[Cites 14, Cited by 0]
Bombay High Court
Amol S/O. Dhanraj Kohale vs Pandurang S/O. Manikrao Nikam on 6 April, 2026
2026:BHC-NAG:5485
Judgment WP-1618-2025 J..odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.1618 OF 2025
PETITIONER : Amol S/o. Dhanraj Kohale, Aged 36 years,
Occ: Agriculturist, R/o. Wadala, Tq. Warud,
District - Amravati.
...VERSUS...
RESPONDENTS : Pandurang S/o. Manikrao Nikam, Aged 71
years, Occ: Agriculturist, R/o. Wadala, Tq.
Warud, District - Amravati.
----------------------------------------------------------------------------------------------
Mr. Swapnil Shingane, Advocate for Petitioner.
Mr. Kapil Deshmukh, Advocate for Respondent.
----------------------------------------------------------------------------------------------
CORAM : PRAFULLA S. KHUBALKAR, J.
RESERVED ON : 17/02/2026
PRONOUNCED ON : 06/04/2026
ORAL JUDGMENT :
1. Heard. RULE. Rule is made returnable forthwith. Learned
counsel for the petitioner as well as learned counsel for the respondent
have advanced elaborate arguments and the matter was heard
extensively at the stage of final disposal.
2. By this petition, the petitioner / original defendant has
raised a challenge to the judgment and order dated 11.03.2025 passed by
the District Judge-1 & Additional Session Judge, Warud, allowing the
appeal bearing Misc. Civil Appeal No.4/2023 and reversing the order of
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temporary injunction passed by the Trial Court. This case deals with an
interesting issue about entitlement of the plaintiff for temporary
injunction for right of an approach way based on an easement by grant,
as reflected in the recital incorporated in the Sale Deed.
3. The facts leading to the instant petition are succinctly stated
below:-
i. The petitioner is original defendant and respondent is
original plaintiff. The respondent herein has filed a suit bearing
Regular Civil Suit No.51/2021 seeking a relief of declaration
and mandatory injunction about a right of way as shown by
letter 'A' to 'B' in the plaint map, which falls in the land owned
by the petitioner / original defendant and which is on the
boundary (Dhura), by removing the twenty one (21) Mosambi
Trees (Sweet Lemon Trees) from the land of the defendant. The
original plaintiff is owner of the land bearing Survey No.400
and the original defendant is the owner of land bearing Survey
No.401, both are situated adjacent to each other ;
ii. Alongwith the plaint, a separate application under Order
XXXIX Rule 1 and 2 of the Code of Civil Procedure, 1908
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(hereinafter for short referred to as "CPC") seeking temporary
injunction was also filed ;
iii. The original defendant filed its reply to the temporary
injunction application and opposed it ;
iv. By an order dated 27.06.2022, the application for
temporary injunction came to be rejected ;
v. The original plaintiff, thereafter, filed an Appeal under
Order XLIII Rule 1(r) of CPC, which came to be allowed by
judgment and order dated 11.03.2025 by which, the application
for temporary injunction was allowed and the defendant was
temporarily restrained from causing any obstruction to the
plaintiff's right to use the disputed way shown by letter 'A' to
'B' in the plaint map.
vi. Feeling aggrieved by this judgment and order dated
11.03.2025, the petitioner / original defendant has filed the
instant petition.
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4. While assailing the impugned judgment and order passed
by the Appellate Court, the learned counsel for the petitioner Advocate
Mr. Swapnil Shingane, submitted that the impugned judgment and order
passed by the Appellate Court is unsustainable since, the same is passed
without considering the Commissioner's Report dated 20.11.2021,
which specifically records that there is no approach way for bullock cart
from the land belonging to the original defendant. He submitted that the
discretionary order passed by the Trial Court warranted no interference
since the same was passed by considering all the relevant aspects
including the case put up by the plaintiff in the plaint, the reliefs claimed
by way of application for temporary injunction and the Commissioner's
Report which was placed before the Trial Court. By inviting my
attention to the reliefs claimed in the plaint seeking an approach way
from Point 'A' to 'B' of the plaint map and the relief claimed by way of
temporary injunction application about an approach way from point 'C'
to 'D' of the plaint map, he submitted that the relief claimed by
temporary injunction application was itself contrary to the relief claimed
in the suit and therefore, the temporary injunction application deserved
to be rejected. He also submitted that the Appellate Court failed to
consider that granting of an approach way from the land belonging to the
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original defendant would cause loss to the standing sweet lemon trees,
which are there in the cultivating field of the original defendant. He
submitted that the plaintiff failed to establish prima-facie case and
further the defendant will be put to irreparable loss, in case injunction is
granted. He further submitted that the interim injunction granted by the
Appellate Court is in the nature of final relief and therefore, the
impugned judgment and order is unsustainable in law.
5. In support of his submissions Advocate Mr. Swapnil
Shingane, learned counsel for the petitioner placed reliance on the
following judgments :-
Sr. No. Particulars
i. Jai Singh and Others Vs. Municipal Corporation of Delhi and
Another reported in 2010 (9) Supreme Court Cases 385
ii. Rameshwar and Others Vs. Jot Ram and Another reported in
1976 (1) Supreme Court Cases 194
iii. Chandra Singh and Others Vs. State of Rajasthan and Another
reported in 2003 (6) Supreme Court Cases 545
iv. Dalpat Kumar and Ors. Vs. Prahlad Singh and Ors. reported in
AIR 1993 SC 276
v. UTO Nederland B.V. and Another Vs. Tilaknagar Industries
Ltd. Appeal No.66/2012 decided on 28.04.2025
vi. J. Ganapatha and Others Vs. N. Selvarajalou Chetty Trust Rep.
By its Trustees and Others reported in 2025 SCC OnLine 633
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6. By pointing out the position of law laid down in the above
mentioned judgments, learned counsel for the petitioner submitted that
no interference was warranted by the Appellate Court with the
discretionary order of temporary injunction only on the pretext of the
mere wrong appreciation of factual aspects. By pointing out the position
as laid down in Jai Singh (supra), he submitted that the Appellate Court
is not required to re-appreciate the evidence and substitute its own
conclusions contrary to the discretionary order passed by the Appellate
Court. By pointing out position from the judgment of Rameshwar
(supra) and J. Ganapatha (supra), he submitted that even for moulding
relief and disturbing the discretionary order, the Appellate Court was
expected to exercise restrain. By pointing out the legal position from the
judgment of Dalpat Kumar (supra) and UTO Nederland (supra), he
submitted that the Appellate Court ought not to have interfered with the
discretionary order passed by the Trial Court which was passed on the
basis of material available before it.
7. Per contra, Mr. Kapil Deshmukh, learned counsel for the
respondent vehemently submitted that the impugned order passed by the
Appellate Court is justified since it is passed by considering the right of
way, in view of easement by grant as stated in the recital incorporated in
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the Sale Deed dated 06.04.2018. He also submitted that the Trial Court
has recorded erroneous findings on incorrect reading of the
Commissioner's Report and the order passed by the Trial Court rejecting
the application for temporary injunction was required to be interfered.
He further submitted that the Commissioner's Report is in-fact in favour
of respondent and even the report of the Tanta Mukti Cell is in favour of
the original plaintiff. He therefore submitted that the Trial Court had
failed to exercise the discretion properly and in view of glaring errors
committed by the Trial Court in rejecting the application for temporary
injunction, the interference by the Appellate Court was warranted, as
rightly done.
8. In support of his submissions Advocate Mr. Kapil
Deshmukh, learned counsel for the respondent placed reliance upon the
following case-laws :-
Sr. No. Particulars
i. Hero Vinoth Vs. Seshammal reported in 2006 (5) SCC 545
ii. Dr. S. Kumar and Others Vs. S. Ramalingam reported in 2020
(16) SCC 553
iii. Judgment of Coordinate Bench of this Court in Pravara
Renewable Energy Limited Vs. Padmashri Dr. Vitthalrao Vikhe
Patil Sahakari Sakhar Karkhana Commercial Arbitration
Petition No.23525/2021 decided on 11.04.2022
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9. By pointing out the enunciation of law as made by the
Hon'ble Supreme Court of India in Hero Vinoth (supra) on the concept
of easement by grants, he submitted that an easement of grant is a matter
of contract between the parties and the parties are therefore, bound by
the mandate as expressed by any recital. He also submitted that an
easement by grant does not get extinguished by any easement of
necessity and in the instant case, the issue of grant must be given its
further effect to provide an approach way - Bullock Cart way in favour
of the plaintiff. In support of these submissions, he also placed reliance
on the observations recorded by the Hon'ble Supreme Court in the
matter of S. Kumar (supra).
By relying upon the position of law as laid down in
Pravara Renewable Energy Limited (supra), he submitted that the
situation in the instant matter requires grant of an interlocutory
mandatory injunction which is necessary to give effect to the easement
by grant, as the original plaintiff is not in a position to use the approach
way to approach to his agricultural land for cultivation.
10. In the backdrop of these arguments, the rival contentions
fall for my consideration :-
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11. The main controversy which arises in view of the rival
contentions is the entitlement of original plaintiff (respondent herein) for
a temporary injunction to remove the obstruction and to use bullock cart
way during the pendency of the suit. It has to be noted that the suit is
filed for a relief of declaration and permanent injunction claiming the
right of way from the land bearing Survey No.401 belonging to the
original defendant and shown as an approach way from the point 'A' to
'B' in the plaint map. The plaintiff has claimed an approach way for
taking his bullock cart from the land owned by the defendant. The basis
for plaintiff's relief is a recital in the Sale Deed dated 06.03.2018 (also
mentioned as 06.04.2018), which mentions an approach way from the
land bearing Survey No.401 in favour of Pandurang Nikam - original
plaintiff. This Sale Deed was executed by Maroti Manikrao Nikam, who
is brother of the original plaintiff, in favour of Amol Dhanraj Kohale,
who is the original defendant. It has to be noted that in view of the
controversy involved before the Trial Court, a Commissioner was
appointed who has submitted a Report dated 20.11.2021, which
mentions certain factual aspects.
12. Pertinent to note in the Commissioner's Report, it is
mentioned that there is an approach way (pedestrian way) from the
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defendant's land and no bullock cart can pass from that pedestrian way.
The Commissioner has also observed in its report that there is no bullock
cart way from the land belonging to Mr. Digambar Nikam, who is the
brother of Pandurang Nikam (original plaintiff).
13. In order to further appreciate the controversy involved in
the instant petition, the recital as found in the Sale Deed dated
06.04.2018 on the basis of which, the original plaintiff has claimed an
easement of grant needs to be considered, which is stated below :-
";k 'ksrkrwu mRrjsP;k /kwjkus iwoZ&if'pe vlk ikaMwjax fude ;kaps 'ksrklkBh losZ u-400 ;k
'ksrklkBh ofgisjhpk oghokVhpk jLrk jkghu
(ekyokgrwdhpk) (cSycaMhpk)"
English translation of recital reads thus:-
"From this agricultural land, on the East-West boundary, there shall be
an approach way for reaching land of Pandurang Nikam bearing Survey
No.400.
(For Carrying Goods) "Bullock Cart Way)"
Pertinent to note that this recital is mentioned by inserting
a sentence in handwritten form in the typed document of the Sale Deed
and the handwritten portion is counter signed by the parties to the Sale
Deed.
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It is crucial to note that the plaintiff's claim is based on
this recital. The original defendant/ petitioner herein has taken a stand
that this recital was incorporated in the Sale Deed on account of use of
coercion and therefore, cannot be made the basis to conclusively
determine the rights of the parties.
14. While dealing with the controversy about the entitlement
for temporary injunction during the pendency of the suit, the Courts are
required to consider the issues of prima-facie case, balance of
convenience and irreparable loss. The original plaintiff has claimed a
right of way from the land bearing Survey No.401 belonging to the
defendant on the basis of the aforesaid recital and has thus, submitted
that there exists a prima-facie case in his favour. He has submitted that
the plaintiff is entitled for the aforesaid approach way which is the only
bullock-cart approach way for going to his land and in the event, he is
prevented from using the said approach way, he will be put to severe
inconvenience and therefore, it is submitted that the balance of
convenience lies in favour of the plaintiff. As regards, the issue of
irreparable loss, it is submitted by the original plaintiff (respondent
herein) that in the wake of a clear grant of easement on the basis of the
recital in the Sale Deed there would be no question of any irreparable
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loss to the defendant as the plaintiff is entitled to assert his right. In this
regard Mr. Kapil Deshmukh, learned counsel for the respondent, on
instructions, also made a statement that in-case the original defendant is
required to suffer some loss on account of need to remove certain trees,
the same can be compensated by the original plaintiff and has expressed
readiness to compensate by paying an amount of Rs.25,000/- (Rupees
Twenty-Five Thousand Only).
15. Thus, the crux of the controversy revolves around the
recital mentioned in the Sale Deed which is reproduced above. It has to
be noted that the contentions of the original plaintiff about this recital
are controverted by original defendant, by taking a stand that the recital
was mentioned on account of use of the coercion.
In this regard, it has to be noted that there is no dispute
that the said recital is a part of the Sale Deed, which is a handwritten
sentence and counter signed by the parties to the Sale Deed. It is not the
defendant's case that the sentence was interpolated behind the back of
the parties. Thus, it is clear that there is a recital which specifically
records the approach way for approaching the field of "Pandurang
Nikam" (original plaintiff) and even the details of the approach way are
clarified by mentioning the word - bullock cart. The issue as to whether,
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this recital was incorporated by using any coercion will be adjudicated
on the basis of evidence to be led in the civil suit.
16. At the stage of considering the application for temporary
injunction, the recital as it stands as a part of the Sale Deed will have to
be taken into consideration. In the instant case the plaintiff has claimed
an easementary rights based on the recital in the Sale Deed. The claim
about nature of easement whether it is an easement by grant or an
easement of necessity may fall for consideration in the suit. In order to
understand the controversy with legal perspectives, it is necessary to
refer to certain provisions of Indian Easements Act, 1882, particularly
Sections 12 and 13 which are reproduced below :-
"12. Who may acquire easements.--An easement may be acquired by
the owner of the immovable property for the beneficial enjoyment of
which the right is created or on his behalf, by any person in
possession of the same.
One of two or more co-owners of immovable property may, as such,
with or without the consent of the other or others, acquire an
easement for the beneficial enjoyment of such property.
No lessee of immovable property can acquire, for the beneficial
enjoyment of other immovable property of his own, an easement in
or over the property comprised in his lease.
13. Easements of necessity and quasi easements.--Where one person
transfers or bequeaths immovable property to another,--
(a) if an easement in other immovable property of the transferor or
testator is necessary for enjoying the subject of the transfer or
bequest, the transferee or legatee shall be entitled to such easement;
or
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(b) if such an easement is apparent and continuous and necessary for
enjoying the said subject as it was enjoyed when the transfer or
bequest took effect, the transferee or legatee shall, unless a different
intention is expressed or necessarily implied, be entitled to such
easement; or
(c) if an easement in the subject of the transfer or bequest is
necessary for enjoying other immovable property of the transferor or
testator, the transferor or the legal representative of the testator shall
be entitled to such easement; or
(d) if such an easement is apparent and continuous and necessary for
enjoying the said property as it was enjoyed when the transfer or
bequest took effect, the transferor, or the legal representative of the
testator, shall, unless a different intention is expressed or necessarily
implied, be entitled to such easement.
Where a partition is made of the joint property of several persons,--
(e) if an easement over the share of one of them is necessary for
enjoying the share of another of them, the latter shall be entitled to
such easement, or
(f) if such an easement is apparent and continuous and necessary for
enjoying the share of the latter as it was enjoyed when the partition
took effect, he shall, unless a different intention is expressed or
necessarily implied, be entitled to such easement.
The easements mentioned in this section, clauses (a), (c) and (e), are
called easements of necessity.
Where immovable property passes by operation of law, the persons
from and to whom it so passes are, for the purpose of this section, to
be deemed, respectively, the transferor and transferee."
17. To delve further into the controversy which revolves around
the said recital in the nature of easement of grant, it is fruitful to have a
conscious look to the elucidation of law on this aspect. While dealing
with the legal position about the easement by grants as against the
easement by necessity, the pertinent observations of the Hon'ble
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Supreme Court in the matter of Hero Vinoth (supra), as reflected in
following paragraphs are to be noted :-
"28. The question whether an easement is one acquired by
grant (as contrasted from an easement of necessity) does not
depend upon absolute necessity of it. It is the nature of the
acquisition that is relevant. Many easements acquired by
grant may be absolutely necessary for the enjoyment of the
dominant tenement in the sense that it cannot be enjoyed at
all without it. That may be the reason for the grant also. But
easement of grant is a matter of contract between the parties.
In the matter of grant the parties are governed by the terms
of the grant and not by anything else. Easement of necessity
and quasi-easement are dealt with in Section 13 of the Act.
The grant may be express or even by necessary implication.
In either case it will not amount to an easement of necessity
under Section 13 of the Act even though it may also be an
absolute necessity for the person in whose favour the grant is
made. Limit of the easement acquired by grant is controlled
only by the terms of the contract. If the terms of the grant
restrict its user subject to any condition the parties will be
governed by those conditions. Anyhow the scope of the grant
could be determined by the terms of the grant between the
parties alone. When there is nothing in the term of the grant
in this case that it was to continue only until such time as the
necessity was absolute; in fact even at the time it was
granted, it was not one of necessity. If it is a permanent
arrangement uncontrolled by any condition, that
permanency in user must be recognised and the servient
tenement will be recognised and the servient tenement will be
permanently burdened with that disability. Such a right does
not arise under the legal implication of Section 13 nor is it
extinguished by the statutory provision under Section 41 of
the Act which is applicable only to easement of necessity
arising under Section 13.
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29. An easement by grant does not get extinguished under
Section 41 of the Act which relates to an easement of
necessity. An easement of necessity is one which is not
merely necessary for the reasonable enjoyment of the
dominant tenement, but one where dominant tenement
cannot be used at all without the easement. The burden of the
servient owner in such a case is not on the basis of any
concession or grant made by him for consideration or
otherwise, but it is by way of a legal obligation enabling the
dominant owner to use his land. It is limited to the barest
necessity however inconvenient it is irrespective of the
question whether a better access could be given by the servient
owner or not. When an alternate access becomes available, the
legal necessity of burdening the servient owner ceases and the
easement of necessity by implication of law is legally
withdrawn or extinguished as statutorily recognised in Section
41. Such an easement will last only as long as the absolute
necessity exists. Such a legal extinction cannot apply to an
acquisition by grant and Section 41 is not applicable in such
case.
30. Above being the position, the High Court was right in
holding that the parties clearly provided for a right of access
to the backyard of the defendant's house when the partition
deed was executed and shares were allotted to various
sharers taking into account various factors and it is a matter
of contractual arrangement between them. In such a contract
if a right of way is provided to a particular sharer, it cannot
be extinguished merely because such sharer has other
alternative way. The High Court's reasoning and conclusions
do not suffer from any infirmity to warrant interference."
18. The above mentioned exposition of law by the Hon'ble
Supreme Court, if applied to the facts of the instant case, it has to be
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noted that the recital in the Sale Deed appears to have created an
easement in favour of the original plaintiff by providing the approach
way - bullock cart way from the defendant's land. The issue as to
whether this recital was incorporated in the Sale Deed by using coercion
would fall for consideration during the adjudication of the suit to be
decided on the basis of evidence. At the stage of considering the
application for temporary injunction, in the wake of this clear recital, I
am of the considered opinion that the original plaintiff is entitled for an
approach way - bullock cart way from the land belonging to the
defendant. It is also crucial to note that for providing the bullock cart
way from his land, the defendant may be required to cut down few of his
trees, which are planted on the approach way and he would suffer some
financial loss on that count. Further, it is crucial to note that since the
defendant was aware about this recital in the Sale Deed, it was expected
of him to keep the approach way open and avoid planting any trees on
the bullock cart way for enabling the original plaintiff to approach to his
agricultural land. Thus, in-case the defendant is required to cut down
few of his trees for providing a bullock cart way to the original plaintiff,
the plaintiff is now required to compensate the actual loss for enjoying
the bullock cart way from the land of the defendant. Pertinent to note
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that even the plaintiff has volunteered to compensate the loss likely to be
caused to the defendant, in-case some trees are required to be cut and
accordingly, the defendant has not claimed any particular amount for
possible loss.
19. Although learned counsel for the petitioner has placed
heavy reliance on several judgments of the Hon'ble Supreme Court and
Full Bench of this Court to pin point the legal position about the
interference with the discretionary order, it has to be noted that there is
no embargo on the powers of the Appellate Court to interfere with the
discretionary order passed by the Trial Court. The Appellate Court while
entertaining an Appeal under Order XLIII Rule 1 of CPC, is empowered
to consider the entire material for the purposes of deciding the challenge
to the discretionary order passed by the Trial Court and in-case the
discretion is found to be improperly exercised is not prohibited from
recording its independent findings. As such, even by considering the
position of law laying down the parameters of the Appellate Court while
considering the challenge to the order on temporary injunction
application, an order of reversal of the Trial Court's order cannot be
termed as perverse only on that count.
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20. As regards the contentions of the petitioner about the
discrepancy in the reliefs claimed in the plaint and the temporary
injunction application with respect to the approach way from the point
'A' to 'B', it has to be noted that the approach way from the point 'A' to
'B' refers to the directions of the approach way from East to West
directions and the reference to the letters from the point 'C' to 'D' also
refers to the same i.e. East to West directions. Thus, the approach way
from point 'A' to 'B' and from the point 'C' to 'D' both are on the same
directions, however, shown at different locations on the land bearing
Survey No.401 which belongs to the defendant. In this regard it is
argued by petitioner that the relief claimed by temporary injunction
application is beyond the relief claimed in suit and the Appellate Court
has granted relief beyond scope of the temporary injunction application,
however, after careful reading of plaint and the temporary injunction
application, it becomes clear that there is no discrepancy. In the plaint,
plaintiff has claimed an approach way from the point 'A' to 'B' and in
application, he has stated that by giving effect to the recital, the
defendant has earlier allowed him to use for sometime the approach way
from the point 'C' to 'D' and hence, by temporary injunction, the
approach way from the point 'C' to 'D' be granted. This variance to
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reference points is not at all material to completely falsify the plaintiff's
claim, which is based on the recital showing easement of grant.
21. While dealing with the actual controversy involved in the
instant petition, being a challenge to the order of temporary injunction
application, it has to be noted that in the instant case, the plaintiff has
succeeded to demonstrate a prima-facie case in his favour based on the
recital in the sale deed, which is in the nature of easement by grant. As
regards the issue about balance of convenience, it has to be noted that
in case temporary injunction is granted, the defendant might be put to
some inconvenience since he would be required to cut down few of his
trees, however, it has also to be noted that on rejection of the temporary
injunction, the plaintiff would be required to suffer more inconvenience
as he would be unable to approach to his agricultural field for
cultivation. Thus, the balance of convenience lies in favour of the
plaintiff. As regards the issue of irreparable loss, it is crucial to note that
in the event of grant of temporary injunction, the defendant will be put
to some loss on account of cutting of some trees, but at the same time
on rejection of the temporary injunction, the plaintiff will also be put to
irreparable loss as he will not be in a position to cultivate his field. As
such, while considering the comparative hardships likely to be caused to
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both the parties, it has to be noted that in case of refusal of temporary
injunction, the plaintiff would be put to more hardship than the
defendant. Thus, after considering all the relevant factors for deciding
the application for temporary injunction, in the instant case, the rival
claims can be balanced by directing the plaintiff to pay an amount of
Rs.25,000/- (Rupees Twenty-Five Thousand Only) to the defendant
towards loss on account of cutting of some trees (as volunteered by the
plaintiff) and also to file an undertaking to pay additional amount, if
further loss is proved by evidence. Thus, I am of the considered opinion
that all the essential factors for grant of temporary injunction have been
fulfilled by the plaintiff and it has become entitled for grant of
temporary injunction, to operate during pendency of the suit.
It has to be noted that the temporary injunction of this
nature may amount to an interlocutory mandatory injunction. However,
having regard to the entire controversy, as discussed above, the same is
warranted to balance the competing interests of both the parties, till the
entire controversy is adjudicated on the basis of evidence in the suit. In
view of the recital in the sale deed the defendant ought to have ensured
to make available a bullock cart way to be provided to the plaintiff,
which is not done by him and therefore, the plaintiff becomes entitled
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for grant of an interlocutory mandatory injunction. As such, the reliance
placed by the counsel for the respondent on the judgment of coordinate
in the matter of Pravara Renewable Energy Limited (supra) is
appropriate.
22. It is beneficial to refer here to the observations of the Full
Bench of this Court in UTO Nederland (supra) as stated in para Nos.15
and 16, which are reproduced below :-
"15. The aforesaid principle has been reiterated with approval by
Supreme Court in WANDER LIMITED (SUPRA) and it has been
held that need to protect the plaintiff against the injury by violation of
his right for which he cannot be compensated in damages recoverable
in the action if the uncertainty were to be resolved in his favour has to
be weighed against the corresponding need of the defendant to be
protected against injury resulting from his having been prevented from
exercising his legal rights for which he would not be adequately
compensated. The Court, therefore, must weigh one need against
another and determine where the 'balance of convenience' lies.
16. The Court, while dealing with the prayer for grant of injunction is
required to consider the third essential ingredient viz. irreparable
injury. The Supreme Court in M/S. GUJARAT BOTTLING CO. LTD.
(SUPRA) has held that the Court is required to satisfy itself that the
party seeking injunction needs protection from the consequences of
apprehended injury and the injury is such which cannot be adequately
compensated by way of damages. Thus, the Court is required to satisfy
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itself that in case an injunction as prayed for is not granted, the party
seeking the same will suffer irreparable injury."
23. On careful reading of the orders passed by both the Courts
below, it can be seen that although the Trial Court has exercised the
discretionary powers to reject the application for temporary injunction,
the Appellate Court has given due consideration to the relevant aspects
and has recorded its findings to grant the temporary injunction. On
perusal of the reasoning recorded by the Appellate Court which has
considered the Commissioner's Report as well as the effect of recital as
contained in the Sale Deed dated 06.03.2018 (also mentioned as
06.04.2018), I do not find any perversity warranting interference under
Article 227 of the Constitution of India.
24. After giving anxious consideration to the entire controversy
involved in the instant petition and after careful perusal of the
documents on record, I am of the considered opinion that the original
plaintiff (respondent herein) is entitled for grant of temporary injunction
to restrain the original defendant from creating any obstruction in the
use of bullock cart way from the land bearing Survey No.401.
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Judgment WP-1618-2025 J..odt
However, it has to be noted that the recital about the
easement of grant mentions an approach way - bullock cart way from
the land bearing Survey No.401 without specifying the exact locations
as to whether it is from point the 'A' to 'B' or from the point 'C' to 'D'
as mentioned in the plaint map and therefore, it is necessary to clarify
that while providing the bullock cart way from the land bearing Survey
No.401, the defendant has to decide and demarcate the approach way
from his land by ensuring that minimum trees are required to be cut
down. It is desirable that the plaintiff and the defendant ascertains the
most convenient approach way - bullock cart way from the land bearing
Survey No.401 which would require cutting of minimum number of
trees. It has to be noted that while providing the bullock cart way to the
original plaintiff, the defendant may be required to cut down few of the
trees and therefore, the original plaintiff is required to compensate the
defendant proportionately. It is also to be clarified that the issue about
use of coercion while inserting the recital would be decided after
adjudication of the suit. The observations recorded in the instant
judgment are based on the prima-facie consideration of the documents
including purport of the recital about the easement of grant. The Trial
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Judgment WP-1618-2025 J..odt
Court is entitled to record its findings based on the evidence to be led by
the parties in the suit.
25. In view of the above mentioned factual and legal aspects, I
am of the considered opinion that no interference is warranted with the
impugned order passed by the Appellate Court, allowing the application
for temporary injunction in favour of the original plaintiff. The
impugned judgment and order is therefore, maintained with the
following modifications :-
1. The original defendant is directed to provide a bullock cart way
from his land bearing Survey No.401 to the plaintiff, by
providing an approach way either from points 'A' to 'B' or from
points 'C' to 'D' as per the plaint map.
2. Plaintiff (respondent herein) is directed to pay to the defendant
an amount of Rs.25,000/- (Rupees Twenty-Five Thousand Only)
within a period of four weeks and plaintiff is also directed to
submit an undertaking to pay an additional amount in-case the
defendant proves by evidence in the suit that he has suffered
more loss because of cutting down the trees.
26. Accordingly, the writ petition is dismissed by maintaining
the impugned order passed by the Appellate Court with the
modifications mentioned above.
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Judgment WP-1618-2025 J..odt
27. Rule stands discharged.
(PRAFULLA S. KHUBALKAR, J.)
1. At this stage, a request is made for continuation of the
interim relief, which was operating during the pendency of the instant
petition.
2. Although, the request is opposed, considering the fact that
the interim relief was operating during the pendency of the instant
petition, the same shall continue to operate for a period of four weeks
from today.
( PRAFULLA S. KHUBALKAR, J.)
𝒫𝓇𝒾𝓋𝑒𝓁
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