Chiranji Lal and anr. Vs. Om Parkash Sood - Court Judgment

Excerpt:
code of civil procedure - section 100--construction of the documents of title raises a question of law and can be gone into in the regular second appeal. misconstruction of such a document on which the claim of the appellants is based would be an error of law which this court is competent to correct in second appeal.;the essence of easement, is that it should exist over a property belonging not to the owner but to someone else. the whole of the property was owned at one time by shri chet singh. by partition he sold, first to the defendants a portion by sale-deed dated june 10, 1965. the other portion was sold on december 12, 1966 to the plaintiff. there can be no right of easement in favor of shri chet singh over the property sold to the defendants as shri chet. singh was owner of both the portions. a right of easement can be claimed and acquired against some other owner of the property and it cannot be acquired over the property owned by the same person. - - public witness 6/1 gives the description of the property sold to the defendants as well as to the plaintiff.s.s. chadha, j.(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 courtyard and parnala of the properly bearing no. 368/4, situated in subhash market, kotia mubarakpur, new delhi in favor 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, kotla 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 tenements/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 controverter 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 years 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.(4) on the pleadings of the parties the following issues were framed by the trial court :(1)whether plaintiff is the owner of the property described in para no. i of the plaint? opp. (2)whether the ventilator and the doors in dispute existed at the spot for the last several years? if so, its effect? opp. (3)whether there was a water out-let in portion 'a' on the point 'k' marked in the site plan for discharging the water of plaintiff roof? if so, its-effect?'opp. (4)whether there was any parnala in existence in the portion 'a' if so, its effect? opp. (5)whether plaintiff has locus-standi to file the suit? opp. (6)whether plaintiff is entitled to relief of injunction prayed for? opp. (7)relief. additional issue : whether plaintiff has a right of easement with respect to ventilator, door, out-let and parnala? if so, it effect? opp.(5) the material issues namely, issues no. 2, 3, 4 and additional issue were dealt with together by the trial court. on the appreciation of the evidence of the parties, it was held that now at the spot door, ventilator, parnala and drain are closed. it was also found that towards the side of the plaintiff there- was a door in existence and there was ventilator above the door also in existence. it was also proved that there was a drain in existence towards the side of the plaintiff. however, on the construction of the sale deed dated 10/6/1965, ext.d-1 it was held that there is no mention of any easement right having been retained by shri chet singh the original seller while selling the property to the defendants that there is mention of the fact that is the property sold to defendants, no body has any way, that door situated at the back will remain closed and that further if for any reason the door is used then the vendor shri chet singh would be liable to pay rs. 2,000.00 as damages. the trial court came to the conclusion that even though door, ventilator, parnala and drain were in existence since 1946 at the spot yet no rights were reserved by shri chet singh, the vendor when the property was sold to the defendants and thus no right could pass to the plaintiff who had purchased the property from the same man after he had sold the property to the defendants. the plea of the plaintiff for easement of necessity was negatived. the suit was dismissed.(6) the lower appellate court upheld the findings of the trial court as to the existence of the door, ventilator, drain and the right of passage through the court yeard from the year 1946 or the construction of the wall in front of the door and ventilator and stoppage of the use of the drain and passage by the defendants before the suit. the lower appellate court observed that a right of easement is attached to the dominant heritage and passes with the transfer of the title of that properly and that the mere fact that shri chet singh, the original owner of the property did not specifically mention in the sale deed ext. d-l that the property was sold to them subject to the rights of easement of the owner of the property, which was later sold by him to the plaintiff, did not make any difference one way or the other and that did not affect the rights of the plaintiff in the property purchased by him from shri chet singh later. the plaintiff was held having acquired the aforesaid rights of easement on the purchase of the property from shri chet singh. the sale deed ext. d-l was construed and it was held that the back door mentioned in the sale deed ext. d-l was the door of the shop on the back of the room sold to the defendants which door earlier used to open in the room sold to the defendants the appeal was accepted and the judgment and decree of the trial court was set aside and a decree for permanent injunction in favor of the plaintiff and against the defendants as prayed for by the plaintiff in para 18 of the plaint was granted.(7) at the out set an objection is raised by shri k.l. arya, the learned'. counsel for the respondent that it is not open to the high court while exercising jurisdiction conferred under section 100 of the code of civil procedure to re-appreciate the evidence and substitute its own conclusions in place of those entered by the lower courts. reliance is placed on 'e. mahboob saheb v. n. sabbamwan chowdhary and others, : [1982]2scr238.(8) in ipy view the construction of the documents of title raises a question of law and pan be gone into in the regular second appeal misconstruction of such a document on which the claim of the appellants is based would be an error of law which this court is competent to correct in second appeal. the document of title in favor of the defendants is the sale deed dated 10/6/1965, ext. d-l. the document of title in favor of the plaintiff is the sale deed dated 12/12/1966, ext. p-l. it is established from the two title deeds that the owner was shri chet singh, one and the same person to whom the whole of the property built khasra no. 627/12 belonged at one time. he sold one portion of the building measuring 70 square yards with super structure to the defendants by sale deed dated 10/6/1965 and another portion of it measuring 42 square yards on 12/12/1966 to the plaintiff. the plan ext. public witness 6/1 gives the description of the property sold to the defendants as well as to the plaintiff. it comprises of three rooms, two verandas and a court yard measuring 70 square yards which was sold to the defendants and the municipal number 368/4, kotla mubarakpur, new delhi. shri chet singh as public witness 1 admits in the,cross-exaipinafion that it was agreed to transfer two rooms, the verandah opposite to the room and the court yard to the defendants and that the court yard was the same which contained the common passage. the court yard thus was transferred and conveyed to the defendants under the title deed ext. d-l. the plaintiff purchased the property bearing no. 368/4 consisting of residential portion and shop by a later title deed, total area 42 square yards, as per plan attached with the sale deed. the sale deed is ext. p-l and the plan is ext. p-2. the site plan filed by the plaintiff along with the plaint is ext. public witness 6/1. both the plans give the directions. the main bazar road is on the north western side of the property sold to the plaintiff. tfa? plan ext. p-2 mentions several doors as existing in this property but there is no door or ventilator shown on the eastern side of this property. it is obvious that the door and ventilator were not in existence on the date of the execution of the sale deed ext. p-l and the preparation of plan ext. p-2.. thus, there could be no door, ventilator or passage in the court yard of the defendants in existence when the property was sold to the plaintiff. in the plan ext. public witness 6/1 filed along with the plaint of the suit a door and ventilator is shown but no such door is shown in the plan ext. p-2 attached to the sale deed ext. p-l.(9) apart from it the learned additional district judge has completely gone wrong in law. the essence of casement is that it should exist over a property belonging not to the owner but to some one else. the whole of the property was owned at one time by shri chet sigh. by partition he sold, first to the defendants a portion by sale deed dated 10/6/1965. the other portion was sold on 12/12/1966 to the plaintiff. there can be no right of easement in favor of shri chet singh over the property sold to the defendants as shri chet singh was owner of both the portions. a right of easement can be claimed and acquired against some other owner of the property and it cannot be acquired over the property owned by the same person. a full bench of the bombay high court held in 'rawhand v. vanmalidas, air 1946 bombay 266, held that to prove that a right was exercised by a person as an easement it is necessary to establish that the right was exercised by him on somebody else's property and not as an incident of his ownership of the property. there is consensus of judicial opinion on that aspect. in 'radha narain and others v. smt. chandra devi and another', : air1981delhi118 , it was held it was essential of the easement right that the burden of the enjoyment of the right must fall upon a tenement which is owned by a person different from the one who owns the dominant heritage. in law shri chet singh could acquire no right of easement over the property which was ultimately sold to the defendants and so no right could be transferred to the plaintiff.(10) it is unnecessary to deal with the other points urged by the counsel at the bar. in the result the appeal is allowed. the judgment and the decree of the first appellate court is hereby set aside. the suit of the plaintiff is dismissed. the parties are left to bear their own costs throughout.