SANTARA DEVI Vs. LATISH KUMAR

JUDGEMENT

(1.) This Regular Second Appeal under section 100 of the Code of Civil Procedure, 1908 (CPC) is filed by the defendant no.1 in the suit, Smt. Santara Devi, impugning the concurrent judgments of the courts below; of the Trial Court dated 20.5.2014 and the First Appellate Court dated 22.7.2015; by which the suit for injunction filed by the respondent no.1/plaintiff/Sh. Latish Kumar has been decreed and the appellant/defendant no.1 has been restrained from blocking the passage shown in yellow colour in the site plan Ex.PW1/1 in the property bearing No.55, Village, Begumpur, Malviya Nagar, New Delhi. Appellant/defendant no.1 has also been restrained from making any construction in the area which the trial court has found to be a common passage.

(2.) The issue between the parties is whether a particular area of the property No.55, Village Begumpur, Malviya Nagar, New Delhi is a common area or whether this area is under an exclusive ownership of the appellant/defendant no.1. Appellant/defendant no.1 is the sister-in-law of the respondent no.1/plaintiff inasmuch as the late husband of appellant/defendant no.1 was the real brother of the respondent no.1/plaintiff.

(3.) In order to appreciate the disputes, and so that there is a bird's eye view of the disputes the site plan Ex.PW1/1 filed and proved by the respondent no.1/plaintiff is scanned below. The red colour portion is admittedly of the respondent no.1/plaintiff. The green coloured portion is admittedly of the appellant/defendant no.1. The dispute is whether the yellow coloured portion is a common area of the appellant/defendant no.1 and respondent no.1/plaintiff or whether this yellow coloured area is exclusively owned by the appellant/defendant no.1. Respondent no.1/plaintiff pleads that yellow coloured portion is a common area, and therefore, no construction can be made by the appellant/defendant no.1 on the same including a staircase, whereas the appellant/defendant no.1 pleads that the yellow coloured portion falls in her share as it fell to the share of her late husband on division and hence the exclusive ownership is now with the appellant/defendant no.1. The scan site plan Ex.PW1/1 is as under:-