HENRIQUETA S AFONSO Vs. LINO FALCAON

JUDGEMENT

(1.) THE petitioners (plaintiffs in the suit and hereinafter referred as plaintiffs) had filed a suit claiming easementary right of way through the property of the respondents (defendants in the suit and hereinafter referred as defendants) and alternatively prayed for passage on payment of compensation through the property of the defendants. The property of the defendants is bounded on the southern side by the property of the plaintiffs. The suit was for declaration in respect of the said right of way and alternatively a claim was put forward under Article 2309 of the Portuguese Civil Code for a passage on payment of compensation. The plaintiffs had prayed for temporary injunction seeking to restrain the defendants from obstructing the suit way and/or interfering with the suit way. The plaintiffs had also prayed for mandatory injunction directing the defendants to remove all obstructions, plantation, barriers, etc. obstructing the suit way. The obstruction sought to be removed is spoken in para 6 of the plaint which consists of planting of drumstick tree, branches of other trees in the middle of the suit way, erection of katcha barrier on the suit way. The trial Court granted temporary injunction restraining the defendants from obstructing the suit way and/or interfering with the suit way, but no relief regarding prayer of mandatory injunction.

(2.) THE defendants filed appeal against the said order before the District Court in respect of grant of temporary injunction and the plaintiffs filed cross-objections in the said appeal regarding non-grant of mandatory injunction. The appellate Court reversed the decision of the trial Court insofar as temporary injunction was concerned and consequently the cross-objections were not considered. The petitioners namely the plaintiffs have come in revision against the said order of reversal by the appellate Court.

(3.) LEARNED Advocate Shri J. P. Mulgaoncar submitted before me that the view taken by the trial Court insofar as temporary injunction prayer was judicious and the appellate Court was not entitled to reverse the said findings unless there were strong and cogent reason. In support of this proposition Advocate Shri Mulgaoncar relies upon the observations of the Apex Court in (Wander Ltd. and another v. Antox India P. Ltd.) 1990 (Supp.) S. C. C. 727. He attacked all the findings on the basis of which the appellate Court had reversed the order of the trial Court. Insofar as the question of non-joinder of co-owners is concerned, it was contended by him that an amendment has already been filed to join the co-owners in the suit and that temporary injunction was sought only against those co-owners who were interfering with the right of way and such order of injunction would bind only those co-owners who were joined in the suit and would not bind the other co-owners. According to Shri Mulgaoncar the findings of the appellate Court relating to alternate way are erroneous and that the question of prima facie title is different as against prima facie case. In this respect reliance has been placed on the ruling of the Apex Court in (Dalpat Kumar and other v. Prahlad Singh and others) A. I. R. 1993 S. C. 276. According to Shri Mulgaoncar the reversal of order is bad and is liable to be set aside and the plaintiffs are also entitled to mandatory injunction regarding removal of obstructions put by the defendants which are referred in para 6 of the plaint.