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2016 Supreme(Cal) 673
IN THE HIGH COURT AT CALCUTTA
Jyotirmay Bhattacharya and Ishan Chandra Das, JJ.
Essen Synthetics Private Limited & Anr. – Appellant
Vs
Shivratan Agarwal & Ors. – Respondent
F.M.A.T.No.1102 of 2016 CAN No.10382 of 2016
Decided on : 20-12-2016
Advocate Appeared:
For the Appellant : Mr. Sabyasachi Bhattacharya, Ms. Sohini Chakraborty, Mr. Mani Mohan Chandra
For the Respondent: Mr. Biswaroop Bhattacharya, Ms. Sonal Shah
A right of easement may be acquired by prescription if the use of the land is open, peaceable, and uninterrupted for a long time.
Headnote:
AD-INTERIM INJUNCTION - EASEMENT RIGHTS - SECTION 15 OF THE INDIAN EASEMENTS ACT, 1882 - The court held that the plaintiffs had made out a strong prima facie case for going to trial and that the balance of convenience and inconvenience was in their favor. It thus set aside the impugned order and passed an ad interim order of injunction restraining the defendants from raising any construction on the disputed property.
Fact of the Case:
The plaintiffs filed a suit for declaration of their easement rights through a strip of land belonging to the defendants. They claimed that they had no other access to their land and that they had acquired an easement right of access through the defendants' land. The defendants were trying to raise a boundary wall on their land, which would block the plaintiffs' access. The plaintiffs filed an application for temporary injunction to restrain the defendants from raising any construction on the disputed land.
Finding of the Court:
The court found that the plaintiffs had a strong prima facie case for going to trial and that the balance of convenience and inconvenience was in their favor. It held that the plaintiffs had been able to make out a strong prima facie case for going to trial. The balance of convenience and inconvenience is also in favour of the plaintiffs in as much as if their passage through ‘B’ schedule property is obstructed by raising construction by the defendants on plot no.336, the plaintiffs will not be able to have any access to their land.
Issues: Whether the plaintiffs had made out a strong prima facie case for going to trial.
Ratio Decidendi: The court relied on Section 15 of the Indian Easements Act, 1882, which provides that a right of easement may be acquired by prescription. The court held that the plaintiffs had been using the disputed land for a long time and that their use was open, peaceable, and uninterrupted. It also held that the defendants had not objected to the plaintiffs' use of the land.
Final Decision: The court set aside the impugned order and passed an ad interim order of injunction restraining the defendants from raising any construction on the disputed land.
1. This appeal will be heard. Lower court records need not be called for. Since the respondents are represented by learned advocate Mr Biswaroop Bhattacharya, service of notice of appeal upon the respondents is dispensed with. The appeal thus be treated ready as regards service.
2. Immediately after the appeal was admitted for hearing under the provision of Order XLI, Rule 11 of the Code of Civil Procedure, we were requested by learned counsel for the respective parties to dispose of the appeal itself on merit. We were informed by them that all papers which are necessary for disposal of the appeal are annexed to the injunction application (CAN No.10382 of 2016) and the supplementary affidavit which was filed by the appellants in connection with the injunction application.
3. Considering such prayer of the learned counsel appearing for the parties, we have decided to dispose of the appeal itself on merit by dispensing with the requirement of filing paper books in this appeal.
4. Let us now consider the merit of the instant appeal in the facts of the instant case.
Case of the appellants briefly stated is as follows:–
The plaintiffs, viz. the appellants herein, filed a suit for declaration of their easementary right through ‘B’ schedule property. The ‘B’ schedule property belongs to the defendants, viz, the respondents herein. The defendants were trying to raise a boundary wall on their land and thereby trying to block the passage through which the plaintiffs have their only access to their land. The plaintiffs claim that they have purchased 1.29 decimals of land out of total measuring about 1 acre 39 decimals in plot no.57. It is alleged by them that on the southern boundary of the plaintiffs’ purchased land, Dag no.336 situates, and thereafter the PWD road runs from east-west. It is also claimed by the plaintiffs that all the three sides of their land are locked by the land of other landowners. The plaintiffs claim that they have no access to their land either through its northern boundary or through its eastern boundary or through the western boundary. The plaintiffs thus claim that the only access which the plaintiffs have in their land is through Dag no.336 which is adjacent to the PWD road. They further claim that they have no other access to their land, and that they have acquired an easementary right of access to their land through the said Dag no.336 belonging to the defendants. Since the defendants are now trying to raise construction on the plot no.336 with a view to obstruct the access of the plaintiffs to their land, the plaintiffs have filed the said suit for declaration of their easementary right through the strip of land lying on plot no.336 adjacent to PWD road and prayed for injunction for restraining the defendants from raising any construction over plot no.336 so that the plaintiffs’ right of easement over the strip of land lying on plot no.336 being ‘B’ schedule land is not obstructed by such construction.
5. After filing the said suit, the plaintiffs have filed an application for temporary injunction for restraining the defendants from raising any construction on the strip of land lying on plot no.336, being identified at schedule ‘B’ property in the plaint as well as in the injunction application, so that the plaintiffs’ access to their land lying on plot no.57 through ‘B’ schedule property is not obstructed during pendency of the suit. An ad interim order of injunction in similar term was also sought for by the plaintiffs in the said application.
6. Learned trial Judge refused to pass any ad interim injunction in favour of the plaintiffs by the impugned order. While refusing to grant the ad interim order, the learned trial Judge held that there was no urgency in the case for which the ad interim injunction could be passed. While rejecting the plaintiffs’ prayer for injunction the learned trial Judge did not consider as to whether the three well-settled tests for grant of injunction are
