CHIRANJIT LAL Vs. OM PRAKASH SOOD

JUDGEMENT

(1.) This regular second appeal under Section 100 of the Code of Civil Procedure seeks reversal of the decree of the first appellate court and restoration of the decree of the trial court dismissing the suit of the plaintiff for mandatory injunction directing the appellants/defendants to remove the wal 'Y Z' and shown red in plan attached with the plaint and blockage in the enjoyment of door, right of way, right of air and light, out-let of water drain channel passing through the coartyeard and Pariiala of-the properiy bearing No. 368/4, situated in Subhash Market, Kotia Mubarakpur, New Delhi in favour of the plaintiff and against the defendants.

(2.) The plaintiff claims to be the owner of the property bearing No. 368/4, situated at Subhash Market, Kotia Mubarakpur, New Delhi. It is alleged that the said property formed part of one property comprising of Portions A, B, C and other adjoining properties belonging to Shri Chet Singh son of Chaudhary Udey Singh, resident of 1876, Kotia Mubarakpur, Delhi from whom the plaintiff had purchased the property in question marked 'A' in the site plan and the property marked 'B' & 'C' in the plan was purchased by the defendants. It is then pleaded that the construction of portions A, B, C is such that the face of the portions opens in the court yeard and the way of passage is common to all the aforesaid three portions A, B, C and the common passage is marked as 'H'. The properties B and C are alleged to be servient tenaments/properties and the portion 'A' was a dominent one having the right of way through the passage marked as 'H'. Similarly the right of easement is claimed with respect to the water out-let of the portion 'A', for the door and ventilators of portion 'A' and passage for the use and enjoyment of property marJeed 'A'. The plaintiff claims that these easement rights exist since the very construction of the property for the last more than 25 years and thus the portion 'A' i.e., the property in question has acquired the rights of easement comprising of right of passage, right of air and light through the ventilators, right to out-let of the water on the roofs and the property in question through the channel shown in the plan and connected with the Municipal Drain shown in the plan attached at point 'L'.

(3.) The defendants in their written statement controverted the allegations made in the plaint. It is pleaded that there is no opening of any alleged face of any alleged portion 'A' in any court yeard and there is no way or passage common to all the alleged portions. The allegations about the right of light through any door and ventilators or-the right of out-let of water are also denied. The specific plea taken by the defendants is that they are full owners of an area of 70 square yeards with construction including two rooms and the court yeard by transfer from Shri Chet Singh under a registered sale-deed dated 10/6/1965 much prior to any right of ownership acquired by the plaintiff under the sale-deed dated 12/12/1966 from Shri Chet Singh.