Dismissed¶16

Smt. Sunita Malik and 12 Others v. Gajraj Singh and 8 Others

Article 227 – Temporary injunction

Allahabad HC18 Jul 2023A227/3869/2023

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What is this about?

Allahabad High Court, Jayant Banerji, J.; Neutral Citation 2023:AHC:142188; MATTERS UNDER ARTICLE 227 No. 3869 of 2023, decided 18.7.2023; temporary injunction; easementary right; Section 15 of the Easement Act; 20 feet wide common service road; Order 39 Rule 1/2 and Section 151 C.P.C.; Amin Commissioner report; alternate road of access; concurrent findings; supervisory jurisdiction under Article 227; Misc. Appeal No. 77 of 2022; O.S. No. 656 of 2022 (Ghaziabad); petition dismissed.

What did the court decide?

For claiming easementary rights over the land claimed as a service lane, the plaintiffs were required to prove their peaceful and uninterrupted access for a period of 20 years as provided in Section 15 of the Easement Act. ¶14

Smt. Sunita Malik and 12 Others Vs Gajraj Singh… — Writ and Judicial Review | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:142188

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Court No. - 1

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Case :- MATTERS UNDER ARTICLE 227 No. - 3869 of 2023

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Petitioner :- Smt. Sunita Malik And 12 Others Respondent :- Gajraj Singh And 8 Others Counsel for Petitioner :- Ramendra Asthana,Kuldeep Maurya Counsel for Respondent :- Brijesh Kumar Mishra,Martand Kumar,Sanjay Kumar Mishra

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Hon'ble Jayant Banerji,J.

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Heard Shri Ramendra Asthana, learned counsel for the petitioners and Shri R.C. Singh, learned Senior Advocate assisted by Shri Sanjay Kumar Mishra, learned counsel for the respondent nos.1 to 3.

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This petition under Article 227 of the Constitution of India has been filed seeking the following reliefs :-

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"(a) Issue a suitable order or direction annulling judgments and orders dated 31.01.2023 (contained in Annexure No.8 to the petition passed by the learned Additional District and Sessions Judge, Court No.13, Ghaziabad dismissing Misc. Appeal No.77 of 2022 = (C.N.R. No.UPGZ010267882022) and 24.11.2022 (contained in Annexure No.6 to the petition, passed by the learned Civil Judge (Senior Division)/Fast Track Court, Ghaziabad rejecting Application under Order 39 Rule 1/2/Section 151 C.P.C. in O.S. No.656 of 2022, Sunita Malik and others vs. Gajraj Singh and others), substitute the same by its own judgments and orders that may be deemed to be necessary under the facts and circumstances of the case.

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AND/OR

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This Hon'ble Court may graciously be pleased to exercise its extra ordinary supervisory jurisdiction under Article 227 of the Constitution by issuing directions to the learned courts below to pass orders that may be deemed to be not necessary to meet the ends of justice under the facts and circumstances of the case."

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It is stated by the learned counsel for the petitioners that a suit for permanent injunction was filed for restraining the defendantrespondents from creating any obstruction to the peaceful usage of

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a 20 feet wide common service road that was reflected by alphabets on the plaint map. It is stated that an application for temporary injunction was filed by the plaintiff-petitioners that came to be rejected by the trial court by means of an impugned order dated 24.11.2022. It is stated that the plaintiff-petitioners unsuccessfully challenged the aforesaid order of the trial court by means of Misc. Civil Appeal No.77 of 2022, which was dismissed on 31.01.2023 by the Additional District & Sessions Judge, Court No.13, Ghaziabad which order is also impugned in this petition.

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It is the contention of the learned counsel for the petitioners that the report of the Amin Commissioner was in favour of the plaintiff-petitioners against which the defendant-respondents filed their objections, and without disposal of their objections, the order impugned has been passed. It is further the contention of the learned counsel for the petitioners that the court has misdirected itself in observing that the plaintiff-petitioners had not filed any objection to the Amin report, whereas the Amin report was in their favour.

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A perusal of the relief clause in the plaint that has been enclosed as Annexure-1 to this petition reveals that the dispute is basically with regard to an easementary right being claimed by the plaintiffpetitioners over a 20 feet wide service road that is demarcated on the plaint map. The factum of the common service road has been disputed by the defendant-respondents in their written statement as well as in the objections filed to the application for temporary injunction. For claiming easementary rights, the plaintiffpetitioners are required to prove their peaceful and uninterrupted access over the land that is claimed to be a service lane for a period of 20 years as provided in Section 15 of the Easement Act.

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The trial court and the appellate court have negated the application for temporary injunction, prima facie, on the ground that alternate roads of access are available to the plaintiff-petitioners and that the report of the Amin Commissioner does not support the plaint map in respect of the disputed road. Nothing has been demonstrated to contradict the findings recorded by the courts. Under the circumstances, interference is declined.

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This petition is, accordingly, dismissed .

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The Registrar (Compliance) is directed to send a copy of this order to the concerned court within fifteen days.

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Order Date :- 18.7.2023 SK

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(Jayant Banerji, J.)

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Digitally signed by :- SUSHEEL KUMAR High Court of Judicature at Allahabad

Smt. Sunita Malik and 12 Others v. Gajraj Singh and 8 Others

Case brief

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Smt. Sunita Malik and 12 Others v. Gajraj Singh and 8 Others

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