Madhav Narayan Agaskar Vs Vinayak Narayan Agaskar and Another

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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 CIVIL APPELLATE JURISDICTION

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 SECOND APPEAL NO. 440 OF 1998

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 Shri Madhav Narayan Agaskar .. Appellant

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 (Orig.Deft no.1)

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V/s

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 1. Shri Vinayak Narayan Agaskar

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2. Shri Chintaman Kisan Koli

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 3. Sajiraj Thankappan ... Respodnents

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 (No.1 orig.plff)

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 Shri S.G.Deshmukh for the Appellant

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 Shri A.V.Joshi for Respondent no.1

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 CORAM:S.R.SATHE,J.

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 DATED: 16th Jan. 2007

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ORAL JUDGMENT :-

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 1.The Appellant original defendant No.1 in Regular

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 Civil Suit No.4 of 1992 has preferred this Second
 Appeal against the judgment and order passed by the

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 Court of the Additional District Judge,Thane in Civil
 Appeal No.107 of 1996 whereby the order passed by the
 trial Court granting decree in favour of the
 plaintiff was confirmed and the appeal was dismissed.

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 2. For the sake of convenience hereafter the parties
 shall be referred to as the plaintiff and defendants.

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 3. Brief facts giving rise to this appeal are as
 under:-

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 . The house property popularly known as ‘Saraswati
 Niwas’ and ‘Rama Niwas’ situated on CTS no.302 and
 305 respectively at Chendani, Thane was initially
 owned by one Narayan Agaskar. After his death his
 son Jaywant instituted a suit for partition against
 his step brothers viz. Vasant, Madhav and Vinayak
 and mother Indirabai bearing Suit No.Special Civil
 Suit NO.43 of 1950. A preliminary decree was passed
 in the said suit and as per request of the parties
 Advocate Shri B.G.Oka was appointed as a Court
 Commissioner to effect partition and also to sale
 house property known as ‘Saraswati Niwas’ by auction.
 During auction it was purchased by Bhats. As per
 sale deed executed by the Court Commissioner in
 favour of Bhats they were given right of way of 12’
 width through the property known as ‘Rama Niwas’.
 According to the plaintiff final decree was passed in

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 the matter vide Exh.39 on 7-10-1971. Thus partition
 took place as per final decree. The property known
 as Plot A1 was allotted to the share of the present
 plaintiff Vinayak while properties A2, B1 and B3 were
 allotted to Vasant, Madhav and Indirabai
 respectively. The property of the present plaintiff
 is situated on the Southern side and for the purpose
 of going to the said property from the public road
 one has to go through 12’ width passage mentioned in
 the sale deed executed in favour of Bhats. As per
 said deed not only Bhats but all those who are
 required to occupy the property ‘Saraswati Niwas’ or
 ‘Rama Niwas’ are entitled to use the said passage.
 Initially the present plaintiff as well as his step
 brother Vasant were doing business of running cycle
 stand in the name and style VN and VN Cycle stand and
 at that time they used to make use of the said
 passage. However, after Bhats filed a suit bearing
 Suit NO.21 of 1978 and decree was passed in their
 favour whereby the present plaintiff and his brothers
 were directed to keep the said 12’ width passage open
 and not to obstruct the same in any manner, they
 stopped to park their vehicles in the passage. The
 plaintiffs thereafter started independent business of
 cycle stand. However, the defendants obstructed the
 passage as a result of the same the plaintiff was not
 in a position to carry his business and to go to his
 property i.e. A1 shown in the map attached to the

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 final decree. Hence the plaintiff filed the present

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 suit for permanent injunction restraining the
 defendants from creating any obstruction in the use
 and enjoyment of 12’ width passage leading to the
 plaintiff’s property from Keshavrao Padhye Road as
 shown in the plan annexed to plaint and in the map
 Exh-79.

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 4. The defendant no.1 filed his written statement at
 Exh.12 and opposed the suit claim. Firstly, he
 contended that plaintiff had in fact filed Special
 Darkhast No.25 of 1991 to get the relief of
 injunction, however, the same was rejected. They
 also contended that common passage does not exist
 beyond the property of the plaintiff and defendant
 no.2. He also contended that he never obstructed

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 plaintiff to use the passage. Hence on all these
 grounds he prayed for dismissal of the suit. The
 defendant no.2 filed his written statement at Exh.17
 and denied that he used to 0park his two vehicles in
 the common passage. Hence he also prayed for
 dismissal of the suit.

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 5. On these pleadings the learned trial Judge framed
 issues at Exh.29. In order to prove the suit claim
 plaintiff Vinayak Agaskar examined himself at Exh.36
 and witness Prabhakar Satghare at Exh.57. As against
 this the defendant no.1 Madhav Agaskar examined

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 himself at Exh.60. Both the parties produced several
 documents.

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 6. After considering the evidence adduced by both
 the parties the learned trial Judge came to the
 conclusion that entire road starting from Keshavrao
 Padhye Road ending to the plot of plaintiff and as
 shown in the Map to the final decree drawn in Special
 Civil Suit No.43 of 1950, the passage is common and
 the defendants obstructed the plaintiff’s vahiwat of
 the said passage by parking their scooters. Hence,
 the learned trial Judge issued permanent injunction
 restraining the defendants from causing obstruction
 in use and enjoyment of the suit passage shown in the
 plan Exh.40 attached to the final decree Exh.79.

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 7. Being aggrieved by the said order the original
 defendant no.1 Madhav Agaskar filed Civil Appeal
 No.107 of 1996. The said appeal also came to be
 dismissed. Hence the original defendant filed the
 present second appeal.

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 8. From perusal of the record it appears that while

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 admitting the appeal this court

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 (Coram:D.K.Deshmukh,J) has passed the following
 order:

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 "Admit, on the substantial question of law on

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 ground NO.20. To be heard with Second Appeal
 No.82 of 1984.

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 . The said ground is as under :-

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 " Ground No.20) That the Courts below should have
 seen that the plaintiff had suffered and had
 thereby acquiesced to the first defendant using
 the part of the property put to the share of the
 first defendant and his mother for the purposes of
 running his independent business since 1976. In
 the circumstances the plaintiff is not at all
 entitled to seek any injunction in respect of the
 said property as late as in 1992. The equitable
 relief of injunction is obviously not available to
 a person who is not vigilant or diligent about his
 so called right and when his suit obviously
 suffers from laches."

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 9. It is not in dispute that house property known as
 ‘Saraswati Niwas’ and ‘Rama Niwas’ was initially
 owned by Narayan Agaskar and in Special Civil Suit
 NO.43 of 1950 decree for partition was passed and
 Court Commissioner was appointed to take accounts and
 partition the property and in pursuance of the said
 decree a request was made by the parties that the
 house property known as ‘Saraswati Niwas’ be sold in
 auction and accordingly the Court Commissioner held

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 auction and property ‘Saraswati Nivas’ was sold to
 Bhats. It is also admitted that in the said sale
 deed it was specifically mentioned that passage of
 12’ width shown by letter ABCD in the map is given to
 Bhats so as to enable them to approach their
 property. It was also made clear that the said
 passage shall be used by both i.e. Bhats as well as
 the occupants of Rama Niwas. It is an admitted fact
 that Bhats thereafter filed Regular Civil Suit No.21
 of 1978 against Agaskar including the present
 plaintiff and prayed for declaration and injunction
 in respect of the said passage. The said suit was
 opposed by the defendants viz. Agaskar including the
 present plaintiff. However, it seems that final
 decree Exh.79 was passed in the above mentioned suit
 No.43 of 1950 and thereafter property shown as A1 in
 the map attached with the final decree was allotted
 to the share of the present plaintiff. At one point
 of time the present plaintiff as well as the
 defendant no.1 were having a joint business of cycle
 stand. However, subsequently the present plaintiff
 started his own business. It is his case that in the
 year 1991 the defendants started creating obstruction
 to him for use of the said passage. Hence he filed
 the present suit.

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 10. In this appeal before me Shri S.G.Deshmukh,
 learned Advocate for the Appellant has urged several

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 points including the plaint that 12’ width passage
 though mentioned in the sale deed of the purchasers
 of ‘Saraswati Niwas’ they were not entitled to have
 passage of such width because for ingress and egress
 to property ‘Saraswati Nivas’, passage of 6’ width
 portion was sufficient. The passage involved in the
 present suit and the passage involved in Second
 Appeals 82 of 1984 and 83 of 1984 is one and the
 same. All the objections raised by the present
 Appellant original defendant with regard to the said
 passage have been elaborately considered in the above
 mentioned second appeals and it has been held that by
 virtue of registered sale deed executed on 20-5-1953
 by the Court Commissioner in favour of Bhats easement
 by grant in respect of the suit passage was created
 in favour of Bhats and the occupants of ‘Saraswati
 Niwas’ as well as Rama Niwas were also given right to
 use the said passage. Thus, though in the instant

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 case the defendant has tried to show that common
 passage or right of easement which has been given to
 Bhats and other occupants is not in respect of 12’
 width portion but it is only in respect of 5’ to 6’
 width portion as such portion is only necessary for
 ingress and egress, the said contention cannot be
 accepted in the teeth of specific mention in the sale
 deed that 12’ width passage is kept as shown in the
 map ABCD. So, it is crystal clear that it was not a
 case of easement of necessity but it is in fact a

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 case of easement by grant.

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 11. Shri Deshmukh, learned Advocate for the
 defendant argued before me that equitable relief of
 permanent injunction should not be granted in favour
 of the plaintiff because in Regular Civil Suit NO.21
 of 1978, he in fact sided with the present defendant
 and all of them together opposed the claim of Bhats.
 Not only that even in the first appellate Court also
 the present plaintiff Vinayak Agaskar was with him
 but only after the time the second appeal No.82 of
 1984 and 83 of 1984 were admitted and one co-sharer
 viz. Vasant sold property allotted to his share to
 Koli i.e. original defendant no.2 in the instant
 case, plaintiff filed the present suit. It is urged
 that present plaintiff in fact took the fruits of the
 joint business which he was having with the defendant
 no.1 and for that earlier took the stand that Bhats
 were given right in respect of 5’ to 6’ width passage
 and 12’ width portion was never kept open but on the
 contrary material of the Criminal Court was lying in
 the portion to the extent of 5’ to 6’ width portion.
 So, plaintiff is not entitled to discriminatory
 relief of injunction. However it must be mentioned
 that admittedly property bearing A1 shown in the map
 is allotted to the share of the present plaintiff and
 right of way through suit passage is given to present
 plaintiff. If anybody is causing obstruction to

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 plaintiff in having beneficial enjoyment of the said
 property and for that purpose not allowing him to use
 the passage of 12’ width, he is certainly entitled to
 make grievance about the same. Merely because
 earlier he had done business along with defendant
 no.1 and both of them had fought against Bhat that by
 itself will not legally preclud him from filing the
 present suit. So, there is no substance in the
 argument advanced by the learned Advocate for the
 defendant no.1 in this behalf.

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 12. Even if we take into consideration the
 substantial question that has been formulated as
 mentioned above it is very clear that all those
 points were taken by the present defendant in earlier
 appeals bearing Second Appeal Nos.82 of 1984 and 83
 of 1984 and the same have been rejected. So, the
 same cannot be canvassed in the present appeal. It
 is an admitted fact that after the time injunction
 was granted against the defendants in Regular Civil
 Suit No.21 of 1978 the defendants had in fact stopped
 parking vehicle in the suit passage. According to
 the plaintiff it is only after the death of Chhotelal
 Bhat the obstruction started from the defendants and
 that necessiatated the present plaintiff to file the
 present suit.

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 13. Though the learned Advocate for the defendant

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 has argued that the plaintiff is not entitled to get
 relief of injunction because of the provision of
 Section 41G of the Specific Relief Act 1963 it must
 be held that there is no sufficient evidence on
 record to show that plaintiff had accepted the breach
 committed by the defendants vis-a-vis the rights of
 the plaintiff or that he had given implied consent or
 acquiesced. The provisions of Section 41G or 41I of
 Specific Relief Act are certainly not applicable to
 the facts of the present case. Hence I am not
 inclined to accept the argument advanced by the
 learned Advocate for the defendant in this behalf.

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 14. As observed in Second Appeal No.82 of 1984 and
 83 of 1984 the suit passage in question is of 12’
 width the plaintiff is also having a right to use the
 said passage for approaching his property i.e.
 property A1 shown in the map Exh.40 attached to the
 final decree Exh.79. In the final decree Exh-79 it
 is clearly mentioned that present Plaintiff is having
 a right to use the suit passage. As the defendants
 are obstructing him in use of the said passage, both
 the courts below were justified in granting permanent
 injunction against the defendants. The finding
 recorded by the first appellate court is legal and
 correct. There is no necessity to interfere with the
 same. Hence the appeal is dismissed with costs.

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 (S.R.SATHE,J.)

Madhav Narayan Agaskar v. Vinayak Narayan Agaskar and Another

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Madhav Narayan Agaskar v. Vinayak Narayan Agaskar and Another

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