. [ENTITY] in favour of Sh. [ENTITY], husband of plaintiff. Admittedly, there is no sale deed executed by Smt. [ENTITY] in favour of plaintiff. First of all, PW1 in her crossexamination has admitted that property no. 526 belonged to Sh. [ENTITY]. PW1 has admitted in her crossexamination that after the death of Sh. [ENTITY], he was survived by his wife Smt. [ENTITY], son and his daughters. However, the plaintiff is asserting her ownership rights on the property no. 526 only on the basis of documents executed by Smt. [ENTITY] who was admittedly not the sole owner of property no.
526. Therefore, even if the above documents are taken as conveying the title, they are not relevant for the whole property since other legal heirs of Sh. [ENTITY] had not executed these documents in favour of the plaintiff. At most, plaintiff can be said to be having any rights only with respect to the share of Smt. [ENTITY] in the property no.
526. In any case, even if the contention of the plaintiff that Smt. [ENTITY] was the sole owner of the property no. 526 is accepted, the documents i.e. Agreement to Sell, Receipt, Will, General Power of Attorney etc. do not convey title to the plaintiff. In [PRECEDENT], the Supreme Court has held as under:
"24. We therefore reiterate that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance. Transactions of the nature of `GPA sales' or `SA/GPA/WILL transfers' do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immoveable property. The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property. They cannot be recognized as deeds of title, except to the limited extent of [SECTION] of the [ACT]. Such transactions cannot be relied upon or made the basis for mutations in Municipal or Revenue Records. What is stated above will apply not only to deeds of conveyance in regard to freehold property but also to transfer of leasehold property. A lease can be validly transferred only under a registered Assignment of Lease. It is time that an end is put to the pernicious practice of SA/GPA/WILL transactions known as GPA sales."
(emphasis added)
36.In view of the law laid down by the Supreme Court, the Court finds that plaintiff cannot be held to be the owner of the property no. 526, Bhai Parmanand Colony, Delhi110009. The plaintiff has also not produced any document relating to the above transactions accepted upon by DDA or other developmental authorities or by the municipal or revenue authorities to effect mutation since those documents are not disturbed by the observations of the Supreme Court in Suraj Lamps. The reliefs relating to declaration as mentioned in clause (ai) and (b) of the prayer clause cannot be given to the plaintiff since she cannot be held to be owner to the property no. 526, Bhai Parmanand Colony, Delhi110009. Plaintiff can also not recover the rent from Sh. [ENTITY] as she cannot be held to be landlady of the portion occupied by Sh. [ENTITY] allegedly residing as tenant in property no. 526 on the first floor. Even in the documents relied upon by the plaintiffs i.e. agreement to sell, Will, receipt, GPA dated 05.01.1992, there is no mention about the portion occupied by Sh. [ENTITY] as tenant. Therefore, the relief mentioned in Para (bi), para (c) and para (d) of the prayer clause also cannot be granted to the plaintiff.
37. Now what is left to be decided is the relief of permanent injunction sought by the plaintiff against the defendants restraining them to carry out construction in property no. 525, Bhai Parmanand Colony, Delhi 110009, which may obstruct or interfere with free, uninterrupted and unhindered and clear approach passages to the portions of plaintiff on first floor and second floor of the property no. 525, Bhai Parmanad Colony, Delhi110009. This relief has been sought asserting easementary rights of the plaintiff.
38.First of all, plaintiff is asserting easementary rights by stating them to be exercised by the tenants/ lessee of the property no. 526. However, it is settled law that a tenant/lessee cannot acquire easementary rights on the land belonging to the landlord.
39.In [PRECEDENT] at page 778, it was observed as under:
"1. whether a lessee of land taken by him for building a house can for his own benefit acquire an easement of way or of flow of water over other land of his lessor. Though this question seems to have arisen a number of times in different High Courts of India, it is a question of first impression so far as this Court is concerned as it was left open in [PRECEDENT] .
2. For a proper determination of this question, it is necessary to refer a few provisions of the [ACT] (hereinafter called "the Act").
3. [SECTION] of the Act defines "easement" as "a right which the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done, in or upon, or in respect of, certain other land not his own".
4. [SECTION] of the Act specifies the persons who can acquire easements and provides that an easement can be acquired by the owner of an immovable property or, on his behalf, by any person in occupation of the same.
5. [SECTION] of the Act deals with the method of acquiring easements.
6. The words "owner or on his behalf by any person in occupation of the same" occurring in the aforementioned [SECTION] of the Act are very significant. They no doubt indicate that it is the owner of an immovable property or a person in occupation of such property who can acquire an easement but it is to be noted that the person in possession of immovable property like a lessee or a mortgagee who is not an owner thereof cannot acquire easement for his own benefit as in that event he would be violating the provisions of [SECTION] which clearly interdicts the acquisition of an easement by a lessee or a mortgagee for his own benefit. As in the instant case, the appellant was not an owner but only a lessee of the immovable property at the time he is alleged to have commenced using the adjacent land belonging to his landlord as a passage or as a means for discharging waste water, he cannot tack the period during which he was using the way or discharging the water on the other land of his landlord during the period of the lease to the period starting from the point when he commenced doing so as an owner. He could, of course, have started prescribing for such easement from February 18, 1970 when he purchased the right of reversion from his lessor. He cannot tack on the period of his nor enjoyment as a lessee to the period of enjoyment since 1970 when he purchased the right of reversion and became the absolute owner. This conclusion receives support from a number of decisions of the Indian High Courts. In [PRECEDENT]] a Full Bench of five Judges of Allahabad High Court held that a tenant cannot as against his landlord acquire by presumption an easement of way in favour of the land occupied by him as a tenant over the other land belonging to his landlord. The following observations made by [ENTITY], C.J. in that decision are worth quoting "I should point out that the tenant does not allege that his holding had at the time it was let to him the right of way in question as appurtenant to it, nor does he allege that the landlords granted any such right of way as appurtenant to the holding, nor again does he allege that the way claimed was what is known in law as a way of necessity; he merely alleges that he as the tenant in the occupation of his holding had by user obtained a right of way against his landlords, over their adjoining land. In my opinion it is contrary to common sense that any such right as is here alleged could possibly have been acquired. Such right could only have been acquired, if at all, in respect of the holding occupied by the plaintiff. That holding is the landlords' holding, and they, the landlords, are in possession of it through their tenant the plaintiff. The plaintiff is not an owner claiming a right in respect of a dominant tenement over another servant tenement; he is not claiming this right for or on behalf of his landlords; but he is claiming it adversely to them, although for and on behalf of their own property. The law, as conceive it to be, was very concisely put and illustrated by Lord [ENTITY] in his judgment in [PRECEDENT]] . That was a case in which a tenant was claiming a right of easement over his landlord's property as a right acquired by the tenants not granted by the landlord. Lord [ENTITY] said 'But it is not necessary to examine the user, for this reason, that if there is a person to whom the owner of two closes has demised one of them, and if in order to get at that one there is a necessity to cross the other close which was not demised, and if, in the course of years, from the circumstance that the landlord had no particular occasion to use the close for any other purposes, or that he was not strict in obliging his tenant to adhere strictly to the way, he had allowed the tenant for his convenience occasionally to make deposits of this kind on other parts of the close, still it is utterly impossible that by such a course of proceeding the tenant as against his landlord could acquire any easement whatever.' "
7. In [PRECEDENT] it was held that a tenant is always a tenant and never an owner of the land; he always derives his rights from the lessor; and as the latter cannot have the right of enjoyment of an easement as against himself, so neither can his tenant against him. To the similar effect is the decision of the Madras High Court in [PRECEDENT] where it was pointed out that an easement by prescription, as stated in [SECTION] of the Act, could only be acquired by persons who have been owners of immovable property and not mere lessees; and that if a lessee by his user acquires any easement over another's land, he acquires it for the benefit of the tenement he is holding; and as that holding belongs to his landlord, the benefit will go to the latter.
8. In [PRECEDENT] , relying on the observations of Lord [ENTITY] in [PRECEDENT]] to the effect that it would be inequitable for a lessee to prescribe against the landlord as regards the acquisition of a right of way or any other easement, it was held by a Full Bench of the Allahabad High Court that a lessee of the land which he has taken for building purposes is not in the position of an owner of immovable property under [SECTION] of the Act for the purpose of a right of way and hence such person cannot acquire the right of way by easement over other land owned by his lessor.
9. In Doma Matadin v. Ragho Rama Bhoyar [ILR 1947 Nag 254 :
1947 Nag LJ 18 : 229 IC 544] it was held that no easement by prescription can be acquired by a tenant against his landlord.
10. Again in [PRECEDENT] it was held that a tenant cannot acquire a prescriptive right of easement in land or well belonging to the landlord."
40.In view of the above observations, the plaintiff cannot claim easementary rights exercised by the tenants against the landlord.
41. Moreover, the plaintiff herself admits that there exists staircase at the left side of the property no. 526 which has approach from the ground floor to the first floor. Therefore, easementary rights to use the staircase shown in green colour in property no. 525 for approaching the first floor from the ground floor cannot be granted.
42.In [PRECEDENT] at page 698, it was held that if there exists any other way, there can be no easement of necessity.
43.As far as easementary rights asserted by the plaintiff on the alleged passage on the first floor of property no. 525 and access to the staircase in property no. 525 for approach to the second floor of the passage at property no. 525 leading to the room at second floor of property no. 526, the plaintiff has admittedly been using the aforesaid passage since the year 1986. The suit is filed in the year 1993. Therefore, at most the plaintiff has been able to show that she has been using the aforesaid passage on the first floor and second floor in the aforesaid property for the last seven years. However, easementary rights in terms of the [ACT] has to be established to be continuous use for the period of atleast twenty years in terms of [SECTION] of the [ACT]. There is oral testimony of the plaintiff that previous tenant was also using the same passage. However, the same has not been supported by any worthy proof nor any previous tenant was produced by the plaintiff to show such right of way being used by the previous tenants. In any case, a tenant cannot claim easementary rights against the landlord.
44.Even otherwise, the plaintiff has alleged herself to be the owner of property no. 526 and she has also admitted that there is a staircase at left hand side of property no. 526. Nothing could have stopped the plaintiff to extend its approach to the second floor of the property no.
526. The plaintiff has alleged that property no. 525 and 526 were used by Sh. [ENTITY] and his son Sh. [ENTITY] as a composite structure. That by itself is no ground for the plaintiff to come to the court for retaining such composite structure when by her own allegations property no. 526 has been owned by her and property no. 525 is being used by some other occupants. Allowing the plaintiff to use the passage existing on property of another without any proof of the user of more than 20 years will go against equity. In view of these reasons, the Court finds that the plaintiff is not entitled to the relief of permanent injunction as sought in clause (a) of the prayer clause.
45.In view of above mentioned reasons, the Court finds that plaintiff is not entitled to any relief as prayed. Issue is decided against the plaintiff.
Issue no. 2: Relief
46.In view of the findings of this Court on issue no. 1, the plaintiff is not entitled to any relief as prayed. Suit is dismissed. No order as to costs. Decree sheet be prepared. File be consigned to Record Room. Judgment be uploaded to www.delhidistrictcourts.nic.in Announced in the Open Court [ENTITY], on the day 30th November, 2015 Civil Judge14, Central, Tis Hazari Courts, Delhi