DELHI DEVELOPMENT AUTHORITY Vs. RAVI BROTHERS

JUDGEMENT

(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? (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.