Late Ranjit Singh Thr Lrs & Ors v. Karan Singh & Anr

RAJIV SAHAI ENDLAW, J. OCTOBER 15, 2018 "gsr"/pp

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 15th October, 2018. + LATE RANJIT SINGH THR LRS & ORS ..... Appellants Through: Mr. Ajit Dayal & Ms. Shabana Ahmed, Advs. Versus KARAN SINGH & ANR ..... Respondents Through: None. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW CM No.43380/2018 (for exemption) 1. Allowed, subject to just exceptions. 2. The application is disposed of. RSA 149/2018 & CM No.43379/2018 (for stay) 3. This Regular Second Appeal under Section 100 of the Code of Civil Procedure Code, 1908 is preferred against the judgment and decree [dated 17th July, 2018 in M.No.60320/2016 of the Court of Senior Civil Judge, Central] dismissing the First Appeal under Section 96 of the CPC preferred by the three appellants viz. Ranjit Singh, Rachna and Neha against the judgment and decree [dated 15th May, 2010 in Suit No.367/2005 of the Court of Civil Judge, North] allowing the suit filed by the two respondents / plaintiffs viz. Karan Singh and Kailash Wati @ Kailashpati against the appellants / defendants. 4. The respondents / plaintiffs instituted the suit, from which this second appeal arises, for permanent injunction restraining the appellants / defendants from interfering in the peaceful enjoyment by the respondents/plaintiffs of the portions owned by the respondents / plaintiffs of property No.2924, Peepal Mahadev, Hauz Qazi, Delhi, including by entering upon any part thereof for access from the first floor of the property to the second floor and to the terrace above the second floor of the property. 5. The suit was allowed and the appellants / defendants restrained from (a) interfering in the peaceful enjoyment of the portions owned by the respondents / plaintiffs including by entering upon any part thereof including toilet, bath on the first floor, stairs from first floor to second floor and the terrace of the second floor of the property bearing No.2924, Peepal Mahadev, Hauz Qazi, Delhi as shown in the site plan proved in the suit; and, (b) raising any construction above the appellants" / defendants" portion of the first floor giving opening of any door or window towards the terrace of second floor belonging to the respondents / plaintiffs. 6. The appellants / defendants preferred first appeal against the aforesaid judgment and decree and which was disposed of vide judgment dated 27th November, 2012. The First Appellate Court, while agreeing with all the findings of the Suit Court, however observed / held that since the respondents / plaintiffs in cross-examination had admitted the existence of a tin shed above the second floor and not disputed the possession thereof of the appellants / defendants and since there was no other access to the aforesaid tin shed except through the staircase from the first floor to the second floor, even though the said staircase had been sold by the predecessor of the appellants/defendants to the respondents / plaintiffs, it would amount to great injustice if the appellants / defendants would not be able to approach the tin shed through the staircase till the first floor; accordingly, it was held that the respondents / plaintiffs were bound to provide access to the appellants / defendants to the said tin shed through the staircase from the first floor to the second floor. It was reasoned that the inclusion of the said staircase in the sale deed in favour of the respondents / plaintiffs by the common predecessor did not divest the appellants / defendants from their right to visit the tin shed which was in existence since prior to execution of the sale deed in favour of the respondents / plaintiffs. 7. Aggrieved from the aforesaid portion of the judgment and decree dated 27th November, 2012 of the First Appellate Court, the respondents / plaintiffs preferred a Second Appeal being RSA No.1/2013 which came up before this Court on 4th January, 2013 when, after brief submissions, the counsel for the respondents / plaintiffs withdrew the appeal with liberty to approach the Firs