Dilsukh Ram vs Municipal Corporation of Delhi

S.B. Wad, J.

(1) This appeal is filed against the judgment and order of the Senior Sub Judge dated April 14, 1976 reversing the judgment and decree passed by the Sub Judge in Suit No. 459/72. The learned Sub Judge has granted permanent injunction in favor of the appellant and against the Municipal Corporation restraining the Municipal Corporation from constructing a wall in Khasra No. 74 of village Kureni so as to leave a passage of 10 sq. ft. for the appellant to join phirni from Khasra No.74. The trial Court had found that the appellant has an easement of necessity as he was passing through Khasra Nos. 73 and 74 belonging to the Municipal Corporation for a long period. In the impugned judgment the Senior Sub Judge found that the appellant has suppressed the fact that there was already a small road on the northern side of khasra No. 76 which could be utilised by the appellant for taking out his cattle and bullock cart. The learned Senior Sub Judge also found that there was no pleading or evidence to show that the easement was an easement of necessity.

(2) The learned Counsel for the appellant has tried to submit that the learned Senior Sub-Judge has not considered the report of the local commissioner, the site plan and the evidence. There is no merit in this submission. This appeal is the second appeal with the limited scope for this Court to interfere. Once the learned Senior Sub Judge found that there was no easement of necessity in law and that the appellant has suppressed the fact of the road from the northern side there was hardly any option left for interfering with the impugned judgment and order. Even if the report of the local commissioner is to be seen it is quite clear that the width of the road on the northern side is sufficient for the bullock cart to pass. Counsel for the appellant fairly concedes that there was a concealment of fact of the street on the northern side of Khasra No. 76. There is no ground for interfering with the impugned judgment. The appeal is dismissed with no orders as to costs. Appeal dismissed.