JUDGMENT : 1. This appeal from order is filed under Order 43 Rule 1(r) of the Code of Civil Procedure, 1908 (‘the CPC’ for short) for the following prayers: “8(A) Your Lordships may be pleased to admit and allow the present Appeal from Order. (B) Your Lordships may be pleased to quash and set aside the order dated 15.12.2023, passed by the Ld. Principal Senior Civil Judge at Umargaon, District : Valsad in Special Civil Suit No.15 of 2023, passed below Exh.5 more particularly, produced at Annexure-A to the present appeal and further be pleased to grant the injunction, filed below Exh.5 by restraining the defendants herein from entering into the property owned and possessed by the plaintiff more particularly mentioned as property (S-1, S-2 and S-3) in the present appeal; (C) xxxx” 2. The appellant-original plaintiff filed the Special Civil Suit No.15 of 2023 for the reliefs prayed therein on the facts stated in the memo of the plaint. Along with the said suit, application at Exh.5 was filed for injunction for the following prayers: “(1) This Hon’ble Court be by an Order pleased to restrain the Defendant No.1 & 2, their assigns, agents, servants, representatives, partners, associates or any other persons claiming through them from entering in to “the Suit Property-I” and constructing road therein. (2) This Hon’ble Court be further by an Order pleased to restrain Defendant No.1 & 2, their assigns, agents, servants, representatives, partners, associates, or any other persons claiming through them from disturbing the possession of the Plaintiff in “the Suit Property-I”, in any manner whatsoever. (3) This Hon’ble Court be pleased to grant interim/ad-interim reliefs in terms of prayer clause (I) and (ii) herein. (4) The costs of this suit be provided for. (5) This Hon’ble Court be pleased to grant any other and further relief in favour of the Plaintiff as the nature and circumstances of the case may require to meet the ends of justice.” 3. The learned trial Court, after hearing both the sides, framed the issues in the said application and rejected the said application after giving detailed observations and discussion. It is against this order, the present appeal from order is filed. 4. Heard learned advocate for the appellant and also perused the material available on the record including the impugned order. The learned trial Court, after hearing both the sides, framed the issues in the said application and rejected the said application after giving detailed observations and discussion. It is against this order, the present appeal from order is filed. 4. Heard learned advocate for the appellant and also perused the material available on the record including the impugned order. 4.1 Learned advocate for the appellant has mainly harped on the fact that though the Deed of Right of Way was executed on 7.2.2013, the defendants were not permitted under the said disputed agreement to construct the road through the property of the plaintiff. He has further submitted that the parties have already, as per their mutual understanding, cancelled the Deed of Right of Way dated 7.3.2013 and the said act of the defendants whereby they are trying to enforce their alleged rights under the said revoked Deed of Right of Way dated 7.3.2013 has not only shocked and surprised the plaintiff but also at the same time has put the plaintiff in grave fear of exposing his property to various unforeseen circumstances which may jeopardize the rights and interests of the plaintiff. 4.2 Learned advocate has further submitted that due to such high handedness shown by the defendants for trying to put up the construction, the plaintiff has issued legal notice on 3.10.2023 and subsequent notice on 20.10.2023 which were sent to the registered postal address of the defendants and also forwarded through e-mail address of the defendants and also on whatsapp and mobile number and he has also sent the necessary communication to the office of Mamlatdar as well as police station by seeking their intervention to avoid any dispute over the properties of the plaintiffs. In this factual background, he has submitted that the learned court below, while deciding the application for injunction, has not properly considered the submission made at the bar and wrongly relied on the judgments cited at the bar which are as such not applicable and has proceeded further in deciding the application for injunction by framing the issues for prima facie case, balance of convenience and irreparable loss and thereafter decided such issues by a very cryptic order. He has submitted that considering the photograph which is produced by the plaintiff and considering the fact that there is an agreement regarding Deed of Right of Way executed which was subsequently cancelled and even then, the learned trial Court has relied on such document and has refused to grant injunction though there is eminent danger that the defendants will construct the concrete road on the disputed premises under the pretext that there is a Deed of Right of Way executed between the parties. 4.3 It is also submitted that the court has wrongly come to the conclusion that the suit is filed after almost ten years of the executing of the said document and therefore also, no such interim relief is required to be considered and prima facie case as well as factor of balance of convenience and irreparable loss is not believed in favour of the plaintiff which is erroneous. 4.4 In support of his submissions, he has referred to the judgment of the Hon’ble Apex Court in the case of Wanter Ltd. V/s Antox India P.Ltd. reported in 1990 Supp SCC 727 and has submitted that when the lower Court has exercised its discretion, this Court should exercise the powers under Order 43 Rule 1 of the CPC by interfering with the order passed by the learned trial Court below Exh.5 application. 5. I have considered the submissions in totality. It transpires that the learned trial Court has taken into consideration the fact that the deed of right of way was registered and from the date of execution of the said document, the said right is accrued in favour of the defendants pursuant to the terms of agreement of right of way; that the learned trial Court has, on perusal of the agreement which is produced at mark 3/3, found that the plaintiff has admitted that on the disputed land, the road is existing and he has executed the said agreement in favour of the defendants and has given the right of way of that agreement to the defendants to use that road. The said contract is not contingent contract as there are no terms put for using of such road mentioned in the said agreement. Such right is given without accepting any amount of consideration and the right of sale is still existing as on today. The said contract is not contingent contract as there are no terms put for using of such road mentioned in the said agreement. Such right is given without accepting any amount of consideration and the right of sale is still existing as on today. It transpires that after execution of the registered document, the defendants had uninterruptedly used that right of way for almost ten years. The photographs which are produced are required to be proved after taking full fledged evidence at the time of trial and merely production of photographs will not establish the case of the plaintiff independently in absence of any other convincing and cogent evidence available on the record. The Court has rightly come to the conclusion that the said execution of deed of right of way is admitted by the plaintiff and he has never raised the plea that the said agreement is forged or concocted. It also transpires that the learned trial court has come to the conclusion that there is difference between easement of grant and easement of necessity. In easement of grant, the said right cannot be cancelled once it is granted. In the present case, when the document is executed and the document which is produced along with the plaint at mark 3/3 which is agreement between the parties regarding right of way and from this document the right is flowing in favour of the defendants to use the road; therefore, it can be considered as easement of grant. 6. At this stage, it is relevant to produce Sections 6, 8, 13 and 41 of the Easement Act, 1882 and Section 8 and 48 of the Transfer of Property Act, which read as under: “6. Easement for limited time or on condition.—An easement may be permanent, or for a term of years or other limited period, or subject to periodical interruption, or exercisable only at a certain place or at certain times, or between certain hours, or for a particular purpose, or on condition that it shall commence or become void or voidable on the happening of a specified event or the performance or non-performance of a specified act. 8. Who may impose easements.—An easement may be imposed by any one in the circumstances, and to the extent, in and to which he may transfer his interest in the heritage on which the liability is to be imposed. 13. 8. Who may impose easements.—An easement may be imposed by any one in the circumstances, and to the extent, in and to which he may transfer his interest in the heritage on which the liability is to be imposed. 13. Easements of necessity and quasi easements.—Where one person transfers or bequeaths immovable property to another, — (a) if an easement in other immovable property of the transferor or testator is necessary for enjoying the subject of the transfer or bequest, the transferee or legatee shall be entitled to such easement; or (b) if such an easement is apparent and continuous and necessary for enjoying the said subject as it was enjoyed when the transfer or bequest took effect, the transferee or legatee shall, unless a different intention is expressed or necessarily implied, be entitled to such easement; (c) if an easement in the subject of the transfer or bequest is necessary for enjoying 8 other immovable property of the transferor or testator, the transferor or the legal representative of the testator shall be entitled to such easement; or (d) if such an easement is apparent and continuous and necessary for enjoying the said property as it was enjoyed when the transfer or bequest took effect, the transferor, or the legal representative of the testator, shall, unless a different intention is expressed or necessarily implied, be entitled to such easement. Where a partition is made of the joint property of several persons,— (e) if an easement over the share of one of them is necessary for enjoying the share of another of them, the latter shall be entitled to such easement, or (f) if such an easement is apparent and continuous and necessary for enjoying the share of the latter as it was enjoyed when the partition took effect, he shall, unless a different intention is expressed or necessarily implied, be entitled to such easement. The easements mentioned in this section, clauses (a), (c) and (e), are called easements of necessity. Where immovable property passes by operation of law, the persons from and to whom it so passes are, for the purpose of this section, to be deemed, respectively, the transferor and transferee. 41. Extinction on termination of necessity.—An easement of necessity is extinguished when the necessity comes to an end. Transfer of property act 8. Where immovable property passes by operation of law, the persons from and to whom it so passes are, for the purpose of this section, to be deemed, respectively, the transferor and transferee. 41. Extinction on termination of necessity.—An easement of necessity is extinguished when the necessity comes to an end. Transfer of property act 8. Operation of transfer.—Unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property, and in the legal incidents thereof. Such incidents include, where the property is land, the easements annexed thereto, the rents and profits thereof accruing after the transfer, and all things attached to the earth; and, where the property is machinery attached to the earth, the moveable parts thereof; and, where the property is a house, the easements annexed thereto, the rent thereof accruing after the transfer, and the locks, keys, bars, doors, windows and all other things provided for permanent use therewith; and, where the property is a debt or other actionable claim, the securities therefor (except where they are also for other debts or claims not transferred to the transferee), but not arrears of interest accrued before the transfer; and, where the property is money or other property yielding income, the interest or income thereof accruing after the transfer takes effect. 48. Priority of rights created by transfer.—Where a person purports to create by transfer at different times rights in or over the same immoveable property, and such rights cannot all exist or be exercised to their full extent together, each later created right shall, in the absence of a special contract or reservation binding the earlier transferees, be subject to the rights previously created.” 7. The judgments which are cited at the bar in the cases of Raghwendra Sharan Singh v. Ram Prasanna Singh (Dead) by Lrs reported in AIR 2019 SC 143, Dahiben V/s Arvindbhai Kalyanji Bhanusali (Gajra) (D) Thr Lrs. Reported in AIR 2020 Supreme Court 3310 and M/s. Granules India Ltd. V/s Union of India reported in AIR 2020 Supreme Court 594 all pertain to easement of grant and also regarding injunction which can be granted in which case. 8. Reported in AIR 2020 Supreme Court 3310 and M/s. Granules India Ltd. V/s Union of India reported in AIR 2020 Supreme Court 594 all pertain to easement of grant and also regarding injunction which can be granted in which case. 8. It is also relevant to refer to the judgment of the Hon’ble Apex Court in the case of S. Kumar v. S. Ramalingam, reported in 2020(16) SCC 553 , wherein it is held in paragraphs 13 to 17, it is held as under: “13. The relationship of Defendants 1 and 2 will not negate the grant of easement right of passage granted to her in the sale deed only because the recital is generic in nature and usually put by the deed writers. Since there is specific mention of easement rights reserved for Defendant 2 which recital is supported by a strip of land 16 ft wide which provides access to the plot of land purchased by the defendants and also to the plaintiff. Once the land has been sold with the right of access through the land adjoining the property sold, such right could not be exclusively conferred to the plaintiff in the sale deed dated 31-5-1988. 14. Section 48 of the Transfer of Property Act, 1882, relied upon by the learned counsel for the appellants, reads thus: “48.Priority of rights created by transfer.—Where a person purports to create by transfer at different times rights in or over the same immovable property, and such rights cannot all exist or be exercised to their full extent together, each later created right shall, in the absence of a special contract or reservation binding the earlier transferees, be subject to the rights previously created.” The said provision contemplates that where a person i.e. Rajasekaran has created different rights in or over the same property i.e. 16 ft wide strip of land and such rights cannot be exercised to their full extent together, then each later created right shall be subject to the rights previously created. The exception is if special contract or reservation binding the earlier transferee is executed. It will mean that the exclusive right conferred on the plaintiff in the sale deed dated 31-5-1988 will not be legal till such time the earlier transferee i.e. Defendant 2 has a special contract or reservation which binds her. The exception is if special contract or reservation binding the earlier transferee is executed. It will mean that the exclusive right conferred on the plaintiff in the sale deed dated 31-5-1988 will not be legal till such time the earlier transferee i.e. Defendant 2 has a special contract or reservation which binds her. Since the right of access to Defendant 2 was reserved in the sale deed dated 1-4-1976, therefore, the vendor could not confer exclusive right to the plaintiff vide sale deed dated 31-5-1988. 15. The plaintiff has to maintain the 16 ft wide passage in any case in terms of the recital in his sale deed dated 31-5-1988. Therefore, if Defendant 2 or her transferees use the passage, then such use of passage by Defendant 2 or her transferees cannot be said to be causing any prejudice to the plaintiff. 16. The argument that right of easement stands extinguished once the easement of necessity comes to an end is not applicable to the facts of the present case. The argument is based on the fact that right, title and interest of both the defendants now stand merged in one person after the death of both the defendants. The rights of the parties arise out of document of title in the year 1976. Still further, the rights of the parties have to be adjudicated upon as they exist on the date of filing of the suit. The subsequent events of inheritance vesting the property in the same person will not take away the right of the defendants to use the passage adjacent to their land only because Defendant 2 has gifted part of land to Defendant 1 or that after the death of both the defendants, the common legal heirs inherited the property. 17 The appellants have been granted right to use passage in the sale deed. Thus, it is not easement of necessity being claimed by the appellants. It is right granted to Defendant 2 in the sale deed therefore, such right will not extinguish in terms of Section 41 of the Easements Act, 1882.” 9. Another judgment which is also required to be considered, though is arising from the second appeal but law of easement is discussed in that judgment in the case of Hero Vinoth v. Seshammal, reported in 2006(5) SCC 545 paragraphs 25 to 30. “25. Another judgment which is also required to be considered, though is arising from the second appeal but law of easement is discussed in that judgment in the case of Hero Vinoth v. Seshammal, reported in 2006(5) SCC 545 paragraphs 25 to 30. “25. In the case at hand the High Court found that the approach of the trial court and the first appellate court was erroneous inasmuch as they proceeded on the basis as if it is a case of easement of necessity. Had the trial court and the first appellate court considered the evidence in the light of the respective stands of the parties and then concluded one way or the other, the position would have been different. When the approach was fundamentally wrong the High Court cannot be faulted for having gone into the question as to what was the proved intention of the party as culled out from the partition deed. The relevant (translated) portion reads as follows: “Aravamutha Chettiar commonly enjoy the well situate on the portion allotted to Purushothaman Chettiar, likewise Purushothaman Chettiar commonly enjoy the lane situate on the portion allotted to Aravamutha Chettiar. Well is the exclusive property of Purushothaman Chettiar and lane is the exclusive property of Aravamutha Chettiar.” 26. Though an attempt was made by learned counsel for the appellant to contend that the quoted portion was only the preamble and not the intention of the parties, the same is clearly untenable. Earlier to the quoted portion it has been noted as follows: “As per the above arrangement we decided to enter into the partition deed and hence we are writing this partition deed. We should take possession of our respective shares and enjoy the same uninterruptedly forever.” 27. Therefore, there is no manner of doubt that the intention was clear that it was a grant and not an easement of necessity which could be extinguished. 28. The question whether an easement is one acquired by grant (as contrasted from an easement of necessity) does not depend upon absolute necessity of it. It is the nature of the acquisition that is relevant. Many easements acquired by grant may be absolutely necessary for the enjoyment of the dominant tenement in the sense that it cannot be enjoyed at all without it. That may be the reason for the grant also. But easement of grant is a matter of contract between the parties. It is the nature of the acquisition that is relevant. Many easements acquired by grant may be absolutely necessary for the enjoyment of the dominant tenement in the sense that it cannot be enjoyed at all without it. That may be the reason for the grant also. But easement of grant is a matter of contract between the parties. In the matter of grant the parties are governed by the terms of the grant and not by anything else. Easement of necessity and quasi-easement are dealt with in Section 13 of the Act. The grant may be express or even by necessary implication. In either case it will not amount to an easement of necessity under Section 13 of the Act even though it may also be an absolute necessity for the person in whose favour the grant is made. Limit of the easement acquired by grant is controlled only by the terms of the contract. If the terms of the grant restrict its user subject to any condition the parties will be governed by those conditions. Anyhow the scope of the grant could be determined by the terms of the grant between the parties alone. When there is nothing in the term of the grant in this case that it was to continue only until such time as the necessity was absolute; in fact even at the time it was granted, it was not one of necessity. If it is a permanent arrangement uncontrolled by any condition, that permanency in user must be recognised and the servient tenement will be recognised and the servient tenement will be permanently burdened with that disability. Such a right does not arise under the legal implication of Section 13 nor is it extinguished by the statutory provision under Section 41 of the Act which is applicable only to easement of necessity arising under Section 13. 29. An easement by grant does not get extinguished under Section 41 of the Act which relates to an easement of necessity. An easement of necessity is one which is not merely necessary for the reasonable enjoyment of the dominant tenement, but one where dominant tenement cannot be used at all without the easement. 29. An easement by grant does not get extinguished under Section 41 of the Act which relates to an easement of necessity. An easement of necessity is one which is not merely necessary for the reasonable enjoyment of the dominant tenement, but one where dominant tenement cannot be used at all without the easement. The burden of the servient owner in such a case is not on the basis of any concession or grant made by him for consideration or otherwise, but it is by way of a legal obligation enabling the dominant owner to use his land. It is limited to the barest necessity however inconvenient it is irrespective of the question whether a better access could be given by the servient owner or not. When an alternate access becomes available, the legal necessity of burdening the servient owner ceases and the easement of necessity by implication of law is legally withdrawn or extinguished as statutorily recognised in Section 41. Such an easement will last only as long as the absolute necessity exists. Such a legal extinction cannot apply to an acquisition by grant and Section 41 is not applicable in such case. 30. Above being the position, the High Court was right in holding that the parties clearly provided for a right of access to the backyard of the defendant's house when the partition deed was executed and shares were allotted to various sharers taking into account various factors and it is a matter of contractual arrangement between them. In such a contract if a right of way is provided to a particular sharer, it cannot be extinguished merely because such sharer has other alternative way. The High Court's reasoning and conclusions do not suffer from any infirmity to warrant interference.” 10. In such a contract if a right of way is provided to a particular sharer, it cannot be extinguished merely because such sharer has other alternative way. The High Court's reasoning and conclusions do not suffer from any infirmity to warrant interference.” 10. Considering this aspect and considering the fact that in the present case, the easement is by way of grant and the undisputed fact that the document for granting the right of way is registered document executed in the year 2013 and the suit is of the year 2023, for ten years, the defendants have uninterruptedly used the right of way as the right is flown from the said agreement in favour of the defendants, the learned trial court has rightly come to the conclusion that there is strong prima facie case in favour of the defendants and no prima facie case is made out in favour of the plaintiff. The factors of balance of convenience and irreparable loss are also in favour of the defendants considering the facts of the matter as defendants are using the said way since last ten years uninterruptedly on the basis of registered document whereby he was given authority to use the said way. 11. Therefore, considering the provisions of Easement Act, Transfer of property Act, the court has come to the right conclusion while exercising powers under Order 39 Rule 1 and 2 of CPC, which read as under: “1. 11. Therefore, considering the provisions of Easement Act, Transfer of property Act, the court has come to the right conclusion while exercising powers under Order 39 Rule 1 and 2 of CPC, which read as under: “1. Cases in which temporary injunction may be granted.— Where in any suit it is proved by affidavit or otherwise— (a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or (b) that the defendant threatens, or intends, to remove or dispose of his property with a view to [defrauding] his creditors, [(c) that the defendant threatens to dispossess, the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit,] the Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property [or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit] as the Court thinks fit, until the disposal of the suit or until further orders. 2. Injunction to restrain repetition or continuance of breach. —(1) In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the Court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained, of, or any breach of contract or injury of a like kind arising out of the same contract or relating to the same property or right. (2) The Court may by order grant such injunction, on such terms as to the duration of the injunction, keeping an account, giving security, or otherwise, as the Court thinks fit. [2A. (2) The Court may by order grant such injunction, on such terms as to the duration of the injunction, keeping an account, giving security, or otherwise, as the Court thinks fit. [2A. Consequence of disobedience or breach of injunction.—(1) In the case of disobedience of any injunction granted or other order made under rule 1 or rule 2 or breach of any of the terms on which the injunction was granted or the order made, the Court granting the injunction or making the order, or any Court to which the suit or proceeding is transferred, may order the property of the person guilty of such disobedience or breach to be attached, and may also order such person to be detained in the civil prison for a term not exceeding three months, unless in the meantime the Court directs his release. (2) No attachment made under this rule shall remain in force for more than one year, at the end of which time, if the disobedience or breach continues, the property attached may be sold and out of the proceeds, the Court may award such compensation as it thinks fit to the injured party and shall pay the balance, if any, to the party entitled thereto.] 12. This Court has to be very careful in exercising the powers under Order 43 Rule 1 while deciding the appeal from order arising from such order passed by the learned trial court, more particularly under Order 39 Rule 1 and 2 of the CPC. 13. The judgment which is relied on by the learned advocate for the appellants in the case of Wander Ltd. And Another (supra), it is held in paragraph 14 as under: 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. 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 [ (1960) 3 SCR 713 : AIR 1960 SC 1156 ] : (SCR 721) “... These principles are well established, but as has been observed by Viscount Simon in Charles Osenton & Co. v. Jhanaton [1942 AC 130] ‘...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.” 14. Therefore, in view of the above discussion, no illegality or perversity or irregularly is found to be committed by the learned trial court while deciding Exh.5 application by considering the three principles of prima facie case, balance of convenience and irreparable loss which is in consonance with the material available on the record and in accordance with law and therefore I find no reason to interfere with the findings whereby the discretion is used by the learned trial court in judicious manner. Hence, this appeal from order is dismissed at admission stage. As the appeal from order is dismissed at the threshold, Civil application stands disposed of.