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2016 DIGILAW 952 (RAJ)

Shrilal v. Durgalal

2016-07-06

VIJAY BISHNOI

body2016
JUDGMENT : Vijay Bishnoi, J. This civil writ petition has been filed by the petitioners being aggrieved with the order dated 30.1.2016 passed by the Additional District Judge, Shahpura, District Bhilwara (hereinafter referred to as 'the Appellate Court') in Appeal No. 7/2015, whereby the Appellate Court has allowed the appeal preferred on behalf of the respondents and directed the petitioners to remove the obstructions created by them in the disputed way within 15 days and also restrained them from creating any obstruction for the respondents in using the said way. 2. Brief facts of the case are that the respondents filed a civil suit in the Court of Civil Judge, Shahpura, District Bhilwara (hereinafter referred to as 'the Trial Court’) for declaration and permanent injunction along with an application under Order 39 Rules 1 and 2 C.P.C. with a prayer for mandatory temporary injunction while stating that their Khatedari land measuring about 4.83 hectare is falling in Khata No. 177 of village Phooliya Khurd Tehsil Shahpura District Bhilwara and for approaching to the said Khatedari land the respondents are using a way situated between the agriculture fields of petitioners since more than 100 years. It is stated that there is no other way available to the respondents for approaching their Khatedari land and in the year 2013 they created the said way by putting gravel sand on it, however, the petitioner Nos. 1 and 2 have obstructed the said way by digging ditch in between Araji Nos. 2363 and 2362 and by putting some thorns. The respondents prayed for mandatory temporary injunction for removing the obstructions and opening the way and also prayed that the petitioners be directed not to interfere in the use of said way. 3. The petitioners have filed reply to the application preferred on behalf of the respondents under Order 39 Rules 1 and 2 C.P.C. and denied the claim of the respondents while stating that there exists no way in the revenue record and the respondents are forcefully trying to make a way by putting gravel sand which was excavated from their pond. The petitioners have also stated that a revenue suit filed by them against the respondents is pending before the Sub Divisional Magistrate, Shahpura, District Bhilwara (hereinafter referred to as 'the Revenue Court') in respect of the dispute regarding the way. The petitioners have also stated that a revenue suit filed by them against the respondents is pending before the Sub Divisional Magistrate, Shahpura, District Bhilwara (hereinafter referred to as 'the Revenue Court') in respect of the dispute regarding the way. Ultimately, it was prayed that no case for grant of mandatory temporary injunction is made out and, therefore, the application be rejected. 4. The Trial Court, after hearing the parties, has rejected the application filed by the respondents under Order 39 Rules 1 and 2 C.P.C. vide order dated 8.10.2015 while observing that from the mauka report, prepared by the Commissioner, it is clear that the respondents have constructed the gravel road on the Khatedari land of the petitioners without obtaining their consent and without taking permission from the State Government and the revenue suit in relation to the disputed way is also pending Revenue Court, therefore, no prima facie case is made out in favour of the Respondents. The Trial Court has also observed that as per the Commissioner's report an alternate way is available to the respondents for approaching their Khatedari land and in such circumstances the question regarding the prima facie case is liable to be decided against the respondents and in favour of the petitioners. The Trial Court has further observed that as no prima facie case is made out in favour of the respondents, the questions regarding the balance of convenience and irreparable loss are also liable to be decided against the respondents and as such, the application preferred by them is also liable to be dismissed. With these observations the Trial Court has rejected the application preferred on behalf of the respondents under Order 39 Rules 1 and 2 C.P.C. 5. Being aggrieved with the order passed by the Trial Court, the petitioners have preferred the appeal before the Appellate Court, however, Appellate Court has allowed the appeal and passed a mandatory injunction in favour of the respondents while directing the petitioners to remove the obstruction in the way within 15 days and further restrained them from interfering the respondents from using the said way. Hence, this writ petition. 6. Hence, this writ petition. 6. Learned Counsel appearing for the petitioners has assailed the order passed by the Appellate Court while arguing that before granting mandatory temporary injunction the Court should have specifically observed that the plaintiff has a strong case for trial and for that the Court should have taken into consideration the higher standard than a prima facie case. It is submitted that in the case in hand, the respondents have failed to prove even prima facie case in their favour but the Appellate Court has illegally granted mandatory injunction in favour of the respondents. It is submitted that the respondents have failed to produce any material to prove that there exists a way between the agriculture fields of the petitioner Nos. 1 and 2 and that way is being obstructed by the petitioners. It is submitted that in the absence of existence of any way in the revenue record, the Appellate Court has erred in observing that the petitioners have obstructed the way of the respondents for reaching their Khatedari land. It is also argued by learned Counsel for the petitioners that from the mauka report, prepared by the Commissioner, it is clear that the alternate way is available to the respondents for approaching their Khatedari land but the Appellate Court has not taken into consideration this aspect of the matter and illegally passed the impugned order. It is also argued that the mandatory injunction granted by the Appellate Court in favour of the respondents is in nature of final relief and, therefore, the same is illegal. 7. In support of the above contentions, learned Counsel for the petitioners has placed reliance on the judgments of the Hon'ble Supreme Court rendered in Dorab Cawasji Warden v. Coomi Sorab Warden & Ors. reported in AIR 1990 Supreme Court 867 and Metro Marins & Anr. v. Bonus Watch Co. Pvt. Ltd. & Ors. reported in AIR 2005 Supreme Court 1444 and prayed that the impugned order may kindly be quashed and set aside. 8. Per contra, learned Counsel appearing for the respondents has supported the order passed by the Appellate Court and argued that the Appellate Court has taken into consideration the material available on record particularly the Commissioner's mauka report and rightly passed the order and, therefore, no interference is called for. 9. Heard learned Counsel for the parties and carefully scrutinised the record. 10. 9. Heard learned Counsel for the parties and carefully scrutinised the record. 10. Pursuant to the direction given by the Trial Court, the Commissioner has inspected the site and prepared the mauka report dated 8.8.2015. From the said report, it is clear that there exists a padat land between the agriculture fields of petitioner Nos. 1 and 2 and in the said padat land, a way is in existence, which is obstructed by digging two ditches and putting thorns over it. In the said report, it is also observed that though an alternate way exists for the purpose of approaching the Khatedari land of the respondents but the said way is blocked about 50 meters away from the Khatedari land of the respondents and the initial width of the said alternate way is about 6-7 feet but after around 100 meters it converted into a track. The Commissioner in its report has also clearly observed that except the obstruction created in the disputed way, the said way is clear up to the Khatedari land of the respondents. 11. Some of the agriculturists, whose lands are also situated on the disputed way had filed their affidavit before the Trial Court while stating that the disputed way is the only way available to them for approaching their agriculture fields and to the fields of the respondents. Two former Sarpanchs of the Gram Panchayat have also filed their affidavit while stating that the way between the agriculture fields of the petitioner Nos. 1 and 2 exists from the long time and being used by the respondents for approaching their Khatedri land. 12. The Appellate Court, after taking into consideration the Commissioner's report and the other material available on record has held that there exists a way on the padat land situated in between the agriculture fields of the petitioner Nos. 1 and 2. and the same has been obstructed by them by digging ditches and putting thorns on it and there is no alternate way available to the respondents for approaching their Khatedari land and in such circumstances the prima facie case is made out in favour of the respondents. 13. 1 and 2. and the same has been obstructed by them by digging ditches and putting thorns on it and there is no alternate way available to the respondents for approaching their Khatedari land and in such circumstances the prima facie case is made out in favour of the respondents. 13. After going through the material available on record particularly the Commissioner's report, I am also convinced that no alternate way available to the respondents to approach their Khatedari land and the only way available to them for approaching to their Khatedari land is situated in between the agriculture fields of the petitioner Nos. 1 and 2, on Government land and the same has been obstructed by digging ditches and putting thorns. 14. Whether the said way is a sanctioned way or not, is a question which can only be decided by the Trial Court after taking into consideration the evidence produced by the parties. This Court is of the opinion that the respondents have proved a prima facie case in their favour and, therefore, no fault can be found with the impugned order. 15. So far as the argument of learned Counsel for the petitioners that while issuing the mandatory injunction, the Appellate Court has granted the final relief in the suit is concerned the same has no force because from the material available on record, it is clear that no alternate way is available to the respondents for approaching their Khatedari land and if they will not be allowed to use the disputed way, their crops will be destroyed and they will suffer irreparable loss. 16. There is no quarrel about the proposition of law laid down by the Hon'ble Supreme Court in Dorab Cawasji Warden's case (supra) and Metro Marins' case (supra). However, in the present case, the respondents have made out a strong prima facie case in their favour, hence, the Appellate Court has not committed any illegality in passing the impugned order. 17. In view of the above discussions, I do not find any merit in this writ petition and the same is, therefore, dismissed. There shall be no order as to costs. Stay petition also stands dismissed. Record of the Trial Court be sent forthwith.