Research › Search › Judgment

Rajasthan High Court · body

2012 DIGILAW 1120 (RAJ)

Mangilal v. Roshanlal Nagda

2012-05-03

GOPAL KRISHAN VYAS

body2012
Hon'ble VYAS, J.—Instant writ petition has been filed by the petitioner-defendant for quashing impugned order dated 23.07.2011 (Annex.-6) passed by Addl. District Judge No.2, Udaipur in Civil Misc. Appeal (Order) No.4/11 whereby the appellate Court upheld the order dated 28.06.2011 (Annex.-5) passed by the Civil Judge (Jr. Dn.), Udaipur City South, Udaipur in Civil Misc. Case No.122/2011, by which, the trial Court allowed the application filed by the plaintiff-respondent for temporary injunction under Order 39 Rules 1 & 2, read with Section 151, C.P.C. in the suit filed by him for mandatory injunction. 2. As per facts of the case, the plaintiff-respondent filed suit in which a prayer was made to remove the gate by which the petitioner-defendant closed the way and to issue direction to the defendant not to raise obstacle in going to and coming from his land. The plaintiff-respondent filed temporary injunction application also along with the suit, in which, it is stated that the plaintiff is having land where he is in possession situated at Sisarma Tehsil Girwa (District Udaipur) and he is cultivating the said land. 3. It is further alleged that just adjacent to the land in question is other land out of which Bhanwar Lal, father of the plaintiff, sold land to the defendant-petitioner and, in the sale-deed, a condition was imposed that for going to and coming from his other land in the western side of the land in question the way near the “kot” towards the northern side will remain in existence and purchaser will not close the said way. 4. In the temporary injunction application, reply was filed by the petitioner-defendant and it is pleaded that plaintiff is claiming right to use the way which is not situated in the western side and, in fact, according to sale-deed also, the way was in the southern side. 5. Learned trial Court decided the temporary injunction application in the mandatory form and directed the petitioner-defendant to open the gate within 7 days and permit plaintiff-respondent to use the said way. The trial Court passed the order upon the temporary injunction application after obtaining report through commissioner vide order dated 28.06.2011. The petitioner-defendant being aggrieved by the order preferred appeal before the appellate Court but the Addl. District Judge No.2, Udaipur dismissed the appeal and upheld the order passed by the trial Court vide judgment dated 23.07.2011. 6. The trial Court passed the order upon the temporary injunction application after obtaining report through commissioner vide order dated 28.06.2011. The petitioner-defendant being aggrieved by the order preferred appeal before the appellate Court but the Addl. District Judge No.2, Udaipur dismissed the appeal and upheld the order passed by the trial Court vide judgment dated 23.07.2011. 6. Learned counsel for the petitioner submits that there is complete perversity in granting temporary injunction by the trial Court and in affirming the order of the trial Court by the appellate Court because there is alternate way in existence which can be used by the plaintiff-respondent; but, he has claimed the way upon the land of the petitioner-defendant without establishing his easementary right upon the way. Therefore, the order impugned deserves to be quashed. 7. Learned counsel for the petitioner invited attention towards judgment reported in 2002(2) DNJ (Raj.) 631, Rama vs. Megha; and, AIR 1973 Rajasthan 160, Sohan Lal vs. Smt. Manohar Bai, and, submits that as per both the above judgments it is for the party claiming easement to establish that it was enjoyed up to the period next before institution of the suit; but, here, in this case, there is no averment in the suit with regard to such claim, therefore, without establishing easementary right the plaintiff-respondent claimed relief to use the way upon the land of the petitioner-defendant which is totally illegal. Learned trial Court has completely ignored the above factual and legal aspect of the matter, therefore, the order impugned deserves to be quashed. 8. Learned counsel for the petitioner invited my attention towards judgment reported in 2010(1) DNJ 40, Shanker Lal & Another vs. Ratan Lal & Another, in which, the coordinate Bench of this Court dismissed the writ petition filed under Article 227 of the Constitution of India holding therein that commissioner's report is required to be relied upon in its true spirit. Counsel for the petitioner-defendant further invited my attention towards certain other documents i.e., jamabandi, revenue map, etc. and submits that the order passed by the trial Court to open the way which was not in existence, therefore, there is complete illegality in the order impugned. Hence, both the orders passed by the Courts below may be quashed and set aside. 9. and submits that the order passed by the trial Court to open the way which was not in existence, therefore, there is complete illegality in the order impugned. Hence, both the orders passed by the Courts below may be quashed and set aside. 9. Per contra, learned counsel for the respondent-plaintiff submits that he has not filed the suit upon easementary right but claimed to use the way for the reason that at the time of selling the land father of the plaintiff specifically put the condition in the sale-deed that existing way in the north side of the “kot” will be kept open for use by him and his family members, therefore, the contention of the petitioner-defendant with regard to establishing easementary right is not sustainable. 10. With regard to accepting the commissioner's report, it is submitted that the trial Court has passed an order to open the way as per commissioner's report, therefore, the ground taken by the petitioner-defendant with regard to following the commissioner's report is also not tenable. In this view of the matter, the concurrent finding given by both the Courts below while deciding the claim of the respondent-plaintiff for temporary injunction does not require interference. 11. After hearing learned counsel for the parties, I have perused both the orders impugned. 12. First of all, it is required to be observed that suit was filed by the respondent-plaintiff for his claim to pen the way for which a condition was imposed in the sale-deed executed by his father Bhanwar Lal in favour of the petitioner-defendant, therefore, there is no substance in the argument of learned counsel for the petitioner that the trial Court or appellate Court has committed an error while granting interim injunction in favour of the plaintiff-respondent even though the respondent-plaintiff did not establish his easementary right or prove the user. 13. With regard to accepting the commissioner's report, I am of the opinion that the trial Court has passed order to open the way as per commissioner's report; meaning thereby, the trial Court has relied upon the commissioner's report, in which, the way is in existence, therefore, this ground is also not sustainable. 14. With regard to other documents which were not on record, admittedly, such documents cannot be taken into consideration while deciding the writ petition in exercise of jurisdiction under Article 227 of the Constitution of India. 15. 14. With regard to other documents which were not on record, admittedly, such documents cannot be taken into consideration while deciding the writ petition in exercise of jurisdiction under Article 227 of the Constitution of India. 15. In this view of the matter, it is abundantly clear that temporary injunction application has been decided by the trial Court on the basis of the commissioner's report and upon the fact that there is no other way for going to and coming from the agriculture field of the petitioner-defendant situated in khasra No.4510 and 4512. Hence, I am not inclined to interfere in the orders impugned because the concurrent finding given by both the Courts below on the basis of pleadings and documents produced. 16. Therefore, this writ petition is dismissed. However, it is made clear that if the petitioner-defendant wants to place on record other documents for adjudication of the suit, then, he may file application in accordance with law and it is expected from the trial Court for taking those documents on record in accordance with law. Further, the trial Court is expected to decide the suit itself expeditiously preferably within six months from the date of receiving certified copy of this order.