Gulshan Singh v. Hari Chand (Deceased) Thr Lrs & Ors

RAJIV SAHAI ENDLAW, J. AUGUST 17, 2018 'bs'..

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 17th August, 2018 + RSA 282/2017 GULSHAN SINGH ..... Appellant Through: Mr. S.C. Singhal, Adv. Versus HARI CHAND (DECEASED) THROUGH LRS & ORS ..... Respondents Through: Mr. Arun K. Yadav, Adv. for LRs of R-1. AND + RSA 63/2018 & CMs No.15472/2018 (for condonation of 45 days delay in filing), 15473/2018 (for stay) & 15475/2018 (for condonation of 37 days delay in re-filing the appeal) GULSHAN SINGH ..... Appellant Through: Mr. S.C. Singhal, Adv. Versus MUNICIPAL CORPORATION OF DELHI & ANR... Respondents Through: Mr. Arun K. Yadav, Adv. for LRs of R-1. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. RSA No.282/2017 impugns the judgment [dated 14th September, 2017 in CIS-RCA DJ-8743-2016 (CNR-DLST01-000170-2013) of the Court of District Judge (South)] of dismissal as abated of the First Appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) preferred by the appellant against the judgment and decree [dated 31st October, 2013 in CS No.176/2011 (Unique Case ID No.02406C0074232001) of the Court of Senior Civil Judge] of dismissal of the suit filed by the appellant/plaintiff against the two respondents/defendants. 2. RSA No.282/2017 came up first before this Court on 11th December, 2017, when, though without indicating the substantial question of law if any arising, notice thereof was ordered to be issued and Trial Court record requisitioned. 3. RSA No.63/2018 has been preferred by the appellant against the judgment and decree [also dated 14th September, 2017 in CIS-RCA DJ-8745- 2016 (CNR-DLST 01-000175-2013) of the Court of District Judge (South)] of dismissal on merits of the First Appeal under Section 96 of the CPC preferred by the appellant against the judgment and decree [dated 31st October, 2013 in CS No.188/2011 (Unique Case ID No.02403C0995592008) of the Court of Senior Civil Judge (South)] partly allowing the suit of the respondent No.2/plaintiff Anandi Devi against the appellant/plaintiff and the respondent No.1/defendant Municipal Corporation of Delhi (MCD). 4. RSA No.63/2018 came up first before this Court on 20th April, 2018, when it was ordered to be listed along with RSA No.282/2017. 5. Both the appeals came up yesterday before this Court when the counsels were heard on merits and certain proposals for amicable settlement were also made and the further hearing was adjourned to today. Considering the nature of the controversy, the need yesterday to frame substantial question of law was not felt and both the counsels agreed that if the matters were not amicably settled, this Court may today, in the order/judgment, while deciding the appeals, also frame substantial question of law. 6. Today, it is informed by the counsel for the respondents Hari Chand and Anandi Devi that no compromise is possible. The counsels have been further heard. 7. The dispute subject matter of both the suits from which these two Regular Second Appeals arise is with respect to entitlement of Hari Chand/Anandi Devi to open windows in a passage which according to the appellant Gulshan Singh is the private passage in his property and according to Hari Chand/Anandi Devi is common to the property of the appellant Gulshan Singh and the adjoining property of Hari Chand/Anandi Devi. It is the contention of the counsel for Hari Chand/Anandi Devi that the said passage is for the benefit of two other properties also. 8. RSA No.282/2017 arises from a suit filed by the appellant Gulshan Singh to restrain Hari Chand from opening the windows of his property in the said passage. The said appeal is hereafter referred to as Hari Chand Appeal. 9. RSA No.63/2018 arises from a suit filed by Anandi Devi, for mandatory injunction directing Gulshan Singh to remove the obstructions put by him to the opening of the windows in the property of Anandi Devi, towards the said passage. The said appeal is hereafter referred to as Anandi Devi Appeal. 10. Anandi Devi is the wife of Hari Chand. 11. The Suit Cou