Smt. Mani Bai & Ors @APPELLANT@Hash Purushottam & Ors

The petitioners have preferred this writ petition under Article 227 of the Constitution of India, claiming the following reliefs:

“It is, therefore, humbly and respectfully prayed that the writ petition filed by the petitioners may kindly be allowed with cost and by an appropriate

writ, order or direction, the impugned judgment dated 02.09.2016 (Annex.9) and order dated 05.02.2014 (Annex.8) may kindly be set aside and

consequence thereof the appeal filed by the appellants-petitioners as well as application for temporary injunction may kindly be allowed, as prayed for.

Any other relief, which this Hon’ble Court may kindly be deemed just and proper in the facts and circumstances of the case, may kindly be

granted in favour of the petitioners.â€​

Learned counsel for the petitioner has argued that the status-quo regarding the path way in question is being maintained for last 11 years as there

were repeated court orders. Learned counsel for the petitioner has shown the record of the petition including the photographs, the way in question is

11 feet x 147 feet.

Learned counsel for the petitioner has shown the Najri Naksha of the way in question and the commissioner’s report is also on record. The

orders by both the courts below have been passed after taking into consideration the failure of the petitioner to give exact specification for the path in

question.

Learned counsel for the petitioner has pointed out the exact location and the exact specification of the land in question in the map enclosed.

Learned counsel for the petitioner states that the learned courts below have failed to consider the admitted evidence available on record and at the

same time relied over the fact as alleged by the non-applicant No.1 that towards eastern side there is way which is not in existence nor prima facie

proved by the non-applicant viewed from any angle, moreover, the learned courts below have misreaded the revenue trace map and based their

findings on conjectures and surmises, rather, no legal evidence and foundation.

Learned counsel for the petitioner further states that a bare perusal of material evidence available on record, makes it clear that the applicants have

only way to approach their field/house and same is prima facie proved on record, on bare perusal of Commissioner’s report as well as revenue

record and evidence submitted by the applicants. The objection raised over the Commissioner’s report by the non-applicant No.1 has been turned

down and rejected by the learned trial court, therefore, there is no occasion to disbelieve the Commissioner’s report. Learned counsel for the

petitioner submits that apart from the Commissioner’s report, if the revenue record is taken into consideration, then it is evident and prima facie

proved on record that non-applicants have their khaterdari land being Khasra No.729, 730, 731 and 735. It is also evident from the perusal of revenue

record that applicants have their Khatedari land bearing Khasra No.732, 747, 748, 756 and 1150. The learned courts below have given findings that

towards eastern side of Araji No.745, 746 and 756, there is a way, which is evident from the perusal of Naksha trace, but from the perusal of alleged

naksa trace, there is no piece of evidence available on record that the land adjacent to Khasra No.756 towards eastern side recorded as way/public

way etc., on the contrary the said land is recorded in revenue record and existed at site as nala-wala, which could not be and cannot be used for way

looking to its nature and situation viewed from any angle. Therefore, looking to material available on record as well as admission of non-applicant No.1

in his reply to temporary injunction application that the disputed way is existing in Khasra No.731, but it is only for the use of non-applicants, the

alleged defence used by non-applicants of disputed way is completely contrary to material evidence available on record and there is no justification to

reject and decline the relief.

Learned counsel for the petitioner also states that on bare perusal of commissioner’s report, makes its clear that the applicants have only way

to use their house/fields, which is in dispute and prima facie proved from perusal of photographs as well as revenue record, moreover, from admission

and concession of non-applicants. There is no reason not to consider the commissioner’s report by the learned trial court and at the same time

there is no justification to disbelieve the commissioner’s report. It is also stated that the learned appellate court has proceeded to dismiss the

appeal while passing impugned order dated 02.09.2016 on the ground that the applicants have failed to plead the material evidence, more particularly

the applicants have failed to plead their arajies numbes of agriculture fields in their original temporary injunction application. The impugned findings of

the learned courts below in this regard is baseless and having no consequence in the eye of law for the simple reason that the learned courts below

have based its findings on the basis of revenue record like Jamabandi, naksh trace, but misreaded the same and draw inference and presumption

based on conjecture and surmises. The applicants have submitted the material fact regarding araji numbers in the rejoinder. The other revenue record

have also been placed on record by the non-applicants, which relates to them, therefore, there is no occasion for concealment of facts in the pleadings.

It is pointed out by learned counsel for the petitioner that the learned appellate court has further committed manifest perversity while passing the

impugned order, because the rights under Easement Act are available to the parties have been misinterpreted.

Learned counsel for the respondent points out that the property in question is existing and due to the status quo for last

11 years, they have not been able to put their windows and shades over the property in question. Learned counsel for the respondent has also stated

that the drainage of the petitioner also suffered.

This Court is satisfied that the prima-facie case, irreparable loss and balance of convenience are prima-facie in favour of the petitioner, and

therefore, the orders passed by the learned court below are set aside.

In the interest of justice and looking into the spirit of powers envisaged under the law of temporary injunction so as to maintain the status quo

regarding the relief in question, this Court finds that it would be appropriate to pass the following orders:

(a) The petitioner shall not be entitled to make any changes in the so called way in question.

(b) The respondents shall be entitled to make his shades and drainage and enjoy any other right over the way in question while ensuring that the way is

not obstructed till the final disposal of the suit.

(c) All other usage of the property in question by the respondent shall be permitted without obstructing the way uptil the height of about 11 feet and

without alienating the same.

We deem it appropriate that looking into the longevity of the litigation, the learned court below shall make all endeavour to decide the suit finally

within a period of one year from today.

In light of the aforesaid directions, the present petition is disposed of.