Dasharath Bhaguji Jadhav vs Kisan Bhaguji Jadhav
2013 Latest Caselaw 339 Bom

                                                              WP.5889.2013.Judgment.doc


             IN  THE  HIGH  COURT  OF  JUDICATURE  AT  BOMBAY
                        CIVIL APPELLATE JURISDICTION




                                                                         
                         WRIT PETITION NO. 5889 OF 2013




                                                 
    1. Dasharath Bhaguji Jadhav
    Age: 75 years; occupation: agriculturist

    2. Jaysingh Dasharath Jadhav
    Age: 43 years, occupation: agriculture/




                                                
    business

    3. Devidas Dasharath Jadhav
    Age: 47 years, occupation: agriculture/




                                    
    business
                         
    4. Harishchandra Dasharath Jadhav
    Age: 45 years, occupation: agriculture/
    business,
                        
    Nos. 1 to 4 all residing at S.No. 45/1,
    Radhakrishna Colony, Dattanagar,
    Ambegaon Budruk, Pune - 411 046                      :-       Petitioners
      


                     versus
   



    1. Kisan Bhaguji Jadhav
    Age: adult, occupation: agriculture





    2. Ankush Kisan Jadhav
    Age: adult, occupation: business

    3. Lahu Kisan Jadhav
    Age: adult, occupation: business





    Nos. 1 to 3 all residing at S. No. 45/1,
    Radhakrishna Colony, Datta Nagar,
    Ambegaon Budruk, Pune 411 046

    4. M/s. Shri. Mane Developers,
    A partnership firm registered under the
    Indian Partnership Act, 1932
    having address at S. No. 73, Shop No. 11,

                                  Page 1 of 16
    J.V.Salunke,PA




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                                                                         WP.5889.2013.Judgment.doc


    Saidhan Building, Bharati Vidyapeeth
    Dattanagar Road, Katraj, Pune - 411046,
    through its partner Mr. Deepakji Mane,




                                                                                   
    Age: adult, occupation:business




                                                           
    5. M/s. J. M. Developers and Builders,
    A partnership firm registered under the
    Indian Partnership Act, 1932
    having address at S. No. 73, Shop No. 11,
    Saidhan Building, Bharati Vidyapeeth




                                                          
    Dattanagar Road, Katraj, Pune - 411046,
    through its partner Mr. Deepakji Mane,
    Age: adult, occupation:business




                                             
    6. Master Shubham Dnyanoba Jadhav
    Age: minor, occupation: student
                           
    through guardian Mr. Dnyanoba
    Bhaguji Jadhav, Age: adult,
    occupation: agriculture
                          
    7. Mr. Dnyanoba Bhaguji Jadhav
    Age: adult, occupation: agriculture
      

    8. Laxmibai Dnyanoba Jadhav
    Age: adule, occupation: housewife,
   



    Nos. 6 to 8 all residing at S. No. 45/1,
    Radhakrishna Colony, Dattanagar,
    Ambegaon Budruk, Pune - 411 046                                :-       Respondents





    Mr. G. S. Godbole i/b. Mr. N. N. Wadikar for the Petitioners.
    Mr. P. S. Dani i/b. Mr. Nilesh M. Wable for Respondent Nos. 1 to 8.





                                    CORAM :- R. M. SAVANT, J.

DATED :- DECEMBER 13, 2013

JUDGMENT :-

In the above Petition, Rule came to be issued on 29 th

October, 2013 and the above Petition was directed to be placed on 18 th

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November, 2013 for hearing as to interim reliefs. The above Petition

had come up for hearing as to interim reliefs on 29 th November, 2013

when it was adjourned to 10th December, 2013 at the request of the

learned Counsel appearing for the parties. However, on 12 th December,

2013, the learned Counsel agreed that instead of the parties being

heard on interim reliefs, the Petition itself be heard finally. That is how

by the consent of the learned Counsel appearing for the parties the

Petition is taken up for final hearing.

2) The writ jurisdiction of this Court under Article 227 of the

Constitution of India is invoked against the order dated 30 th April, 2013

passed by the learned District Judge - I, Pune, by which order the

Miscellaneous Civil Appeal being No. 85 of 2013 filed by the Petitioners

i.e. the original Plaintiffs came to be dismissed and resultantly the order

dated 5th February, 2013 passed by the Joint Civil Judge, Junior

Division, Pune rejecting the Application Exhibit-5 came to be confirmed.

3) The controversy in the above Petition lays in a narrow

compass viz. Whether the Plaintiffs can claim a right of way through the

property of the Defendant No. 1.

The parties i.e. the Plaintiffs and Defendant No. 1 and Defendant

No. 7 claim their lineage through one Bhaguji Jadhav. The said Bhaguji

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Jadhav had three sons i.e. the Plaintiff No. 1, the Defendant No. 1 and

the Defendant No. 7 and one daughter Bhairavabai. The said Bhaguji

Jadhav own two lands being Survey No. 45/1 totally admeasuring 6

hectors and 47 ares and Survey No. 47/2/1 totally admeasuring 4 ares.

After the death of the said Bhaguji Jadhav, partition took place in

between the three brothers i.e. the Plaintiff No. 1, the Defendant No. 1

and the Defendant No. 7 on 25 th April, 1991, by which, the larger

property i.e. Survey No. 45/1 was divided into three parts by metes and

bounds and the smaller property was kept in common. It appears that a

revenue entry was also effected vide Mutation Entry No. 5459 in the

revenue record in terms of the said Partition Deed. After the said

partition, the Plaintiff No. 1 became owner of the suit property

described in the Plaint in para No. 1B, which was bearing Survey No.

45/1, Defendant No. 1 became owner of the property described in para

No. 1C of the Plaint having Survey No. 45/1/6A and the Defendant No.

7 became owner of the suit property described in para No. 1D of the

Plaint having Survey No. 45/1/9E. It appears that later on the

Defendant No. 7 had executed a gift deed in favour of the Defendant

No. 6 who became owner of the suit property described in para No. 1D

of the Plaint.

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4) The Suit was founded on the fact that since the Southern

portion of the entire suit property came under the Bio Diversity Park

reservation, the Plaintiffs who were using the path way of the Southern

side to approach their existing property which is now falling in the said

Bio Diversity Park zone would not able to do so. Apart from that, the

Plaintiffs were using the path way and they had no motorable access to

their own property. It is the case of the Plaintiffs that in terms of the

partition deed dated 25th April, 1991 they have a right of way through

the Defendants' property i.e. through Survey No. 45/1/6A of Defendant

No. 1 and Survey No. 45/1/9E of the Defendant No. 6. It is the case of

the Plaintiffs that since in terms of the Partition Deed there is grant of

accessible right for the Plaintiffs through the defendants' property, they

are bound to carve out the road and provide access to them. It is

further the case of the Plaintiffs that if such a road is not provided, the

Plaintiffs' property would become land locked. It is further their case

that as per the Partition Deed the members of the joint family have been

confirmed with the right of way/right of access through the separated

properties and in support of which reliance is placed on the Partition

Deed. The property in the Plaint was described as IB belonging to the

Plaintiffs, property IC belonging to the Defendant Nos. 1 to 5 and

property ID belonging to the Defendant No. 6.

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5) On behalf of the Defendants, reply came to be filed which

was numbered as Exhibit-22. It was the Defendants' case that in the

Partition Deed there is no mention of any easementary right over the

properties which have been separated on account of the partition. It

was contended that the Plaintiffs have not claimed any dominant

heritage over the properties of the Defendants. It was further the

contention of the Defendants that the Defendant Nos. 1 to 3 have after

paying valuable consideration to the Defendant Nos. 6 to 8 availed of an

internal road through the property mentioned in para 1C of the Plaint.

It was further contended on behalf of the Defendants that on the

Southern side in the land earmarked for the Bio Diversity Park there is a

road running from East to West which is available to the Plaintiffs. It

was therefore contended that the Plaintiffs would have to lodge a claim

with the Pune Municipal Corporation and not against the Defendants.

The Trial Court, considered the said Application for temporary

injunction and mandatory injunction and by its order dated 5 th February,

2013 rejected the same. The Trial Court held that the relief of

mandatory injunction could be only granted in a case where the existing

things are to be restored meaning thereby that the said relief could be

granted in the instant case if there was already a road which was in

existence through the property of the Defendants. However, the relief

in the Suit and the relief in the temporary injunction application was by

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way of carving out a road and provide the same to the Plaintiffs which

would mean that no road was in existence.

6) Insofar as the Partition Deed and the covenant therein is

concerned, which has been reproduced by the Trial Court in the

impugned order at para 10 which is reproduced herein under:

";s.ksizek.ks prq%flekiwoZd feGdrh vkrhy ty] r:] r`.k] dk"V] ik"kk.k] fu/khfu{ksi oxSjs rnaxHkwr oLrwlfgr o tk.;k ;s.;kP;k ofgokVh

jLR;kps gDdklg feGdrh okV.ksl vkysys vkgsr-" the true english translation of which reads thus:

"Thus the properties within four boundaries has come to the share alongwith water, plants, grass, rock, stones, buried and

hidden treasures etc. with appurtenances and easementary rights."

Upon a reading of the said portion in the Partition Deed, the Trial

Court observed that no definite road has been mentioned in the

Partition Deed. The Trial Court further observed that what

interpretation to be given to the aforesaid covenant would a question

which would have to be decided in the Suit after the parties lead

evidence. Insofar as the road which the Defendant No. 1 is using, the

Trial Court taking into consideration the fact that the Defendant No. 1

has taken part of the land of the Defendant No. 6 for being used for

road by paying consideration to the Defendant Nos. 6 to 8. The Trial

Court observed that if the said road was available at the time when the

Partition Deed was executed, there was no necessity for the parties to

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enter into an agreement and the Defendant No. 1 to pay consideration

for the same. The Trial Court also adversely observed against the

Plaintiffs that they have kept quiet and not raised the issue about the

road since the date of partition i.e. from 25 th April, 1991 till filing of the

Suit. The Trial Court also took into consideration the fact that it was

the Plaintiffs' own case that they have a road on the Southern side

which was a path way. The Trial Court also taken into consideration the

fact that the Defendants have completed half the construction and

therefore the reliefs sought by the Plaintiffs by way of the Application

Exhibit-5 could not be granted and accordingly rejected the Application

Exhibit-5 by its order dated 5th February, 2013.

7) The aggrieved Plaintiffs carried the matter in Appeal by

way of Miscellaneous Civil Appeal No. 85 of 2013. The Lower Appellate

Court, on a re-appreciation of the material on record, was in agreement

with the Trial Court as regards the finding that the Plaintiffs have not

made out a prima facie case, that the balance of convenience was not in

favour of the Plaintiffs and irreparable loss would be caused to the

Defendants if the injunction was granted. The Lower Appellate Court

taken into consideration the fact that the lands are adjacent to each

other and the Plaintiffs' land is to the Eastern side of the land of the

Defendant Nos. 1 to 4 and abutting to the said land. The Lower

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Appellate Court observed that towards the Southern side of all three

lands there is a East to West strip in which there exist a road. The

Lower Appellate Court also observed that the main controversy in the

Appeal is whether the Plaintiffs have a right of way through the

Defendants' land by virtue of the Partition Deed. In that regard, the

Lower Appellate Court observed that it is not the Plaintiffs' case that

they are claiming easement by way of necessity, but they are claiming

right of the easement by way of grant based on the Partition Deed dated

25th April, 1991.

Insofar as the covenant in the said Partition Deed is concerned,

the Lower Appellate Court construed the said covenant to mean that the

parties would be entitled to use the roads which are in use and

therefore by no stretch of imagination the Lower Appellate Court held

that it can be construed that a new road from the lands of the other

sharers was to be created. The Lower Appellate Court also took into

consideration the photographs produced by the Defendants to show that

the Plaintiffs are using the road on the Southern side for taking their

vehicles up to their Bungalows and in view of there being no convincing

denial to the same, the Lower Appellate Court held that the Plaintiffs

have a motorable access from the Southern side. The Lower Appellate

Court held that the Partition Deed does not contain any stipulation

either explicitly or impliedly of grant of road through the property of

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other sharers. The Lower Appellate Court observed that the Partition

Deed was executed in the year 1991 at which time there was no

reservation of the Bio Diversity Park which has come about in the year

2005 and therefore the parties could never have anticipated the

reservation for Bio Diversity Park so as to give a right of way to the

Plaintiffs through the land of the Defendants. The Lower Appellate

Court has adverted to the Judgments which were cited before it on

behalf of the Plaintiffs as well as the Defendants. The said Judgments

were to the effect that by way of interim reliefs, the main reliefs could

not be granted. As indicated above, upon consideration of the material

on record, the Lower Appellate Court also came to a conclusion that the

Plaintiffs have not made out prima facie case that the balance of

convenience was not in their favour. It is the said order dated 30 th

April, 2013 passed by the Lower Appellate Court which is taken

exception to by way of the above Petition.

8) Heard the learned Counsel for the parties. The learned

Counsel appearing for the Petitioners Shri. Godbole would reiterate the

case of the Petitioners in the Trial Court based on the covenant

appearing in the Partition Deed. The learned Counsel would contend

that the Plaintiffs therefore have a right of way through the land of the

Defendant No. 6 and what the Plaintiffs are claiming is only an

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extension of the road from the property of the Defendant No. 1 to the

property of the Plaintiffs. The learned Counsel would contend that the

land on the Southern side being earmarked for the Bio Diversity Park

even if there was a road, the Plaintiffs cannot use the same. The

learned Counsel would further submit that the very fact that the

Defendant Nos. 6 had executed an agreement in favour of the

Defendant Nos. 1 to 3 allowing them access through the property i.e.

the property No. 1C of the Plaint, substantiates the case of the Plaintiffs

that the other Defendants have to make the road available to the

Plaintiffs to go to their property through the property of Defendant No.

1. The learned Counsel would contend that if the relief is not granted,

the situation would be irreversible as the Defendant Nos. 1 and 3 have

already put up buildings 'A', 'B' and 'C' and are in the process of putting

up building No. 'D' if injunction is not granted.

9) Per contra, the learned Counsel appearing for the

Respondent Nos. 1 to 8 Shri. P. S. Dani would support the orders passed

by the Courts below and would contend that in the facts and

circumstances of the case, the orders passed by the Courts below need

not be interfered with by this Court in its writ jurisdiction. The learned

Counsel would contend that if the prayers in the Suit and the

Application for temporary and mandatory injunction are seen, what the

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Plaintiffs are seeking is direction to the Defendants to carve out a road

and therefore the Courts below have rightly rejected the Application for

injunction. The learned Counsel would contend that what the Partition

Deed provides is that the parties would be entitled to the trees, water,

stones in the separated properties as existing and in use. The part of

the said Partition Deed could not be construed to mean that the

Plaintiffs are entitled to a road through the property of the other

sharers. The fact that the Defendant Nos. 1 to 3 have entered into an

agreement with Defendant Nos. 6 to 8 so as to provide road to the

Defendant Nos. 1 to 3 through the property of the Defendant No. 6 in

fact goes against the case of the Plaintiffs that by the Partition Deed the

Plaintiffs were entitled to get right of way through the property of the

other sharers. Since there was no right of way granted by the said

Partition Deed, that the Defendant Nos. 1 to 3 entered into an

agreement with the Defendant No. 6 for consideration. The learned

Counsel lastly contend that though an issue is sought to be raised on the

ground that on account of the Bio Diversity Park reservation the

Plaintiffs would not be able to use the road on the Southern side, the

said contention cannot be accepted in view of the fact that the area

earmarked for the Bio Diversity Park is fully developed as can be seen

from the photographs and the Google Map.

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10) Having heard the learned Counsel appearing for the

parties, I have considered the rival contentions. In the instant case, it is

required to be noted that the Plaintiffs, in their Application for

temporary injunction, have claimed the following relief, which can be

said to be the main relief insofar as the said Application is concerned.:

".....

b) This Hon'ble Court may be pleased to direct the Defendant Nos. 1 to 5 to temporarily identify and carve out an access road through their land being the Suit property

mentioned in Paragraph No. 1 © of the Plaint thereby joining the same to the said 9 Mtrs. Road, which is passing through the

Suit property mentioned in Paragraph 1(D) of the Plaint. ....."

A reading of the prayer therefore discloses the Plaintiffs want the

Defendants to temporarily identify and carve the access road meaning

thereby that no road through the property of the Defendant Nos. 1 to 5

is in existence at present.

11) The Plaintiffs have indisputedly laid their claim to a road

through the property of the Defendant Nos. 1 to 5 based on the said

Partition Deed. Both the Courts below at the prima facie stage have

come to a conclusion that what the Partition Deed provides is that the

existing roads in use would be available for use to the parties. The said

interpretation by the Courts below in my view is a possible

interpretation of the said covenant or stipulation. It is therefore not

possible at least at this prima facie stage to accept the contention of the

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Plaintiffs that on the basis of the said Partition Deed they are entitled to

a right of way through the properties of the Defendant Nos. 1 to 5, the

interpretation of the wordings in the said Partition Deed is further

fortified by the action of the Defendant Nos. 1 to 3 entering into an

agreement with the Defendant Nos. 6 to 8 in respect of the access to be

provided to the property of the Defendant No. 1 which is presently

under development through the medium of Defendant Nos. 3 to 5. the

factum of the agreement being executed between the parties in fact

militates against the case of the Plaintiffs that in terms of what is

mentioned in the Partition Deed a road is to be provided to the other

parts of the property which have been carved out on partition. In my

view therefore the contention of the Plaintiffs at least at the prima facie

stage that the Defendants are under an obligation under the Partition

Deed to provide a right of way through their lands to the Plaintiffs

cannot be accepted.

12) Though a contention has been raised on behalf of the

Plaintiffs that the right of way through the property of the Defendant

Nos. 1 to 5 is claimed as an easement of necessity in view of the

partition of the original Survey No. 45/1, significantly the case in the

Plaint is of an easement claimed by way of a grant i.e. by virtue of the

Partition Deed. The Plaintiffs therefore cannot be allowed to change

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tracks, hence the said submission of the learned Counsel for the

Petitioners/Plaintiffs cannot be accepted. Insofar as the road on the

Southern side is concerned, as indicated above, before the Trial Court

material was placed on record by way of photographs showing that the

Plaintiffs were having an access from the Southern side of their land for

taking their vehicles up to their Bungalow, which fact was not seriously

controverted by the Plaintiffs. The Courts below have therefore

recorded a finding that the Plaintiffs are having a motorable access from

the Southern side.

13) Another aspect which has to be taken into consideration is

that in respect of the shares which were partitioned, the boundaries do

not mention any access road. However, insofar as the area of 4 Ares is

concerned, the boundaries mention the access road which is available to

access the said area of 4 Ares. The Courts below were therefore right in

concluding that the Plaintiffs have neither made out a prima facie case

or that the balance of convenience is in their favour. The Courts below

have also observed that if injunction is granted, irreparable damage

would be caused to the Defendants who are in the midst of developing

their plot of land. In my view therefore, the orders passed by the Courts

below do not merit any interference in the writ jurisdiction of this Court

under Article 227 of the Constitution of India. The Writ Petition is

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accordingly dismissed. Rule is discharged with parties to left to bear

their respective costs of the Petition.

(R. M. SAVANT, J.)

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