JAYASHREE Vs. SUDHA

JUDGEMENT

(1.) The captioned writ petition is filed by the plaintiff assailing the concurrent orders of the Courts below passed on an application filed under Order XXXIX Rule 1 and 2 R/w Sec. of Code of Civil Procedure. Both the Courts have declined to grant interim injunction to the plaintiff. These concurrent orders are under challenge.

(2.) The petitioner/plaintiff has instituted a suit seeking declaration of easementary rights and consequential relief of injunction. The petitioner/plaintiff is asserting easementary right on the basis of registered sale deed executed by his vendor. Placing reliance on the recital in the sale deed, plaintiff claims the property sold by his vendor is on the hind side and therefore to have access to the eastern road, he is entitled to use the road situated in defendants' property which is facing road. Both the Courts have declined to grant injunction on the ground that width and length of the road is not indicated in the sale deed. Both the Courts have also declined to grant interim injunction on the ground that alleged road runs in the middle of defendants' property and therefore question of granting interim injunction would not arise.

(3.) On examining the material on records, I have also given my anxious consideration to the photographs produced by petitioner/plaintiff before this Court. If the recitals in the sale deed coupled with photographs are examined, I am of the view that petitioner has succeeded in making out of prima-facie case. It is quite strange to note that counsel appearing for defendants does not dispute the existence of road. However, defendants are seriously disputing the location of road in the property. Merely, because there is a dispute in regard to location of the suit road, Courts cannot decline to grant some protection to the petitioner. If the recital in the sale deed indicates that petitioner is entitled to have access through the road, I am of the view that both the Courts erred in not exercising discretion in favour of plaintiff. The photographs clearly depict existence of road. The dispute as to what is the length and width of the road and its location needs to be adjudicated by way of full-fledged trial. If prima-facie material reveals in regard to existence of road, to prevent injury and irreparable loss, both the Court were required to exercise judicial discretion in favour of plaintiff. It is in this background this Court would find that the concurrent orders suffer from serious perversity and are liable to be set-aside by this Court. Both the Courts have not properly assessed the prima-facie material placed on record. For the reasons stated supra, I proceed to pass the following;