Allahabad High Court
Upendra Singh @ Avdhesh Singh And 2 ... vs Rajveer Singh And Another on 13 December, 2023
Author: Jayant Banerji
Bench: Jayant Banerji
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2023:AHC:235842 Court No. - 1 Case :- MATTERS UNDER ARTICLE 227 No. - 11046 of 2023 Petitioner :- Upendra Singh @ Avdhesh Singh And 2 Others Respondent :- Rajveer Singh And Another Counsel for Petitioner :- Sujeet Kumar,Chhaya Gupta Counsel for Respondent :- Ravesh Kumar Singh Hon'ble Jayant Banerji,J.
1. Heard Shri Sujeet Kumar, learned counsel for the petitioners and Shri Shiv Nath Singh, learned Senior Advocate assisted by Shri Ravesh Kumar Singh, Advocate for the respondents.
2. Shri Ravesh Kumar Singh, Advocate states that he had filed a caveat application on 26.10.2023 which has neither been reported nor is on record. However, the vakalatnama is not on record. Office is directed to trace out the same and place it on record.
3. By means of the instant petition, an order dated 04.10.2023 passed by the Additional District and Sessions Judge/F.T.C.-I, Kannauj passed in Misc. Civil Appeal No.32 of 2022 has been challenged, whereby an order of temporary injunction granted by the trial court on 03.12.2022 in Original Suit No.369 of 2022 was set aside.
4. The contention of the learned counsel for the petitioners is that the property in dispute is a 'rasta' (path) that separates the houses of the plaintiffs and the defendants. The plaintiffs had instituted the aforesaid suit seeking mandatory injunction directing the defendants for removing the constructions made in respect of the areas marked as A, I, & E, F in the plaint map. Thereafter, an application paper no.16-C2 seeking temporary injunction under Order XXXIX Rules 1 and 2 read with Section 151 CPC dated 16.09.2022 was filed for restraining the defendants from changing the nature of the path and from not making any constructions thereon as well as from obstructing the passage of the plaintiffs on the path by constructing a wall or doing such other work thereon, which would adversely affect the rights of the plaintiffs. It appears that a written statement was filed by the defendants and a report of the court bailiff was called for by the trial court. The court bailiff submitted a report dated 06.08.2022 alongwith a site map.
5. By the order dated 03.12.2022, an injunction restraining the defendants from making interference in the possession of the plaintiffs over the suit property, was granted. Challenging the aforesaid order of temporary injunction, an appeal was filed that came to be allowed by means of the impugned order and the order dated 03.12.2022 was set aside.
6. The contention of the learned counsel for the petitioners is that the trial court had justifiably granted the injunction order after taking into account the factual situation as well as the amin report that was on record. It is stated that the three aspects of prima facie case, balance of convenience and irreparable injury were duly considered by the trial court before granting the order of temporary injunction. It is further contended that the court ought not to permit the nature of the property to be changed which also includes alienation or transfer of the property which may lead to loss or damage being caused to the party who may ultimately succeed and may further lead to multiplicity of proceedings. In this regard, the learned counsel for the petitioners has referred to a judgment of the Supreme Court in Maharwal Khewaji Trust, Faridkot vs. Baldev Dass reported in (2004) 8 SCC 488.
7. Shri Shiv Nath Singh, learned Senior Advocate for the respondents has strongly opposed this petition and has referred to the detailed order passed by the appellate court to contend that after the boundaries of the disputed houses of the defendants and the petitioners were duly considered on the basis of the sale-deeds on record, it was found by the appellate court that no house exists to the north of the house of the plaintiffs. It was further contended that admittedly even as per the plaint, a path exists to the south of the house of the plaintiffs and, therefore, under the circumstances, the appellate court was justified in setting aside the order of the trial court granting temporary injunction. It is further contended that the appellate court has well considered the three aspects of prima facie case, balance of convenience and irreparable injury to the parties while setting aside the order of temporary injunction.
8. I have perused the record of this petition.
9. The plaint is enclosed as Annexure-2 to this petition. The disputed property is a 'path' marked as A,B,C,D,E,F,G,H,I in the plaint map, which is shown as a zigzag road extending from the land marked as A,I on the arazi of the plaintiffs, leading towards the house of the defendants, turning right to the east and then turning left to the north, and again turning right to the east, terminating on the points marked as E,F on the plaint map. The path is shown as abutting all along three sides of the house of the defendants. It is stated in the plaint that south of the disputed road, on the southern-most part, it is the ancestral property of the plaintiffs, and its northern part was purchased by the father of the plaintiffs by means of a registered sale-deed dated 23.12.1982/14.3.1983, and the plaintiff is in possession thereon. It is also stated that on the arm marked as F,G on the plaint map, south of that is also the ancestral property of the plaintiffs.
10. It is stated in paragraph 3 of the plaint that the disputed path is not only the sole way of the plaintiffs and the defendants to move to and from their personal properties, through which the plaintiffs take their cattle and bullock cart out, and which has been going on since a very long time, but the plaintiffs have also acquired an easementary right over the path in dispute. It is stated in paragraph 4 of the plaint that the defendants have no concern with the disputed path, but on the parts marked as E,F and A,I on the plaint map, they expressed a desire to make a wall thereon, due to which complaints were lodged by the plaintiffs against the defendants with the local administration as well as the district administration and they also moved an application under Section 145 Cr.P.C, but the defendants have influenced the local administration in their favour. It is further stated that during summer vacations of the civil court in June 2022, the defendants forcibly erected walls on the parts marked as E,F and A,I on the plaint map and constructed lintel thereon, and stopped the exit of the plaintiffs for which they are facing difficulty and loss. Since the defendants are refusing to demolish the constructions and clear the path, the suit was filed. The relief claimed in the plaint was for a mandatory injunction for demolishing the constructions made on points E,F and A,I and all future constructions and to remove the debris from the path. The plaint map is as follows:-
Thereafter, an application for temporary injunction was filed for restraining the defendants from changing the nature of the path in dispute, from making any fresh constructions, from obstructing the usage of the path, and also from including the road in their property that could adversely affect the interests of the plaintiffs. In response to the aforesaid application, objection was filed by the defendants, being paper no. 19-C2.
11. The trial court observed that the plaint map was appearing to be similar to the site plan prepared by the court bailiff and submitted by means of its report, paper no.10-C2. The trial court observed that the identity of the road can be ascertained from the report of the Amin. With regard to prima facie case, the trial court noted the Amin report that a four feet high brick wall was made which was on the sole road leading to the property of the plaintiffs. With regard to irreparable injury, the trial court again relied upon the report of the court bailiff to arrive at its conclusion in favour of the plaintiffs. As regards the balance of convenience, the trial court noted that the defendants had denied the existence of the path itself and observed that the report of the court bailiff tilted the balance of convenience in favour of the plaintiffs. Thus, by its order, the trial court directed that the defendants be temporarily injuncted to interfere in the possession of the plaintiffs over the path marked as A,B,C,D,E,F,G,H,I and not to interfere in any manner.
12. In the appeal filed against the order of the trial court, the appellate court found that the trial court was swayed by the report of the court bailiff itself without actually relying upon other material on record. As regards the prima facie case, it was submitted on behalf of the defendants that no documentary evidence was filed by the plaintiffs that could, prima facie, establish that a public or private road was existing for which the suit was filed. The appellate court noted the contents in paragraph 2 of the plaint. The appellate court noted that as far as the existence of the path is concerned, the sale-deed in favour of the father of the plaintiffs is a material evidence which is on record as paper no.18A/8-10. The boundary of the property purchased by the father of the plaintiffs was noted and it was observed that to the north of the property, no road was shown but the house of the father of the defendant no. 1 was shown. The appellate court further noted that the application filed before the Sub-Divisional Magistrate, Kannauj under Section 145/146 Cr.P.C, a copy of which was filed as paper no.18A/4-6, reflected that it was filed by the plaintiff no.1 and in the site plan made thereon between the houses of the plaintiffs and the defendants, no road was shown. In the same manner, the application filed by the appellant no. 2, Asha Singh, before the Sub-Divisional Magistrate, a copy of which was filed as paper no. 7-C1/24, which reflected that prayer had been made for restraining the plaintiffs from exiting from the property in dispute. The reports of the Kanoongo and Lekhpal that were on record was found to reflect that the disputed property fell under Class 6(2) as abadi. It reflected that to the south of the arazi of the defendants, is the ancestral as well as the self acquired arazi of the plaintiffs and the door of which opened on the lane to the south. It was, therefore, observed that it is clear that to the north of the property purchased by the plaintiffs, there is no road.
13. The appellate court further noted that on record was a sale-deed dated 04.09.1979 which was executed in favour of the father of the defendant-appellant no. 1, which also reflected the boundaries of the sold property. To the south, the house of Chhote Singh was shown. The court noted that the house of Chhote Singh was purchased by the plaintiffs' father by the sale-deed, which also did not reflect any road to the south. The appellate court, therefore, observed that on the basis of documentary evidence, it is reflected that to the north of the house of the plaintiffs and to the south of the house of the defendants, no road is existing, and as such, prima facie, there is no land shown to have been used as path.
As far as the balance of convenience was concerned, the appellate court noted that for this purpose, it is to be considered whether the property in dispute is the sole road or not for use of the plaintiffs and the defendants. The appellate court noted that in the plaint map, in the arm marked as F,G, to the south of that is the ancestral house of the plaintiffs and east of that, a road is situated which is separate from their property in dispute. Similarly, to the south of the ancestral house of the plaintiffs, a road is shown which is different from the property in dispute. The appellate court observed that it was clear that the property in dispute is not the sole path for the plaintiffs which is also corroborated by the sale-deed aforesaid.
As far as the plea of easement is concerned, the appellate court noted that the plaintiffs had to establish that easementary right was existing in their favour for a minimum of 20 years without any obstruction by the defendants, but, at that stage, no evidence had been produced by the plaintiffs which could, prima facie, prove that the property in dispute is a path, and that it was being used for a minimum of 20 years continuously as a path. It was, therefore, held that there was no balance of convenience in favour of the plaintiffs.
As far as irreparable injury is concerned, the appellate court noted that without any authority, if the plaintiffs are permitted to make a road over the sold property, then definitely instead of the plaintiffs, the defendants would be put to irreparable injury. The appellate court noted that the trial court had wrongly passed an order restraining the defendants from interfering in the possession of the plaintiffs over the property in dispute, whereas in the application for temporary injunction neither did the plaintiffs claim their possession over the disputed property, nor was it prayed for restraining the defendants from interfering in their possession. The appellate court further noted that given the relief sought in the plaint, it is an admitted fact that before filing of the suit, the walls and lintel were placed by the plaintiffs over the areas marked as E,F and A,I. The appellate court observed that if the disputed property is considered to be a path, then that path was obstructed prior to the institution of the suit by the plaintiffs, and as such the application for temporary injunction itself was not maintainable. Accordingly, the order of the trial court was set aside.
14. It is clear from the perusal of the plaint that the plaintiffs did not claim any substantive or possessory rights over the disputed property which was the path shown in the plaint map. The suit was filed seeking mandatory injunction on the basis of an alleged easementary right in favour of the plaintiffs. It is not in dispute that the sale-deed executed in favour of the father of the defendants was of the year 1979 and the sale-deed executed in favour of the father of the plaintiffs was of the year 1982/83. The suit was filed in the year 2022, that is to say, after nearly 40 years of the last aforesaid sale-deed.
15. The appellate court was right in stating that the trial court has granted an injunction that was not prayed for. The appellate court has also correctly observed that the plaintiffs did not claim that they were in possession over the suit property. It is also evident from the perusal of the plaint that the alleged constructions on the points marked as E,F and A,I was stated to have been made, the demolition of which, inter alia, was sought by the plaintiffs. The appellate court is also correct in its observation that the three aspects of prima facie case, balance of convenience and irreparable injury were not correctly addressed by the trial court. Under the circumstances, to this extent, the order of the appellate court is justified.
16. However, the fact of the matter remains that the appellate court has based its evidence on the two sale-deeds aforesaid, neither of which reflected existence of a path as stated in the plaint. As far as a right of an easement is concerned, it is claimed on a servient heritage. As stated above, the plaintiffs do not claim any right over the suit property in dispute, other than an easementary right. The defendants also do not claim that the plaintiffs have made any constructions over the disputed property. As far as the property of the plaintiffs is concerned, on the boundaries of which the points A,I are shown on the plaint map, its southern part is stated to be an ancestral, while its northern part is stated to have been purchased by the father of the plaintiffs. The plaintiffs claim to use the disputed path for purpose of their cattle, bullock cart, etc. The ancestral part of the plaintiffs' property has not been shown to be an open land or an unconstructed land. Therefore, in an effort to balance the convenience, the appellate court ought to have seen the feasibility of usage of the road shown to the south of the property of the plaintiffs for the purpose for which the path to the north of the property is stated to be used. There appears to be no evidence on record with regard to the usage and nature of the southern part of the property of the plaintiffs.
17. It is true that the trial court has relied almost exclusively on the report of the court bailiff while coming to its conclusion. However, the report of the court bailiff is on record and it cannot be discarded outrightly before the stage of evidence. It is evident from the record that with regard to the disputed property, there was an apprehension of breach of peace for which proceedings under Section 145/146 Cr.P.C. were taken. Other than the applications filed by the contesting parties before the Sub-Divisional Magistrate, and the report of the Kanoongo/Lekhpal, it is not reflected in the impugned order whether there is any order of the Sub-Divisional Magistrate on record. An easementary right in favour of a person can be proved in terms of the evidence on record that evince coverage under the provisions of the Indian Easement Act, 1882.
18. In view of the facts and circumstances of the case, after giving serious consideration to the competing interests of the parties, in my opinion, the disputed property ought not to be permitted to be damaged and its nature also ought not to be permitted to be changed during pendency of the suit. However, in this regard, a prima facie observation with regard to the usage and construction of the ancestral house of the plaintiffs, which is stated to be situated on the southern-most side of the property of the plaintiffs abutting the alleged road marked as A,I, is required to be recorded by the appellate court. Based on such a prima facie finding, the feasibility of the usage of the road to the south of the said ancestral house of the plaintiffs, for the purpose of taking out cattle, bullock cart, can be determined prima facie. The judgment of the appellate court dated 04.10.2023, to the extent that it refuses injunction and makes observations relating to the usage of the road to the south of the ancestral house of the plaintiffs, is set aside. The appellate court is requested to take a fresh decision in the matter to the extent and in light of the observations made above. Till the decision of the appellate court, the parties shall maintain status quo as on date.
19. The petition is, accordingly, disposed of.
Order Date :- 13.12.2023/SK (Jayant Banerji, J.)