A Writ Petition challenging an order allowing an appeal against a temporary injunction restraining a respondent from using a road on their property. The High Court found no warrant for interference.
The Writ Petition was dismissed with no interference in the mandate of the Lower Appellate Court.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7500 of 2012
Sham Gajanan Deo & Ors.
: Petitioners
versus
Francois compressors India Pvt Ltd & Anr.
: Respondents
Mr. V. S. Gokhale with Mr. Parag Dube for the Petitioners Mr. Tejas D. Deshmukh for the Respondent No.1
CORAM:- R M SAVANT, J DATED :- 20th MARCH, 2013.
P.C.
1 The Writ Jurisdiction of this Court is invoked against the order dated 25-6-2012 passed by the Learned Adhoc District Judge-4 and Addl.
Sessions Judge, Pune, by which order, the Appeal filed by the Respondent No.1 herein came to be allowed and resultantly the order passed on Exhibit 5 i.e. application for temporary injunction in Regular Civil Suit No.951 of 2011 came to be set aside.
2 The controversy in the present proceeding is as regards the entitlement of the Respondent No.1 herein i.e. the Defendant No.1 to the Suit to use a road on the southern side of his property i.e. Gat No.147/1 for ingress and egress.
3 The suit in question has been filed by the Petitioners herein for a perpetual injunction for restraining the Defendant No.1 i.e. the Respondent mmj 1/9
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No.1 herein from using the remaining land out of Gat No.147/1 as access road to approach its factory. Shorn of unnecessary details what is required to be noted is that the Plaintiff and the Defendant Nos.3 and 4 to the Suit are the original owners of the property which has been purchased by the Respondent No.1 herein. It appears that in respect of an area of 2H 40Ares out of the total holding of about 3H 90Ares, the owners i.e. the Plaintiff and the Defendant Nos.3 and 4 had executed a development agreement dated 27-11-2007 in favour of one Balaji Developers. The Plaintiff has also executed a power of attorney in favour of the said Balaji Developers. It is required to be noted that in the said development agreement in so far as the access to the plot of land in question is concerned, it was shown through Gat No.145. It seems that the said Balaji Developers thereafter sold the southern portion out of the suit land to the extent of 1H and 60 Ares to one A.G.Conveying Systems Pvt Ltd. for consideration of Rs.4,20,000,00/- by sale deed dated 25-3-2008. It seems that the said A.G.Conveying Systems Pvt Ltd. thereafter proceeded to put up construction and has accordingly put up construction of factory premises admeasuring 90,000 sq.ft. Significantly the opening of the said factory premises is on the southern side i.e. abutting the disputed road in question. The said A.G.Conveying Systems Pvt Ltd. thereafter by sale deed dated
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18-8-2010 sold the property including the building constructed to the Respondent No.1 herein i.e. the original Defendant No.1 for consideration of Rs.10,20,000,00/- The Respondent No.1 herein has thereafter proceeded to commission its unit of manufacturing of compressors and has been using the disputed road for ingress and egress to its factory. It seems that presently the unit of the Respondent No.1 is functioning and there are about 40 employees working for the Respondent No.1.
4 As indicated above, the Plaintiff has filed the suit for perpetual injunction. It is the case of the Plaintiff that the disputed road is a private road and access provided to Balaji Developers was through a portion of Gat No.145 and therefore the Respondent No.1 being the successor to the said Balaji Developers cannot have access to its property from the road on the southern side i.e. the disputed road. The stipulation in the agreement between the Plaintiff and the Balaji Developers and thereafter the agreement between Balaji Developers and the A.G.Conveying Systems Pvt Ltd. was sought to be relied upon by the Plaintiff. In the said Suit, the Plaintiff filed an application for temporary injunction as according to the Plaintiff if the said road is allowed to be used, it would cause irreparable damage and loss to the Plaintiff.
5 The said application for temporary injunction was replied to on
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behalf of the Respondent No.1. The case of the Respondent No.1 was that it was entitled to use the said road on the southern side as the sale deed executed by A.G.Conveying Systems Pvt Ltd. mentions the said access. It was also averred on behalf of the Respondent No.1 that it has no other access and as and by way of easement, it is entitled to use the said disputed road. It was also averred that the said disputed road is part of the proposed Development Plan Road. The Respondent No.1 placed reliance on the google map of the area in question, as also photographs which were produced before the Court. The Trial Court considered the said application for temporary injunction and by its order dated 27-7-2011 allowed the said application. The gist of the reasoning of the Trial Court in allowing the said application was that the Respondent No.1's case that the said road was a proposed D.P. Road and therefore the Respondent No.1 was entitled to use the same, could not be accepted in view of the fact that admittedly there is no acquisition from the said land bearing Gat No.147/1 for the purposes of road. In so far as the right of easement is concerned, the Trial Court rejected the case of the Respondent No.1 as according to the Trial Court the Respondent No.1 had not established the case of any easementary right. The Trial Court as indicated above by its order dated 27-7-2011 allowed the application of the Plaintiff and injuncted the Respondent No.1
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from using the disputed road.
6 The matter was carried in Appeal by the Respondent No.1 by filing Misc Civil Appeal No.238 of 2011. The Lower Appellate Court as can be seen on a re-appreciation of the material on record came to a conclusion that there are various issues which arise which can be only adjudicated on the basis of the evidence that would be adduced by the parties. The Lower Appellate Court recorded a prima facie finding that the existence of the road on the southern side could not be denied in view of the notice dated 1-10-2010, addressed by the said Balaji Developers to the A.G.Conveying Systems Pvt Ltd. and in view of the google map which clearly showed the existence of the road on the southern side. The Lower Appellate Court relying upon the sale deed which was executed by the Balaji Developers in favour of the A.G. Conveying Systems Pvt Ltd. wherein the said approach road has been shown to which sale deed, the Plaintiff is an endorsing party held that the said document is a relevant piece of evidence in so far as the Plaintiff's case is concerned. The Lower Appellate Court was of the view that whether it is Balaji Developers or the A.G.Conveying Systems Pvt Ltd. who has misrepresented the Respondent No.1 can only be decided at the hearing of the Suit after the parties lead evidence. The Lower Appellate Court considering the fact that the said A.G.Conveying Systems Pvt Ltd.
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had put up construction of about 90,000 sq.ft. to which the Plaintiff had not taken any objection as also considering the fact that the said construction was going on for a considerable period of time during which also no objection was raised, came to a conclusion that the Plaintiff in a way has accepted the position that the disputed road is the road in question which can be used for ingress and egress by the A.G.Conveying Systems Pvt Ltd and therefore the Respondent No.1 who is its successor. The Lower Appellate Court also relied upon Section 35 of the Transfer of Property Act for the purpose of recording that since the Plaintiff has not objected to the transaction in question between Balaji Developers and A.G.Conveying Systems Pvt Ltd., the Plaintiff who is the beneficiary and who had accepted the amount of Rs.80,00,000/- pursuant to the transaction between the Balaji Developers and the A.G.Conveying Systems Pvt Ltd., could not now question the user of the road which was in terms of the sale deed between the A.G.Conveying Systems Pvt Ltd. and the Respondent No.1. The Lower Appellate Court also took into consideration the fact that the unit of the Respondent No.1 is now functioning and that the road in question has been used since the inception and therefore great prejudice would be caused to the Respondent No.1 if injunction is granted and therefore allowed the Appeal and set aside the injunction granted by
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the Trial Court.
7 The Learned Counsel appearing for the Petitioner Mr. Gokhale would reiterate the case of the Plaintiff before the Trial Court and would contend that the said A.G.Conveying Systems Pvt Ltd. cannot grant a better right than one which it itself had. The Learned Counsel placed reliance on the stipulation in the development agreement between the Plaintiff and the Balaji Developers and thereafter Balaji Developers and A.G.Conveying Systems Pvt Ltd. for the said purpose. The Learned Counsel therefore contended that the Lower Appellate Court has erred in upsetting the order passed by the Trial Court.
8 Per contra Mr. Deshmukh the learned Counsel appearing for the Respondent No.1 placed reliance upon the material which was placed by the Respondent No.1 before the Trial Court and would contend that except the road on the southern side there is no other road available to the Respondent No.1. The Learned Counsel drew my attention to the map which was annexed to the sale deed between the Balaji Developers and A.G.Conveying Systems Pvt Ltd. which has been endorsed by the original Plaintiff and his brothers, in which map it can be seen that the road in Gat No.145 amalgamates itself into the southern side disputed road in Gat No.147/1. It is therefore the submission of Mr. Deshmukh that it is on the
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said basis that the Respondent No.1 is entitled to the user of the said disputed road.
9 Having heard the Learned counsel for the parties I have bestowed my anxious consideration to the rival contentions. Though the Trial Court did not deem it fit to accept the case of the Respondent No.1 and has allowed the temporary injunction application on the basis that there is no acquisition, though the road is shown as a development plan road and on account of the fact that the Respondent No.1 has not been able to substantiate its easementary right, the Lower Appellate Court on reappreciation of the material on record has recorded findings of fact as regards the existence of the road in question. The Lower Appellate Court as can be seen has observed that certain aspects as to whether the Plaintiff has been given a right on account of the map which has been annexed to the sale deed between the Balaji Developers and A.G.Conveying Systems Pvt Ltd., would be a matter of evidence as also whether there was a misrepresentation on the part of the Balaji Developers or A.G.Conveying Systems Pvt Ltd. The Lower Appellate Court has also held that if injunction is granted, the same would result in greater loss and injury to the Respondent No.1 than the Plaintiff as the road is already in use. In my view the Lower Appellate Court has for cogent reasons set aside the
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injunction granted in favour of the Plaintiff. In the light of the order passed by the Lower Appellate Court in my view no interference is warranted in the Writ Jurisdiction of this Court. The Writ Petition is accordingly dismissed.
(R M SAVANT, J)
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2 issues framed by the court
Whether the Writ Court should interfere with the order of the Appellate Court which set aside the temporary injunction allowing the defendant to use the disputed road.
Whether the plaintiff is barred by conduct and acceptance of the transaction from questioning the user of the road.
Colour shows how this judgement treated each authority
Not citedReferred
1 provisions across 1 enactments
Sham Gajanan Deo & Ors.
Francois compressors India Pvt Ltd
R M Savant
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
