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2014 DIGILAW 1369 (MP)

Pramila Divekar v. Ram Ashare Sharma

2014-10-27

B.D.RATHI

body2014
JUDGMENT : B.D. RATHI, J. 1. With the consent of the counsel for the parties present, the matter is finally heard. 2. This petition under Article 227 of the Constitution of India has been preferred having been aggrieved by the order dated 28th February, 2013 passed by the Ninth Additional District Judge, Gwalior whereby Misc. Appeal numbered as 10/2013 filed under Order XLIII Rule 1(r) by respondents No. 1 and 2 was allowed against the petitioners and temporary injunction was granted. It may be mentioned here that in the aforesaid miscellaneous appeal, a challenge was made by the respondents No. 1 and 2 to the order dated 16/2/2013 passed by the Ninth Additional Civil Judge to the court of First Civil Judge Class-II, Gwalior in Civil Suit No. 6-A/2013, rejecting the application of the respondents No. 1 and 2 preferred under Order XXXIX Rule 1 and 2 C.P.C. 3. Before discussing the facts of the case, for the brevity hereafter the petitioners would be called as defendants and respondents No. 1 and 2 would be called as plaintiffs. 4. Short facts relevant for the purpose of the disposal of the case are that C.S. No.6-A/2013 was instituted by the plaintiffs Smt. Pramila against defendant Smt. Pramila Divekar (since deceased and her L.Rs. who have already been brought on record) for declaration of title and permanent injunction on the ground that the plaintiffs are the owners of the House No. 37/91 which was purchased by them through registered sale-deed 31/8/1970. The said house has been mutated in the name of plaintiff No. 1-Shri Ram Asare Sharma in the municipal record. It is further pleaded by the plaintiffs that since last 42 years there is a way available on eastern side of the house of the plaintiffs which is being used by them including other persons of the neighbourhood for egress and ingress since 31/8/1970, the date of execution of the sale-deed. It is averred that the defendants never raised any objection whatsoever in utilizing the way by the plaintiffs. In para 6 of the plaint, it has also been asserted that nearby the house of the plaintiffs situated on eastern side, some portion was let out by the defendants to Smt. Rajendra Kaur and Munedra Singh against whom proceedings for eviction were initiated by the defendant and the plaintiffs were not at all concerned with that eviction proceedings of the tenants. There was neither existed any dispute over utilizing the property by the plaintiffs nor over utilizing the doors, windows and outlet. It is stated that one contempt petition bearing No. 645/12 was filed by the defendant No. 1-Smt. Pramila Divekar against the aforesaid tenants Smt. Rajendra Kaur and Munedra Singh wherein the plaintiffs were also impleaded as respondents No. 3 and 4. It is stated that the defendant No. 1 subsequently obtained eviction decree against her aforementioned tenants in the suit, therefore, under the garb of that decree the defendants now want to create obstruction in the easementary rights of the plaintiffs. 5. It thus contended by the counsel for the petitioners/defendants that the injunction application of the plaintiffs was rightly dismissed by the trial court after taking into consideration the entire scenario as well as the fact that in the alleged sale deed there was no easementary right given to the plaintiffs nor any way door, outlet or window were in existence from before or were provided under the easementary rights to the plaintiffs. Hence, it is submitted that the impugned order passed by the appellate court is perfectly illegal and is liable to be set aside. 6. Countering the aforesaid, it is submitted by the counsel for the plaintiffs/respondents No. 1 and 2 that in reply to the injunction application it is admitted by the defendants that at the disputed place, there are in existence doors, windows and the way since 2012 which in turn shows that the plaintiffs are in continuously enjoying their easementary rights since 1970 and same fact was also proved by the photographs filed by the plaintiffs before the trial court. Hence, in view of the available material, the order passed by the appellate court cannot be said to be erroneous. On the other hand, the petition is devoid of merits and deserves dismissal. 7. Having regard to the arguments advanced by the counsel for the parties, the entire material has been perused. 8. Admittedly in para 3 of the plaint it was mentioned by the plaintiffs that they are enjoying and utilizing the property and door, outlet or window since 31/8/1970, i.e. from the date of execution of the sale-deed. 7. Having regard to the arguments advanced by the counsel for the parties, the entire material has been perused. 8. Admittedly in para 3 of the plaint it was mentioned by the plaintiffs that they are enjoying and utilizing the property and door, outlet or window since 31/8/1970, i.e. from the date of execution of the sale-deed. But on going through the contents of the alleged sale-deed executed in favour of the plaintiffs by the defendant, it would be discernible that the plot was purchased by the plaintiffs and it was agreed between the plaintiffs and the defendant at the time of execution of the sale-deed that the plaintiffs would construct door, outlet, windows drainage system etc. towards eastern side of his purchased property. However the said fact of plot purchasing is missing from the plaint and nowhere it has been explained or asserted by the plaintiffs. On the contrary, the plaintiffs have come with a case that the house was purchased by them through registered sale-deed. When the plot was purchased by the plaintiffs under the registered sale-deed, there is no question of availability of the door, way, outlet etc. since the period of 1970 and of utilizing the same. Consequently no right is accrued to the plaintiffs under the sale- deed. In fact the burden lies on the plaintiffs to prove prima facie case in regard to accrual of the easementary rights in their favour but neither it was pleaded in the plaint that when house was constructed on this purchased plot nor such evidence had been led. So far as admission of the defendants in their reply to the application for temporary injunction with regard to utilizing the door, window outlet in the year 2012 is concerned, it is not an admission but allegations were made that in collusion with the so called tenants, widow, door and outlet had been created in 2012 and only because of that encroachment made, no injunction could be granted. It was highly defective approach adopted by the appellate court while passing the impugned order when the plaintiffs throughout remained unsuccessful to establish prima facie case, balance of convenience, irreparable injury in their favour. 9. In view of the aforesaid discussions, the impugned order dated 28/2/2013 passed by the appellate court in Misc. It was highly defective approach adopted by the appellate court while passing the impugned order when the plaintiffs throughout remained unsuccessful to establish prima facie case, balance of convenience, irreparable injury in their favour. 9. In view of the aforesaid discussions, the impugned order dated 28/2/2013 passed by the appellate court in Misc. Appeal No. 10/2013 is not sustainable in the eyes of law and is consequently set aside in conformity with the order dated 16/2/2013 passed by the trial court in C.S. No.6-A/2013. 10. Accordingly, the writ petition stands allowed in the manner indicated above.