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IN THE HIGH COURT OF BOMBAY
(A.M. Khanwilkar, J.)
SHATRUGHAN SINHA - Appellant
V.
GURUDEV SINGH MANN and others - Respondents
Advocates appeared
For appellant: C. U. Singh with Girish Kulkarni and H. Rahman instructed by M. V. Kini and Co.
For respondents No.1 to 4: Mrs. Uma C. Wagle
For respondent No.5: Mrs. Geeta loglekar
Easements Act, 1882 - Sections 4 and 12 - Appellant claiming exclusive right to enjoy common passage to northern side of building - There was no express provision in any of agreements between parties to that effect - There was no negative covenant in any of documents to deprive respondent from using northern common passage of building - Both the appellant and the respondent had common right to jointly enjoy the common passage - Appellant cannot therefore claim exclusive right.
Easements Act, 1882 - Sections 4 and 12 - Enjoyment of common passage in the building - Provision for two gates to building had been made - Northern gate provided in the original sanctioned plan was kept closed for over six years - Fact that northern gate had not been used for six years cannot give party a right to contend that said gate cannot be opened at all - There is no provision in the documents executed between the parties preventing the appellant to do so, who is the lessee in respect of the demised land and is also owner of ground floor premises and basement - Viewed thus, the argument of the respondents that the northern gate cannot be opened or operated at all, cannot be countenanced.
2. Admit. Matter is made returnable forthwith, by consent. Mrs. Wag waives notice for respondents 1 to 4. Mrs. Joglekar waives notice for respond No.5.
3. As short question is involved, appeal from Order is taken up for fin disposal forthwith, by consent.
4. This Appeal from Order takes exception to the Judgment and Order passed by the Bombay City Civil Court dated December 21, 2004 in Notice Motion 4502 of 2004 being L.c. Suit No. 5289 of 2004.
5. The respondents 1 to 4/plaintiffs filed suit against appellant/defendant No. 1 and respondent No. 5/defendant No. 2 for following reliefs:
"(a) this Honble Court may be pleased to grant leave under Order Rule 2 of the Code of Civil Procedure;
(b) this Honble Court may be pleased to restrain the defendant No.1 order of permanent injunction from covering the suit passage, which shown in green colour boundary in the rough sketch at Exh.A hereto; (c) this Honble Court may be pleased to restrain defendant No.1 order of permanent injunction from opening the suit gate, which is shown in blue colour boundary in the rough sketch at Exh. A hereto;
(d) this Honble Court may be pleased to direct the defendant No.1 restore the original position of the said Flat on the ground floor in t premised known as Luv Kush situated at 5th Gulmohar Cross Road, P No. 17, JVPD Scheme, Juhu, Mumbai - 400 049, by closing the s entrances and reconstructing the walls, which were demolished and removing the steps, which he has already constructed in the suit pass from one of the suit entrances;
(e) this Honble Court may be pleased to direct defendant No.2 to initiate appropriate action against defendant No. 1 for the construction carried by defendant No. 1 in an outside the said Flat on the ground floor in the premises known as Luv Kush situated at 5th Gulmohar Cross Road, Plot No. 17m, JVPD Scheme, Juhu, Mumbai -400 049;
(f) this Honble Court may be pleased to restrain defendant No.2 by order of permanent injunction from regularizing the construction of suit
entrances, which is shown in red colour boundary in the rough sketch at Exh.A hereto, and/or granting permission for covering the suit passage, which is shown in green colour boundary in the rough sketch at Exh.A hereto;
(g) pending the hearing and final disposal of the Suit, defendant No.1 be restrained by an order of Injunction from opening the suit gate, which is shown in blue colour boundary in the rough sketch at Exh. A hereto, and from covering the suit passage, which is shown in green colour boundary in the rough sketch at Exh. A hereto;
(h) pending the hearing and final disposal of this suit, this Honble Court may be pleased to direct defendant No. 1 to seal/lock the suit entrances, which is shown in read colour boundary in the rough sketch at Exh. A hereto, and not to use the same;
(i) pending the hearing and final disposal of this Suit, this Honble Court may be pleased to direct defendant No.2 to initiate appropriate action against defendant No.1 for the aforesaid constructions in and outside the said Flat;
U) pending the hearing and final disposal of this Suit, this Honble Court may be pleased to restrain defendant No. 2 by order of permanent Injunction from regularizing the construction of suit entrances and/or granting permission for covering the suit passage;
(k) ad -interim orders in terms of prayer clauses (g) to (j) above be granted;
(1) any such other and further reliefs as this Honble Court may deem fit and proper in the circumstances of the case;
(m) for cost of the Suit."
6. During the pendency of the said suit, plaintiffs took out Notice of Motion for interim relief being Notice of Motion No. 4502 of 2004 for the following reliefs:
(a) pending the hearing and final disposal of this Suit, defendant No.1 be restrained by an order of injunction from opening the suit gate, which is shown in blue colour boundary in the rough sketch at Exh. A hereto, and from covering the suit passage, which is
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