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2016 DIGILAW 553 (BOM)

Jorge Alexandre Cruz Lourenco v. Lucas Fernandes

2016-03-11

S.B.SHUKRE

body2016
JUDGMENT : Heard. Rule. Rule made returnable forthwith, Heard finally by consent. 2. By this Writ Petition, the petitioner has challenged the legality and correctness of the orders, which are, the order dated 9-9-2015 passed in Regular Civil Suit No. 145/2015 passed by the first Additional Senior Civil Judge, Margao, thereby granting temporary mandatory injunction to the respondents and second, the order dated 1-12-2015 passed in Miscellaneous Civil Appeal No. 60/2015 by District Judge-1, South Goa, Margao, thereby confirming the order granting temporary mandatory injunction. 3. The dispute between the petitioner and the respondents is a dispute between the landlord and the tenants in respect of right of way or access shown in the plan annexed to the plaint. It is the contention of the respondents-original plaintiffs that the access (hereinafter called the “suit access”) to their tenanted premises has been blocked by the petitioner by means of a gate erected by him and kept under locked condition. 4. According to the petitioner- original defendant, the respondents have an alternate access passing through another piece of land situated on the backside of the house and access as claimed by the respondents or the suit access does not exist. The petitioner has also claimed that he has not fixed any gate nor has he put any gate under locked condition with a view to block the access. 5. The respondents who filed a civil suit against the petitioner praying for grant of mandatory injunction, applied for grant of temporary mandatory injunction during the pendency of the suit and the temporary mandatory injunction was granted on the merits of the case by the learned first Additional Senior Civil Judge, Margao by his order passed on 9-9-2015. The matter was carried in appeal filed by the petitioner before the Court of District Judge-1, South Goa, Margao, where the petitioner failed to get any relief as the appeal came to be dismissed by the learned District Judge by his order passed on 1-12-2015. Now, the petitioner has filed the present petition challenging both the said orders. 6. Mr. Bhobe, learned Counsel for the petitioner submits that the suit as filed by respondents is not maintainable as pleadings necessary for claiming right of way or access by way of an easement have not been made and that no declaration seeking right of way or access by way of an easement, has been sought. 6. Mr. Bhobe, learned Counsel for the petitioner submits that the suit as filed by respondents is not maintainable as pleadings necessary for claiming right of way or access by way of an easement have not been made and that no declaration seeking right of way or access by way of an easement, has been sought. According to him, a suit filed for mandatory injunction simplicitor without seeking declaration regarding right of way or access by way of an easement, is not maintainable. He also submits that the plan relied upon by the lower Courts was the plan annexed to the plaint prepared by a Surveyor who did not visit and inspect the tenanted premises and so such a plan could not have been accepted by the Courts below for recording prima facie finding regarding existence of access as claimed by the respondents. He also submits that the respondents do have an alternate access from the backside of the house and the suit access which they are claiming is only to enable them to approach the Abade Faria road, by creating a short cut. He submits that in such a case no injunction can be granted inasmuch as it would be necessary for this Court to examine the amount of inconvenience and also the issue of breach of privacy of the petitioner, since the access as claimed by the respondents causes inconvenience as well as encroachment upon the privacy of the petitioner. He further submits that there is no reasonable apprehension that the access available from the backside of the house would be blocked by the present owners. He, therefore, submits that the impugned orders are perverse and need to be interfered with. 7. Mr. Ramani, learned Counsel for the respondents submits that there is no question of claiming right of way or access by way of an easement as the respondents being tenants of the petitioner are only claiming that they should be allowed to enjoy the tenanted premises by providing a reasonable access to them. 7. Mr. Ramani, learned Counsel for the respondents submits that there is no question of claiming right of way or access by way of an easement as the respondents being tenants of the petitioner are only claiming that they should be allowed to enjoy the tenanted premises by providing a reasonable access to them. He submits that since the relationship of landlord and tenant exists between the petitioner and the respondents, the least that is expected of the petitioner is to let the respondents have an access to the tenanted premises through a way, which is available on the land of the tenanted premises or which passes through the house of the landlord and not through the land belonging to the others. He submits that in such a case, the issue of easement would not arise and the issue would be of rights and liabilities of tenant and landlord under section 108 of the Transfer of Property Act. He also submits that the alternate access suggested by the petitioner partly passes through the property belonging to some other person, which property has been sold by the petitioner to that person without reserving in the sale deed any right of way or access for the respondents and this is an admitted fact. So, he submits that it would not lie in the mouth of the petitioner to say that the respondents can access the tenanted premises through the said alternate way. Thus, he submits that the petition be dismissed as being devoid of substance. 8. It is seen from the orders impugned in this petition that both the Courts below have recorded a concurrent finding of fact that even though the plan annexed to the plaint has not been prepared after inspection of the house in question, the fact that no other way which can be used as of right by the respondents for gaining access to the tenanted premises has been shown to be existing by the landlord would itself reasonably show that the suit access prima facie exists and appears to be used by the respondents. This finding in the facts and circumstances of this case cannot be said to be perverse or arbitrary. It is obvious that there has to be some access to the tenanted premises and if the landlord cannot show it, the case of the tenant would have to be taken as prima facie true. This finding in the facts and circumstances of this case cannot be said to be perverse or arbitrary. It is obvious that there has to be some access to the tenanted premises and if the landlord cannot show it, the case of the tenant would have to be taken as prima facie true. So, it is a plausible finding, and therefore, in exercise of the supervisory jurisdiction of this Court under Article 227 of Constitution of India, it cannot be interfered with by this Court. 9. The material available on record shows that the part of the alternate access claimed by the petitioner to be existing on the backside of the tenanted premises passes through a property of which the ownership is no longer with the petitioner, he having sold it to some other person. Sale Deed of this property admittedly does not show that any access or right of way for the respondents has been reserved therein in order to approach to and for the tenanted premises. Therefore, such an access would be an access for the use of which the respondents would be at the mercy of the new owner of the property through which it passes. The new owner may or may not permit its user and as and when he decides to block it, the respondents would be left with no way to gain access to the tenanted premises. Therefore, the question is not so much about existence of a reasonable apprehension that the alternate way is likely to be blocked as it is about existence of an access as of right to enjoy the tenanted premises. So, the argument relating to absence of reasonable apprehension regarding likelihood of causing of obstruction in the use of alternate access, in my opinion, is really not relevant to the issue involved in this case. 10. The real issue involved is one of enjoyment of tenanted premises by the tenants as long as they pay the rent and perform their obligations under the contract and till the time the lease expires. Under section 108 of the Transfer of Property Act, there is a deemed contract between the lessor and the lessee that if the lessee pays the rent and performs his obligation under the contract, he would hold the property during the time of lease without any interruption. Under section 108 of the Transfer of Property Act, there is a deemed contract between the lessor and the lessee that if the lessee pays the rent and performs his obligation under the contract, he would hold the property during the time of lease without any interruption. Section 108 of the Transfer of Property Act also makes available to the lessee all the benefits of the contract which go with the lessee’s interest in the property. This provision makes it clear that a lessee is entitled to enjoy the property without any interruption till the time the lease is alive, provided the rent reserved under the lease contract is regularly paid and also all the obligations are performed by the lessee. Even the benefits which go with the lessee’s interest have been made available to him. This would mean that a lessee would be entitled to hold and enjoy the property without any interruption and impediment, if necessary conditions are fulfilled. If the access to approach the tenanted premises is blocked by the landlord, it would amount to depriving the lessee of holding the property with all its benefits, thereby resulting in breach of obligations of the landlord under section 108 of the Transfer of Property Act. 11. In this case, the landlord has denied the existence of access claimed by the respondents on one hand and has failed to show existence of some other access which can be used by the tenants as of right on the other. The access from the backside of the house, asserted by the petitioner to be correct access, as seen from the discussion made earlier, is no access in the eye of law. The landlord or the petitioner, I must say, has not suggested any other access which can be used by the respondents as of right, although it is the duty of the petitioner to do so in view of the provisions of section 108 of the Transfer of Property Act. In this background, the concurrent finding of fact regarding the claim of the respondents in respect of the suit access being prima facie true, appears to be arising logically from the facts of the case and cannot be seen to be perverse or arbitrary. In this background, the concurrent finding of fact regarding the claim of the respondents in respect of the suit access being prima facie true, appears to be arising logically from the facts of the case and cannot be seen to be perverse or arbitrary. If, such a finding of fact is interfered with, prima facie, the respondents will not be left with any such access as the law understands to be proper and rightful for approaching the tenanted premises and then there would be a possible failure of justice which is not the purpose of the power of this Court under Article 227 of Constitution of India. In this regard, I would like to place reliance on the ratio of the judgment of Hon’ble Apex Court in the case of Prem Bakshi and others vs. Dharam Dev and others, (2002) 2 SCC 2 . 12. It is true that the Courts below have prima facie relied upon the plan annexed to the plaint, which has been prepared without making any house inspection. But, I must say, this is an interlocutory stage where the Courts are required to examine the material available on record from the view point of arriving at some prima facie conclusions and in the instant case, the Courts below have considered the plan in question as a part of their preliminary assessment of the material available on record, and accordingly drawn their conclusions which cannot be considered as having been done in a perverse manner at this stage. 13. It is the contention of the learned Counsel for the petitioner that if the suit access claimed by the respondents is allowed to be used by them, it would result in gross inconvenience and breach of privacy to the petitioner, as the suit access passes through private areas of his house, such as swimming pool, bedroom etc. The argument cannot be accepted as what we have before us is the issue of inconvenience and breach of privacy of the landlord which is possibly avoidable or which may not be there when the suit access was granted, on the one hand and denial or deprivation of legal right of the respondents so essential to enjoy the tenanted premises on the other and in case of a conflict between the inconvenience and right, the latter would always prevail. Reason being that right comes first, inconvenience later; right is a matter of law, inconvenience is a matter of discretion, and when right is denied, Court will have no discretion to undo the inconvenience at the cost of right. In this case, such right is denied which is obvious from denial by the petitioner of the existence of suit access and absence of alternate access and therefore, Court would have no option but, to grant suitable relief to uphold the right. Otherwise, there would be more inconvenience to the respondents than the petitioner, not to say about incalculable injury that would visit the respondents. If the petitioner feels that inconvenience is going to be caused to him as his privacy is being encroached upon, the petitioner as a landlord will always have a liberty to provide, with consent of the respondents, some other access from within his own property so that both the competing interests can be balanced together. In fact, during the pendency of this petition, a suggestion by this Court was given to both the parties to find a way out but, no solution could be emerged. 14. It is also the contention of the petitioner that the suit as filed is not maintainable in view of the fact that the right of way claimed by the respondents is by way of an easement and no declaration of any easement has been sought in the plaint. As rightly submitted by learned Counsel for the respondents, the question of right of way being claimed as an easement would not arise as there are no two landlords or two different owners involved in the dispute. The present dispute is based upon a relationship between two persons, one called the landlord and the other the tenant, wherein there is only one owner of the land or house, whereas the claim of an easement is based upon the inter se relationship between the two lands, each of them owned by two separate owners, one of which is called a dominant heritage and the other called a servient heritage. Therefore, there is no merit in the argument made in this regard on behalf of the petitioner. Therefore, there is no merit in the argument made in this regard on behalf of the petitioner. For these reasons, the case of Ramanatha Gupta vs. Razaack, AIR 1982 Karnataka 314, which is based upon the dispute of easement, and referred to me by learned Counsel for the petitioner, would offer no assistance to the case of the petitioner. 15. In the result, the petition deserves to be dismissed and it is dismissed accordingly. 16. Rule is discharged. No costs.