The lessee is entitled to enjoy the property without interruption under section 108 of the Transfer of Property Act, and denial of access by the landlord constitutes a breach of obligations.

Heard. Rule. Rule made returnable forthwith, Heard finally by consent.

2. By this Writ Petition, the petitioner has challenged the legality and correctness of the orders, which are, the order dated 9-9-2015 passed in Regular Civil Suit No. 145/2015 passed by the first Additional Senior Civil Judge, Margao, thereby granting temporary mandatory injunction to the respondents and second, the order dated 1-12-2015 passed in Miscellaneous Civil Appeal No. 60/2015 by District Judge-1, South Goa, Margao, thereby confirming the order granting temporary mandatory injunction.

3. The dispute between the petitioner and the respondents is a dispute between the landlord and the tenants in respect of right of way or access shown in the plan annexed to the plaint. It is the contention of the respondents-original plaintiffs that the access (hereinafter called the “suit access”) to their tenanted premises has been blocked by the petitioner by means of a gate erected by him and kept under locked condition.

4. According to the petitioner- original defendant, the respondents have an alternate access passing through another piece of land situated on the backside of the house and access as claimed by the respondents or the suit access does not exist. The petitioner has also claimed that he has not fixed any gate nor has he put any gate under locked condition with a view to block the access.

5. The respondents who filed a civil suit against the petitioner praying for grant of mandatory injunction, applied for grant of temporary mandatory injunction during the pendency of the suit and the temporary mandatory injunction was granted on the merits of the case by the learned first Additional Senior Civil Judge, Margao by his order passed on 9-9-2015. The matter was carried in appeal filed by the petitioner before the Court of District Judge-1, South Goa, Margao, where the petitioner failed to get any relief as the appeal came to be dismissed by the learned District Judge by his order passed on 1-12-2015. Now, the petitioner has filed the present petition challenging both the said orders.

6. Mr. Bhobe, learned Counsel for the petitioner submits that the suit as filed by respondents is not maintainable as pleadings necessary for claiming right of way or access by way of an easement have not been made and that no declaration seeking right of way or access by way of an easement, has been sought. According to him, a suit filed for mandatory injunction simplicitor without seeking declaration regarding right of way or access by way of an easement, is not maintainable. He also submits that the plan relied upon by the lower Courts was the plan annexed to the plaint prepared by a Surveyor who did not visit and inspect the tenanted premises and so such a plan could not have been accepted by the Courts below for recording prima facie finding regarding existence of access as claimed by the respondents. He also submits that the respondents do have an alternate access from the backside of the house and the suit access which they are claiming is only to enable them to approach the Abade Faria road, by creating a short cut. He submits that in such a case no injunction can be granted inasmuch as it would be necessary for this Court to examine the amount of inconvenience and also the issue of breach of privacy of the petitioner, since the access as claimed by the respondents causes inconvenience as well as encroachment upon the privacy of the petitioner. He further submits that there is no reasonable apprehension that the access available from the backside of the house would be blocked by the present owners. He, therefore, submits that the impugned orders are perverse and need to be interfered with.

7. Mr. Ramani, learned Counsel for the respondents submits that there is no question of claiming right of way or access by way of an easement as the respondents being tenants of the petitioner are only claiming that they should be allowed to enjoy the tenanted premises by pro