Chandrakant Shankar Sapkal And ... vs Anil Balbhim Khatavkar
2002 Latest Caselaw 779 Bom

JUDGMENT

R.M.S. Khandeparkar, J.

1. Heard the learned Advocates for the parties. Perused the records. Rule. Rule made returnable forthwith by consent.

2. The petitioners/defendants are challenging the concurrent orders passed by the Courts below. The trial Court, by order, dated 6-6-2001, passed in R. C. Suit No. 10 of 2001, allowed the application filed by the respondent/plaintiff to restrain the petitioners from carrying out construction in the suit property. The appeal filed against the same being Misc. Civil Appeal No. 103 of 2001 came to be dismissed by the lower Appellate Court on 25-9-2001. Hence the present revision application.

3. The suit property comprises of a piece of land alleged to be a common passage and forming part of City Survey No. 196, situated in Village Medha, Taluka Jawali, District Satara. It is the case of the respondent that a plot of land admeasuring 47 sq.mtr. was purchased by him by a deed of sale dated 19-12-2000 from one Suresh Dharashivkar and along with the said plot he has also purchased the right for common passage through the plot situated on the east of the plot of land purchased by the petitioners. It is further the case of the respondent that the said plot was purchased by Suresh Dharashivkar from the father of the petitioners, namely, Shankar by a sale deed dated 17-1-1950 and thereafter Suresh Dharashivkar constructed a house in the year 1951. It is further the case of the respondent that he had been using the common passage himself and through his predecessors and there was no obstruction for such use from whomsoever, including the petitioners. On the other hand, it is the case of the petitioners that the suit property is the part and parcel of the property of the petitioners and the respondent has no right whatsoever therein. It is further the case of the petitioners that Shankar never sold any right to the suit property in favour of Suresh Dharashivkar either under the sale deed dated 17-1-1950 nor otherwise and therefore Suresh Dharashivkar had no authority to convey any right in the suit property in favour of the respondent. It is their further case that the construction is being carried out after obtaining the necessary permission from the Panchayat authority.

4. The trial Court, holding that if the construction is allowed to be raised it will create inconvenience for enjoyment of the property by the respondent who is the adjoining holder of the suit property, allowed the application for temporary injunction filed by the respondent. The appeal against the same came to be dismissed on the ground that the Commissioner's report discloses that the plaintiffs' house opens on the eastern side i.e., towards the suit property and even though the house has doors and windows on the western and southern sides, the plaintiff/respondent has right to ingress and egress to his house from the western side and therefore he is entitled for injunction, as has been granted by the trial Court.

5. Assailing the impugned order, the learned Advocate for the petitioners submitted that though both the Courts below have granted injunction concurrently holding that the respondent had made out a prima facie case for the grant of the relief prayed for, both the Courts have misconstrued the relevant documents on record and have in fact arrived at the findings in favour of the respondent without any material on record to support such findings and therefore interference in revisional jurisdiction is called for. The learned Advocate for the

respondent, on the other hand, placing reliance in the decision of the Sikkim High Court in the matter of Smt. Ang Lhamu v. Smt. Ladenla and Ors., reported in AIR 1983 Sikkim 5 has submitted that the construction is being carried out without any licence and the respondent, being the neighbour, has every right to object to such construction, and their being concurrent findings by the Courts below regarding prima facie case having been made out by the respondent, no interference is called for in revisional jurisdiction.

6. Bare reading of the judgments passed by the Courts below disclose that both the Courts have not at all analysed the materials on record in its proper perspective. The entire basis of the claim to the suit property by the respondent are the sale deeds, one by Shankar in favour of Suresh Dharashivkar being the sale deed dated 17-1-1950 and the another by Suresh Dharashivkar in favour of the respondent being the sale deed dated 19-12-2000. Both the Courts below have not bothered to even glance through those sale deeds and the same is borne out from the bare perusal of the judgments passed by the Courts below. Once the claim of the respondent was based on the said sale deeds, it was incumbent upon the Courts below to peruse the same and to ascertain whether the respondent has made out a prima facie case in relation to the alleged claim to the suit passage. Though it was sought to be argued by the learned Advocate for the respondent that the sale deed dated 17-1-1950 discloses assignment of right over the suit passage by Shankar in favour of Suresh Dharashivkar, a bare reading of the copy of the said deed discloses that nowhere in the said deed there is any such assignment. Undoubtedly, there is a reference to "balance lane area" while describing the boundaries of the plot sold. The eastern side of the plot sold has been defined to be bounded by the said balance lane area of the property out of which the plot which was sold to Suresh Dharashivkar was carved out. That itself would not lead to any conclusion to say that the vendor under the said deed had assigned any right in favour of the purchaser in relation to the said lane. Once the purchaser under the sale deed dated 17-1-1950 had not acquired any right to the suit passage, the said purchaser could not have conveyed any right to such passage in favour of any third person, including the subsequent purchaser of the said plot i.e., the respondent. Being so, the respondent had failed to make out a prima facie case in relation to the right to the suit passage. Undisputedly, it is not the case of the respondent that he had acquired any right to the suit passage by way of prescription in terms of Section 15 of the Easement Act. There being no other claim put forth to the suit passage otherwise than by way of purchase of right in respect thereof under the sale deed dated 19-12-2000, it is apparent that the vendor of the plot sold under the sale deed dated 19-12-2000 had no right to the suit passage and the respondent ought to have been held to have failed to establish prima facie any right to or over the suit passage.

7. As regards the contention that the neighbour is entitled to object to the illegal construction carried out in the neighbourhood, the law is well established and the Division Bench of this Court has also pronounced in favour of the locus standi of the neighbour to object to such construction. However, in the case in hand, the impugned order discloses that the petitioners had produced a zerox copy of the licence issued to the petitioners for carrying out the construction. No doubt the licence on the face of it does not refer to the survey number of the

property. Mere failure on the part of the authorities to mention the survey number in the licence issued to the petitioners cannot by itself lead to the conclusion at this stage that the licence does not pertain to the construction in question. Apart from pointing out the absence of survey number in the licence, the respondent had not disputed the fact about the issuance of the licence to the petitioners for carrying out the construction. It is also not the case of the respondent that the petitioners have some other property wherein the petitioners are carrying out construction under the said licence. Being so, once it is prima facie apparent that the petitioners have been carrying out the construction pursuant to the issuance of the licence, it cannot be said that it is in violation of any bye-laws regarding the construction activities in the village unless the person accusing the petitioners of violation of the bye-laws points out the specific bye-law which is sought to be violated by the petitioners.

8. In the circumstances, there being no prima facie case made out by the respondent/plaintiff, apparently the Courts below have acted illegally in granting temporary injunction in favour of the respondent. The findings arrived at by the Courts below regarding the prima facie case made out by the respondent are apparently contrary to the materials on record, as rightly submitted by the learned Advocate for the petitioners. Hence those findings cannot be sustained and are liable to be set aside.

9. In the result, therefore, the revision application succeeds. The impugned order is set aside. The application filed by the respondent/plaintiff in the trial Court for injunction is hereby dismissed. Rule is made absolute in above terms with no order as to costs. The civil revision application is disposed of.

10. The oral request by the learned advocate for the respondent/plaintiff for stay of this order is rejected.