SCA/10867/2008 1/10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No.10867of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ===================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 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 ? 5 Whether it is to be circulated to the civil judge ? ===================================================== MAKODABHAI CHHAGANBHAI PATEL & 1 - Petitioner Versus HIMATLAL MANSUKHLAL BHATT & 4 - Respondent(s) ===================================================== Appearance : MR JD AJMERA for Petitioner(s) : 1 - 2. MR HARSHIT S TOLIA for Respondent(s) : 1 - 2. MR PARTH S TOLIA for Respondent(s) : 1 - 2. None for Respondent(s) : 3 - 5. ===================================================== CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 02/09/2008 ORAL JUDGMENT SCA/10867/2008 2/10 JUDGMENT 1. Rule. Shri Harshit Tolia, learned advocate for the respondent No. 2 wavies service of notice of admission on behalf of the respondent No.2. With the consent of the learned advocate for the respective parties, the matter is taken up for final hearing today. 2. By way of this petition under Article 227 of the Constitution of India, the petitioners-original defendants No. 1 and 2 have prayed for an appropriate writ, direction and / or order quashing and setting aside the judgment and order passed by the learned Additional District Judge and Presiding Officer, Fast Track Court No.5, Bhavnagar dated 14.8.2008 in Miscellaneous Civil Appeal No. 49 of 2008 in allowing the same by quashing and setting aside the order passed by the learned 5th Joint Civil Judge ( S.D.), Bhavnagar dated 8.4.2008 below application Exh. 5 in Regular Civil Suit No. 113 of 2008. 3. Respondent Nos. 1 and 2 herein original plaintiffs had instituted Regular Civil Suit No. 113 of 2008 against the petitioners and others in the SCA/10867/2008 3/10 JUDGMENT Court of learned Principal Civil Judge (S.D.), Bhavnagar for permanent injunction inter alia, praying that the petitioners herein original defendant Nos. 1 and 2 may not put any sub plotting plan with respondent Nos. 3 to 5 for sanction and if it is placed, then the defendant Nos. 3 to 5 may not sanction the said plan and restrain the defendant Nos. 3 to 5 from sanctioning and also restraining the defendant Nos 3 to 5 from permitting the petitioners to put up any construction. It was further prayed that the petitioners may not act in any manner which would affect their right on the disputed road. It was the contention on behalf of the plaintiffs that 10 ft x 17 ft road, which was in dispute was of the ownership of the original plaintiffs and they have exclusive right to use the said road. In the said suit, the plaintiffs submitted an application Exh. 5 for temporary injunction praying that the petitioners-defendant Nos. 1 and 2 may not take any steps to cause injury to their rights to pass through the road, east-west: 10 ft and north-south: 72ft and that the petitioners may not create any right and also prayed that the petitioners-defendant Nos. 1 and SCA/10867/2008 4/10 JUDGMENT 2 may not put any plan with the Corporation and the respondent Nos. 3 to 5 may not sanction any plan; if already submitted and further prayed that even if respondent Nos. 3 to 5 desired to sanction the said plan, then restrain them from putting up any construction in accordance with the said plan. The said application was opposed by the defendants. It was submitted that the plans have already been sanctioned and they are putting up the construction on their own plots as per the sanction plan and that they are not putting up any construction on the disputed road and, therefore, it was requested not to grant any injunction restraining them from putting up any construction on their plots as per the sanction plan sanctioned by the Corporation. The learned trial Court after hearing the parties, rejected the application Exh. 5 by order dated 8.4.2008 holding that the plaintiffs have no exclusive right to pass through the disputed road and it cannot be said that disputed road is of their ownership. The trial Court also came to the conclusion that the predecessor in title of the petitioners were also using the said disputed road. SCA/10867/2008 5/10 JUDGMENT Being aggrieved and dissatisfied with the order passed by the learned trial Court below Exh. 5 in dismissing the same, the respondent Nos. 1 and 2 herein original plaintiffs preferred Miscellaneous Civil Appeal No. 49 of 2008. Initially, no interim relief was granted in favour of the plaintiffs pending appeal. After hearing the parties, the Appellate Court by the impugned order dated 14.8.2008 allowed the said appeal and granted injunction in terms of paragraph 11(1),(2) and (3) of the Exh. 5 application against the petitioners till final disposal of the suit by quashing and setting aside the order passed by the learned trial Court below Exh. 5. Being aggrieved and dissatisfied with the impugned order passed by the learned Appellate Court, the petitioners-original defendants No. 1 and 2 have preferred the present Special Civil Application under Article 227 of the Constitution of India. 3. Shri J.D. Ajmera, learned advocate appearing for the petitioners-defendants No. 1 and 2 has vehemently submitted that the learned Appellate Court has materially erred in allowing the appeal by quashing SCA/10867/2008 6/10 JUDGMENT and setting aside the well reasoned order passed by the learned trial Court passed below Exh. 5. It is submitted that the prima facie observation of the learned trial Court that the original plaintiffs have no exclusive right / ownership over the disputed road was not required to be interfered by the learned Appellate Court. It is also further submitted that it was pointed out before the learned Appellate Court that the plan submitted by the petitioners for sub- plotting has been granted and permission to put up the construction on two plots have been granted and they have already started putting up construction on their own plots, the learned Appellate Court ought not to have granted the injunction restraining the petitioners from putting up the construction on their own plots for which there is no dispute at all. It is submitted that the petitioners were / are not putting up any construction on the disputed road and, therefore, learned Appellate Court ought not to have granted the injunction restraining the petitioners from putting up the construction on their own plots and that too as per the sanction plan sanctioned by the Corporation. Therefore, it is requested to allow SCA/10867/2008 7/10 JUDGMENT the present petition. 4. On the other hand, Shri Harshit Tolia,learned advocate appearing for the respondent Nos. 1 and 2 fairly conceded that the plaintiffs cannot have any objection if they put up the construction on the plots No. 2679/B/2 and 2679/B/1. However, if the petitioners put up the construction on plot No. 2679/B/3 they will be putting up construction in such a way that their entry in the said plot would be from the disputed 10 ft road, which is of exclusive ownership of the plaintiffs and exclusively used by the plaintiffs. Therefore, at least the petitioners are required to be restrained from putting up the construction on plot No. 2679/B/3. It is submitted that the disputed 10 ft road is meant for the exclusive use for the plaintiffs and nobody has a right to use the said disputed road and, therefore, the petitioners-defendants No. 1 and 2 cannot use the said road. Therefore, it is requested to dismiss the present Special Civil Application. 5. Heard the learned advocates for respective SCA/10867/2008 8/10 JUDGMENT parties. It appears that plot No. 2679/B is the ownership of the petitioners-defendant Nos. 1 and 2 and they have sub divided the same into three plots i.e. plot No. 2679/B/1, 2679/B/2 and 2679/B/3 after obtaining necessary permission from the Competent Authority and getting the plan sanction. It is also required to be noted that petitioners-defendants No.1 and 2 are putting up the construction at present on 2679/B/2 and plot No. 2679/B/1 and they are putting up construction on their own plots after obtaining necessary development permission and the plan sanctioned by the Corporation. Therefore, they cannot be restrained from putting up the construction on their own plots and they are putting up the construction as per the sanction plan of the Corporation. It is the contention on behalf of the plaintiffs that they have an exclusive right to use the disputed 10 ft road, however it is yet to be established and proved at the time of trial on leading proper evidence. Therefore, even the petitioners-original defendants No. 1 and 2 cannot be restrained from putting up any construction on the plot No. 2679/B/3. If, ultimately they put up the SCA/10867/2008 9/10 JUDGMENT construction on their own plot No. 2679/B/3 with entry from the disputed 10 ft road and in that case ultimately the suit is decreed and it is held that the plaintiffs have the exclusive right over the disputed 10 ft road, in that case the petitioners have to suffer. Therefore, any entry on the plot No. 2679/B/3 would be subject to the ultimate outcome of the suit and if any construction is put up on plot No. 2679/B/3 having the entry from the disputed 10 ft road, the same would be at their risk, costs and with the above danger and subsequently they cannot claim equity on the ground that now they have already put up the construction having the entry from disputed 10 ft road and if the decree is passed, in that case, they will not have any entry on the plot No. 2679/B/3/ However, they cannot be restrained from putting up the construction even on plot No. 2679/B/3.Considering the above, the learned Appellate Court has committed an error in allowing the appeal and quashing and setting aside the order passed by the learned trial Court passed below Exh. 5 by restraining the petitioners-defendant Nos. 1 and 2 from putting up any construction on their plots as SCA/10867/2008 10/10 JUDGMENT per the sanction plan sanctioned by the Corporation. 8. For the reasons stated above, petition succeeds. The impugned judgment and order passed by the learned Additional District Judge and Presiding Officer, Fast Track Court No.5, Bhavnagar dated 14.8.2008 in Miscellaneous Civil Appeal No. 49 of 2008 is hereby quashed and set aside. However, it is observed that any construction on plot No. 2679/B/3 with entry from the 10 ft disputed road would be subject to the ultimate out come of the suit. Rule is made absolute. There shall be no order as to costs. (M.R. SHAH, J.) Kaushik