Madras High Court
R.Kamala vs Vikramsingh on 18 August, 2022
C.M.A.No.1869 of 2022
IN THE HIGH COURT OF JUDICATURE OF MADRAS
DATED : 18.08.2022
CORAM:
THE HONOURABLE Ms. JUSTICE P.T. ASHA
C.M.A.No.1869 of 2022
and
C.M.P.No.13566 of 2022
1.R.Kamala
2.R.Harikumar
3.R.Kavitha
4.R.Karthik ... Appellants/Petitioners/Plaintiffs
Vs.
1.VikramSingh
2.Lakshmi Kumari
3.Sunitha Srinivasan …
Respondents/Respondents/Defendants
Prayer: Civil Miscellaneous Appeal is filed under Order 43 Rule 1 of
the Code of Civil Procedure against the “A” Diary order passed in
I.A.No.3 of 2022 in O.S.No.77 of 2022 on the file of the learned
District Judge, Udhagamandalam dated 04.08.2022.
1/24
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C.M.A.No.1869 of 2022
For Appellants : Mr.Karthik Ranganathan
Party-in-person.
JUDGMENT
The plaintiffs in the suit O.S.No.77 of 2022 on the file of the
learned District Munsif, Udhagamandalam, are the appellants before
this Court, questioning the order dated 04.08.2022 in and by which
the learned Judge has adjourned the impugned application to
01.09.2022 for the counter of the respondents 1 and 2 in the
Interlocutory Application filed by the plaintiffs in I.A.Nos.2 and 3 of
2022 in the above suit and for objections to the Advocate
Commissioner's Report in I.A.No.4 of 2022.
2. I.A.No.1 of 2022 is filed for mandatory injunction directing
the respondents 1 and 2 and their men to remove the illegal fence and
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C.M.A.No.1869 of 2022
gate put up on 30.03.2022 and also the shed put up on 28.07.2022
which prevents the access to the petitioners to reach their property
through the suit schedule property.
3. I.A.No.2 of 2022 is filed for an injunction restraining the
respondents from interfering with the enjoyment of the suit property.
4. Though this Court is disposing of the appeal at the admission
stage with directions to the Trial Court however since certain factors
had been brought to the notice of this Court, the Court is touching
upon the facts in detail giving rise to this Appeal for the purpose of
issuing the directions at the admission stage without notice to the
respondents/defendants.
5.The dispute relates to the property which according to the
plaintiffs has been earmarked as the pathway to reach the upper estate
of the plaintiffs measuring an extent of 18.75 acres of land. The
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C.M.A.No.1869 of 2022
plaintiff's grandfather one Karian Chettiar had purchased an extent of
27.73 acres in Old Survey Nos.211, 212, 213, 215/5, 215/3B,216/3D,
216/3E, 2163F and 217 in Hulical Village, Coonoor. The lie of the
above estate is such that the lower estate comprised in S.Nos.215/3B,
216/3D and 216/3F total measuring 9.56 acres is separated from the
suit schedule properties by a highway road. The remaining extent of
18.75 acres is situate above the suit property (Upper Estate). The suit
property lies between the lower and upper estate. The plaintiffs have
no other access to their lands except through this pathway. It is the
case of the plaintiffs that the property had been purchased by his great
grandfather under a registered Sale Deed dated 11.03.1943 with a
right of way through the suit property.
6.The suit properties were originally part of a larger extent
which belonged to one John Fritschis and his wife. They had sold the
property to Sagothorai Nilgiris Tea Estate Limited under a registered
Sale Deed dated 27.05.1943. In the said Deed, the vendors had
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C.M.A.No.1869 of 2022
inserted the following clause to emphasize the right of way given to
the purchaser through the lands of the vendor:-
“ To pass and re-pass on foot and with horses on the
existing paths in the portions of S.Nos.216 and 215 D
reserved by the Vendors TOGETHER with all other rights
liberties easements privileges advantages and
appurtenances whatsoever belonging to or in any wise
appertaining or usually enjoyed or reputed to belong or
be appurtenant thereto and all the estate right title
interest and demand whatsoever TO HAVE and TO
HOLD the same unto the Purchaser Company for ever…”
7.Thereafter, the property had been sold to the great grandfather
of the appellants herein by Sagothorai Nilgiris Tea Estate Limited
under a Sale Deed dated 11.03.1946. The sale Deed also contained a
sketch drawn to scale indicating both the S.Nos.215 and 216 and
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C.M.A.No.1869 of 2022
indicating the right of way. In this Deed as well, the right of way
through S.F.No. 215/D has been set out which is hereinbelow
extracted:
“Together with all rights of way including in
particular the rights for the Purchaser his tenants and
agents at all times to pass and re-pass on foot with
horses carts carriages motor cars and lorries on the
private road passing through the piece or parcel of land
bearing S.No. 216, R.S.No. 216/1, 216/2, and 216/3
TOGETHER with the right to pass and re-pass on foot
and with horses on the existing paths in the portions of
S.No.216 and 215 D and R.S.No.216/1, 216/2, and
215/3 reserved by the Vendors under the Indenture of
Conveyance dated the Twenty seventh day of May One
thousand nine hundred and forty three and also the
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C.M.A.No.1869 of 2022
benefit also of the Covenant on the part of the said
Vendors to keep and maintain the private road passing
through S.No. 216 R.S.No.216/1, 216/2 and 216/3 in
good and proper state of repair and also the benefit of
the Covenant on the part of the said Vendors not to
plant and cause to be planted any avenue trees or plants
on the margin of the said road so as to prejudicially
affect the tea and other - cultivation belonging to the
Purchaser Together with all - other rights liberties
easements privileges advantages and appurtenances
whatsoever belonging to or in any wise appurtaining or
usually enjoyed or reputed to belong to or appurtenant
thereto”
8. From the year 1946, the petitioners family have been enjoying
the right of way through the suit property. The appellants would
submit that their grandfather had totally purchased an extent 57.33
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acres. Thereafter, there has been partition amongst the predecessors
of the plaintiffs and the various branches of Vanian Chettiar's family.
Ultimately, the plaintiffs became entitled to the extent of 27.73 acres
which included the upper and lower Tea Estate as mentioned in the
earlier paragraphs along with the right of way.
9.After the sale in the year 1943, the original owner John
Fritschis had retained 4.19 acres with a bungalow in S.No.216 and
1.16 of acres of uncultivable lands in S.No.215D. These two lands do
not lie adjacent to each other and are about 500 meters apart. There is
a 10 feet mud road from the bungalow situate in S.No.216 to the
highway and thereafter, to the suit property in S.No.215/2D.
10.The suit schedule properties is the only entrance for the
plaintiffs to their lands measuring 18.75 acres and which is situate
above the suit property. The said John Fritschis and his wife sold the
extent of 4.19 acres in S.No.216 and 1.16 acres in S.No.215/D to the
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Nilgiris Diocesan Society. Even in this Deed, the very same condition
with reference to the use of way has been incorporated which has been
described in the earlier deeds.
11.Subsequently, they had sold the property to one Srinivasan
under a Sale Deed dated 16.09.1966 registered as Doc.No.1047/66
before the Sub Registrar, Coonoor, In the said Sale Deed also, there
is a mention about the right of the way in the same language as
contained in the earliest Sale Deed. Srinivasan in turn has sold the
properties to his daughter who has been arrayed as the 3rd
respondent/defendant, under a registered Sale Deed dated 01.09.1994.
In this Deed executed by Srinivasan in favour of his daughter, the 3rd
defendant/ 3rd Respondent herein, the right of way has been
described as follows:
“The right to enter upon the said lands and to carry out
necessary repairs to such pipe line passing through the
said lands and together with the full right of way over the
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C.M.A.No.1869 of 2022
private road granted to the Purchaser under the Sale
Deed dated 27-5-1943 and together with specific right of
way over the 20 feet wide road in R.S.No.216/3A of
Hulical village, more clearly delinated and demarked in
the plan annexed herewith and shown in YELLOW colour
and together with all the rights of way, waters, water
courses, liberties, privileges, easement and
appurtenances whatsoever to the said plot of land
belonging or in any way appertaining or usually held or
occupied therewith, or reputed to belong or appurtenant
thereto and all the estate, rights, title and interest of the
Vendor into and upon the said property whatsoever and
every part thereof in the property hereby conveyed.”
12. However, when the daughter Sunitha had sold the property
to the 1st defendant/ 1st respondent herein, not only has the right of
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the way been suppressed but on the contrary the deed would contain a
clause which reads as follows:
“The Vendor affirms that no other party has any right
of way, easement or license or any other right, in, over,
or in respect of the schedule property or any part
thereof and that the owners or occupiers of adjacent
land or the public do not use or have any lawful access
to any part of the schedule property for passing or re-
passing between any point within the schedule
property.”
13.By reason of this clause, the vendor of the 1st defendant has
given out that no one has a right of the way through the property
totally suppressing the right of way which has been granted and
conveyed under the various purchases right from the year 1943 upto
the purchase by the 3rd respondent.
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14. From a reading of the plaint and the affidavit filed in support
of the petitions, it appears that the 1st defendant had expressed a
desire to purchase the properties of the plaintiffs' which was turned
down by them. This has angered the 1st and 2nd defendant who had
started giving pinpricks to the enjoyment of the property by the
plaintiffs starting from July 2017. Ultimately, on 30.03.2022, it
appears that the 1st defendant put up a fence and a gate and had
ultimately closed the gate preventing the access to the plaintiffs to
reach their upper tea estate. The plaintiffs had not rushed to Court but
attempted to to settle it through negotiations which failed.
15.In fact, the plaintiffs have stated that a law and order
situation had arisen and based upon the earlier complaints dated
24.03.2020, 03.05.2022, and 08.05.202, the RDO -cum- Sub
Collector directed the VAO, Hulical, to inspect the suit schedule
property and ascertain the claim of the plaintiffs. After considering
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the documents, the RDO had initiated proceedings under Section 145
of the Code of Criminal Procedure against the plaintiffs and the
defendants and ordered status quo from that date till the settlement of
the disputes. The RDO has also directed the defendants to open the
gate and remove the fence so that the plaintiffs could continue to use
the way. Thereafter, by an order dated 08.07.2022, the RDO was of
the opinion that since the matter was a private dispute the parties had
to get their grievances redressed through Civil Court. The plaintiffs
would submit that immediately the defendants have started
construction on the suit property which constrained the plaintiffs to
file the above suit.
16.It appears that the Advocate Commissioner has also been
appointed by orders in I.A.No.4 of 2022 who has submitted his report
with photographs. In the report, the Advocate Commissioner had
reported that though he had shown the warrant issued by the Court to
the 1st defendant's representative, without considering the fact that he
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C.M.A.No.1869 of 2022
is an Officer of the Court, he has not been permitted access by the
defendants into the suit property. This, despite the Advocate
Commissioner showing the orders of Court. Despite receiving the
report of the Advocate Commissioner and being put on notice about
the conduct of the defendants, the learned District Judge had not
granted any interim orders but has directed the respondents 1 and 2 to
file their counter. It is aggrieved by this order that the plaintiffs are
before this Court.
17.Heard the Party-in-person and perused the papers.
18.The records which have been produced for my scrutiny would
explicate that a right of way has been granted under the various
documents right upto the sale in favour of the 3rd respondent. The
plaintiffs' case is that their pathway is being blocked by the defendants
by putting up a fence, gate and sheds. Though a prima facie case was
sought to be made out, since the respondents had entered caveat the
learned District Judge has simply adjourned the matter for counter of
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the parties and it is this order which is the subject matter of the
challenge before this Court.
19.The party in person would submit that by not granting an
interim order, the appellants have been put to irreparable injury. He
would submit that the only access for them to their tea estate is
through this pathway. Further the tea is ripe for plucking and now by
reason of the gate and fence no one can go to the fields and pluck the
tea. His grievance is that though the plaintiffs have shown a prima
facie case of their right of way the Court below has only adjourned
the matter for counter because the defendants 1 and 2 had entered
caveat.
20. It has became a norm that where a caveat is filed the Courts
below in most cases mechanically grant time to the
defendants/respondents to file their counter without considering if the
plaintiffs/petitioners have made out an exceptional case for grant of
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interim orders. In this regard useful reference could be made to the
observation of the Hon'ble Supreme Court in the Judgment reported in
(2004) 4 SCC 697 [Deoraj Vs. State of Maharashtra and Others]
where the learned Judges had held as follows:
“12. Situations emerge where the granting of an interim
relief would tantamount to granting the final relief
itself. And then there may be converse cases where
withholding of an interim relief would tantamount to
dismissal of main petition itself; for, by the time the
main matter comes up for hearing there would be
nothing left to be allowed as relief to the petitioner
though all the findings may be in his favour. In such
cases the availability of a very strong prima facie case
-- of a standard much higher than just prima facie case,
the considerations of balance of convenience and
irreparable injury forcefully tilting the balance of case
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totally in favour of the applicant may persuade the
Court to grant an interim relief though it amounts to
granting the final relief itself. Of course, such would be
rare and exceptional cases. The Court would grant such
an interim relief only if satisfied that withholding of it
would prick the conscience of the Court and do violence
to the sense of justice, resulting in injustice being
perpetuated throughout the hearing, and at the end the
Court would not be able to vindicate the cause of
justice. Obviously such would be rare cases
accompanied by compelling circumstances, where the
injury complained of is immediate and pressing and
would cause extreme hardship. The conduct of the
parties shall also have to be seen and the Court may put
the parties on such terms as may be prudent.”
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21.This Judgment has been followed by the Hon'ble Supreme
Court in (2019) 14 SCC 1 [[Hammad Ahmed Vs. Abdul Majeed and
Others] where the learned Judges has observed as follows:
“58. The ad interim mandatory injunction, is to
be granted not at the asking but on strong circumstance
so that to protect the rights and interest of the parties
so as not to frustrate their rights regarding mandatory
injunction. In Deoraj v. State of Maharashtra, this
Court held that Court would grant such an interim
relief only if it is satisfied that withholding of it would
prick the conscience of the Court and do violence to the
sense of justice, resulting in injustice being perpetuated
throughout the hearing, and at the end the Court would
not be able to vindicate the cause of justice. Therefore,
in appropriate case, ad-interim injunction in
mandatory form can be granted.”
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22. Therefore, Courts of law are bound to prima facie consider if
a case is made out by the plaintiffs/petitioners and balance of
convenience is in favour of the plaintiffs for the grant of the interim
order instead of simply adjourning the matter for counter. Since the
Trial Court is already seized of the matter and has listed the matter on
01.09.2022, the filing of the appeal appears to be pre-mature for the
present. However, while disposing of this appeal, this Court deems it
fit to make the following observations.
(a)the conduct of the defendants/respondents during the visit of
the Advocate Commissioner, an Officer of the Court in refusing him
access to the suit property is condemnable. The Advocate
Commissioner is an officer of the Court and he represents the Court in
every sense. Therefore, the refusal to permit the Advocate
Commissioner access to the suit property would tantamount to flouting
the orders of this Court.
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(b)The respondents who enter Caveat ought to be ready with the
arguments on the date on which the Interlocutory Application is
directed to be listed as they receive an advance notice with copies of
all the papers. Just as much as a duty is cast on the petitioners to keep
the caveator informed about their intention to move an interim
application an equal duty is cast upon the caveator to be ready for
arguments on the said date. By asking time for counter the attempt of
the caveator is to stall the process thereby in many cases rendering the
very relief otiose. A division Bench of this Court in the Judgment
reported in 1991(2) LW 225 M.RankaVs. The Hon'ble the Chief
Justice of Tamil Nadu, High Court, Madras has made the following
observations regarding the role of a caveator :-
" A caveat is nothing but a formal notice, which
literally is not different from a caution. Its origin as a
petition to Court is generally traced to the
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proceedings in the Courts of probate. It is just an
intimation given to the Court notifying it that it ought
to beware or suspend proceedings before it until the
merits of the caveat are determined. It does not create
any obligation upon the Court to desist from making
any order in the proceeding before it unless the caveat
is decided. All that a Court is expected to do on the
face of a caveat is to beware and to hear the caveator
before a decision is taken. A caveator does not get a
right to defeat the proceedings at the threshold or to
insist that he must be heard on merits of the case
before any interim order is passed."
(c)The Advocate Commissioner's report indicates that the
respondents are taking emergent steps to put up a tea shed in the suit
property which is claimed to be a pathway and same is under
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C.M.A.No.1869 of 2022
construction. The report would further state that the respondents have
planted new tea bushes as an attempt to obliterate the sign of the
pathway which the plaintiffs claim they are entitled to from the year
1943 onwards.
22.In view of the above, this Civil Miscellaneous Appeal is
disposed with the following directions:
(a)The respondents are injuncted by means of an ad interim
injunction from in any way constructing, planting trees, bushes,
shrubs etc, putting up a fence or shed or doing any such activity by
reason of which the existence or otherwise of the pathway over the
suit property is obstructed / obliterated till the learned District Judge
Udhagamandalam passes an order in I.A.No.2 of 2022.
(b)The learned District Judge shall take up the Interlocutory
Applications I.A.Nos.2 and 3 of 2022 for hearing on 01.09.2022
irrespective of the counter being filed by the respondents 1 and 2, who
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are the contesting respondents in the above matter and who have been
accused of obstructing the use of the pathway by the plaintiffs. The
learned District Judge shall dispose of the above application and
report to this Court by 09.09.2022. No costs. Consequently,
connected Miscellaneous Petition is closed.
18.08.2022
Index : Yes/No
Speaking order / Non speaking order
Note: Issue order copy on 22.08.2022
mps
To
The District Judge,
Udhagamandalam
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C.M.A.No.1869 of 2022
P.T. ASHA, J,
mps
C.M.A.No.1869 of 2022
and
C.M.P.No.13566 of 2022
18.08.2022
https://www.mhc.tn.gov.in/judis
