JUDGMENT
M.K. Sharma, J.
(1) The appellants are the Legal Representatives of the plaintiff and on the death of the original plaintiff they have been substituted in place of the deceased plaintiff. The appellants have filed this appeal against the order dated 2.2.1995 passed by the learned Single Judge vacating partially the ad interim injunction in respect of the lawn and the side land attached to the Annexe of 6, Friends Colony(West), New Delhi.
(2) The original plaintiff, Shri D.N.Ahluwalia, who was the predecessor-in-interest of the present appellants filed a suit being Suit No, 2348/1985 in this court seeking for a declaration to the effect that the plaintiff had become the absolute owner of annexe of Kothi No.6, Friends Colony(West), New Delhi, together with the case mentary rights, common passages etc. as shown in red in the plan annexed to the plaint by virtue of a Will dated 28.8.1984 executed by Smt. Rajeshwari in favour of the plaintiff and in the alternative by adverse possession being in peaceful, open, continuous, uninterrupted possession and enjoyment of the said annexe, as owner thereof for a period of more than 12 years.
(3) During the pendency of the suit, an application was filed under Order 39 Rule I & 2 seeking an order of injunction against the defendants restraining them from dispossessing the plaintiff from the annexe in question and land appurtenant thereto. The learned Single Judge granted an ad interim injunction in favour of the plaintiff against the defendants restraining the latter from alienating or transferring the annexe in question and further directed that status quo regarding possession in respect of the annexe as also in respect of the wall should be maintained. Subsequently the learned Single Judge took up for consideration the matter relating to grant of ad interim injunction and the issue with regard to making the same absolute.
(4) After hearing the counsel for the parties, the learned Single Judge by order dated 2.2.1995 directed that the plaintiff should not be dispossessed from the land underneath the annexe along with the super-structure built thereon. However, the learned Single Judge held that the injunction against the dispossession of the plaintiff from the land appurtenant to the annexe could not be granted. The learned Single Judge while passing the order further held that as regards the passage, the suggestion of the learned counsel to the effect that the defendant would open a back door entrance for the plaintiff which road would be fully carpeted from the gate to be built till the main side road deserved consideration and that the same could be considered after the defendant makes such a gate for ingress and egress of the plaintiff and that till such time the plaintiff cannot be stopped from using the main entrance for ingress and egress. Being aggrieved by the aforesaid order passed by the learned Single Judge vacating the ad interim injunction granted earlier in favour of the plaintiff holding that no injunction could be granted in favour of the plaintiff against his dispossession from the land appurtenant to the annexe and the observations made with regard to the passage, the present appeal has been filed by the legal representatives of the original plaintiff.
(5) Subsequent to the filing of the appeal and after hearing the counsel for the parties, this court came to the view that a Local Commissioner should be appointed to visit the property, prepare a plan and also take photographs of the annexe together with the land contiguous to it so that the court could get an idea of the topography of the property. It was, therefore, observed by this court on 13.11.1995 that the Commissioner would find out whether any new construction had been made by the respondents or on their behalf shutting out air and light to the annexe and the Commissioner would also suggest the more convenient or the shortest way of approaching any of the roads from the annexe for the purpose of convenient enjoyment of the Annexe, it was observed that while doing so, the Commissioner would keep in mind the bye-laws of the Municipal Corporation of Delhi which required a particular distance to be maintained between one building and another building.
(6) In pursuance of the aforesaid order passed by this court Mr. Naveen Malhotra, Advocate who was appointed as the Local Commissioner submitted a report in respect of the topography of the portion of the land in dispute and also incorporating certain suggestions in respect of providing access to the annexe under occupation of the appellants A few photographs taken at the site of the surroundings of the property in dispute are annexed along with the Site Plan. A copy of the said report along with the annexures referred thereto is on record.
(7) We have heard Mr. J.K. Seth appearing for the appellants and Mr. V.P. Singh appearing for the respondents who have taken us minutely through the impugned order passed by the learned Single Judge as also through the report submitted by the Local Commissioner appointed by this court and acquainted us with the Site Plan annexed thereto. The learned Single Judge although came to the conclusion that the plaintiff failed to produce any prima facie evidence to the fact that he was in continuous, uninterrupted possession and peaceful enjoyment of the land appurtenant to the annexe for the last 12 years or that the ownership of this vested on him, yet he was pleased to grant an injunction in favour of the plaintiff against his dispossession from the land underneath the annexe along with the super-structure built thereon while refusing to grant injunction of his dispossession from the land appurtenant to the annexe. The learned Single Judge also observed that a passage for the ingress and egress to the annexe in the possession of the plaintiff was required to be provided and also for that purpose took note of the suggestion of the learned counsel appearing for the defendant that the defendant would open a back door entrance for the plaintiff to the road which would be fully carpeted from the gate to be built till the main side road and till the same was done, the plaintiff could not be stopped from using the main entrance for ingress and egress.
(8) The Local Commissioner appointed by this Court after local inspection of the site as directed by this court submitted a report. During the course of his inspection, the Commissioner found that an Iron gate for going to the rear side towards the waste land, railway lines etc. had been provided by the railways. He further found that the said passage through the waste land and the railway land cannot be used by the plaintiff as a matter of right by him as the said land is railway land and that the same is also not a proper approach for entry into the annexe. The aforesaid findings of the Local Commissioner recorded in his report submitted after local inspection of the site belies the fact that a passage through the same road cannot be curved out for the purpose of ingress and egress of the plaintiff from the annexe. In terms of the direction issued by this court to the Local Commissioner as to whether any new construction have been made by the respondents or on their behalf shutting out the air and light to the annexe, the Local Commissioner has recorded in his report that the newly constructed walls and jallis have barricaded the annexe from all sides and that the said construction has also interrupted the light and free flow of air into the annexe. It is further recorded that there is no access left for the inhabitants of the annexe to go to the rear side of the annexe where the water coolers of the appellants are installed. As desired by this court, the Local Commissioner has also recorded certain suggestions in his report for providing access to the appellant to reach the annexe which is under their occupation. It has been recorded by him that from the. common open passage, which is 39 feet and at certain points even more, a 5 feet to 6 feet passage could be provided to the appellants which could be done by raising the brick wall or a perforated jaili. Construction of such a wall or jaili would also protect the privacy of the inhabitants of annexe and main building, besides being necessary to protect, the inhabitants of the annexe from the two ferocious dogs maintained by the inhabitants of the main building, who according to the counsel for the appellants mauled the child of the cook serving in the main building, a few months back. The doors constructed at different points as shown in the map at points, ‘G,X,Y and Z’ and the jallis which have barricaded the annexe can be removed to provide access, air and light to the inhabitants of the annexe. The aforesaid suggestions have been made as it appears keeping in mind the building bye laws as well.
(9) The aforesaid suggestions made by the Local Commissioner in his report submitted to this court on 4.1.1996 appear to us to be sound and reasonable and, in our opinion, would protect the interest of both the parties during the pendency of the suit. We, therefore, accept the aforesaid suggestions made in the report of the Local Commissioner and we direct that a 5 feet to 6 feet passage be provided to the appellants as shown in the map annexed to the report from the main gate to the annexe after raising a brick wall or a perforated jaili in order to protect the privacy of the inhabitants of the annexe and main building. It is further directed that the doors at points ‘G,X.Y and Z’ of the aforesaid map and the jallis which have barricaded the annexe be removed to provide access, air and light to the inhabitants of the annexe.
(10) With the aforesaid observations and directions this appeal is allowed to the extent indicated above, but without any costs. The Plan drawn by the Local Commissioner shall also form part of this order. The aforesaid arrangement as directed be rein would continue to operate till the disposal of the suit pending before the learned Single Judge.