AO/352/2007 1/20 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD APPEAL FROM ORDER No. 352 of 2007 WITH CIVIL APPLICATION No. 12364 of 2007 IN APPEAL FROM ORDER No. 352 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE K.A.PUJ Sd/- ====================================== 1. Whether Reporters of Local Papers may be allowed to see the judgment ? YES 2. To be referred to the Reporter or not ? NO 3. Whether their Lordships wish to see the fair copy of the judgment ? NO 4. Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? NO 5. Whether it is to be circulated to the civil judge ? NO ====================================== AMIT YAMUNADUTT & 1 - Appellants Versus RAVINDRASINGH TARSENSINGH & 2 - Respondents ====================================== Appearance : MR AJ PATEL WITH MR SHITAL R PATEL for Appellants. MR SB VAKIL, SENIOR ADVOCATE WITH MR NK MAJMUDAR for Respondent No. 1. NOTICE SERVED BY DS for Respondent(s) : 2 - 3. ====================================== AO/352/2007 2/20 JUDGMENT CORAM : HONOURABLE MR.JUSTICE K.A.PUJ Date : 31/01/2008 ORAL JUDGMENT 1. The appellants – original plaintiffs have filed this Appeal from order under Order 43, Rule 1 (r) of the Code of Civil Procedure challenging the order passed by the learned City Civil Judge, Ahmedabad below an application Exh. 7 in Civil Suit No. 2429 of 2006 whereby notice of motion application was rejected. 2. This Court has issued notice on 26.09.2007. Mr. N.K. Majmudar, learned advocate appearing for the respondent No.1 on caveat waived service of notice and for respondent Nos.2 & 3, direct service was granted. Despite service of notice, nobody appears on behalf of respondent Nos. 2 & 3. 3. Heard Mr. A. J. Patel, learned advocate with Mr. Shital Patel for the appellants and Mr. S. B. Vakil, learned Senior Counsel appearing with Mr. N. K. Majmudar for the respondent No. 1. With the consent of the parties, the appeal is taken up for final hearing. AO/352/2007 3/20 JUDGMENT 4. Mr. A. J. Patel, learned advocate appearing for the appellants has submitted that the appellants are the owners of land bearing Revenue Survey Nos. 205/1, 205/2, 210, 211, 205/3, 206, 207, 208 & 209 of Tal. City Gopalpur – Sejpur, Dist. & Sub-District Ahmedabad. He has further submitted that the land bearing Survey Nos.235 and 244 originally belonged to Madhuben M. Patel and she has sold the said land to respondent Nos.2 & 3. The appellants, right from the inception, were using the road passing through Survey Nos. 233, 235 & 244. The owners of Revenue Survey No. 233 never objected to using of the disputed way which passes right through his land and similarly, the original owners of Survey No. 235 & 244 had never objected to using of the disputed road. The disputed road was a kachcha road and the same was being used by the village people of Satavadi & Sejpur and Gopalpur from time to time without any obstruction by the owners of Survey Nos.233, 235 & 244. The original owners of land bearing Revenue Survey Nos. 235 & 244 had sold the said land by registered sale deed dated 09.10.1998 in favour of respondent Nos. 2 & 3 and the respondent Nos.2 & 3 in turn, had executed registered sale deed in AO/352/2007 4/20 JUDGMENT favour of respondent No. 1 on 18.08.2006 and 19.08.2006. 5. Mr. Patel has further submitted that the previous owners of land bearing Revenue Survey Nos. 235 & 244 since long accepted the position of the road passing through their land and never objected to using such road by anybody. Even while purchasing the land by respondent No.1, he was put to notice about the road i.e. Being used by the original plaintiffs and the other village people. Mr. Patel has further submitted that there was an understanding between the predecessors of the respondent No.1 and the appellants and as per the said understanding, the kachcha road was converted into a pakka tar road at the expenses of the appellants and for this purpose, the appellants had spent about Rs. 10 Lacs approximately for the purpose of making a tar road. 6. Mr. Patel has further submitted that when the respondent No.1 had purchased the land bearing Revenue Survey Nos. 235 & 244 on 18.08.2006 and 19.08.2006, he had full knowledge about the rights of the appellants in respect of the disputed road. The AO/352/2007 5/20 JUDGMENT appellant No.2 is a Company incorporated and registered under the provisions of the Companies Act, 1956 and it is doing the business of manufacturing clothes and denim jeans for the last more than 6 to 7 years. More than 300 employees are working in the appellant No. 2 Company and the employees of the appellant No. 2 Company are using the said road passing through Survey Nos. 233, 235 & 244 since long for the purpose of loading and unloading of the goods, raw materials etc. The Trucks and other heavy vehicles are required to be passed through this road. The disputed road is a 30 feet tar road and extensive use is being done by the appellant No.2 Company for the purpose of conducting its business. For all these years, the appellants were doing the business smoothly and there was no obstruction of anybody including owners of Survey Nos. 235 & 244. 7. Mr. Patel has further submitted that when the respondent No.1 purchased the land bearing Revenue Survey Nos. 235 & 244, after a lapse of about four months, he started to create hindrance in the disputed road. The respondent No. 1 has blocked the disputed road by putting a pakka wall somewhere in December, AO/352/2007 6/20 JUDGMENT 2006 by taking police help and appellants were restrained from interfering in the activities undertaken by the respondent No.1 unlawfully in putting up such a blockage in the road which is there since long. The appellants, therefore, immediately approached the City Civil Court Ahmedabad on 18.12.2006 seeking mandatory injunction against the respondents. Since the land bearing Survey Nos. 210 and 211 belonging to the appellant No. 1 was an agricultural land, the appellant No.1 had a cause to approach the Mamlatdar Court under the provisions under Section 5 of the Mamlatdar Court Act and in the said suit filed before the Mamlatdar, the appellant No. 1 succeeded in establishing his right to use the disputed road passing through Survey Nos.235 & 244. The proceedings initiated by the Mamlatdar were conducted like a Regular Civil Suit and the Court Commissioner was appointed and after considering the lawful submissions of the parties and overall evidence, written submissions as well as oral, the Mamlatdar under the provisions of Section 5 of the Act allowed the suit of the appellant No. 1 and directed the offending wall put up by the respondent No.1 overnight on the disputed road to be removed. Pursuant to the order of the AO/352/2007 7/20 JUDGMENT Mamlatdar on execution site, offending wall was removed by the revenue authorities. Even the appeal filed against the order of the Mamlatdar before the Deputy Collector was dismissed on 05.06.2007. However, the said orders of revenue authorities were challenged before this Court in Special Civil Application No.16776 of 2007. In this matter, by way of stop-gap arrangement, an interim formula was worked out and without going into the legality and validity of the orders passed by the Mamlatdar and Collector, as an interim arrangement the orders of the Mamlatdar and Deputy Collector were stayed for the time being. At the same time, status-quo as on the date of the order by this Court i.e. 17.08.2007 was granted. This Court has also directed the City Civil Court, Ahmedabad to dispose of application Exh. 7 in Civil Suit No. 2429 of 2006 within a time bound period. Pursuant to that interim arrangement, without prejudice to the rights of the parties, application Exh. 7 was heard by the learned City Civil Judge, Ahmedabad and ultimately, application Exh.7 was rejected by the learned City Civil Judge, Ahmedabad vide his order dated 19.09.2007. AO/352/2007 8/20 JUDGMENT 8. It is this order which is under challenge in the present Appeal from order. 9. While challenging the impugned order, Mr. Patel has strongly urged before the Court that oral and documentary evidence produced by the appellants were not properly appreciated. The tar road of Survey Nos. 235 & 244 belonging to the respondent No. 1 was made at the expenses of the appellant No. 2 Company and the said road was made with express consent of the respondent Nos. 2 & 3, the predecessor-in-title of the respondent No.1. Even the respondent Nos. 2 & 3 have, in no uncertain terms, mentioned about the existence of the road which is being used by the appellants and with their consent and it was also stated by them in their reply that for use of such road, agreed amount was also paid to them by the appellants. Even the report of the Court Commissioner clearly demonstrates about the existence of a tar road which was blocked by respondent No.1. The Commissioner's report further indicates that the construction put up by the respondent No.1 was a recent one. Even the map annexed along with the sale deed of the respondent No.1 also clearly demonstrates AO/352/2007 9/20 JUDGMENT existence of a road in both the Survey Nos. 235 & 244 which is signed by the predecessor-in-title of the respondent No.1. The learned trial Judge has committed a grave error in giving a finding that the appellants have not produced any document showing the expenses incurred in putting a tar road by the appellants. As a matter of fact, the appellants have produced the account statement showing the payment made to respondent Nos.2 & 3 to the tune of Rs.1,24,000/- and the appellants are also in possession of the details of expenses incurred in putting up a tar road. 10.Mr. Patel has further submitted that a wrong finding was arrived at by the learned Judge that the appellants are using the disputed road for the last more than 6 to 7 months only. As a matter of fact, it is the constant case of the appellants in the plaint as well as in the rejoinder that the disputed land is being used by the village people for the last more than 30 to 40 years. Even the evidence of the adjoining neighbours who have filed their affidavits stating that the disputed road is being used by the appellant Company and the village people since long. The appellants have established a prima facie case and AO/352/2007 10/20 JUDGMENT balance of convenience in as much as the land of the respondent No.1 is lying vacant and no activities being undertaken on the land and the disputed road is also of no utility value to the respondent No.1, as the land of the respondent No.1 itself is an agricultural land and the road shown in the agricultural road is not cultivable as it is a kharaba land and, therefore also, granting of injunction would not cause any inconvenience to the respondent No.1 in comparison to the hardships of the appellants. On the contrary, if the injunction as prayed for is not granted, it would cause irreparable harm and injury to the appellants because this road leads to Sarkhej – Gandhinagar highway and this road is being used extensively by the employees of the Company for loading and unloading of the goods and all the employees of the appellant are passing through this road by pedestrian or by vehicle. Thousands of people including the Officers in connection with the industrial purpose use the road and, therefore, not granting injunction to the appellants would seriously prejudice their business. He has, therefore, submitted that the order passed by the learned Trial Judge is absolutely unjust, improper, illegal and hence, deserves to be quashed and set aside AO/352/2007 11/20 JUDGMENT and the injunction as prayed for by the appellants in application Exh. 7 deserves to be granted. 11.Mr. S. B. Vakil, learned senior advocate appearing with Mr. N. K. Majmudar for respondent No. 1, on the other hand, has strongly objected to grant of any relief in this Appeal from order and submitted that the same deserves to be dismissed at the very threshold. He has further submitted that the learned City Civil Judge has rightly come to the conclusion after proper appreciation of facts and evidence on record and hence, there is no reason for this Court to disturb the said finding and to arrive at a different conclusion. He has further submitted that the respondent No.1 is the absolute owner / occupier of the open lands bearing Survey Nos. 235 & 244 situated at Dist. & Sub-district Ahmedabad, Tal. City Mouje Shahvadi village. The said land was purchased by the respondent No.1 from respondent Nos. 2 & 3 by two different Regd. Sale Deeds dated 18.08.2006 & 19.08.2006 bearing Registration Nos. 4573 & 4582 respectively. He has further submitted that the action of the appellants is mainly based on the alleged understanding between the appellants and the AO/352/2007 12/20 JUDGMENT respondent Nos. 2 & 3 whereby the respondent Nos. 2 & 3 had allegedly consented the appellants to use the said road. He has, however, submitted that the sale deeds did not speak about the alleged understanding or any alleged right of way of the appellants on the said road. The respondent Nos. 2 & 3 have neither prior to the execution of the sale deeds nor at any subsequent time, informed the respondent No.1 about any such understanding alleged to have been reached with the appellants. He has, therefore, submitted that no such understanding was ever arrived at between the appellants and the respondent Nos. 2 & 3. At the time of purchase of the said land and in connection with the process of title clearance certificate, nobody including the appellants raised any objection to the public notice issued nor did the appellants put forward any claim to have a right of way over the said land. The appellants are now estopped from raising any such objection. Even on assumption that such an understanding was there between the appellants and the respondent Nos.2 & 3, the said understanding is not binding on the respondent No.1. Such understanding, if any, is purely personal and shall only constitute license or permissive use and could AO/352/2007 13/20 JUDGMENT not be enforced against, or binding to the respondent No.1. He has, therefore, submitted that the appellants have failed to establish any prima facie case rendering them entitled to have any interim relief. 12.Mr. Vakil has further submitted that the appellants have not based their claim on any easementary or any other legal right in their favour. No such right is enforceable at law against the respondent No.1 with respect to the said lands. He has further submitted that at the most, the appellants could be termed as licensee of the respondent Nos.2 & 3 and such license ended with sale of the said lands by execution of the said sale deeds in favour of the respondent No.1. Any use of the said road at any point of time was purely permissive use as licensee, which is liable to be terminated and revoked and it actually stands revoked. Mr. Vakil has further submitted that the appellants have failed to establish that for the purpose of reaching to their properties, the alleged right of way on the said road of the respondent No.1 is absolutely necessary. Even if it is assumed for the sake of argument that the appellants have easementary or any other legal enforceable right against AO/352/2007 14/20 JUDGMENT the respondent No.1, the appellants have started an independent right of way for reaching to their properties. There also exist a public road leading to the appellants' property and hence, no right can be claimed in respect of the said road. He has, therefore, submitted that even balance of convenience is also not in favour of the appellants. 13.Mr. Vakil has further submitted that no evidence has been produced before the learned City Civil Judge with regard to the alleged expenditure of Rs. 10 Lacs incurred by the appellants for construction of a tar road. Even there is no evidence with regard to the alleged compensation said to have been paid by the appellants to respondent Nos. 2 & 3. He has further submitted that the appellants have heavily relied on the plan attached with the sale. However, merely because the plan attached with the said sale deeds shows pakka road, it is not necessary that the appellants have any sort of right on the said road. The said sale deeds do not speak about the alleged understanding or any alleged right of way of the appellants on the said road. Mr. Vakil has further submitted that all the three essential ingredients for AO/352/2007 15/20 JUDGMENT grant of interim relief i.e. prima facie case, balance of convenience and irreparable injury do not exist in favour of the appellants and hence, the learned City Civil Judge has rightly refused any interim prohibitory and mandatory relief to the appellants. The appellants could not establish their case before the learned City Civil Judge and no documentary evidence whatsoever was produced in respect of their claim which entitle them to claim any relief against the respondent No. 1. He has, therefore, submitted that the order passed by the learned City Civil Judge deserves to be confirmed and the appeal deserves to be summarily dismissed. 14.After having heard learned advocates appearing for the respective parties and after having gone through the impugned order passed by the learned City Civil Judge below an application Exh. 7 and after having gone through the documents produced before the Court during the course of hearing, this Court is of the view that the order passed by the learned City Civil Judge is based on one solitary ground that the appellants could not establish the fact that they have incurred an expenditure of Rs. 10 Lacs for construction of a tar road AO/352/2007 16/20 JUDGMENT and on that ground, the appellants' case was not believed by the learned City Civil Judge. He has, however, totally ignored the other documentary evidence such as the sale deed executed by the erstwhile owner, namely, Smt. Madhuben M. Patel in favour of respondent Nos.2 & 3 on 09.09.1998, thereafter, two sale deeds executed by respondent Nos. 2 & 3 in favour of respondent No.1 on 18.08.2006 and 19.08.2006 and the map attached therewith, the written statements filed by the respondent Nos.2 & 3 in Mamlatdar Suit No. 02 of 2006 before Mamlatdar's Court, Certificate issued by the Civil Engineer, Panchnama and Commissioner's report, affidavits filed by Shri Jagshi Ganda Bharvad and Nirmalaben Prayagraj, where from it is clearly revealed that there is not only an existing road but that road is being used by the people including the appellants. The learned City Civil Judge has not taken any pain even to refer to these documents and arrive at a conclusion that the appellants have failed to establish their prima facie case, balance of convenience and irreparable injury and hence, no interim relief could be granted in their favour. This Court is, therefore, of the view that the learned City Civil Judge has committed a serious error of law and AO/352/2007 17/20 JUDGMENT facts which requires interference by this Court in the impugned order and to grant the interim relief as prayed for, in favour of the appellants. 15.The very first document executed by Smt. Madhuben M. Patel in favour of respondent Nos. 2 & 3 on 09.09.1998 whereby the suit property was transferred in favour of respondent Nos. 2 & 3 clearly reveals that with all rights to way including laying down of water and drainage lines, installation of electricity and telephone wires and carrying out all agricultural instruments and vehicles on the said road, were transferred. It prima facie appears that this averment does not only talk of the rights of respondent Nos. 2 & 3 but it also includes the obligation attached therewith. The similar averments are made in the subsequent two sale deeds which are executed by respondent Nos. 2 & 3 in favour of respondent No.1. Not only this, a map was attached along with the sale deed. This map clearly shows that at the entry point, there is a land bearing Survey No. 233. No objection was ever raised by the owner of the land bearing Survey No. 233. The area of the land bearing Survey Nos. 235 & 244 is separately mentioned in the map. Against Survey AO/352/2007 18/20 JUDGMENT No. 235, area of 2486 is mentioned on the road whereas against Survey No. 244, area of 718 Sq. Mts. is mentioned on the road. Similarly, respondent No.1's own Civil Engineer, Shri Raju M. Patel, in his certificate says that the land under Survey No.244 of Shahvadi village measures 7993 Sq. Mts. It includes the area shown as a road in the plan. The area of the road is 718 Sq. Mts. As far as this road area is concerned, the respondent Nos.2 & 3 in their written statement filed in Suit No. 02 of 2006 by the appellant No.1 before the Mamlatdar's Court have clearly stated that they have sold this land to the appellant No.1 with all rights to way attached therewith. It is also stated that one can go to the land bearing Survey Nos. 210/2 and 211 only through the land bearing Survey No. 244. Similarly, it is also admitted in the said reply that the way which has come from Narol – Sarkhej highway is passing through the land bearing Survey No. 233 and thereafter, it goes ahead to Survey Nos. 235 & 244. It is also admitted in the said reply that appellants have constructed the tar road at their expenses and they have also given amount to them through cheques. It was also admitted that the appellants as well as other farmers are using this road AO/352/2007 19/20 JUDGMENT through years. The affidavit of Jagsi Ganda Bharwad as well as Nirmalaben Prayagraj sworn on 24.08.2007 clearly indicate that they are the owners of land bearing Survey Nos. 208 & 205/3 respectively and for reaching to their land, they have to use this road which passes through Survey No. 244 as well as 235. 16.From the above facts, it can hardly be said that the appellants could not establish their prima facie case before the learned City Civil Judge. The appellants have also made it clear that they are running their factory and more than 300 employees are working and the road is being used by them for reaching to the factory. If the road is being used by all people, it cannot be closed by putting up a wall. The admission is made by respondent Nos.2 & 3 in their written statement that the appellants have incurred expenses for construction of a tar road and they have been paid certain amount by the appellants. The admission is made by the other two persons, namely, Jagsi Ganda Bharwad as well as Nirmalaben Prayagraj in their affidavits that the road is being used by the people including the appellants. These are the relevant and material evidence to establish the AO/352/2007 20/20 JUDGMENT prima facie case of the appellants, on the basis of which they are entitled to an interim relief during the pendency of the suit. Since the learned City Civil Judge has not considered these relevant materials which have come on record, the impugned order passed by him deserves to be quashed and set aside and the appellants are entitled to the interim injunction as prayed for in their notice of motion application Exh. 7. 17.In the above view of the matter, this Appeal from order is allowed. The order passed by the learned City Civil Judge dated 19.09.2007 below notice