Jagdish Prasad Agarwal vs Brij Bhushan
1996 Latest Caselaw 1012 Del

JUDGMENT

Usha Mehra, J.

(1) Appellants Sh.J.P.Aggarwal and another felt aggrieved by the order of the learned Additional District Judge, Delhi dated 20th October,1995 whereby he vacated the injunction granted ex parte in favour of the appellants.

(2) To appreciate the challenge of the appellants to the impugned order, we must have a quick look at the relevant facts of this case. Appellants (plaintiff before the Trial Court) filed a suit for permanent and mandatory injunction against respondents (defendants before the Trial Court). Grievance of the plaintiff was that the defendants were creating obstructions in the egress and ingress of his vehicles from the main entrance gate opening on the Loni Road. In order to reach his industrial unit as shown red in the site plan filed with the plaint, the trucks and other vehicles have to enter through the main gate. But the defendants with a malafide intention were trying to stop by creating a wall in front of the gates.

(3) That the respondents 1 to 4 are brothers of the appellant No.1. Appellant No.2 is the proprietory concern of appellant No.1. Respondent No.5 is wife of respondent No.4. Respondent No.6 is the mother of the parties.

(4) That the case as set up was that the appellants in order to resolve various family disputes entered into a settlement with the respondents. Pursuance to this settlement a transfer/sale deed was executed on 1st April,1989. Per the terms of this sale deed, industrial unit No.2 the leasehold rights of which belonged to respondent No.5, was transferred by respondent No.1 in favour of the appellant No.1. As the title of the land did not pass to the appellant, therefore, the sale deed was not got registered. Respondents have been running their industrial unit in the part of the property adjacent to the main gate under the name and Style of M/s Ashoka Pulps and Papers. Whereas the industrial unit transferred to appellant No.1 vide sale deed dated 1st April,1989 is being run under the name and style of M/s Ashoka Udyog. So far no dispute on facts.

(5) The only dispute is with regard to the access to the industrial unit of the appellant run under the name and style of M/s Ashok Udyog. Appellant's case is that access to this industrial unit had always been through the main gate where Dharam Kanta has now been installed by respondent No.1. In fact the entrance for heavy loaded trucks and other vehicles is only through the main gate. That is the reason the parties have been using the main gate even prior to this division having taken place. The main gate has been used for the appellant for his vehicle for the last 15 years. This gate is the main gate to have access to his industrial unit. The main gate opens on the Loni Road. Recently the respondents with a malafide intention to harass the appellant created obstruction on this main gate by removing the wall. They have thus blocked the egress and ingress of the appelant and his vehicles. They by keeping the gate between the points C & D locked have ruined the business of the appellant. By locking the main gate between points C & D respondents have virtually blocked the entrance of the appellant to his industrial unit. Basing his case on these averments, the appellant sought restraining order against the defendants restraining them from obstructing the egress and ingress of the appellant's vehicles to his industrial unit. The Court below granted ex- parte injunction restraining the respondents from creating any such obstruction. However, after defendant put in appearance and brought the facts to the notice of the Court, the Court vide impugned order vacated the ex-parte stay.

(6) Challenge to the impugned order by the appellant has been contested by the respondents, inter alia, on the grounds that the site plan filed by the appellant with the plaint does not depict correct facts at site. By filing false and incorrect site plan, the plaintiff mislead the Trial Court and has procured the ex-parte order. The plan filed with the plaint show as if except this gate there is no other gate for the ingress and egress of the plaintiff. Plaintiff in the plaint concealed the factum of two gates existing on his side opening on the road. He deliberately misrepresented the facts. Plaintiff did not disclose that those two gates open on the main road wherefrom he has independent access to his industrial unit. These two gates have been shown in the site plan filed by defendants depicting true position at site. The plaintiff has independent egress and ingress through those two gates which are in existence ever since. Those gates are wide enough in size to allow sufficiently heavy loaded trucks or any other vehicle. So far as main gate wherefrom appellant wants egress and ingress, that falls in the share of the respondents. Respondents beside having industrial unit have also their private dwelling units. The appellant, therfore, cannot be permitted to have access through the private property of respondents. In the site plan filed by respondent it has clearly been depicted that out of the area of 35,000 sq.yds., the unit of the appellant is build on an area of approximately 5000 sq.yds. whereas the remaining area of approximately 30,000 sq.yds. fell to the share of the respondents. Hence if appellant is permitted to have access from this gate it would amount to giving him more area than agreed.

(7) That main plank of Mr.Mukul Rohtagi's argument had been that the appellant acquired a valuable easement right for use of this main gate. The access to the appellant's unit through the main gate is more convenient and necessary. It had always been used as common entrance and the appellant now cannot be deprived of its use. Secondly the lease deed dated 1st April,1989 show that access to appellant's industrial unit has to have through this main gate. Had it not been so, in the lease deed it would have been clearly mentioned. In the lease deed there is no such mention that the trucks of the appellant would not be allowed to enter from this main gate or that the appellant will only use for his entrance these two rear gates.

(8) At the outset it must be mentioned that Mr.Mukul Rohtagi fairly conceded that the site plan filed by the appellant with the plaint does not depict correct position at side. Therefore, for the purpose of determination of the controversy inter se the parties reliance has to be placed on the site plan filed by the respondents.

(9) The main gate shown in the site plan filed by the respondents opening on the Loni Road open in the land of respondent No.1 where his industrial unit under the name and style of M/s Ashoka Pulp & Paper is functioning. On the right hand side of this property is the unit of M/s Avdut Swami Metal. On the left side is others property, office and residence. Beyond the property of M/s Ashoka Pulp & Paper shown in red colour are the properties bearing Khasra No.8/20, 8/11, 7/15, 7/6/2. Beyond these Khasras is the industrial unit of M/s Ashoka Udyog situated on Khasra No.7/16. From the perusal of this plan it is apparent that if the main gate is used as an entrance by the appellant, it will not only interfere with the property of respondent No.1 but also the properties bearing Khasra No.8/11 in order to reach his industrial unit bearing Khasra No.7/16. From the Loni Road to his industrial unit he has to cross two properties of two different persons. Therefore, the question that arises for consideration is, can this be permitted at the cost of somebody else's right? Mr.Rohtagi's contention that the right of easement gets priority over anybody else's right has no force. Keeping in view the necessity and reasonable enjoyment, yes this can be considered. But reasonable enjoyment of right of way to appellant cannot be at the cost of somebody's inconvenience particularly when the appellant has independent access to his industrial unit from rear road. The necessity and reasonableness cannot be measured at the convenience of the appellant. Simply because entrance from the Loni Road is more proper and can carry heavier load by itself does not mean he should be allowed to enter third party's property. Reliance by Mr.Rohtagi on Section 13 of the Indian Easement Act is misplaced.

(10) MR.ROHTAGI'S reliance on the letter written by respondent No.1 to the Pollution Board on 24th May,1989 is also of no help to him. In this letter, according to Mr.Rohtagi, respondent No.1 as the proprietor of M/s Ashoka Udyog had submitted the layout plan. The layout plan annexed with this letter show that to reach M/s Ashoka Udyog from Loni Road there is only one entrance gate i.e. the main gate. It had always been used and that there was no other access to the industrial unit of M/s Ashoka Udyog. In view of this admission on the part of the respondent No.1, it is apparent that the present obstruction has been created by the respondents in order to ruin and damage his business. The respondents have broken the walls which used to demarcate the passage leading to the industrial unit of M/s Ashoka Udyog. Moreover, rear lane where the two gates are shown in the plan filed by the respondent that road is very narrow, fully loaded trucks cannot be carried there. To strengthen his argument he drew the attention of this Court to the photographs filed on record of this Court. According to Mr.Rohtagi the rear lane is hardly 18 ft. wide. Moreover there is school on this road which obstruct the free flow of movement of trucks. Therefore, it is not possible for the trucks to carry load to the unit of the appellant. In the absence of any alternative passage, the appellant has to use the suitable passage for carrying the trucks to his industrial unit from the main gate. Even the plan prepared by the police shows that the appellant had access to his industrial unit from the main entrance gate. On account of previous user and main gate being suitable passage, the appellant claimed the right of egress and ingress to his industrial unit through this main gate. Perusal of the Transfer Deed dated 1st April,1989 clearly show the intentions of the parties. Parties were in full agreement and aware that for having access to his industrial unit, the appellant would be taking his trucks through this main entrance gate, that is why in the Transfer Deed no clause debarring the use of the main gate by the appellant was inserted. To appreciate whether the appellant has any easement right of passage we may have glance at the relevant provision of the Indian Easement Act which is reproduced as under : SECTION 13. Easement of necessity and equal easements - Where one person transfers or bequeaths immoveable 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 (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; (c) If an easement in the subject of the transfer or bequest is necessary, for enjoying other immoveable 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 express or necessarily implied, be entitled to such easement.

(11) Reliance by Mr.Rohtagi on the Section 13 of the Act is of no help to him. The provision of Section 13 deals with cases of sale and transfer of immovable property. These provisions get attracted in those eventualities where immoveable property is sold but there is no access to the same except through adjoining immovable property. But that is not the case in hand. The provision of the Act would have been attracted, had there been no access to the industrial unit of the appellant. But unfortunately for him there is rear road in front of his industrial unit. He has two gates opening to that road from his industrial unit. Those gates open on the road which leads to Johripur. That road divides the Jagdamba Colony and the industrial unit of the appellant. What is the width of that road dividing Jagdamba Colony and the industrial unit of the appellant, no evidence in this regard has been placed on record except Mr.Rohtagi's oral submission that the width of that road is 18 ft. The fact that those two gates exist was not disclosed by the appellant in his plaint. Secondly, the provision of Section 13 would be attracted if title of the land had been transferred to the appellant. But that is not the case. In para No.5 of the plaint he in no uncertain words admitted that only the industrial unit was transferred to him vide sale deed dated 1st April,1989. In para No.5 of the plaint he admitted that there was no transfer of the title of the land. It was only the business assets and liabilities of plaintiff No.2 which stood transferred to him vide the said transfer/sale deed dated 1st April,1989. Therefore, reliance by Mr.Rohtagi on the provision of Section 13 of the Act on this count is also of no help to him.

(12) That since Mr.Rohtagi himself conceded that the plan filed with the plaint is not correct as per site, therefore, it is apparent that the factum of having two gates on his side of the industrial unit was concealed by the appellant from the Court. The reading of the plaint as a whole would show that he was trying to present to this Court as if except the main gate opening on the Loni Road there is no other access to his industrial unit. Concealment of correct facts tentamounts to fraud. A person who seeks discretionary relief must come to the Court with clean hands otherwise he is not entitled to any relief. Even when the respondents in their written statement denied the correctness of the plan filed by the appellant, he in his replication reiterated that the plan filed by him was correct. To my mind, by mis-representing the facts and by concealing the correct position at site, he was not entitled to the discretionary relief. Reading of the plaint as a whole would show that appellant has nowhere mentioned that the rear road opening to his industrial unit was not convenient to carry the truck loads. In the absence of any pleadings to this effect would debarr Mr.Rohtagi to raise this point now that the rear road is not convenient. This argument based on no pleadings is nothing but after thought. If the rear road could not carry truck load, the appellant ought to have mentioned the same in his plaint, so that opportunity could have been given to the respondents to admit or deny that position. Now at the stage of appeal, oral submissions of inconvenience cannot be allowed. It would amount taking the respondents by surprise. Moreover, this is a question of fact which ought to have been pleaded and urged before the Courts below. Rather he concealed the factum of using the rear road to his industrial unit in the plaint itself. Therefore, also, he cannot now take advantage of the provision of law without basing his claim on facts.

(13) Reliance by Mr.Rohtagi on the decision of Madras High Court in the case of M.Ratanchand Chordia & ors. Vs. Kasim Khaleeli, is also of no help to him because in that case also the Court observed that :- "The animus of the person exercising the right is certainly a question of fact which has to be determined from all the circumstances of each case. The fact that the claimant did not obtain any licence or permission express or implied from the owner of the servient tenement to enjoy the right would itself be cogent evidence in regard to the nature of the exercise of the right. But it cannot be said in a plain case, where nothing more appears except a long user for over the statutory period and a close relationship or friendship between the two owners that the user was only permissive and could not be attributed with the character of "as of right". The question is pre-eminently one of the fact."

(14) Observations of the Madras High Court are also to the effect that continuous user has to be established by facts. Perusal of the plan filed by the respondent show that from the main entrance to reach the industrial unit of the appellant one has to cross the industrial unit of respondent No.1 and of the respondent No.6. Thus there are land of other people like of Khasra No.8/10 and 8/11 etc. Respondents 5 and 6 are not running any business nor sold or transferred any right to the appellant nor they agreed that the appellant could have access to his industrial unit from their land. This shows that by allowing the appellant to have access from the main entrance of respondent No.1, this Court would also be giving passage to the appellant from the property of the respondents 5 and 6 which is not permissible unless the facts are proved by recording evidence that the appellant has only this passage and no other way to reach his industrial unit. The right of passage has to be based on some document. But the Transfer Deed dated 1st April,1989 does not indicate either impliedly or expressly that the appellant could have access from the property of respondent No.1 or of respondents 5 and 6. Even in the plaint there is no reference of common passage from the land and factory of the respondent No.1 or of Khasra No.8/11 belonging to respondent No.6. Therefore, it cannot be said that the appellant's case is based on continuous right of easement over this passage. Settlement which is alleged to have been arrived at was between the appellant and the respondents 1 to 4. The said settlement does not empower the appellant to have access from the land of respondents 5 and 6 nor it is so pleaded in the plaint. At this stage in the absence of any evidence, it would be very difficult to conclude whether continuous user of the passage by the appellant has been effected. Moreover, as already observed above, in the plaint it is nowhere mentioned that the appellant has been continuously and apparently requiring personal activity for his enjoyment over the right of way.

(15) Similarly reliance by Mr.Rohtagi on the decision of Patna High Court in the case of Rajpur Colliery Co. & ors. Vs. Pursottam Gohil, is of no help to the appellant. It is only when a person claiming right of way by certain road as of necessity because there being no other means for going out or coming to his plot except that particular road, in that case he can claim such a right. Facts in Patna's case were that the plaintiff alleged a right of way over the land of the defendant because except for that access he had no other way of ingress to and egress from his Colliery in plot No.23. On the basis of the evidence lead before the Court it was held that he had concealed the factum of other road connecting his colliery via Pure Jharia road which was connected with Dhanbad Jharia District Board Road hence he was not allowed to have access through defendant's land. On the basis of the facts placed before the Court, it observed as under :- "It is clear from these facts that the plaintiff cannot claim the road in question in this present suit on the ground of easement of necessity, that is to say, that he had no other means of going out or coming to his plot 23 except by the road, namely, the road marked A to C as shown in the map attached to the plaint of the present suit. The contention of the counsel appearing for the plaintiff was also negatived by the Court on the ground that alternative route had not been clearly laid in the written staement. That cannot affect the conclusion which follows the evidence on this point.

(16) Therefore, the contention of Mr.Rohtagi that alternative road on the rear side wherefrom appellant has two entries to his industrial unit is not suitable has no force. He has alternative road for ingress to and egress from his industrial unit. That rear road is motorable and trucks can ply can be seen from the photographs filed. The appellant cannot be allowed to urge his easement right over third party's land. To give him more convenience does not mean to allow him the access on third party's property. Easement rights are protected in a case of necessity not for more convenience.

(17) Mr. Rohtagi then contented that there was a running wall which was constructed to demarcate the passage. The same has been broken to obstruct the use of the main gate. Whether wall has been broken or not will be gone into by the Trial Court after recording evidence. At this stage no opinion can be expressed. Moreover, this argument appears to have been taken up in this appeal. From reading of the impugned order it cannot be inferred that this point was urged before the Trial Court.

(18) NON-MENTIONING of relevant and material facts, to my mind, amounts to fraud. It was so held by the Supreme Court in the case of S.P.Chengalvaraya Naidu Vs. Jagannath & ors., (1994) 1 Scc page 1 . In the present case the non-mentioning of rear road and entrance to his industrial unit through two gates on the rear side was nothing but concealment of facts which has a flavouring of element of fraud.

(19) The factum of writing letter by respondent No.2 to the Pollution Board has been denied by the respondent. Mr.G.L.Rawal appearing for the respondents contended that after the sale of M/s Ashoka Udyog to the appellant the question of execution of such a document could not arise. It is a fabricated document. In fact no opinion can be expressed on this document because it was not placed before the Trial Court. The Trial Court had no opportunity to deal with the same. This document for the first time has been filed with this appeal. The purported letter written by respondent No.1 is dated 24th May,1989 i.e. after the sale and transfer of the industrial unit of M/s Ashoka Udyog to the appellant on 1st April,1989. Therefore, the question mark will be, was this letter written by the respondent No.1 even after having transferred the industrial unit to the appellant? I leave it at that. Nor this Court would like to express the opinion whether the initials of Mr.B.B.Gupta on plan alleged to have been annexed with the letter dated 24th May,1989 is of respondent No.1. The layout plan annexed with this letter dated 24th May,1989 if compared with the site plan filed by the respondent and admitted by Mr.Rohtagi to be correct as per the site plan that layout plan appears to be not depicting correct position existing at site. Hence, no reliance can be placed on the same.

(20) Photographs have been filed by both the parties showing the position at site. From page 357 of this paper book are the photographs filed by the respondent showing the width on both the sides of the truck which is being driven on the rear side leading to the entrance of the appellant's industrial unit. Similarly the appellant also filed photographs which are at page No.315 of the paper book of this Court. In these photographs, the appellant has shown the full loaded truck which shows that on the rear side which is in front of the industrial unit of the appellant a full loaded truck cannot move. Mr.Rawal contended that this truck was parked and loaded with the intention to prove that the space is insufficient for the free flow of the trucks. Under the Traffic Rules that much loading is not permissible on the trucks. In this regard he placed reliance on the Gazette Notification dated 21st June,1993 appearing in Part-IV of the Gazette published under Delhi Motor Vehicles Act. In para No.112 of Delhi Gazette Extra ordinary it has been made clear that if there is a projection of load, then that person will be prosecuted. Para No.112 reads as under :- 112.Prevention of Danger, Injury or Noise to Public :- (1) Projection of loads : (a) Nothing shall be placed or carried upon the outside of the roof of a double decked public service vehicle. (b) No person shall drive, and no person shall cause or allow to be driven in any public place any motor vehicle which is loaded in a manner likely to cause danger to any person in such a manner that the load or any part thereof or anything extends beyond the Vehicle. (c) No projection of any load or part thereof shall be allowed in any type of vehicle and on any direction of the vehicle, that is to say, to the front, rear, left, right, upward or downward beyond the actual body of the vehicle.

(21) Relying on these provisions Mr.Rawal contended that load shown in picture No.321 is not permissible under Motor Vehicle Rules. Person carrying such heavy load is liable to be prosecuted. This heavy loading has been shown in the photograph deliberately to prove that the rear entrance to the industrial unit of the appellant is not convenient. Since it touches the merits of the case, therefore, I am not expressing any opinion on the same. Suffice it to say that trucks cannot be loaded in violation of the rules.

(22) MR.RAWAL then contended that the property of M/s Ashoka Pulp & Paper belongs to respondent No.5. She has opposed the entrance of the appellant in her property. Respondent No.6 Smt.Ram Kali i.e. mother of the appellant has also opposed the entrance of the appellant's vehicles from her property. If the appellant is allowed to take his trucks from the property of the respondents, it would amount to interference in their business as well as residential houses. Relations between the appellant and respondents are strained. It is an admitted fact on record. Therefore, allowing the appellant to have access at his sweet will from the property of the respondents would mean more litigations, more disturbance and breach of peace. The parties are at daggers drawn. The relations being strained hence permitting him to cross the properties of other respondnts, possibility cannot be ruled out that there would be constant fear of apprehesion of breach. It cannot also be ruled out that by allowing free passage from the land of the respondents, the appellant would not be benefited and would grab more land than what was transferred to him. Out of 35000 sq.yards, M/s Ashok Udyog is situated in 5000 sq.yard of land. By permitting him free access means more area to him.

(23) In fact the Court below took all these facts into consideration and rightly vacated the stay which was granted ex parte.

(24) Supreme Court in the case of State of Maharashtra Vs.Ramdas Shrinivas Nayak & anr., observed that the statements of facts admitted and concession made by a party, recorded in the judgment of a Court, becomes conclusive and are not open to be contradicted in appeal. In this case the appellant had admitted that he was transferred only the plant & machinery and not the land underneath. Therefore,there is no question of easement right as the right transferred to him was of movable property and not of immovable property. In view of his this admission he cannot now take advantage of the provision of Section 13 of the Indian Easement Act.

(25) Sir Robert Megarry and H.W.R.Wade in their book "The Law of Real Property" fifth Edition at page 863 dealt with continuous and apparent easement in properties and observed "A continuous easement is one which is enjoyed passively, such as a right to use drains or a right to light, as opposed to one requiring personal activity for its enjoyment, such as a right of way. "

(26) From these observations it can be said that the continuous and apparent right is not the right of way. That right has to be established on facts and parties have yet not gone for trial, therefore, prima facie the Trial Court rightly concluded that the appellant had no right of passage through the main gate opening on Loni Road.

(27) For the reasons stated above, appeal is dismissed. It may, however, be mentioned that any observations made herein shall have nonbearing on the merits of the case.