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2002 DIGILAW 1609 (DEL)

DELHI DEVELOPMENT AUTHORITY v. RAVI BROTHERS

2002-10-10

S.K.MAHAJAN

body2002
S. K. MAHAJAN, J. ( 1 ) RESPONDENT no. 1 alleges to be a tenant of Respondent no. 2 in the property known as Dhampur House Kashmere Gate, Delhi since 1935. There is a basement in the said property. Alleging that the said basement opens only towards Bela Road through a gate in the City Wall, respondent no. l filed suit for injunction restraining the appellant from closing the said date. It was alleged that the land in front of the gate towards Ring road was used as a passage by the owners and occupiers of the property under the tenancy of respondent no. 1 for the last about 107 years and the plaintiff/respondent no. l had been consistently using said passage through the gate. It was submitted that respondents 1 and 2 had a right of easement of passage in respect of the land in front of the gate. Appellant had constructed a wall in front of the gate so as not to permit any person to use the gate or the land as a passage and existence of the said wall was alleged to be blockage of the said right to passage. Respondent no. l, therefore, also sought a decree of mandatory injunction directing the appellant to remove the above said wall. ( 2 ) THE suit was contested by the appellant. It was submitted in the written statement that the alleged door on the eastern side of dhampur House was not a passage but was only a ventilator and that the same was never used for ingress and egress. It was also alleged by the appellant that respondent no. 1 had another passage from the western side of the building and as the gate in the city wall was being misused, the appellant had constructed a wall in front of the same. The appellant denied that there was any right of easement in favour of respondent no. l. It was also alleged in the written statement by the appellant that since the Union of India was the owner of the land, it was a necessary party to the suit and UOI having not been impleaded as a party, the suit was liable to be dismissed. On the pleadings of the parties, the trial court framed the following issues:- (1) Whether the suit is bad for nonjoinder of necessary parties? On the pleadings of the parties, the trial court framed the following issues:- (1) Whether the suit is bad for nonjoinder of necessary parties? (2) Whether there is any right of easement in favour of the plaintiff as alleged? (3) Relief. ( 3 ) AFTER the trial of the suit, the learned Trial court held that to acquire the right of easement under the provisions of the Indian easement Act, a person must have enjoyed without interruption right for a period of 20 years. However, in case the property belonged to the Government, the uninterrupted user by such person should be 30 years instead of 20 years. During the course of trial, the appellant had placed on record the judgment in a suit filed by the appellant against respondent no. 1 in the Court of the Senior sub-Judge whereby the Court had passed a decree in favour of the Governor General in council (predecessor in interest of appellant) for possession of the land in front of the gates and also a decree of mandatory injunction directing the defendants in that suit, including respondents 1 and 2 herein, to close the five gates which also included the gate in question. The Trial Court was, therefore, of the opinion that since in 1947, the UOI had filed a suit for a direction to close the gate, even assuming that respondent no. l was using the gate since 1935, which was the case set up in the plaint and about which some evidence was led by respondent no. l, his alleged uninterrupted user was interrupted by the filing of the suit in 1947. The Trial Court was of the view that since respondent no. l was not able to prove that he had been suing the gate uninterruptedly for 30 years, he had not acquired any easementary rights in the gate or on the land outside the gate and consequently he was not entitled to any relief in the suit. The suit was, accordingly, dismissed by the Trial Court. ( 4 ) THE judgment and decree of the Trial court dismissing the suit of the plaintiff/ respondent no. l was challenged by way of appeal before the Additional District Judge. The suit was, accordingly, dismissed by the Trial Court. ( 4 ) THE judgment and decree of the Trial court dismissing the suit of the plaintiff/ respondent no. l was challenged by way of appeal before the Additional District Judge. By the impugned judgment passed in appeal, the Learned Additional District Judge allowed the appeal and set aside the judgment and decree of the Trial Court and passed a decree in favour of respondent no. 2. The decree of the First Appellate Court is now challenged by the appellant by way of this appeal. ( 5 ) WHILE admitting the appeal, this Court observed that the substantial questions of law that required determination in this appeal were those as had been raised by the appellant in grounds 13 (1) (b), (c) and (d ). All these questions of law relate to Issue No. 2. Entire case, therefore, depends upon the decision on this Issue. The substantial questions of law has had been raised by the appellant in these grounds are as under:- (b) The interpretation of Section 15 of the Easement Act is involved in view of the fact that the learned First Appellate court wholly misdirected himself by holding that the uninterrupted use with respect to the Nazul land which belongs to the Union of India and has been given to the Delhi Development authority only for management would require 20 years and not 30 years. In accordance with section 15 of the easement Act, the ownership of the land having duly vested in the Union of india but given to the DDA for management as an Agent, the land continues to be owned by the Union of india and as such it has been wrongly interpreted that only 20 years use was sufficient to establish the right of easement and not 30 years. (c) Another substantial question of law which requires consideration is what would be the effect if the decree for injunction passed in favour of UOI directing the closure of the gate was not executed. (d) Whether the non-execution of a decree would in any manner amount to an uninterrupted and peaceful use and would create an assement right in favour of respondent no. 1. (d) Whether the non-execution of a decree would in any manner amount to an uninterrupted and peaceful use and would create an assement right in favour of respondent no. 1. ( 6 ) IT is not in dispute that the Governor general in Council and the Delhi Improvement trust who are the predecessor in interest of the appellant had filed a suit for possession and mandatory injunction against respondents 1 and 2. It is also not in dispute that in that suit filed in 1947, the predecessor in interest of the appellants had stated that the defendants including respondents 1 and 2 had encroached upon the land about a year back and inspite of warning and registered notices they had refused to surrender the land or close the doors constructed by them. By way of the decree passed by the Court in that suit, respondents 1 and 2 were directed to close 5 doors which included the door in question. An appeal was filed against the judgment of the senior sub- judge by respondent no. 2. The Punjab and haryana High Court allowed the appeal and that judgment has now been reported as kanwar A. Ahmed Khan and another Versus union of India 1954 PLR 458. It was held by the High Court that respondents 1 and 2 were continuously using the gate. ( 7 ) THIS judgment was produced before the first Appellate Court and dealing with the same the Court has held that since the decree passed by the Court in suit filed by the predecessor in interest of the appellant was not executed, the same would have no effect on the period during which the appellant would have acquired easementary rights over the land and the gate. The Court held that "true that a suit had been filed and decreed but the important question is whether after decree had been granted in the earlier suit, the said decree was ever executed. It was open to defendants 1 and 2 (the appellants herein) to execute the decree within the period prescribed by law and close the said gate which was not done admittedly until february, 1973. It was first time between 16th February 1973 and 18th February, 1973, that the defendants 1 and 2 have admitted to have closed the door and that was long after the period of limitation for execution of the earlier decree had expired. It was first time between 16th February 1973 and 18th February, 1973, that the defendants 1 and 2 have admitted to have closed the door and that was long after the period of limitation for execution of the earlier decree had expired. Until this earlier decree was executed, mere filing of the suit and even decretal of the suit could not tantamount to an obstruction in the circumstances of this case. " In my view this finding of the learned First Appellant is not correct. ( 8 ) UNDER Section 15 of the Indian Easement act, 1882 a person acquires a right of easement by prescription where the right of way or any other easement has been peaceably and openly enjoyed by any person claiming title thereto, as an easement, and as of right, without interruption, and for 20 years. However, when the property over which the right is claimed under Section 15 belongs to the Government, the period of 20 year is substituted by 30 years. A reading of section 15 of the Easement Act makes it clear that to acquire the easementary right by prescription the person who acquires such right must have been enjoying the same peaceably and openly without interruption for a period of 30 years. When suit was filed by the predecessor in interest of the appellant in 1947, it was within the period of 12 years from the date since when respondents 1 and 2 were claiming easementary rights. Filing of the suit by the Government in 1947, in my view, is clearly an interruption in the right of respondents 1 and 2 in their allegedly peaceably and openly enjoying the alleged easementary right. Since the predecessors in interest of the appellant had caused interruption and had even filed suit against the respondents challenging their right to use the said gate, in my opinion, respondents could not be said to have acquired the easementary right by prescription under the provisions of the Indian Easements Act. There is thus a clear error in the finding of the First appellate Court where it is held that since the decree was not executed the same would have no effect on the claim of the respondents to have acquired easementary rights over the said gate. Execution of the decree has no meaning insofar as the easementary rights are concerned. There is thus a clear error in the finding of the First appellate Court where it is held that since the decree was not executed the same would have no effect on the claim of the respondents to have acquired easementary rights over the said gate. Execution of the decree has no meaning insofar as the easementary rights are concerned. Merely because the decree passed in favour of the appellants was not executed will not mean that there was no interruption in the peaceful and open enjoyment of the alleged easement by the respondent. Interruption in the acquisition of easementary rights was caused immediately the suit was. filed by the predecessor in interest of the appellant and there was thus no question of the respondents acquiring such easement. I am, therefore, clearly of the view that respondents 1 and 2 had not acquired any easementary right over the said gate ( 9 ) ISSUE no. 2 is, therefore, decided against the respondents. ( 10 ) SINCE Issue No. 2 has been decided against the respondents, they would not be entitled to any relief in the suit filed by them. Appeal is, accordingly, allowed, judgment of the First appellate Court is set aside and the suit of respondent no. 1 is dismissed. In the facts of this case parties are left to bear their own costs throughout.