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Madras High Court · body

2008 DIGILAW 3164 (MAD)

Chellam Iyer & Another v. J. Ranganath & Others

2008-08-29

M.JEYAPAUL

body2008
Judgment :- O.A.No.659 of 2007 is filed by the plaintiffs seeking an order of interim injunction till the disposal of the Suit. Application No.4581 of 2007 is filed by defendants 1 to 3 seeking to vacate the ad interim injunction already granted in O.A.No.659 of 2007. 2. To avoid confusion, the plaintiffs are referred to as applicants and defendants 1 to 3 are referred to as respondents. .3. The applicants have contended that they have purchased 1894 sq.ft. of undivided share of land out of 6175 sq.ft. shown in the Plaint ‘A’ schedule under the sale deed dated 30.3.1994. There are three flats in ‘A’ schedule property. ‘A’ schedule property is connected by a common pathway which runs north to south. It ends at ‘A’ schedule property on its northern side. There is a compound wall and a gate at the end of the common pathway to have access to the applicants property. Respondents 1 and 2 purchased vacant floor on the eastern side of the said property from the very same vendor Mrs. K. Thangam. No right was given to respondents 1 and 2 in ‘C’ schedule property which is a part of ‘A’ schedule property. All of a sudden, in the month of January 2007, respondents 1 to 4 started demolishing their own compound wall and performed pooja in the vacant plot on the eastern side of schedule ‘A’ property. The vehicles carrying construction materials started to come inside the gate of the applicants property and used to unload their materials through ‘C’ schedule property. Respondents 3 and 4, along with their rowdy elements, broke open lock of the gates of the applicants’ property on 14. 2007 and highhandedly trespassed upon ‘C’ schedule property and started putting up construction in their land. They have engaged in construction activity in full flow by dumping construction material over ‘C’ schedule property resulting in blockade of the ingress and egress of the applicants property through ‘C’ schedule. They have started informing the applicants that they would use ‘C’ schedule property which is the exclusive property of the applicants and respondents 6 to 9 as a pathway. The applicants have prima facie case and the balance of convenience is also in their favour. Therefore, they have sought for an order of interim injunction. .4. They have started informing the applicants that they would use ‘C’ schedule property which is the exclusive property of the applicants and respondents 6 to 9 as a pathway. The applicants have prima facie case and the balance of convenience is also in their favour. Therefore, they have sought for an order of interim injunction. .4. In the counter, respondents 1 to 3 have contended that the third respondent is the power of attorney of respondents 1 and 2 in respect of the property bearing plot No.12 Dr. Ranga Road admeasuring 3412.5 sq.ft. The first and second respondents have purchased an extent of 3412 sq.ft. of land bearing plot No.12 alongwith 1/9 common share on the road running north to south to reach D. Rangachari Road measuring 182 feet length and 19.6 feet in width. There is a recital in the sale deeds standing in the name of the first and second respondents that the property mentioned therein were sold alongwith their right to use the road running north to south from the schedule mentioned property to reach Dr. Rangachari Road. The applicants are yet to establish their title and possession in respect of Plaint ‘C’ schedule property. The applicants have admitted the existence of common pathway running north to south. The applicants and other flat owners have intended to grab some portion in the common road and reduce the length thereof. The respondents deny the averments that the suit ‘C’ schedule property is the exclusive property of the plaintiffs and defendants 6 to 9. Respondents 1 and 2 have obtained proper planning and building permission from the 6th respondent. They have to take building materials and workers to reach their property only through the common pathway. They do not have any alternative road to reach their property. Except the applicants, no other flat owners had raised any objection as it is a common pathway used right from the year 1952. The applicants have not made out any prima facie case or irreparable loss or hardship that may be caused to them. Therefore, respondents 1 to 3 have prayed for vacating the order of ad interim injunction granted in favour of the applicants. 5. The applicants have not made out any prima facie case or irreparable loss or hardship that may be caused to them. Therefore, respondents 1 to 3 have prayed for vacating the order of ad interim injunction granted in favour of the applicants. 5. Learned counsel appearing for the applicants would submit that the documents produced on the side of the applicants would go to establish that the Plaint ‘C’ schedule property also was purchased by the applicants and defendants 6 to 9. When the ‘C’ schedule property, which is the disputed portion, is their exclusive property and alternative pathway is there for respondents 1 to 3 to reach their property lying on the east of the properties of the applicant, respondents 1 to 3 do not have any right of ingress and egress on the ‘C’ schedule property. The documents produced would show that the pathway running north to south beyond the gate in the ‘C’ schedule property alone has been made as a common pathway wherein respondents 1 and 2 have right of enjoyment. The boundaries shown in the title deeds would prevail upon the extent of the property mentioned therein. If the order of injunction is vacated, there will be intrusion into the exclusive property of the applicants and defendants 6 to 9. Therefore, he would submit that the order of injunction granted shall be made absolute. .6. Learned counsel appearing for respondents 1 to 3 would contend that the property originally belonged to the husband of Mrs. Thangam. On his demise, Mrs. Thangam had disposed of the property. The documents would prima facie establish that ‘A’ and ‘C’ schedule property consists of 6175 sq.ft. but the said Thangam, on the demise of her husband, had sold away only 6091 sq.ft. The remaining 84 sq.ft. in the ‘A’ and ‘C’ schedule property had not been disposed of by her. The sketch prepared by the Surveyor, who accompanied the advocate Commissioner appointed by this Court would show that respondents 1 and 2 will have to enter only through ‘C’ schedule property to reach their property. The commissioner’s report would indicate that there had been alteration in the location of the main gate. It would also disclose that the small gate measuring 2-1/2 feet put up at the entrance of the property of respondents 1 and 2 cannot be used even to carry a big bureau or a two wheeler. The commissioner’s report would indicate that there had been alteration in the location of the main gate. It would also disclose that the small gate measuring 2-1/2 feet put up at the entrance of the property of respondents 1 and 2 cannot be used even to carry a big bureau or a two wheeler. The sixth and seventh respondents have also given consent for using the common pathway. Easement of necessity has been established prima facie before this Court by respondents 1 and 2. Therefore, he would submit that the order of injunction granted by this Court works hardship to them and therefore, the said order has to be vacated. 7. This Court in 7th Channel Communications v. Roja Combines, (2007) 5 MLJ 1125 : (2007) 4 CTC 609 , has held that before obtaining the order of temporary injunction, the applicant has to establish necessarily three aspects viz., .(a) the plaintiff has the prima facie case to go for trial; .(b) protection will have to be extended to the applicant from irreparable injury before his legal right can be established during the course of trial; and .(c) the mischief of inconvenience likely to arise from withholding the injunction will be greater than what is likely to arise from granting it. It has also been held therein that grant of interim injunction is purely a discretionary exercise of the powers of the Court, but, such discretion has to be exercised fairly and equitably. 8. On a perusal of the two sale deeds standing in the name of the 6th defendant Dr. P.R. Kannan and the 7th defendant Mr. Padmaja Kannan, it is found that they have purchased undivided 1732 sq.ft. and 407 sq.ft. respectively in the Plaint ‘A’ schedule property from Mr. K. Thangam. The sale deeds dated 30.3.1994 standing in the name of the first applicant and the second applicant respectively would go to establish that they have purchased 894 sq.ft. and 1000 sq.ft. in the plaint ‘A’ schedule property and the sale deeds dated 310. 1994 standing in the name of the 8th defendant R. Subramani and the 9th defendant Sudha Subramani would go to show that they have purchased 1029 sq.ft. each undivided ‘A’ schedule property from the very same Thangam. So, totally, 6091 sq.ft. alone has been conveyed by Mrs. Thangam out of 6175 sq.ft. in the ‘A’ schedule property. The fact remains that 84 sq.ft. each undivided ‘A’ schedule property from the very same Thangam. So, totally, 6091 sq.ft. alone has been conveyed by Mrs. Thangam out of 6175 sq.ft. in the ‘A’ schedule property. The fact remains that 84 sq.ft. undivided share out of 6175 sq.ft. has not been sold by Mrs. Thangam. .9. This Court in Kuppuswami Naidu v. Krishnasami Naidu, (2004) 4 MLJ 677 : (2004) 5 CTC 344 , has held that when a sale deed describes the area conveyed with specific boundaries, the boundaries spelt out in the document will have to be accepted as a clear reflection of the intention of the vendor. 10. Here, in the instant case, it appears that the vendor has not sold the entire property to one individual. Six persons have purchased the plaint ‘A’ schedule property. Of course, the property of the first and second respondents have been shown as the’ eastern boundary of the ‘A’ schedule property. As a live dispute has arisen in respect of the pathway which is located on the west of the property of respondents 1 and 2, the Court, after giving opportunity to both sides to let in evidence, will have to decide whether the vendor has actually conveyed 84 sq.ft. of undivided land also in favour of applicants 1 and 2 and defendants 6 to 9. 11. There is no dispute to the fact that the property of the applicants and the respondents were originally owned by a common owner. The sketch prepared by the Surveyor who assisted the Advocate Commissioner would indicate that the property purchased by respondents 1 and 2 will have access only through the ‘C’ schedule property without entering into ‘C’ schedule property. As there is no space left to directly enter into the properties of respondents 1 and 2, they cannot have access to their property. The Advocate Commissioner has noted that there is a recent alteration of the position of the gate found in the ‘A’ schedule property. He has clearly made a spot inspection that even a bureau or a two wheeler cannot be taken through the small 2 ½ feet gate located on the eastern end of the gate portion. The Advocate Commissioner has noted that there is a recent alteration of the position of the gate found in the ‘A’ schedule property. He has clearly made a spot inspection that even a bureau or a two wheeler cannot be taken through the small 2 ½ feet gate located on the eastern end of the gate portion. Therefore, respondents 1 to 3 have shown before the Court that a necessity has arisen for them to use compulsorily the ‘C’ schedule property for ingress and egress but for which, not even a big bureau or a two wheeler can be taken to the property of respondents 1 and 2. 12. In Narayana Gajapatiraju v. Janaki Rathayyammaji, AIR 1930 Mad. 609 , it has been held that an easement of necessity being easement without which a property cannot be used at all and not being one merely necessary for the reasonable enjoyment of the property, a plaintiff cannot claim on the ground of necessity a right of way over the land of another where another mode of access to his property is available. .13. In Zakia Begam v. Lueknow Improvement Trust, AIR 1937 OUDH 263, it has been categorically held that an easement of necessity is not to be granted merely on the ground of Convenience and advantage, but solely on the ground of absolute necessity. Where there are other ways for ingress and egress, the easement of necessity cannot be granted merely on the ground that such ways are inconvenient. The respondents have shown before the Court that they, having built up a house in their property located on the east of the ‘A’ schedule property, cannot take even a big bureau or a two wheeler to enjoy their residential property. 14. In Baburao Yashvantrao Jadhav v. Shamrao Khandi Jadhav, AIR 1992 Kar. 181 , it has been held that easement of necessity can be claimed only when there is no alternative pathway available for the parties concerned. 15. In Usarani Das v. Bhaktahari Mohanty, AIR 1984 Orissa 97, it has been held as follows” “As has been already stated, in order to find an easement of necessity, the necessity must be absolute necessity and not merely a convenient mode of enjoyment of the property. 15. In Usarani Das v. Bhaktahari Mohanty, AIR 1984 Orissa 97, it has been held as follows” “As has been already stated, in order to find an easement of necessity, the necessity must be absolute necessity and not merely a convenient mode of enjoyment of the property. In other; words, an easement of necessity is an easement without which the property cannot be used at all and not merely for reasonable and convenient enjoyment of the property”. The absolute necessity is the criterion to consider the easement of necessity and not the convenience of the parties claiming easement. 16. Of course, the applicants have shown prima facie case before the Court in respect of their right over ‘C’ schedule property. Even though the applicants have established prima facie case, that itself is not sufficient to grant injunction. The balance of convenience in their favour and the irreparable injury that would be cause if injunction is not granted will have to be established before the Court to grant an order of interim injunction. .17. In this context, it is relevant to refer to the judgment of the Supreme Court in Dalpat Kumar v. Prahlad Singh, AIR 1993 SC 276 : (1992) 1 SCC 719 : (1992) 2 MLJ 49, wherein it has been held as follows at p. 50 of MLJ: .“5. …. Prima facie case is not to be confused with prima facie title which has to be established, on evidence at the trial. Only prima facie case is a substantial question raised, bona fide, which needs investigation and a decision on merits. Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The Court further has to satisfy that non-interference by the Court would result in ‘irreparable injury’ to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequence of apprehended injury or dispossession of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely on that cannot be adequately compensated by way of damages. The third condition also is that ‘the balance of convenience’ must be in favour of granting injunction. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely on that cannot be adequately compensated by way of damages. The third condition also is that ‘the balance of convenience’ must be in favour of granting injunction. The Court while granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties, if the injunction is refused and compare it with that it is likely to be caused to the other side if the injunction is granted. If on weighing competing possibility or probabilities of likelihood of injury and if the Court considers that pending the Suit, the subject-matter should be maintained in status quo, an injunction would be issued. Thus the Court has to exercise its sound judicial discretion in granting or refusing the relief of ad Interim Injunction pending the Suit”. .18. The 6th and 7th defendant, being the owners of the undivided share in the disputed property, have granted licence to respondents 1 and 2 for the purpose of using ‘C’ schedule property for ingress and egress without blocking the way by parking their vehicles over there. It is submitted by the learned counsel appearing for the applicants that two of the undivided sharers cannot give licence to use the common pathway without the consent of other owners of the undivided share. It is found that 6th and 7th defendants have purchased their undivided share in the property. Their undivided share is more than the undivided share of the applicants herein. Their independent right to give permission to a third party to use their undivided share in the common pathway will have to be determined only during the trial of the case. But, the fact remains that 6th and 7th respondents, who have undivided share in the ‘A’ schedule property, having considered the fact that respondents 1 and 2 cannot use their property without having access through the ‘C’ schedule property, have granted licence to use their common passage to them. 19. It is found that the respondents have shown prima facie that the property of the first and second respondents cannot be used by accessing through the 2 ½ feet pathway. 19. It is found that the respondents have shown prima facie that the property of the first and second respondents cannot be used by accessing through the 2 ½ feet pathway. Of course, the absolute necessity or otherwise will be decided after giving opportunity to both the parties to lead volume of evidence. But, respondents 1 and 2 have shown at this stage that there is some necessity for them to use the ‘C’ schedule property to have ingress and egress. 20. If the ‘C’ schedule property is permitted to be used by respondents 1 and 2, no inconvenience will be caused to the applicants. Only when the vehicles which pass through ‘C’ schedule property is parked over there, inconvenience would arise for applicants. There will be much hardship for respondents 1 and 2 if they are not permitted to use the ‘C’ schedule property to access their property lying on the east of ‘A’ schedule property till their claim for easement of necessity is decided finally in the Suit. 21. Therefore, even though the applicants have established prima facie case, the balance of convenience is only in favour of respondents 1 to 3 and the hardship that would be caused to respondents 1 to 3 would be more if injunction is made absolute in favour of applicants 1 and 2. 22. In view of the above facts and circumstances, the order of ad interim injunction granted in favour of applicants 1 and 2 stands vacated. Respondents 1 to 3 shall use the ‘C’ schedule property only for the purpose of ingress and egress. It is made clear that they shall not park any vehicle or put any construction material over ‘C’ schedule property blocking the effective and convenient use of the applicants. Consequently, O.A.No.659 of 2007 stands dismissed. Application No.4581 of 2007, stands allowed. There is no order as to costs.