Smt Pavitra vs The State Of Madhya Pradesh
2021 Latest Caselaw 569 MP

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         HIGH COURT OF MADHYA PRADESH,
                     BENCH AT INDORE
                      M.P NO.244/2021
       Smt.Pavitra w/o Dilip Bhardwaj & one another
                              vs.
                     State of M.P & others
09.03.2021: (INDORE):
      Shri P.R.Bhatnagar, learned counsel for the petitioners.
      Heard on the question of admission and interim relief.
                          ORDER

Petitioners/plaintiffs have filed the present petition under Article 227 of the Constitution of India being aggrieved by the order dated 10.11.2020 passed by Civil Judge, Class-I, Bhanpura, district Mandsaur whereby application under Order 39 Rule 1 & 2 of the CPC has been dismissed and thereafter Miscellaneous Appeal filed under Order 43 Rule 1 CPC has also been dismissed vide order dated 22.12.2020 by Additional District Judge, Bhanpura, district Mandsaur.

Facts of the case in short are as under:

2. Plaintiffs filed a suit for declaration and permanent injunction along with an application under Order 39 Rule 1 & 2 CPC. According to the plaintiffs, from north side of their land there is a crossing and public road which was being using from the period of their ancestors i.e. 200 years uninterruptedly without any hindrance, peacefully etc. They are using this public place to reach their houses by way of

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four wheeler and they have acquired the easementary right. According to the plaintiffs, the defendants i.e. Sree Laxminath Mandir Management Committee have started encroaching the public road by constructing a boundary wall. They have constructed a boundary wall just in front of their house which is obstructing their easementary right. They are unable to park their four wheelers in front of the house, hence they may be restrained from completing the construction. They have a good prima facie case in their favour and if the wall is constructed they would suffer irreparable loss and the balance of convenience are also in their favour.

3. The defendants have filed an application under Order 39 Rule 1 & 2 CPC by submitting that the land in front of the house of the plaintiffs is not a public place but a land belonging to the Sree Laxminath Mandir. There is no public road for the general public to roach their agricultural field, school, hospital etc. On the east side of the Sree Laxminath Mandir there is already a 7-8 ft. height wall since last so many years. The wall was already there but at the time of construction of floor the wall was fallen down, therefore, they are now constructing a new wall in order to protect the property of the temple. The plaintiffs have no prima facie case in their favour, hence the application is liable to be dismissed. After appreciating the pleadings and the documentary evidence and the affidavit filed along with the plaint, learned Civil Judge has dismissed the application

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under Order 39 Rule 1 & 2 CPC. Being aggrieved by the order dated 10.11.2020, the plaintiffs preferred a miscellaneous appeal, that too has been dismissed vide order dated 22.12.2020, hence the present petition before this Court.

4. Shri Bhatnagar, learned counsel appearing for the petitioners submits that both the Courts below have erred in appreciating the fact that if the respondents would construct the wall in front of the house of the petitioners it would affect their right of way which is available to them since last 200 years. Learned Courts below have failed to appreciate the fact which constitutes a prima facie case in favour of the plaintiffs. There is a serious dispute about the boundaries of the property of the temple which can be decided by way of evidence and till then the defendants are liable to be restrained from completing the construction. Shri Bhatnagar has drawn attention of this Court towards the photographs of the wall and submits that the wall has been constructed just in front of the house of the plaintiffs which is obstructing their right to approach the public road as well as light, air, etc. In support of his contention Shri Bhatnagar has placed reliance over the judgment passed by the Apex Court in the case of Hindustan Petroleum Corpn. Ltd. vs. Sriman Narayan and another reported in (2002) 5 SCC 760 in which the Apex Court has held that the purpose of granting interim injunction is to lessen the risk of irreparable injury and injustice which cannot be compensated for in money and

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which would result from the violation by defendant of some right of the plaintiff.

5. It is not the case of the plaintiffs that the defendants are raising construction on their land. According to the petitioners the respondents are raising the construction in front of the house which is obstructing their right of way to approach the government land. None of the documentary evidence has been filed to show that the defendants have constructed the wall over the public road. No document has been filed to show that there is a public road mentioned in the revenue record. So far as violation of easementary right is concerned, it is a matter of evidence. From the photographs it reflects that there is enough space between the house and suit wall and the wall is not obstructing the way to approach their house. Both the Courts below have concurrently held that the plaintiffs are not having a prima facie case. From the photographs it is revealed that a brick wall has been constructed and now in order to protect the wall plastering is required to be done, therefore, once the wall has been constructed during the pendency of the plaint, same cannot be directed to be removed by way of temporary injunction.

6. In the plaint the plaintiffs are seeking the relief of easementary right to the effect that they have an easementary right to park their four wheelers in front of the house. The plaintiffs are first required to establish that the wall has been constructed over a government public land which is

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obstructing the public road. No document has been filed to show that the suit land is a government land and there is any road available on it. If the plaintiffs were using the open space that does not mean that they have acquired the easementary right to use that land as a passage. Prima facie, the defendants are constructing the wall to protect their property. On the east side of the temple there is already a wall and now they are constructing the wall on the north side. Every person has a right to protect his property by way of fencing, grill or wall, hence both the Courts below have not committed any error while declining to grant temporary injunction. Thus, the petition being devoid of substance is hereby dismissed.

                                  (VIVEK RUSIA)
                                        JUDGE


        Digitally signed by Hari Kumar
        Nair
hk/     Date: 2021.03.10 18:15:06 +05'30'