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2015 DIGILAW 425 (UTT)

NATHIRAM KASHYAP v. OMKAR

2015-09-04

U.C.DHYANI

body2015
JUDGMENT U.C. Dhyani, J. (Oral) 1. Present Appeal from Order has been filed by the plaintiff /appellant being aggrieved against the order dated 18.08.2015, passed by Additional Civil Judge (S.D.), Haridwar, District Haridwar, whereby learned court below has rejected the temporary injunction application paper no. 7C2 filed by the plaintiff-appellant. 2. The main grounds, which have been taken by the plaintiff/appellant, in his A.O., are being reproduced herein below for ready reference: i. The learned trial court failed to appreciate that Hajari Lal Jain was the original owner of a property. Four plots were being casted in the said property by said Hajari Lal. From the North of 10 ft. wide road the second plot was being initially sold by said Hajari Lal to one Smt. Kashmiri Devi Gupta w/o Krishna Murari Gupta vide registered sale-deed dated 04.07.1978. In the said sale deed boundaries of the plot subject of the sale-deed were specifically described. In the boundaries it was mentioned that on the West of the plot there exists a road and park BHEL. Kashmiri Devi from the date of the sale-deed became the absolute owner in possession of the said plot in question together with the right of the way/passage. Subsequently said Kashmiri Devi executed a sale deed dated 31.01.2001 in respect of the said plot in favour of the appellant and his wife namely Smt. Bala Devi. In the said sale-deed again in the boundaries, on the West side 15 ft. wide road was being mentioned as the boundary on the West side. Thus after the said sale-deed dated 31.01.2001 the appellant and his wife became the sole owner of the aforesaid plot in question together with the right of passage to the said property as was mentioned in the first sale-deed dated 04.07.1978. ii. The trial court failed to appreciate that the original owner of the property namely, Hajaari Lal has casted four plots adjoining to each other. The appellant’s plot was second from the North side of the appellant’s plot and one on the South of the appellant’s plot. The first sale deed executed by the original owner Hajari Lal contains a description of road on the West side in the sale-deeds of first and second lot and of BHEL in the third and fourth plot. The appellant’s plot was second from the North side of the appellant’s plot and one on the South of the appellant’s plot. The first sale deed executed by the original owner Hajari Lal contains a description of road on the West side in the sale-deeds of first and second lot and of BHEL in the third and fourth plot. In all the sale-deeds, there was no description of any property belonging to the seller being left over on the west side. Thus it was a clear admission on behalf of the original owner that on the West of all the four plots, the seller ceases to have any portion of land left being owned by him. iii. The learned Trial Court failed to appreciate that the said 15 ft. passage/road on the West side of the plot belonging to the appellant was meant for being used as road/passage by the appellant and the appellant ahs all rights to use the same as such. The appellant was using the same as road since the execution of the sale-deed. After the 15 ft. wide passage there exits the property of BHEL which is clear from the sale-deeds also and thus between the plot of the appellant and BHEL there happens to be a road alone and nobody’s property exists on the West of the plot of the appellant except as aforesaid. iv. The learned trial court failed to appreciate that the said 15 ft. wide road/passage connects to the 10 ft. wide passage which exists on the South of the fist plot adjoining to the plot of the appellant. In the said 10 ft. wide passage there exists a sewer line, drain and the same is a mettle road constructed out of Government funds. v. Learned trial court failed to appreciate the contents of the Amin report, wherein the depth of 15 ft. wide passage as on spot was found to be 142 ft., however, in the sale-deed claimed by the respondent the same was mentioned to be 128 sq ft. vi. v. Learned trial court failed to appreciate the contents of the Amin report, wherein the depth of 15 ft. wide passage as on spot was found to be 142 ft., however, in the sale-deed claimed by the respondent the same was mentioned to be 128 sq ft. vi. The learned trial court failed to appreciate that the sale-deed executed by the original owner in favour of the appellant and in respect of the other adjoining plots were prior in time to the sale deed dated 10.04.1990 and in the sale deed executed prior in time there was specific mention of passage/ road on the West and no property as being left on the West of the plot was shown and the passage shown in the sale deed executed earlier could not be sold by the seller subsequently to anyone since the same already stood vested in the purchaser of the initial sale deed as a passage to the plot sold in the said sale deed. vii. The learned trial court though rightly held that the existence of passage is to be determined from the stipulation in the sale deed and through itself rightly reiterated the contents of the sale deed wherein road was described yet erred in law and recorded a perverse finding that the sale deed does not contain any description of the road. Thus the finding recorded by the learned trial court are not only perverse but is also against the record and are contradictory in nature. viii. The learned trial court has recorded absolute perverse finding as the sale deed contains a stipulation as to existence of road, however the learned trial court held that the sale deed does not contain stipulation as to existence of road. ix. The learned trial court wrongly held that the judgment passed by this Hon’ble Court in writ petition no. 1859 of 2015 is an evidence of prime facie finding that the disputed property is not a road. Firstly this Hon’ble Court in the said writ petition has based its findings on the contention of the petitioner therein who claimed easementary rights and this Hon’ble Court has not given any findings as to existence or non existence of any road and has merely held that the petitioner therein is not entitle for easementary rights. Firstly this Hon’ble Court in the said writ petition has based its findings on the contention of the petitioner therein who claimed easementary rights and this Hon’ble Court has not given any findings as to existence or non existence of any road and has merely held that the petitioner therein is not entitle for easementary rights. Secondly the findings in the said writ petition or in the suit out of which the said writ petition arose are not binding upon the appellant as the appellant was not a party to the said writ petition or suit and even the wife of the appellant was arrayed as a proforma respondent in the said writ petition and no notices were even issued to the wife of the appellant. x. The learned trial court erred in law and failed to appreciate that the suit no. 326 of 2012 was filed by the plaintiff in the said suit claiming some easementary rights in his favour and the injunction has been refused inter alia on the ground that minimum period required for establishment of easementary rights has not been passed, however the suit of the appellant did not proceeded on the basis of any easementary right but rather on the basis that on the West side of the plot of the appellant there happens to be a passage and no private property exists on that side and that the original seller was not left with any property on the West of the plot after selling the plot to the appellant. xi. The learned trial court failed to appreciate the first sale deed executed by the original owner contained a stipulation as to existence of passage over the property in question and the said sale deed has never been challenged by the respondent/ defendant and thus a prime facie case for the stage of decision on temporary injunction application was very well established by the appellant. xii. xii. The learned trial court erred in law and failed to appreciate that nature of property as it exists on the first day of the filing of the suit should not be allowed to be changed during the pendency of the suit as in the present case the respondent/ defendant are bent upon raising construction and closing the passage of the plaintiff which if not restrained the same would cause irreparable loss and injury to the appellant and the nature of the property should be protected and maintain from being changed pending disposal of the suit. 3. In Mohd. Mehtab Khan and others vs. Khushnuma Ibrahim Khan and others, reported in (2013) 9 Supreme Court Cases 221, Hon’ble Apex Court has observed as below: “20. In a situation where the learned Trial Court on a consideration of the respective cases of the parties and the documents laid before it was of the view that the entitlement of the plaintiffs to an order of interim mandatory injunction was in serious doubt, the Appellate Court could not have interfered with the exercise of discretion by the learned Trial Judge unless such exercise was found to be palpably incorrect or untenable. The reasons that weighed with the learned Trial Judge, as already noticed, according to us, do not indicate that the view taken is not a possible view. The Appellate Court, therefore, should not have substituted its views in the matter merely on the ground that in its opinion the facts of the case call for a different conclusion. Such an exercise is not the correct parameter for exercise of jurisdiction while hearing an appeal against a discretionary order. While we must not be understood to have said that the Appellate Court was wrong in its conclusions what is sought to be emphasized is that as long as the view of the Trial Court was a possible view the Appellate Court should not have interfered with the same following the virtually settled principles of law in this regard as laid down by this Court in Wander Ltd. v. Antox India (P) Ltd. 1990 Supp SCC 727. 21. Para 14 of the aforesaid judgment which is extracted below would amply sum up the situation: “14. The appeals before the Division Bench were against the exercise of discretion by the Single Judge. 21. Para 14 of the aforesaid judgment which is extracted below would amply sum up the situation: “14. The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court’s exercise of discretion. After referring to these principles Gajendragadkar, J. in Printers (Mysore) Private Ltd. v. Pothan Joseph: (SCR 721) “... These principles are well established, but as has been observed by Viscount Simon in Charles Osenton & Co. v. Jhanaton ‘...the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case’.” The appellate judgment does not seem to defer to this principle.” 22. Though the above discussions would lead us to the conclusion that the learned Appellate Bench of the High Court was not correct in interfering with the order passed by the learned Trial Judge we wish to make it clear that our aforesaid conclusion is not an expression of our opinion on the merits of the controversy between the parties. Though the above discussions would lead us to the conclusion that the learned Appellate Bench of the High Court was not correct in interfering with the order passed by the learned Trial Judge we wish to make it clear that our aforesaid conclusion is not an expression of our opinion on the merits of the controversy between the parties. Our disagreement with the view of the Division Bench is purely on the ground that the manner of exercise of the appellate power is not consistent with the law laid down by this Court in the case of Wander Ltd. (supra). Accordingly, we set aside the order dated 09.10.2012 passed by the Appellate Bench of the Bombay High Court and while restoring the order dated 13.04.2012 of the learned Trial Judge we request the learned Trial Judge, or such other court to which the case may, in the mean time, have been transferred to dispose of the main suit as expeditiously as its calendar would permit with the expectation that the same will be possible within a period of six months from the date of receipt of this order. The appeal shall stand disposed of in terms of the above.” 4. On having heard learned counsel for the parties, having perused the impugned order and on having applied the above discussed law to the facts of the instant case, this Court finds that there is no perversity in the order under challenge and hence, not interferable. A.O. is, therefore, dismissed. 5. On the request of learned counsel for the parties, it is provided that an endeavour shall be made by the Trial Court to decide the Original Suit No. 72 of 2014 at an early date. Learned counsel for the parties assured that the parties shall not seek unnecessary adjournments before the Trial Court. 6. It is further provided that status quo, as on today, shall be maintained by the parties on the pathway shown as K, J, H, and M in the plaint map till the decision of O.S. No. 72 of 2014.