Sanjeet Singh vs Kamlesh Singh on 21 October, 2016
19. The suit was for permanent injunction based on easementary
right. The trial Court in its order dated 30-1-2015 has clearly
recorded a finding on the basis of affidavit evidence duly cross-
examined by the parties, that the plaintiff has not filed any
documentary evidence to establish that he is using the suit way
for last 20-22 years uninterruptedly and as such, evidence
would be required to decide the plea of the parties but no
documentary evidence has been filed to establish such right of
access / way. Therefore, the trial Court declined to grant
mandatory injunction in temporary form. The first appellate
Court also did not find any material to reverse the finding of the
trial Court in that regard, but while hearing the appeal did not
follow the principles of law laid down in Dorab Cawasji Warden
(supra) for granting mandatory injunction in temporary form
holding that strong prima facie case is made out in favour of the
plaintiff and Wander Ltd. (supra), which defines scope of
interference by the first appellate Court, and reached to a
conclusion that from the statements of witnesses it is not clear
whether the plaintiff has alternative way or not and set aside the
order of the trial Court and remanded the matter to the trial
Court to get the inspection report from the Tahsildar and to
decide the matter afresh. Such a course is clearly not
permissible as the first appellate Court should not have
interfered with the findings of the trial Court which clearly
W.P.(Art.227)No.492/2015
Page 13 of 24
recorded that there is no prima facie case of the plaintiff to grant
mandatory injunction in temporary form, as the highest degree
of satisfaction is required for granting mandatory injunction in
temporary form.