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2022 DIGILAW 2822 (MAD)

R. Kamala v. Vikram Singh

2022-08-18

P.T.ASHA

body2022
JUDGMENT (Prayer: Civil Miscellaneous Appeal is filed under Order 43 Rule 1 of the Code of Civil Procedure against the “A” Diary order passed in I.A.No.3 of 2022 in O.S.No.77 of 2022 on the file of the learned District Judge, Udhagamandalam dated 04.08.2022.) 1. The plaintiffs in the suit O.S.No.77 of 2022 on the file of the learned District Munsif, Udhagamandalam, are the appellants before this Court, questioning the order dated 04.08.2022 in and by which the learned Judge has adjourned the impugned application to 01.09.2022 for the counter of the respondents 1 and 2 in the Interlocutory Application filed by the plaintiffs in I.A.Nos.2 and 3 of 2022 in the above suit and for objections to the Advocate Commissioner's Report in I.A.No.4 of 2022. 2. I.A.No.1 of 2022 is filed for mandatory injunction directing the respondents 1 and 2 and their men to remove the illegal fence and gate put up on 30.03.2022 and also the shed put up on 28.07.2022 which prevents the access to the petitioners to reach their property through the suit schedule property. 3. I.A.No.2 of 2022 is filed for an injunction restraining the respondents from interfering with the enjoyment of the suit property. 4. Though this Court is disposing of the appeal at the admission stage with directions to the Trial Court however since certain factors had been brought to the notice of this Court, the Court is touching upon the facts in detail giving rise to this Appeal for the purpose of issuing the directions at the admission stage without notice to the respondents/defendants. 5. The dispute relates to the property which according to the plaintiffs has been earmarked as the pathway to reach the upper estate of the plaintiffs measuring an extent of 18.75 acres of land. The plaintiff's grandfather one Karian Chettiar had purchased an extent of 27.73 acres in Old Survey Nos.211, 212, 213, 215/5, 215/3B,216/3D, 216/3E, 2163F and 217 in Hulical Village, Coonoor. The lie of the above estate is such that the lower estate comprised in S.Nos.215/3B, 216/3D and 216/3F total measuring 9.56 acres is separated from the suit schedule properties by a highway road. The remaining extent of 18.75 acres is situate above the suit property (Upper Estate). The suit property lies between the lower and upper estate. The plaintiffs have no other access to their lands except through this pathway. The remaining extent of 18.75 acres is situate above the suit property (Upper Estate). The suit property lies between the lower and upper estate. The plaintiffs have no other access to their lands except through this pathway. It is the case of the plaintiffs that the property had been purchased by his great grandfather under a registered Sale Deed dated 11.03.1943 with a right of way through the suit property. 6. The suit properties were originally part of a larger extent which belonged to one John Fritschis and his wife. They had sold the property to Sagothorai Nilgiris Tea Estate Limited under a registered Sale Deed dated 27.05.1943. In the said Deed, the vendors had inserted the following clause to emphasize the right of way given to the purchaser through the lands of the vendor:- “ To pass and re-pass on foot and with horses on the existing paths in the portions of S.Nos.216 and 215 D reserved by the Vendors TOGETHER with all other rights liberties easements privileges advantages and appurtenances whatsoever belonging to or in any wise appertaining or usually enjoyed or reputed to belong or be appurtenant thereto and all the estate right title interest and demand whatsoever TO HAVE and TO HOLD the same unto the Purchaser Company for ever…” 7. Thereafter, the property had been sold to the great grandfather of the appellants herein by Sagothorai Nilgiris Tea Estate Limited under a Sale Deed dated 11.03.1946. The sale Deed also contained a sketch drawn to scale indicating both the S.Nos.215 and 216 and indicating the right of way. Thereafter, the property had been sold to the great grandfather of the appellants herein by Sagothorai Nilgiris Tea Estate Limited under a Sale Deed dated 11.03.1946. The sale Deed also contained a sketch drawn to scale indicating both the S.Nos.215 and 216 and indicating the right of way. In this Deed as well, the right of way through S.F.No. 215/D has been set out which is hereinbelow extracted: “Together with all rights of way including in particular the rights for the Purchaser his tenants and agents at all times to pass and re-pass on foot with horses carts carriages motor cars and lorries on the private road passing through the piece or parcel of land bearing S.No. 216, R.S.No. 216/1, 216/2, and 216/3 TOGETHER with the right to pass and re-pass on foot and with horses on the existing paths in the portions of S.No.216 and 215 D and R.S.No.216/1, 216/2, and 215/3 reserved by the Vendors under the Indenture of Conveyance dated the Twenty seventh day of May One thousand nine hundred and forty three and also the benefit also of the Covenant on the part of the said Vendors to keep and maintain the private road passing through S.No. 216 R.S.No.216/1, 216/2 and 216/3 in good and proper state of repair and also the benefit of the Covenant on the part of the said Vendors not to plant and cause to be planted any avenue trees or plants on the margin of the said road so as to prejudicially affect the tea and other - cultivation belonging to the Purchaser Together with all - other rights liberties easements privileges advantages and appurtenances whatsoever belonging to or in any wise appurtaining or usually enjoyed or reputed to belong to or appurtenant thereto” 8. From the year 1946, the petitioners family have been enjoying the right of way through the suit property. The appellants would submit that their grandfather had totally purchased an extent 57.33 acres. Thereafter, there has been partition amongst the predecessors of the plaintiffs and the various branches of Vanian Chettiar's family. Ultimately, the plaintiffs became entitled to the extent of 27.73 acres which included the upper and lower Tea Estate as mentioned in the earlier paragraphs along with the right of way. 9. Thereafter, there has been partition amongst the predecessors of the plaintiffs and the various branches of Vanian Chettiar's family. Ultimately, the plaintiffs became entitled to the extent of 27.73 acres which included the upper and lower Tea Estate as mentioned in the earlier paragraphs along with the right of way. 9. After the sale in the year 1943, the original owner John Fritschis had retained 4.19 acres with a bungalow in S.No.216 and 1.16 of acres of uncultivable lands in S.No.215D. These two lands do not lie adjacent to each other and are about 500 meters apart. There is a 10 feet mud road from the bungalow situate in S.No.216 to the highway and thereafter, to the suit property in S.No.215/2D. 10. The suit schedule properties is the only entrance for the plaintiffs to their lands measuring 18.75 acres and which is situate above the suit property. The said John Fritschis and his wife sold the extent of 4.19 acres in S.No.216 and 1.16 acres in S.No.215/D to the Nilgiris Diocesan Society. Even in this Deed, the very same condition with reference to the use of way has been incorporated which has been described in the earlier deeds. 11. Subsequently, they had sold the property to one Srinivasan under a Sale Deed dated 16.09.1966 registered as Doc.No.1047/66 before the Sub Registrar, Coonoor, In the said Sale Deed also, there is a mention about the right of the way in the same language as contained in the earliest Sale Deed. Srinivasan in turn has sold the properties to his daughter who has been arrayed as the 3rd respondent/defendant, under a registered Sale Deed dated 01.09.1994. Srinivasan in turn has sold the properties to his daughter who has been arrayed as the 3rd respondent/defendant, under a registered Sale Deed dated 01.09.1994. In this Deed executed by Srinivasan in favour of his daughter, the 3rd defendant/ 3rd Respondent herein, the right of way has been described as follows: “The right to enter upon the said lands and to carry out necessary repairs to such pipe line passing through the said lands and together with the full right of way over the private road granted to the Purchaser under the Sale Deed dated 27-5-1943 and together with specific right of way over the 20 feet wide road in R.S.No.216/3A of Hulical village, more clearly delinated and demarked in the plan annexed herewith and shown in YELLOW colour and together with all the rights of way, waters, water courses, liberties, privileges, easement and appurtenances whatsoever to the said plot of land belonging or in any way appertain ning or usually held or occupied therewith, or reputed to belong or appurtenant thereto and all the estate, rights, title and interest of the Vendor into and upon the said property whatsoever and every part thereof in the property hereby conveyed.” 12. However, when the daughter Sunitha had sold the property to the 1st defendant/ 1st respondent herein, not only has the right of the way been suppressed but on the contrary the deed would contain a clause which reads as follows: “The Vendor affirms that no other party has any right of way, easement or license or any other right, in, over, or in respect of the schedule property or any part thereof and that the owners or occupiers of adjacent land or the public do not use or have any lawful access to any part of the schedule property for passing or re-passing between any point within the schedule property.” 13. By reason of this clause, the vendor of the 1st defendant has given out that no one has a right of the way through the property totally suppressing the right of way which has been granted and conveyed under the various purchases right from the year 1943 upto the purchase by the 3rd respondent. 14. By reason of this clause, the vendor of the 1st defendant has given out that no one has a right of the way through the property totally suppressing the right of way which has been granted and conveyed under the various purchases right from the year 1943 upto the purchase by the 3rd respondent. 14. From a reading of the plaint and the affidavit filed in support of the petitions, it appears that the 1st defendant had expressed a desire to purchase the properties of the plaintiffs' which was turned down by them. This has angered the 1st and 2nd defendant who had started giving pinpricks to the enjoyment of the property by the plaintiffs starting from July 2017. Ultimately, on 30.03.2022, it appears that the 1st defendant put up a fence and a gate and had ultimately closed the gate preventing the access to the plaintiffs to reach their upper tea estate. The plaintiffs had not rushed to Court but attempted to to settle it through negotiations which failed. 15. In fact, the plaintiffs have stated that a law and order situation had arisen and based upon the earlier complaints dated 24.03.2020, 03.05.2022, and 08.05.202, the RDO -cum- Sub Collector directed the VAO, Hulical, to inspect the suit schedule property and ascertain the claim of the plaintiffs. After considering the documents, the RDO had initiated proceedings under Section 145 of the Code of Criminal Procedure against the plaintiffs and the defendants and ordered status quo from that date till the settlement of the disputes. The RDO has also directed the defendants to open the gate and remove the fence so that the plaintiffs could continue to use the way. Thereafter, by an order dated 08.07.2022, the RDO was of the opinion that since the matter was a private dispute the parties had to get their grievances redressed through Civil Court. The plaintiffs would submit that immediately the defendants have started construction on the suit property which constrained the plaintiffs to file the above suit. 16. It appears that the Advocate Commissioner has also been appointed by orders in I.A.No.4 of 2022 who has submitted his report with photographs. The plaintiffs would submit that immediately the defendants have started construction on the suit property which constrained the plaintiffs to file the above suit. 16. It appears that the Advocate Commissioner has also been appointed by orders in I.A.No.4 of 2022 who has submitted his report with photographs. In the report, the Advocate Commissioner had reported that though he had shown the warrant issued by the Court to the 1st defendant's representative, without considering the fact that he is an Officer of the Court, he has not been permitted access by the defendants into the suit property. This, despite the Advocate Commissioner showing the orders of Court. Despite receiving the report of the Advocate Commissioner and being put on notice about the conduct of the defendants, the learned District Judge had not granted any interim orders but has directed the respondents 1 and 2 to file their counter. It is aggrieved by this order that the plaintiffs are before this Court. 17. Heard the Party-in-person and perused the papers. 18. The records which have been produced for my scrutiny would explicate that a right of way has been granted under the various documents right upto the sale in favour of the 3rd respondent. The plaintiffs' case is that their pathway is being blocked by the defendants by putting up a fence, gate and sheds. Though a prima facie case was sought to be made out, since the respondents had entered caveat the learned District Judge has simply adjourned the matter for counter of the parties and it is this order which is the subject matter of the challenge before this Court. 19. The party in person would submit that by not granting an interim order, the appellants have been put to irreparable injury. He would submit that the only access for them to their tea estate is through this pathway. Further the tea is ripe for plucking and now by reason of the gate and fence no one can go to the fields and pluck the tea. His grievance is that though the plaintiffs have shown a prima facie case of their right of way the Court below has only adjourned the matter for counter because the defendants 1 and 2 had entered caveat. 20. His grievance is that though the plaintiffs have shown a prima facie case of their right of way the Court below has only adjourned the matter for counter because the defendants 1 and 2 had entered caveat. 20. It has became a norm that where a caveat is filed the Courts below in most cases mechanically grant time to the defendants/respondents to file their counter without considering if the plaintiffs/petitioners have made out an exceptional case for grant of interim orders. In this regard useful reference could be made to the observation of the Hon'ble Supreme Court in the Judgment reported in (2004) 4 SCC 697 [Deoraj Vs. State of Maharashtra and Others] where the learned Judges had held as follows: “12. Situations emerge where the granting of an interim relief would tantamount to granting the final relief itself. And then there may be converse cases where withholding of an interim relief would tantamount to dismissal of main petition itself; for, by the time the main matter comes up for hearing there would be nothing left to be allowed as relief to the petitioner though all the findings may be in his favour. In such cases the availability of a very strong prima facie case -- of a standard much higher than just prima facie case, the considerations of balance of convenience and irreparable injury forcefully tilting the balance of case totally in favour of the applicant may persuade the Court to grant an interim relief though it amounts to granting the final relief itself. Of course, such would be rare and exceptional cases. The Court would grant such an interim relief only if satisfied that withholding of it would prick the conscience of the Court and do violence to the sense of justice, resulting in injustice being perpetuated throughout the hearing, and at the end the Court would not be able to vindicate the cause of justice. Obviously such would be rare cases accompanied by compelling circumstances, where the injury complained of is immediate and pressing and would cause extreme hardship. The conduct of the parties shall also have to be seen and the Court may put the parties on such terms as may be prudent.” 21. This Judgment has been followed by the Hon'ble Supreme Court in (2019) 14 SCC 1 [[Hammad Ahmed Vs. Abdul Majeed and Others] where the learned Judges has observed as follows: “58. The conduct of the parties shall also have to be seen and the Court may put the parties on such terms as may be prudent.” 21. This Judgment has been followed by the Hon'ble Supreme Court in (2019) 14 SCC 1 [[Hammad Ahmed Vs. Abdul Majeed and Others] where the learned Judges has observed as follows: “58. The ad interim mandatory injunction, is to be granted not at the asking but on strong circumstance so that to protect the rights and interest of the parties so as not to frustrate their rights regarding mandatory injunction. In Deoraj v. State of Maharashtra, this Court held that Court would grant such an interim relief only if it is satisfied that withholding of it would prick the conscience of the Court and do violence to the sense of justice, resulting in injustice being perpetuated throughout the hearing, and at the end the Court would not be able to vindicate the cause of justice. Therefore, in appropriate case, ad-interim injunction in mandatory form can be granted.” 22. Therefore, Courts of law are bound to prima facie consider if a case is made out by the plaintiffs/petitioners and balance of convenience is in favour of the plaintiffs for the grant of the interim order instead of simply adjourning the matter for counter. Since the Trial Court is already seized of the matter and has listed the matter on 01.09.2022, the filing of the appeal appears to be pre-mature for the present. However, while disposing of this appeal, this Court deems it fit to make the following observations. (a)the conduct of the defendants/respondents during the visit of the Advocate Commissioner, an Officer of the Court in refusing him access to the suit property is condemnable. The Advocate Commissioner is an officer of the Court and he represents the Court in every sense. Therefore, the refusal to permit the Advocate Commissioner access to the suit property would tantamount to flouting the orders of this Court. (b)The respondents who enter Caveat ought to be ready with the arguments on the date on which the Interlocutory Application is directed to be listed as they receive an advance notice with copies of all the papers. Therefore, the refusal to permit the Advocate Commissioner access to the suit property would tantamount to flouting the orders of this Court. (b)The respondents who enter Caveat ought to be ready with the arguments on the date on which the Interlocutory Application is directed to be listed as they receive an advance notice with copies of all the papers. Just as much as a duty is cast on the petitioners to keep the caveator informed about their intention to move an interim application an equal duty is cast upon the caveator to be ready for arguments on the said date. By asking time for counter the attempt of the caveator is to stall the process thereby in many cases rendering the very relief otiose. A division Bench of this Court in the Judgment reported in 1991(2) LW 225 M.RankaVs. The Hon'ble the Chief Justice of Tamil Nadu, High Court, Madras has made the following observations regarding the role of a caveator :- " A caveat is nothing but a formal notice, which literally is not different from a caution. Its origin as a petition to Court is generally traced to the proceedings in the Courts of probate. It is just an intimation given to the Court notifying it that it ought to beware or suspend proceedings before it until the merits of the caveat are determined. It does not create any obligation upon the Court to desist from making any order in the proceeding before it unless the caveat is decided. All that a Court is expected to do on the face of a caveat is to beware and to hear the caveator before a decision is taken. A caveator does not get a right to defeat the proceedings at the threshold or to insist that he must be heard on merits of the case before any interim order is passed." (c)The Advocate Commissioner's report indicates that the respondents are taking emergent steps to put up a tea shed in the suit property which is claimed to be a pathway and same is under construction. The report would further state that the respondents have planted new tea bushes as an attempt to obliterate the sign of the pathway which the plaintiffs claim they are entitled to from the year 1943 onwards. 23. The report would further state that the respondents have planted new tea bushes as an attempt to obliterate the sign of the pathway which the plaintiffs claim they are entitled to from the year 1943 onwards. 23. In view of the above, this Civil Miscellaneous Appeal is disposed with the following directions: (a)The respondents are injuncted by means of an ad interim injunction from in any way constructing, planting trees, bushes, shrubs etc, putting up a fence or shed or doing any such activity by reason of which the existence or otherwise of the pathway over the suit property is obstructed / obliterated till the learned District Judge Udhagamandalam passes an order in I.A.No.2 of 2022. (b)The learned District Judge shall take up the Interlocutory Applications I.A.Nos.2 and 3 of 2022 for hearing on 01.09.2022 irrespective of the counter being filed by the respondents 1 and 2, who are the contesting respondents in the above matter and who have been accused of obstructing the use of the pathway by the plaintiffs. The learned District Judge shall dispose of the above application and report to this Court by 09.09.2022. No costs. Consequently, connected Miscellaneous Petition is closed.