2026 Supreme(Bom) 104

IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH
PRAFULLA S. KHUBALKAR, J.
Amol, S/o. Dhanraj Kohale – Petitioner 
Versus
Pandurang, S/o. Manikrao Nikam – Respondents
Writ Petition No.1618 of 2025
Decided On : 06-04-2026

Sale deed recital prima facie creates easement by grant for bullock cart way, entitling temporary injunction subject to compensation for tree removal, balancing equities; appellate court may reverse trial discretionary order if improperly exercised.

Headnote:(A) Indian Easements Act, 1882 - Sections 12 and 13 - Code of Civil Procedure, 1908 - Order XXXIX Rules 1 and 2, Order XLIII Rule 1(r) - Constitution of India - Article 227 - Temporary injunction seeking right of bullock cart way over servient land based on handwritten recital in sale deed creating easement by grant - Trial Court rejected application relying on commissioner report finding no such way; Appellate Court reversed allowing injunction - High Court upheld appellate order with modifications - Recital prima facie establishes easement by grant, a contractual right not equated with or extinguished by easement of necessity - Plaintiff established prima facie case, balance of convenience and irreparable injury favoring grant of interlocutory mandatory injunction subject to compensation for removal of trees on way - Appellate Court empowered to interfere with trial Court's discretionary order if improperly exercised, no perversity in reversal - Discrepancy in plaint map points referring to same directional way not material. (Paras 11, 14-18, 20-21, 23-25)

(B) Temporary Injunction - Principles - Existence of prima facie case, balance of convenience and irreparable injury to be considered - Where refusal causes greater hardship, injunction granted as interlocutory mandatory relief balancing equities - Compensation for foreseeable loss to defendant permissible. (Paras 14, 21-22)

(C) Appellate Interference - Discretionary orders on injunction not immune; appellate court to consider material and interfere if discretion improperly exercised or findings erroneous. (Paras 19, 23)

Facts of the case:
Original plaintiff, owner of agricultural land adjacent to defendant's land, filed suit for declaration and permanent injunction claiming bullock cart right of way over defendant's boundary land based on handwritten recital in sale deed executed by plaintiff's brother to defendant specifying such way for plaintiff's land. Application for temporary injunction rejected by Trial Court; allowed by Appellate Court restraining obstruction. Original defendant challenged appellate order.

Findings of Court:
Impugned appellate order maintained with directions: defendant to provide bullock cart way from his land (either specified points on map); plaintiff to pay Rs.25,000 within four weeks as compensation for tree removal and file undertaking for additional proved loss; issue of coercion in recital to be decided in suit.

Issues: Entitlement to temporary injunction for bullock cart way during suit pendency based on sale deed recital as easement by grant; validity of appellate reversal of trial rejection; scope of interference under supervisory jurisdiction.

Ratio Decidendi: Handwritten countersigned recital in sale deed prima facie creates enforceable easement by grant entitling dominant owner to temporary injunction for way usage, subject to compensation balancing hardships; not easement of necessity; appellate courts may correct trial errors in discretion exercise without perversity.

Result: Writ petition dismissed; appellate order upheld with stated modifications.

Table of Content
1. petition challenges appellate reversal of trial court's injunction rejection. (Para 2 , 3)
2. petitioner argues no prima facie case; irreparable loss to defendant. (Para 4 , 5 , 6)
3. respondent claims easement by grant via sale deed recital. (Para 7 , 8 , 9)
4. recital grants bullock cart way; commissioner's report noted. (Para 10 , 11 , 12 , 13)
5. temporary injunction requires prima facie case, balance, irreparable injury. (Para 14 , 15)
6. easement by grant contractual, not extinguished like necessity. (Para 16 , 17)
7. sale deed recital creates prima facie easement by grant. (Para 18)
8. appellate court may correct trial errors in discretion. (Para 19 , 20 , 22 , 23)
9. balance favors plaintiff; compensate defendant for trees. (Para 21 , 24)
10. maintain injunction with compensation and path clarification. (Para 25 , 26 , 27)

JUDGMENT :

PRAFULLA S. KHUBALKAR, J.

1. Heard. RULE. Rule is made returnable forthwith. Learned counsel for the petitioner as well as learned counsel for the respondent have advanced elaborate arguments and the matter was heard extensively at the stage of final disposal.

2. By this petition, the petitioner / original defendant has raised a challenge to the judgment and order dated 11.03.2025 passed by the District Judge-1 & Additional Session Judge, Warud, allowing the appeal bearing Misc. Civil Appeal No.4/2023 and reversing the order of temporary injunction passed by the Trial Court. This case deals with an interesting issue about entitlement of the plaintiff for temporary injunction for right of an approach way based on an easement by grant, as reflected in the recital incorporated in the Sale Deed.

3. The facts leading to the instant petition are succinctly stated below:-

i. The petitioner is original defendant and respondent is original plaintiff. The respondent herein has filed a suit bearing Regular Civil Suit No.51/2021 seeking a relief of declaration and mandatory injunction about a right of way as shown by letter ‘A’ to ‘B’ in the plaint map, which falls in the land owned by the petitioner / original defendant and which is on the boundary (Dhura), by removing the twenty one (21) Mosambi Trees (Sweet Lemon Trees) from the land of the defendant. The original plaintiff is owner of the land bearing Survey No.400 and the original defendant is the owner of land bearing Survey No.401, both are situated adjacent to each other ;

ii. Alongwith the plaint, a separate application under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure, 1908 (hereinafter for short referred to as “CPC”) seeking temporary injunction was also filed ;

iii. The original defendant filed its reply to the temporary injunction application and opposed it ;

iv. By an order dated 27.06.2022, the application for temporary injunction came to be rejected ;

v. The original plaintiff, thereafter, filed an Appeal under Order XLIII Rule 1(r) of CPC, which came to be allowed by judgment and order dated 11.03.2025 by which, the application for temporary injunction was allowed and the defendant was temporarily restrained from causing any obstruction to the plaintiff’s right to use the disputed way shown by letter ‘A’ to ‘B’ in the plaint map.

vi. Feeling aggrieved by this judgment and order dated 11.03.2025, the petitioner / original defendant has filed the instant petition.

4. While assailing the impugned judgment and order passed by the Appellate Court, the learned counsel for the petitioner Advocate Mr. Swapnil Shingane, submitted that the impugned judgment and order passed by the Appellate Court is unsustainable since, the same is passed without considering the Commissioner’s Report dated 20.11.2021, which specifically records that there is no approach way for bullock cart from the land belonging to the original defendant. He submitted that the discretionary order passed by the Trial Court warranted no interference since the same was passed by considering all the relevant aspects including the case put up by the plaintiff in the plai

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