Writ Petition No.5889 of 2013

13th December, 2013.

Petitioner Counsel: Mr. G.S. GODBOLE i/b. Mr. N.N. WADIKAR
Respondent Counsel: Mr. P.S. DANI i/b. Mr. NILESH M. WABLE

JUDGMENT

JUDGMENT :- In the above Petition, Rule came to be issued on 29th October, 2013 and the above Petition was directed to be placed on 18th November, 2013 for hearing as to interim reliefs. The above Petition had come up for hearing as to interim reliefs on 29th November, 2013 when it was adjourned to 10th December, 2013 at the request of the learned Counsel appearing for the parties. However, on 12th December, 2013, the learned Counsel agreed that instead of the parties being heard on interim reliefs, the Petition itself be heard finally. That is how by the consent of the learned Counsel appearing for the parties the Petition is taken up for final hearing.

2. The writ jurisdiction of this Court under Article 227 of the Constitution of India is invoked against the order dated 30th April, 2013 passed by the learned District Judge - I, Pune, by which order the Miscellaneous Civil Appeal being No. 85 of 2013 filed by the Petitioners i.e. the original Plaintiffs came to be dismissed and resultantly the order dated 5th February, 2013 passed by the Joint Civil Judge, Junior Division, Pune rejecting the Application Exhibit5 came to be confirmed.

3. The controversy in the above Petition lays in a narrow compass viz. Whether the Plaintiffs can claim a right of way through the property of the Defendant No. 1.

The parties i.e. the Plaintiffs and Defendant No. 1 and Defendant No. 7 claim their lineage through one Bhaguji Jadhav. The said Bhaguji Jadhav had three sons i.e. the Plaintiff No. 1, the Defendant No. 1 and the Defendant No. 7 and one daughter Bhairavabai. The said Bhaguji Jadhav own two lands being Survey No. 45/1 totally admeasuring 6 hectors and 47 ares and Survey No. 47/2/1 totally admeasuring 4 ares. After the death of the said Bhaguji Jadhav, partition took place in between the three brothers i.e. the Plaintiff No. 1, the Defendant No. 1 and the Defendant No. 7 on 25th April, 1991, by which, the larger property i.e. Survey No. 45/1 was divided into three parts by metes and bounds and the smaller property was kept in common. It appears that a revenue entry was also effected vide Mutation Entry No. 5459 in the revenue record in terms of the said Partition Deed. After the said partition, the Plaintiff No. 1 became owner of the suit property described in the Plaint in para No. 1B, which was bearing Survey No. 45/1, Defendant No. 1 became owner of the property described in para No. 1C of the Plaint having Survey No. 45/1/6A and the Defendant No. 7 became owner of the suit property described in para No. 1D of the Plaint having Survey No. 45/1/9E. It appears that later on the Defendant No. 7 had executed a gift deed in favour of the Defendant No. 6 who became owner of the suit property described in para No. 1D of the Plaint.

4. The Suit was founded on the fact that since the Southern portion of the entire suit property came under the Bio Diversity Park reservation, the Plaintiffs who were using the path way of the Southern side to approach their existing property which is now falling in the said Bio Diversity Park zone would not able to do so. Apart from that, the Plaintiffs were using the path way and they had no motorable access to their own property. It is the case of the Plaintiffs that in terms of the partition deed dated 25th April, 1991 they have a right of way through the Defendants' property i.e. through Survey No. 45/1/6A of Defendant No. 1 and Survey No. 45/1/9E of the Defendant No. 6. It is the case of the Plaintiffs that since in terms of the Partition Deed there is grant of accessible right for the Plaintiffs through the defendants' property, they are bound to carve out the road and provide access to them. It is further the case of the Plaintiffs that if such a road is not provided, the Plaintiffs' property would become land locked. It is further their case that as per the Partition Deed the members of the joint family have been confirmed with the right of way/right of access through the separated properties and in support of which reliance is placed on the Partition Deed. The property in the Plaint was described as IB belonging to the Plaintiffs, property IC belonging to the Defendant Nos. 1 to 5 and property ID belonging to the Defendant No. 6.

5. On behalf of the Defendants, reply came to be filed which was numbered as Exhibit-22. It was the Defendants' case that in the Partition Deed there is no mention of any easementary right over the properties which have been separated on account of the partition. It was contended that the Plaintiffs have not claimed any dominant heritage over the properties of the Defendants. It was further the contention of the Defendants that the Defendant Nos. 1 to 3 have after paying valuable consideration to the Defendant Nos. 6 to 8 availed of an internal road through the property mentioned in para 1C of the Plaint. It was further contended on behalf of the Defendants that on the Southern side in the land earmarked for the Bio Diversity Park there is a road running from East to West which is available to the Plaintiffs. It was therefore contended that the Plaintiffs would have to lodge a claim with the Pune Municipal Corporation and not against the Defendants. The Trial Court, considered the said Application for temporary injunction and mandatory injunction and by its order dated 5th February, 2013 rejected the same. The Trial Court held that the relief of mandatory injunction could be only granted in a case where the existing things are to be restored meaning thereby that the said relief could be granted in the instant case if there was already a road which was in existence through the property of the Defendants. However, the relief in the Suit and the relief in the temporary injunction application was by way of carving out a road and provide the same to the Plaintiffs which would mean that no road was in existence.

6. Insofar as the Partition Deed and the covenant therein is concerned, which has been reproduced by the Trial Court in the impugned order at para 10 which is reproduced herein under:

";s.ksizek.ks prq%flekiwoZd feGdrh vkrhy ty] r:] r'.k] dk"V] ik"kk.k] fu/khfu{ksi oxSjs rnaxHkwr oLrwlfgr o tk.;k ;s.;kP;k ofgokVh jLR;kps gDdklg feGdrh okV.ksl vkysys vkgsr-"

the true english translation of which reads thus:

"Thus the properties within four boundaries has come to the share alongwith water, plants, grass, rock, stones, buried and hidden treasures etc. with appurtenances and easementary rights."

Upon a reading of the said portion in the Partition Deed, the Trial Court observed that no definite road has been mentioned in the Partition Deed. The Trial Court further observed that what interpretation to be given to the aforesaid covenant would a question which would have to be decided in the Suit after the parties lead evidence. Insofar as the road which the Defendant No. 1 is using, the Trial Court taking into consideration the fact that the Defendant No. 1 has taken part of the land of the Defendant No. 6 for being used for road by paying consideration to the Defendant Nos. 6 to 8. The Trial Court observed that if the said road was available at the time when the Partition Deed was executed, there was no necessity for the parties to enter into an agreement and the Defendant No. 1 to pay consideration for the same. The Trial Court also adversely observed against the Plaintiffs that they have kept quiet and not raised the issue about the road since the date of partition i.e. from 25th April, 1991 till filing of the Suit. The Trial Court also took into consideration the fact that it was the Plaintiffs' own case that they have a road on the Southern side which was a path way. The Trial Court also taken into consideration the fact that the Defendants have completed half the construction and therefore the reliefs sought by the Plaintiffs by way of the Application Exhibit-5 could not be granted and accordingly rejected the Application Exhibit-5 by its order dated 5th February, 2013.

7. The aggrieved Plaintiffs carried the matter in Appeal by way of Miscellaneous Civil Appeal No. 85 of 2013. The Lower Appellate Court, on a re-appreciation of the material on record, was in agreement with the Trial Court as regards the finding that the Plaintiffs have not made out a prima facie case, that the balance of convenience was not in favour of the Plaintiffs and irreparable loss would be caused to the Defendants if the injunction was granted. The Lower Appellate Court taken into consideration the fact that the lands are adjacent to each other and the Plaintiffs' land is to the Eastern side of the land of the Defendant Nos. 1 to 4 and abutting to the said land. The Lower Appellate Court observed that towards the Southern side of all three lands there is a East to West strip in which there exist a road. The Lower Appellate Court also observed that the main controversy in the Appeal is whether the Plaintiffs have a right of way through the Defendants' land by virtue of the Partition Deed. In that regard, the Lower Appellate Court observed that it is not the Plaintiffs' case that they are claiming easement by way of necessity, but they are claiming right of the easement by way of grant based on the Partition Deed dated 25th April, 1991.

Insofar as the covenant in the said Partition Deed is concerned, the Lower Appellate Court construed the said covenant to mean that the parties would be entitled to use the roads which are in use and therefore by no stretch of imagination the Lower Appellate Court held that it can be construed that a new road from the lands of the other sharers was to be created. The Lower Appellate Court also took into consideration the photographs produced by the Defendants to show that the Plaintiffs are using the road on the Southern side for taking their vehicles up to their Bungalows and in view of there being no convincing denial to the same, the Lower Appellate Court held that the Plaintiffs have a motorable access from the Southern side. The Lower Appellate Court held that the Partition Deed does not contain any stipulation either explicitly or impliedly of grant of road through the property of other sharers. The Lower Appellate Court observed that the Partition Deed was executed in the year 1991 at which time there was no reservation of the Bio Diversity Park which has come about in the year 2005 and therefore the parties could never have anticipated the reservation for Bio Diversity Park so as to give a right of way to the Plaintiffs through the land of the Defendants. The Lower Appellate Court has adverted to the Judgments which were cited before it on behalf of the Plaintiffs as well as the Defendants. The said Judgments were to the effect that by way of interim reliefs, the main reliefs could not be granted. As indicated above, upon consideration of the material on record, the Lower Appellate Court also came to a conclusion that the Plaintiffs have not made out prima facie case that the balance of convenience was not in their favour. It is the said order dated 30th April, 2013 passed by the Lower Appellate Court which is taken exception to by way of the above Petition.

8. Heard the learned Counsel for the parties. The learned Counsel appearing for the Petitioners Shri. Godbole would reiterate the case of the Petitioners in the Trial Court based on the covenant appearing in the Partition Deed. The learned Counsel would contend that the Plaintiffs therefore have a right of way through the land of the Defendant No. 6 and what the Plaintiffs are claiming is only an extension of the road from the property of the Defendant No. 1 to the property of the Plaintiffs. The learned Counsel would contend that the land on the Southern side being earmarked for the Bio Diversity Park even if there was a road, the Plaintiffs cannot use the same. The learned Counsel would further submit that the very fact that the Defendant Nos. 6 had executed an agreement in favour of the Defendant Nos. 1 to 3 allowing them access through the property i.e. the property No. 1C of the Plaint, substantiates the case of the Plaintiffs that the other Defendants have to make the road available to the Plaintiffs to go to their property through the property of Defendant No. 1. The learned Counsel would contend that if the relief is not granted, the situation would be irreversible as the Defendant Nos. 1 and 3 have already put up buildings 'A', 'B' and 'C' and are in the process of putting up building No. 'D' if injunction is not granted.

9. Per contra, the learned Counsel appearing for the Respondent Nos. 1 to 8 Shri. P. S. Dani would support the orders passed by the Courts below and would contend that in the facts and circumstances of the case, the orders passed by the Courts below need not be interfered with by this Court in its writ jurisdiction. The learned Counsel would contend that if the prayers in the Suit and the Application for temporary and mandatory injunction are seen, what the Plaintiffs are seeking is direction to the Defendants to carve out a road and therefore the Courts below have rightly rejected the Application for injunction. The learned Counsel would contend that what the Partition Deed provides is that the parties would be entitled to the trees, water, stones in the separated properties as existing and in use. The part of the said Partition Deed could not be construed to mean that the Plaintiffs are entitled to a road through the property of the other sharers. The fact that the Defendant Nos. 1 to 3 have entered into an agreement with Defendant Nos. 6 to 8 so as to provide road to the Defendant Nos. 1 to 3 through the property of the Defendant No. 6 in fact goes against the case of the Plaintiffs that by the Partition Deed the Plaintiffs were entitled to get right of way through the property of the other sharers. Since there was no right of way granted by the said Partition Deed, that the Defendant Nos. 1 to 3 entered into an agreement with the Defendant No. 6 for consideration. The learned Counsel lastly contend that though an issue is sought to be raised on the ground that on account of the Bio Diversity Park reservation the Plaintiffs would not be able to use the road on the Southern side, the said contention cannot be accepted in view of the fact that the area earmarked for the Bio Diversity Park is fully developed as can be seen from the photographs and the Google Map.

10. Having heard the learned Counsel appearing for the parties, I have considered the rival contentions. In the instant case, it is required to be noted that the Plaintiffs, in their Application for temporary injunction, have claimed the following relief, which can be said to be the main relief insofar as the said Application is concerned.:

".....

b) This Hon'ble Court may be pleased to direct the Defendant Nos. 1 to 5 to temporarily identify and carve out an access road through their land being the Suit property mentioned in Paragraph No. 1 © of the Plaint thereby joining the same to the said 9 Mtrs. Road, which is passing through the Suit property mentioned in Paragraph 1(D) of the Plaint.

....."

A reading of the prayer therefore discloses the Plaintiffs want the Defendants to temporarily identify and carve the access road meaning thereby that no road through the property of the Defendant Nos. 1 to 5 is in existence at present.

11. The Plaintiffs have indisputedly laid their claim to a road through the property of the Defendant Nos. 1 to 5 based on the said Partition Deed. Both the Courts below at the prima facie stage have come to a conclusion that what the Partition Deed provides is that the existing roads in use would be available for use to the parties. The said interpretation by the Courts below in my view is a possible interpretation of the said covenant or stipulation. It is therefore not possible at least at this prima facie stage to accept the contention of the Plaintiffs that on the basis of the said Partition Deed they are entitled to a right of way through the properties of the Defendant Nos. 1 to 5, the interpretation of the wordings in the said Partition Deed is further fortified by the action of the Defendant Nos. 1 to 3 entering into an agreement with the Defendant Nos. 6 to 8 in respect of the access to be provided to the property of the Defendant No. 1 which is presently under development through the medium of Defendant Nos. 3 to 5. the factum of the agreement being executed between the parties in fact militates against the case of the Plaintiffs that in terms of what is mentioned in the Partition Deed a road is to be provided to the other parts of the property which have been carved out on partition. In my view therefore the contention of the Plaintiffs at least at the prima facie stage that the Defendants are under an obligation under the Partition Deed to provide a right of way through their lands to the Plaintiffs cannot be accepted.

12. Though a contention has been raised on behalf of the Plaintiffs that the right of way through the property of the Defendant Nos. 1 to 5 is claimed as an easement of necessity in view of the partition of the original Survey No. 45/1, significantly the case in the Plaint is of an easement claimed by way of a grant i.e. by virtue of the Partition Deed. The Plaintiffs therefore cannot be allowed to change tracks, hence the said submission of the learned Counsel for the Petitioners/Plaintiffs cannot be accepted. Insofar as the road on the Southern side is concerned, as indicated above, before the Trial Court material was placed on record by way of photographs showing that the Plaintiffs were having an access from the Southern side of their land for taking their vehicles up to their Bungalow, which fact was not seriously controverted by the Plaintiffs. The Courts below have therefore recorded a finding that the Plaintiffs are having a motorable access from the Southern side.

13. Another aspect which has to be taken into consideration is that in respect of the shares which were partitioned, the boundaries do not mention any access road. However, insofar as the area of 4 Ares is concerned, the boundaries mention the access road which is available to access the said area of 4 Ares. The Courts below were therefore right in concluding that the Plaintiffs have neither made out a prima facie case or that the balance of convenience is in their favour. The Courts below have also observed that if injunction is granted, irreparable damage would be caused to the Defendants who are in midst of developing their plot of land. In my view therefore, the orders passed by Courts below do not merit any interference in the writ jurisdiction of this Court under Article 227 of Constitution of India. The Writ Petition is accordingly dismissed. Rule is discharged with parties to left to bear their respective costs of the Petition.

Petition dismissed.