1 ao374-11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION rpa APPEAL FROM ORDER NO.374 OF 2011 ALONGWITH CIVIL APPLICATION NO. 521 OF 2011 Hirji Lodha & Co. .. Appellant V/s. The State of Maharashtra & Ors. .. Respondents ..... Mr. Anil Singh i/b. M/s. Harish Joshi & Co. for the appellant. Mr. A. R. Patil, AGP for respondent No.1 – State. ..... CORAM : A. S. OKA, J. DATE : MAY 4, 2011. P.C. :- Heard the learned counsel appearing for the appellant and the learned AGP appearing for the first respondent. The appellant is the original plaintiff and respondents are the original defendants. The challenge in this Appeal is to the Judgment and order passed by the trial Court on 28th February, 2011, on a Notice of Motion for interim relief taken out by the appellant. 2. With a view to appreciate the submissions made by the learned 2 ao374-11 counsel appearing for the parties, a brief reference to the facts of the case is necessary. The appellant claims to be a tenant of a plot of land bearing City Survey No.1495. The second to sixth respondents are the trustees of a Public Trust. The said Public Trust known as “Christ Church” is the owner of the land. The appellant claims to be the owner of the structure on the suit land bearing City Survey No.1495. According to the appellant, the monthly rent is Rs.500/- per month which is being paid to the said Trust. 3. The dispute is about the road which is referred to as internal road (previously known as Christ Church Carriage road). According to the appellant, egress and ingress into the suit land is available through the said road. According to the appellant, the Byculla Jail is on the same road on the opposite side of the appellant's premises and the first respondent State Government has also its entrance to the jail from the said road which has been referred to as the suit road. The appellant relied upon a plan which is annexed to the plaint. It is contended that the suit road is the only access road available to the suit land and the said suit road is shown on plan at Exhibit-D. It is contended that the second to sixth respondents are not the owners of the properties beyond the compound wall of the appellant. It is contended that the suit road is 3 ao374-11 in existence prior to 1940 which is a tarred road and appellant has been using the said road without any obstruction or interference. It is contended that the appellant was allowed free egress and ingress upon its property from the suit road. It is stated that the first defendant State Government has built a wall at the end of the property blocking the entry into the Christ Church premises. It is contended that on 26th October, 2010, the first defendant dug up a trench after its portion of means of egress and ingress. It is contended that the intention was to prevent the appellant from using the suit road. Therefore, by filing a suit, a declaration as regards right of egress and ingress through the suit road was prayed for. 4. A Notice of Motion for temporary injunction was taken out by the appellant. The first prayer in the Notice of Motion was to restore the position of the suit road as its existed prior to 26th October, 2010. The second prayer was for restraining the first defendant from obstructing or interfering with the appellant's right to use the suit road through the gate erected by the first defendant in any manner. 5. It appears that the limited ad-interim relief was granted by the trial Court on the Notice of Motion. As stated earlier, the Notice of 4 ao374-11 Motion has been dismissed by the impugned order. 6. The learned counsel appearing for the appellant invited the attention of the Court to the plan annexed to the plaint. He pointed out that except the suit road there is no other access available for approaching the suit land. He submitted that the finding recorded by the trial Court regarding availability of another road is factually incorrect and the said finding is not borne out by the documents on record. The learned counsel submitted that the observation made by the trial Court in paragraph No.7 of the impugned order that there is an ample space and way available to the appellant to have an access through the property of landlord is factually incorrect and is not supported by any of the documents on record. He submitted that in the plaint, apart from the pleading that the appellant has acquired the right by prescription, there is a specific pleading that the acquisition of right of easement is by way of easement of necessity. He submitted that there exists an easement of necessity as there is no other road available for approaching the suit land. He urged that interim relief ought to have been granted as the appellant has been using the suit road for such a long time without any obstruction. 5 ao374-11 7. I have give careful consideration to the submissions. The only pleading regarding the alleged right of easement claimed by the appellant is in paragraph No.9 of the plaint which reads thus: “9. The Plaintiff says that the said access has been in existence since prior to 1940. the suit road is a tarred road. The Plaintiff has been using the suit road in all these years continuously without any obstruction or interference by itself and through Defendant Nos. 2 to 6 and their predecessors. The Plaintiff says that it is claiming the suit road in the following manner : “ As a public road, as road entitled to be used as being used for more than 40 years as a easement of necessity/prescription, as there is no other road available for being used and as being used in all these years without any hindrance, obstruction or let.” 8. It is not in dispute that the appellant's landlord had filed a suit for declaration claiming acquisition of easement by prescription in respect of the suit road and the suit has been dismissed on merits. It is also an admitted position that in Appeal preferred by the landlord, there is no interim relief granted by this Court. Thus, the plea of acquisition of easementry rights by prescription raised of the landlord of the appellant has been negatived by the trial Court. Thus, it is impossible to hold that there is a prima facie case made out of acquisition of right by prescription by the appellant. The other plea is of easement of necessity. On plain reading of the plaint and even taking the averments made in 6 ao374-11 the plaint as correct, there is no specific pleading of existence of easement of necessity under Section 13 of the Easement Act, 1882. There is no pleading making out a case in terms of clauses (a), (c) or (e) of Section 13 of the said Act. The mere averment that no other way is available to the appellant is not at all a plea of easement of necessity. Thus, taking the averments made in the plaint as it is, it is impossible to record a finding that prima facie case of existence of easement of necessity is made out. Thus, the trial Court was right in holding that the appellant has not made out a prima facie case. On such pleadings, no other conclusion could have been possible. In the circumstances, it is not possible to interfere with the discretionary order passed by the trial Court by which the said Court has declined to grant relief of temporary injunction. 9. The Appeal From Order is accordingly dismissed. 10. It is, however, made clear that the findings recorded by the trial Court are only tentative findings and the suit will be decided on its own merits without being influenced by the findings recorded by the trial Court and confirmation thereof by this Court. 7 ao374-11 11. All contentions of the parties on merits of the suit are kept open. 12. Civil Application No.521 of 2011 does not survive and the same is disposed of. 13. The learned counsel appearing for the appellant seeks continuation of the ad-interim relief which was operative during the pendency of the Notice of Motion. The learned AGP opposed the said prayer. Ad-interim relief granted during the pendency of the Notice of Motion was operative from 1st November, 2010. The said ad-interim relief shall continue to operate for a period of three months from today. JUDGE