Bhim Sen vs Ashok Chhabra

Rajiv Narain Raina, J.—A finding of fact has been returned by the trial court and affirmed by the learned Additional District Judge, Rohtak in the judgment and decree dated January 31, 2015 that the disputed staircase was for common use of the plaintiff and the defendant. The defendant is in second appeal against this finding of fact. The plaintiff and the defendant are brothers who bought separately two adjacent shops from the same seller.

The facts in brief are: The plaintiff purchased his shop vide registered sale deed dated June 11, 1981. On the same day, the defendant purchased the shop adjacent from the common vendor vide registered sale deed of even date. There is only one staircase which serves the first floor of the two shops. Since the two shops were owned by the same person, namely, Kishan Chand he had much before the sale constructed the staircase on the western side of the shop purchased by the plaintiff. The eastern wall of the defendant''s shop is joint. The shop is 3" wide excluding the walls. This staircase runs straight to the roof of the second floor. Before the dispute started the staircase had been used in common access before the filing of the suit by both the parties to the first and second floors above the shops which have common roof.

The plaintiff alleges that the defendant had demolished the staircase without consent up to the ''chobara'' excluding one visible step and also that building material was still lying on the spot when the suit was instituted on February 28, 2002. The plaintiff alleged that there was a 2 inch wide wall between the shop of the defendant and the staircase, i.e., the dividing wall of the defendant which had been demolished. The defendant by demolishing the staircase wanted to extend his shop up to the western wall of the staircase whereby enlarging floor space of his shop. The width of the shop of the defendant was 6''5-1/2 inches. In this manner, plaintiff says that the defendant intended to extend his shop up to the western wall of the staircase by adding an area of 3 feet comprising the staircase + 2'' wide eastern wall of the staircase which stood already illegally demolished by the defendant. The defendant is alleged to have encroached upon 5'' wide area which he wants to add to his shop. In these circumstances, the suit was brought for permanent and mandatory injunction with consequential relief of possession against the defendant. A direction was sought to restore the staircase to its original state.

On notice, the defendant filed written statement and counter-alleged that the staircase was never joint property of the parties. The staircase was exclusively owned and possessed by the defendant. After purchasing the shop in 1981 the defendant had demolished the staircase situated on the ground floor and affixed bookshelves in the space vacated. The staircase has not been in existence since the last more than 20 years. The plaintiff never raised any objection and kept mum for a very long time.

Replication was not filed. On the pleadings of the parties, the following issues were framed:-

"1) Whether the defendants can be restrained from including the area of the staircase in his shop and using this area as his shop? OPP

2) Whether the suit is not maintainable in the present form? OPD

3) Whether the plaintiff is estopped from his act and conduct? OPD

4) Whether the suit is time barred by limitation? OPD

5) Whether the suit is not maintainable in the present form? OPD

6) Relief."

The parties led their oral and documentary evidence on the issues.

It may be mentioned that the suit was earlier dismissed by the trial court vide judgment dated August 27, 2008. In appeal, the case was remanded with a direction to give opportunity to the plaintiff for leading additional evidence regarding sale deed to determine whether the disputed staircase was in joint ownership. Defendant was given opportunity to rebut the additional evidence of the plaintiff. Plaintiff produced Pawan Kumar as his witness and the copies of the sale deed were produced in additional evidence as Exs.P-6 and P-7. The court found that half the chobara is over the shop of the plaintiff whilst the other half is on the shop of the defendant. The chobara is joint property without doubt. The court found evidence on the file that after purchasing the shops the chobara was partitioned and there is a wooden partition dividing the chobara on the first floor. There is indeed only one stairway to serve the top floors of both shops obviously since once both the shops were owned by one person, he would need only one.

Central to the determination of the dispute were the sale deeds Exs.P-6 and P-7 produced as additional evidence and their recitals. Ex.P-6 was the sale deed of the plaintiff whilst Ex.P-7 was that of the defendant. A perusal of the sale deeds reveal that on the eastern side there is a shop of one Radha Kishan and on the western side there is "Jeena [Zeena] Mushtarka" and the shop of Nijamat Rai. If the Jeena/staircase was Mushtarka then it was joint between the parties and both had right to use it to access the chobara. The defendant urged from his sale deed that it did not corroborate the version of the plaintiff that staircase was joint. In the sale deed of Bhim Sen, the present appellant, there was nothing to show that the staircase mentioned in his sale deed would be presumed to be joint property of both the parties. The court held that the plaintiff could not prove that he had any easementary rights over the staircase of his brother/defendant. It made no difference that both the brothers had purchased their shops from the same vendor on the same date on properties lying adjacent to each other. It was further reasoned on the basis of evidence that if the portion of the staircase was to be excluded from the property of the defendant, why should he have paid the price of the entire shop, the dimensions of which were 27 sq. yards. The plaintiff''s sale deed did not prove ownership over the staircase while the staircase was included in the defendant''s sale deed alone and, therefore, he was within his rights to demolish his own staircase and use the vacant space with wooden shelves. The recitals in the sale deed of the plaintiff did not speak in his favour while the sale deed of the defendant spoke in his favour. It was determined by the trial court that there is only one chobara on both the shops and there is only one passage to that chobara and that passage was demolished in the year 1981. Defendant was free to demolish the staircase and add to his area in the shop when this fact was admitted by the plaintiff himself that the staircase was demolished in the year 1981. Therefore, the defendant could not be restrained from including the area of the staircase in his shop and use that area exclusively. Issue # 1 was answered in favour of the defendant and against the plaintiff. Issues # 2 to 5 were not pressed by the defendant and were decided against the defendant as not pressed.

Aggrieved, the plaintiff carried first appeal to the court of the learned Additional District Judge, Rohtak. The court of first appeal re-appreciated the evidence on record and held that the findings of the lower court on issue # 1 are erroneous. The court re-examined the view of the trial Judge when it had observed that the sale deed Ex.P-7 would not serve any purpose of the plaintiffs case because the "Jeena Mushtarka" mentioned in the sale deed Ex.P-7 purchased by defendant Bhim Sen was given with his exclusive property and, therefore, it could not be presumed that the property was joint in nature. The court of first appeal re-visited the written statement and found in para.1 an averment by the defendant denying that there is one chobara on the shops. Defendant denied that half the portion of the chobara is on the shop of the plaintiff and the remaining half on the shop of the defendant. The court matched the recitals of both the sale deeds. The shop bought by the plaintiff (Ex.P-6) bears Municipal # 1256/B.II. The sale deed in favour of defendant Ex.P-7 contains the recital that shop bears same # 1256/B.II and is in a dilapidated condition where one room was under construction over the shop and there is only one staircase leading up. There is a recital that towards the east "Jeena Mushtarka" exists. The court of first appeal read the note in the site plan attached to Ex.P-7 where it was mentioned that one room had been constructed on the first floor. However, the court of first appeal was of opinion that the site plan attached to the sale deed cannot be taken into account in isolation but has to be viewed in conjunction with recitals in the sale deed. The sale deed of the defendant depicts the existence of the common staircase. The defendant had consented to the terms of the sale deed. The words "Jeena Mushtarka" are found in the sale deed belonging to the defendant but not in the other. He is, therefore, bound by the terms of the sale deed. When both the sale deeds Exs.P-6 and P-7 were prepared simultaneously and on the same day, then there was no need to mention about the jointness of the staircase in Ex.P-6 because the rights of the plaintiff were being protected by virtue of the sale deed Ex.P-7.

I would agree with the reasoning of the court of the first appeal while understanding the case from this vital angle.

As far as the chobara is concerned, the court of first appeal was correct in reasoning that when DW-1 Bhim Sen, defendant admitted in his cross-examination that there is no other way for the plaintiff to approach his portion of the chobara as it is served by one staircase then plaintiff could not be deprived of access to his half portion of the chobara as there could be no other way of alighting to his property. Defendant Bhim Sen also testified in his examination-in-chief Ex.D-1 in para.4 thereof that there was a partition of the chobara after which a wooden partition was erected jointly. If that is so then I think denying access to the plaintiff to his portion of the chobara would not only render the partition of the chobara redundant but would result in a travesty of justice. If the staircase was in existence on the date of the sale deeds in 1981 which led to the second floor from the first floor then there was no reason why there should be no staircase to the first floor from the ground floor. The Local Commissioner in her report Ex.P-1 noted that "one step" was in existence shown by point ''A'' in the photograph Mark-2 but the staircase was not in existence. Obviously, there was once a staircase on the ground floor on the western side of the shop of the defendant. While the staircase on the first floor was noticed by the Local Commission and if existed the Local Commission reported that there was no other way by which the plaintiff and the defendant could go to the chobara. The appeal court rightly held that the preponderance of probabilities of a common staircase leans in favour of the plaintiff.

Much was made of para.4 of the examination-in-chief of plaintiff Ashok Chhabra during the arguments where it was stated that the staircase was demolished in the year 1981 and the area of the shop of the defendant cannot be 27 square yards if the staircase is included in the shop and, therefore, no relief could be granted to the plaintiff. The argument did not find favour with the court of first appeal who suitably read the pleadings as a whole including the contents of para.4 and para.5 of the affidavit Ex.PW-1/A and a typographic error occurring therein in the words "the same was demolished in the year 1981". The word "not" had not been typed and this defect can be harmonized by reading para.5 of the plaint where the plaintiff had mentioned that bookshelves were not affixed in the year 1981. That was a later development which was in tune with the cause of action which brought the complaining plaintiff to institute the suit to protect his rights of free access to his property in all its floors without let or hindrance.

The court of first appeal did not agree with the contentions of the defendant that the area of the shop can never be 27 square yards if the staircase is included in the shop. The court observed that the principle of caveat emptor would apply and it was for the buyer to have been aware while buying the property at the time when both brothers purchased their respective shops from the same seller on the same day. Besides, the factual existence of the chobara and its common use by the parties would be rendered nugatory and useless if no access is provided to the plaintiff. If there was no common staircase then the chobara would become inaccessible to the plaintiff since there is admittedly no other way up other than the staircase when specifically in Ex.P-7 the recital of a common staircase exists in the word "Jeena Mushtarka". This is the only way to harmonize both the sale deeds. On this reasoning, the court of first appeal reversed the findings of the trial court and decreed the suit for permanent injunction restraining the defendant from including the area of the staircase in his shop. The court of first appeal has rightly issued mandatory injunction directing defendant to rebuild the demolished staircase up to the first floor and restore the position obtaining before demolition so that the staircase is restored for common use by the parties and to its pristine state.

I have no reason whatsoever to take a different view than the one taken by the court of first appeal and would dismiss this appeal as the findings of court of first appeal are fair and just and are a proper reading of the additional evidence produced by way of the two sale deeds which were not produced by the parties or considered when the suit was once dismissed by the trial court on August 27, 2008. It is quite apparent that the learned trial court in its judgment and decree dated May 12, 2011 was overwhelmed by the judgment and decree dated August 27, 2008 set aside by the court of first appeal when it remanded the case for production of additional evidence regarding sale deeds which now have helped in resolving the dispute and the spinal fact-in-issue, that is, the staircase.

No question of law much less a substantial one arises in this appeal warranting admission for regular hearing. The appeal is accordingly dismissed for the reasons recorded above affirming the findings of the original appellate judgment and decree in second appeal.