gst 1 caf3406.09.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY. CIVIL APPELLATE JURISDICTION. CIVIL APPLICATION NO. 3406 OF 2009 IN FIRST APPEAL NO. 1716 OF 2009. Padmasen Gokharan Phatarphod & Ors. ..... ..... ...Applicants. V/s Life Insurance Corpn.& Anr. .... ...... ..... ..Respondents. Mr.Narendra Walawalkar i/by Mr.A.R.Shaikh, Adv. For the applicants. Ms.Anita Castelino, Adv. For respondent No.1. Mr.Vinod Mahadik, Adv. For BMC. CORAM: B.R.GAVAI, J. 1st September, 2010. PC: By way of present application the applicants are praying for an order restraining respondents from obstructing the egress and ingress of the applicants to their plot of land bearing CTS No.1407/1A from the 60 feet DP road. 2. The present proceedings arise out of peculiar facts and circumstances. 3. The appellants had filed a suit against the respondents praying for a decree against defendant No.1 restraining them by an order of permanent injunction from obstructing/interfering the access to the property occupied by the plaintiff at village Eksar. 4. The suit came to be filed on the premise that a strip of land admeasuring 20 sq. mtrs. was leased by the respondent-Municipal Corporation in favoaur of the plaintiff and the respondent No.1 unauthorizedly is obstructing the access. Suit is filed in the year 1987. The suit was resisted by the respondent No.1 claiming that the said property was owned by defendant No.1-LIC and defendant No.2-Municipal Corporation had not authority in law to grant the said plot on leave and licence. The said suit came to be dismissed by the learned trial Court. Being aggrieved thereby an appeal has been preferred. gst 2 caf3406.09.sxw 5. Mr.Walawalkar, learned counsel appearing on behalf of the appellants submits thata the appellants even according to the respondents are using the said access right from the year 1983. He submits that during the pendency of the suit also there was an order of status-quo operating in favour of the applicants. He further submits that the said piece of land which is only 20 sq. mtrs., assuming without admitting is owned by respondent No.1-LIC, is now of no use to respondent No.1 as no construction can be carried out on the said plot. He therefore fairly states that if the respondent No.1 is willing to sale the said plot the applicants are agreeable to purchase the same at the prevailing market rate. 6. Ms.Castelino, learned counsel appearing on behalf of respondent No.1 vehemently opposes the application. She submits that the respondents cannot be compelled to sale the property. It is submitted that the learned trial Court upon appreciation of evidence has come to conclusion that the plaintiffs had no right to use the said piece of land. She further submits that the applicants cannot be permitted to thrust their wishes on the respondent No.1. She submits that as a matter of fact, the plaintiffs had an access from other side. However on their own volition they have stopped using the said access and as such are not entitled to any relief. 7. When the matter was heard on the last date learned counsel for the respondent No.1 was requested to verify as to whether the map annexed by the applicants to the civil application depicts the correct position or not. Learned counsel for defendant No.1 though disputes the correctness of the map annexed at page 10 of the civil application, fairly states that the map at page 52 of the additional paper book depicts the more correct position. Even perusal of the said map would reveal that the said plot which has been found to be owned by respondent No.1-LIC is abutting plot No.1407/A owned by the plaintiffs. The said plot which is a strip of only 20 sq. mtrs. is not of such a nature where any construction could be made by any one. Admittedly, the plaintiffs are using the gst 3 caf3406.09.sxw said strip for their egress and ingress from 1983. A reference in this respect could also be made to the written statement filed by respondent No.1 before the trial Court. 8. From para 4 of the said written statement it can be seen that it is stated by respondent No.1 that a notice was issued by advocate for defendant No.1 that the alleged access road which was constructed by the plaintiff was constructed without valid permission and as such they were called upon to stop trespassing upon the said property of the LIC. It is also not in dispute that during pendency of the said proceedings also there was an order of status quo passed in favour of the present appellants. It is also not in dispute that the applicants were using the said strip on the basis of leave and licence agreement executed by the respondent-Municipal Corporation in their favour. As to whether the said agreement was valid in law or not and as to whether findings of the learned trial Court that the defendant No.1 was the owner of the suit property are questions which will have to be determined during the course of hearing of the appeal. Admittedly respondents have not been in a position to point out that any proceedings have been initiated by them from the year 1983 till decision of the suit with regard to possession of the suit property which is subject matter of the present proceedings. 9. In that view of the matter I am inclined to allow the application in terms of prayer clause (a). However since there is positive findings by the learned trial court regarding ownership of defendant No.1, I find that in equity, interest of defendant No.1 is also required to be protected. In that view of the matter, plaintiffs are directed to deposit an amount of Rs.10 lacs in this Court within a period of four weeks from today. Said amount is directed to be invested in a nationalised bank initially for a period of five years and thereafter to be renewed from time to time. The said amount can be utilized if this Court comes to the conclusion that any amount is required to be paid to the respondent by way of damages or compensation.