Dismissed

Shri. Vijay Rajarm Patil and Anr. v. Shivaji Ananda Bhosale and Ors.

Bombay HC27 Mar 2014WP/3295/2014

Case brief

AI extract

What is this about?

In a writ petition, the Bombay High Court dismissed the petition challenging the rejection of a temporary injunction application. The court upheld the concurrent findings of lower civil courts that sale deed covenants established a right of way for the respondent, preventing the petitioner from establishing a prima facie case for balance of convenience.

What did the court decide?

The Writ Petition was dismissed with no order as to costs.

Shri. Vijay Rajarm Patil and Anr. Vs Shivaji… — Contract and Commercial Disputes | Bombay HC (2014)

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WP.3295.2014.907.doc

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO. 3295 OF 2014

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Vijay Rajaram Patil and Anr. } Petitioners versus Shivaji Ananda Bhosale and Ors. } Respondents

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Mr. Umesh R. Mankapure for the Petitioners. Mr. Bhushan Walimbe for Respondent No. 1.

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CORAM : R. M. SAVANT, J. DATED : MARCH 27, 2014

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P.C. :

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The Writ Jurisdiction of this Court is invoked against the order dated 3^rd March, 2014 passed by the learned District Judge – I, Islampur, by which order, the Appeal filed by the Petitioner, came to be dismissed and resultantly, the order dated 31^st January, 2014 passed by the learned Civil Judge, Junior Division, Islampur, rejecting the Application Exhibit – 6, field for temporary injunction by the Plaintiffs, in Regular Civil Suit No. 337 of 2013, came to be confirmed.

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The Petitioners are the original Plaintiffs in Regular Civil Suit No. 337 of 2013, which has been filed by them for simplicitor injunction. The injunction sought in for restraining the Defendant No. 1 from interfering with their possession by using the SouthNorth road from the eastern side of the suit land. The suit land is an area of about

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J.V.Salunke,PA

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WP.3295.2014.907.doc

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100 Ares in Gat No. 527, which totally admeasures 2 Hectors and 28 Ares at Mouje Bavachi, Taluka – Walva, District – Sangli. The said land was originally owned by one Shri. Jayshingrao Vithal Yadav and after his death, the same came to be inherited by the Defendant Nos. 2 to 4 to the Suit i.e. the Respondent Nos. 2 to 4 herein. The Plaintiffs, by Sale Deed dated 2^nd December, 2004, executed by the Defendant Nos. 2 to 4 in their favour, have purchased 80 Ares of land out of the said suit land from its southern side. Thereafter, by another Sale Deed dated 21^st November, 2007, the Plaintiffs again purchased an area of 20 Ares of land from the Defendant Nos. 2 to 4 and therefore, they are in possession of 100 Ares of land in the said Gat No. 527.

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At this stage, it is required to be noted that in the Sale Deed dated 2^nd December, 2004 of the Plaintiffs, there is a mention of a cart way from the eastern side of the suit land, which, in terms of the covenant in the said Sale Deed, the Plaintiffs were obliged to keep open. The Defendant No.1 is also the purchaser of 3 Ana and 4 Paisa share from the Defendant Nos. 2 to 4 in the said Gat number on the southern side. In the said Sale Deed of the Defendant No. 1, a cartway has been shown from the southern side of the suit land. The cause of action for the Plaintiffs to file the Suit was the assertion by the defendant No. 1 of his right to use the cartway to approach his land on the other side

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J.V.Salunke,PA

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which is to the northern side of the land of the Plaintiffs in the said Gat No. 527. It is required to be noted that the land which has been purchased by the Defendant No. 1 i.e. the 3 Ana and 4 Paisa share is to the South of the land of the Plaintiffs in the said Gat No. 527.

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In the said Suit, the Plaintiffs filed an application for temporary injunction for restraining the Defendant No. 1 from passing through the land of the Plaintiffs on the basis that there is a cartway in the said land. The said application was opposed to on behalf of the Defendant No. 1. the Defendant No. 1 relied upon the mention of the cartway in the covenant of the Sale Deed of the Plaintiffs dated 2^nd December, 2004. It was the case of the Defendant No. 1 that the Plaintiffs, in the alignment of the cartway, had cultivated sugarcane crop and thereby obstructed the access of the Defendant No. 1. The Defendant No. 1 therefore contended that the Plaintiffs are not entitled to the discretionary relief of temporary injunction.

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The Trial Court considered the said application for temporary injunction, on the basis of the material on record, which is the Sale Deed dated 2^nd December, 2004 in favour of the Plaintiffs, wherein, there is a mention of the cartway to be kept open by the Plaintiffs as also considered the fact that there is a mention of the cart way in the Sale Deed of the Defendant No. 1 dated 22^nd February, 2013

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J.V.Salunke,PA

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and held that the grant of temporary injunction would prejudice the Defendant No. 1, as he would not be able to access his land in the said Gat No. 527. The Trial Court also considered the aspect of the Defendant No. 1 having filed an application before the Tahsildar under Section 143 of the Maharashtra Land Revenue Code and observed that the said application was for a permanent way through Gat Nos. 526 and 546, however, since the said application was filed for removing the obstruction, the said fact would not come in the way of the Defendant No. 1 from opposing the application for temporary injunction filed by the Plaintiffs. The Trial Court, by its order dated 31^st January, 2014, rejected the said Application Exhibit6 for temporary injunction.

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The Plaintiffs, aggrieved by the rejection of the application for temporary injunction, field Miscellaneous Civil Appeal No. 19 of 2014. The Lower Appellate Court, on a reappreciation of the material on record, did not deem it appropriate to differ with the conclusion reached by the Trial Court, namely that the discretion could not be exercised in favour of the Plaintiffs, as the same would cause prejudice to the Defendant No. 1 insofar as the access to his land is concerned. As indicated above, it is the said order dated 3^rd March, 2013 passed by the Lower Appellate Court which is taken exception to by way of the above Petition.

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J.V.Salunke,PA

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The learned Counsel appearing for the Petitioner Shri. Mankapure would contend that since the Defendant No. 1 had filed an application under Section 143 of the Maharashtra Land Revenue Code, which is pending, the Trial Court had erred in rejecting the application for temporary injunction restraining the Defendant No. 1 from passing through land of the Plaintiffs. The learned Counsel would contend that though there is a covenant in the Sale Deed of the Plaintiffs dated 2^nd December, 2004, however, in the second Sale Deed dated 21^st November, 2007, there is no such covenant and therefore, the Defendant No. 1 cannot be permitted to pass through the land of the Plaintiffs.

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Per contra, the learned Counsel appearing for the Respondent No. 1 i.e. the original Defendant No. 1 Shri. Walimbe would support the impugned order and would contend that in the light of the covenant which is appearing in the Sale Deed dated 2^nd December, 2004 of the Plaintiffs as also the covenant in the Sale Deed dated 22^nd February, 2013 in favour of the Defendant No. 1 and since the vendor of the Plaintiffs and the Defendant No. 1 was the same, the Plaintiffs are bound by the mention of the cartway in their Sale Deed.

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Having heard the learned Counsel appearing for the parties, in my view, there is no merit in the above Petition. Both the

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J.V.Salunke,PA

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Courts below, as can be seen, have concurrently held that on the basis of the covenant in the Sale Deed of the Plaintiffs dated 2^nd December, 204 and the Sale Deed of the Defendant No. 1 dated 22^nd February, 2013, prima facie, the case of the Defendant No. 1 that there is a cart way on the southern side of the said Gat number has to be accepted. The fact that the Defendant No. 1 has approached the Revenue Authority under Section 143 of the Maharashtra Land Revenue Code cannot come in the way of the Defendant No. 1 against the application for temporary injunction, as it is the Plaintiffs who have to make out a prima facie case and also show that the balance of convenience is in their favour. In the light of the covenants appearing in the Sale Deeds, as mentioned herein above, the Courts below were right in coming to a conclusion that the Plaintiffs have not made out a prima facie case and that the balance of convenience is in their favour. In the light of the concurrent finding recorded by the Courts below, in my view, no case for interdiction in the Writ Jurisdiction of this Court, is made out. The Writ Petition is accordingly dismissed.

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(R. M. SAVANT, J.)

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J.V.Salunke,PA

Shri. Vijay Rajarm Patil and Anr. v. Shivaji Ananda Bhosale and Ors.

Case brief

What is this about?

What did the court decide?

Shri. Vijay Rajarm Patil and Anr. v. Shivaji Ananda Bhosale and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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