Bombay High Court

M/S. Pasaydan Developers Through ... vs Mr. Jaisingh Mukunda Murkute on 4 January, 2018

Bench: Dr. Shalini Phansalkar-Joshi

osk                                                                                                                        905-wp-11642-2017.odt




                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          CIVIL APPELLATE JURISDICTION

                                     WRIT PETITION NO. 11642 OF 2017


M/s.Pasaydan Developers 
Through its Partner                                                               ...           Petitioner
           V/s.
Jaisingh Mukunda Murkute                                                          ...           Respondent


Ms.Gauri Godse for the Petitioner.
None for the Respondent.


                                   CORAM   : DR.SHALINI PHANSALKAR-JOSHI, J.

                                   DATE       : 4th JANUARY, 2018.


ORAL JUDGMENT :-

1]                     Heard learned counsel for the Petitioner, finally at the stage

of admission itself. 


2]                     This   Writ   Petition   is   preferred   against   the   concurrent

finding of the fact arrived at by the Trial Court and the Appellate Court

holding that the Petitioner has failed to make out a prima-facie case or

to prove the balance of convenience or irreparable loss in order to get

the relief of interim injunction.

 osk                                                                                                                        905-wp-11642-2017.odt




3]                     The order challenged in this Writ Petition is the one dated

29th April, 2017 passed by District Judge-18, Pune, thereby dismissing

Miscellaneous Civil Appeal No.119 of 2017 filed by the Petitioner

challenging the order dated 29th March, 2017, passed by the Court of

7th Joint Civil Judge Junior Division, Pune, below Exhibit 5 in Regular

Civil Suit No.412 of 2017. The said application at Exhibit 5 was filed by

the Petitioner for getting relief of interim injunction restraining the

Respondent from causing obstruction in the construction work

undertaken by the Petitioner on the suit plot.

4] According to the Petitioner, the suit plot is bearing No.9B

admeasuring 4.5-R. i.e. 450 sq.mtrs. from and out of Survey No.5 Hissa

No.5/2, having access from main road running in North-South

direction through Survey No.5, Hissa No.5/1 and Survey No.5/2 on

extreme East running East-West as easement, situated at Village

Belewadi, Taluka Haveli, District Pune. The Petitioner claims to have

acquired development rights with respect to the suit plot from Horizon

Developers Private Limited Company by virtue of a development

agreement dated 10th May, 2005. Thereafter, the sale-deed dated 11th

July, 2011 came to be executed in favour of the Petitioner by the

osk 905-wp-11642-2017.odt

owners of the land and the Horizon Developers Private Limited

Company being consenting party thereto. On the basis of this title

acquired over the suit plot, the Petitioner has got the plans for the

construction sanctioned from the Municipal Corporation and also

obtained the commencement Certificate dated 23 rd December, 2015.

However, when he started the construction activity, the Respondent

obstructed to the same, hence the Petitioner filed a suit simpliciter for

injunction restraining the Respondent from causing such obstruction in

the construction work at the site.

5] Along with suit, the Petitioner also filed an application for

interim injunction at Exhibit 5 which came to be strongly resisted by

the Respondent contending inter-alia that the alleged sale-deed on the

basis of which the Petitioner was claiming the title and ownership right

is sham and bogus. It was contended that the Petitioner has obtained

the sanction and the permission for construction showing that the suit

plot is having existing road of 7.50 mtrs. width. Infact there is no such

road existing at the site of the width of 7.50 mtrs.. The alleged sale-

deed of the Petitioner also refers to the existence of the access road of

3.00 mtrs. width only. In such situation, it was submitted that the

osk 905-wp-11642-2017.odt

Petitioner has no right to carryout the construction on the access road

and therefore, no right to get the relief of interim injunction, which the

Petitioner has sought in the suit.

6] The learned trial Court, after considering the evidence on

record was pleased to hold that the Petitioner has failed to make out a

prima-facie case considering that the existence of such 7.50 mtrs. width

road is not at all pleaded or shown in either the development

agreement or sale-deed. The Appellate Court also on this very ground

dismissed the Miscellaneous Civil Appeal No.119 of 2017 preferred by

the Petitioner.

7] While challenging this impugned order of the trial Court

and the Appellate Court, the submission of learned counsel for the

Petitioner is that the Respondent/Defendant has not challenged the

sale-deed of the Petitioner. In the sale-deed dated 19 th June, 1997

wherein the Petitioner is a purchaser and one Lata Kerkar is a seller,

there is clear mention that the suit plot is having access from the main

road in North-South direction, through Survey No.5, a East-West

easement. Moreover, in the sale-deed dated 12 th April, 2012 also there

is mention of access from main road in North-South direction through

osk 905-wp-11642-2017.odt

Survey No.5 and Survey No.5/2. Even in the measurement plan dated

22nd December, 2008, the existence of access road is shown. Before the

Appellate Court, therefore, a case was made out that there is right of

easement of necessity, regarding existence of a access road in North-

South direction and on the basis of the same it was submitted that

when the sale-deed clearly mentions the existence of access road, it was

not proper on the part of the Trial Court and also the Appellate Court

to accept the case of the Respondent that width of the access road is

not 7.50 mtrs. and on that basis to reject the Petitioner's application for

interim injunction.

8] According to learned counsel for the Petitioner, when the

Municipal Corporation has sanctioned the plans for construction, as

submitted by the Petitioner, the Respondent cannot raise objection to

the construction and hence, the impugned order passed by the trial

Court and confirmed by the Appellate Court needs to be quashed and

set-aside.

9] However, at the outset, it has to be stated that the

application for interim injunction filed by the Petitioner raising certain

factual aspects is dismissed by the Trial Court and after accepting the

osk 905-wp-11642-2017.odt

said factual finding to be proper, the Appellate Court has also dismissed

the Miscellaneous Civil Appeal No. 119 of 2017 preferred by the

Petitioner. Therefore, when there is concurrent finding of fact arrived

at by the Trial Court and the Appellate Court, needless to state that in

writ jurisdiction this Court should restrain itself from disturbing the

said concurrent finding, unless and until it is shown by the Petitioner

that the said finding of fact is perverse, in the sense that it is against

the material on record.

10] However, in the present case, the Petitioner has miserably

failed to show that the view taken by the Courts below is neither

justified from material on record nor it is a possible view of the matter.

Neither in the sale-deed nor in the plaint, the Petitioner has come

before the Court with a specific case that this access road is of the

width of 7.50 mtrs. and it is being used as a easement of necessity. No

such case is made out before the Trial Court. Only in the Appellate

Court, the said case was tried to be put up, however, as observed by the

Appellate Court, it was not pleaded and in such situation, the Petitioner

cannot be said to be having any prima-facie case.

 osk                                                                                                                        905-wp-11642-2017.odt




11]                    Moreover, the Appellate Court and the Trial Court has also

considered that in the plan sanctioned by the Municipal Corporation

road adjacent to the East-West running in North-South direction is also

not shown to be of the width of 7.50 mtrs., whereas the Respondent

has produced on record a measurement plan dated 18 th November,

2010 which shows that no such access road of admeasuring 7.50 mtrs.

is there.

12] In view thereof, both the Trial Court and the Appellate

Court has rightly concluded that, prima-facie, the Petitioner has no case

to restrain the Respondent from causing obstruction to the

construction. It is apparent that by cleverly drafting the suit simpliciter

for injunction, the Petitioner is asserting the rights which the Petitioner

has yet to establish and therefore, the Trial Court and the Appellate