The legal rights of a party in a disputed property are determined by the documentation of property transfer and the proof of legal title or right in the property.

VALMIKI J. MEHTA, J.

RSA No. 33/2016 and C.M. Appeal No. 3064/2016 (for stay)

1. This Regular Second Appeal is filed by the appellant/defendant under Section 100 of the Code of Civil Procedure, 1908 (CPC) impugning the concurrent judgments of the courts below; of the Trial Court dated 25.11.2014 and the First Appellate Court dated 12.10.2015; by which the courts below have decreed the suit for injunction filed by the respondent/ plaintiff and has restrained the appellant/defendant from in any manner interfering with the property of the respondent/plaintiff of 400 sq. yards comprised in Khasra No. 48/4, Mange Ram Park, Phase-I, Village Pooth Kalan, Delhi and which property of 400 sq. yards includes the seven and a half feet wide gali shown at points A, B, C and D in the site plan of the respondent/plaintiff Ex.PW1/A.

2. The facts of the case are that the respondent/plaintiff was originally the owner of 500 sq. yards of property situated in Khasra No. 48/4. Respondent/plaintiff by the set of documents dated 12.5.1998, Ex.PW1/D1 to Ex.PW1/D6, transferred rights in 100 sq. yards out of 500 sq. yards to the appellant/defendant. Appellant/defendant claims that on purchase of rights as per the documents Ex.PW1/D1 to Ex. PW1/D6, appellant/defendant also had rights in the disputed gali although the disputed gali does not form part of the 100 sq. yards transferred under the documentation dated 12.5.1998 to the appellant/defendant.

3. The sole issue calling for determination in the present regular second appeal is whether the appellant/defendant by virtue of the documents dated 12.5.1998, was given legal rights in the disputed gali.

4. The trial court by its judgment has dealt with this issue exhaustively from paras 11 to 16 and which paras show that the documents dated 12.5.1998 executed by the respondent/ plaintiff in favour of the appellant/defendant did not give any rights to the disputed gali which is beyond the area of 100 sq. yards purchased by the appellant/defendant. Also, I would like to note that at this stage itself that the case of the appellant/defendant even before this Court was that the disputed gali does not form part of the 100 sq. yards transferred under the documents dated 12.5.1998 to the appellant/defendant but what is argued is that the appellant/defendant had been given by the respondent/plaintiff the right to use the disputed gali since the beginning and therefore the appellant/defendant has right of such user and indication of such user is also seen from the subject documents Ex.PW1/D1 to Ex.DW1/D6 especially the bounded portion mentioned in the agreement to sell Ex.PW1/D2. The relevant paras of the trial court judgment which decide this issue against the appellant/defendant being paras 11 to 16 read as under:-

“11. In the case in hand, it is not in dispute that the defendant purchased the land measuring 100 sq. yards from the plaintiff out of the total land measuring 500 sq. yards of the plaintiff. The property documents Ex. PW1/D1 vide which the defendant purchased the property from the plaintiff nowhere reveals that the alleged 7¼ feet wide portion of land was a common passage or was ever purchased by the defendant. Even the defendant has admitted during his cross examination that it is nowhere mentioned in the property documents that the said passage was a common passage or that he also had the right to use that. The defendant has also admitted that he purchased the plot of 100 sq. yards enclosed within point H, H1, H2 and H3 as shown in site plan Ex. PW1/D7. Perusal of the aforesaid site plan filed by the defendant clearly reveals that the portion of land in dispute was never purchased by the defendant and the same is part and parcel of property of the plaintiff which was never sold by her.

12. Ld counsel for defendant has argued that at the time of purchase of the property by the defendant, it was a two side open plot. However, the property documents Ex. PW1/D1 vide which the defendant purchased the sa