The importance of considering prima facie case, balance of convenience, and irreparable injury in granting interim relief.

JUDGMENT

(Prayer: Civil Miscellaneous Appeal is filed under Order 43 Rule 1 of the Code of Civil Procedure against the “A” Diary order passed in I.A.No.3 of 2022 in O.S.No.77 of 2022 on the file of the learned District Judge, Udhagamandalam dated 04.08.2022.)

1. The plaintiffs in the suit O.S.No.77 of 2022 on the file of the learned District Munsif, Udhagamandalam, are the appellants before this Court, questioning the order dated 04.08.2022 in and by which the learned Judge has adjourned the impugned application to 01.09.2022 for the counter of the respondents 1 and 2 in the Interlocutory Application filed by the plaintiffs in I.A.Nos.2 and 3 of 2022 in the above suit and for objections to the Advocate Commissioner's Report in I.A.No.4 of 2022.

2. I.A.No.1 of 2022 is filed for mandatory injunction directing the respondents 1 and 2 and their men to remove the illegal fence and gate put up on 30.03.2022 and also the shed put up on 28.07.2022 which prevents the access to the petitioners to reach their property through the suit schedule property.

3. I.A.No.2 of 2022 is filed for an injunction restraining the respondents from interfering with the enjoyment of the suit property.

4. Though this Court is disposing of the appeal at the admission stage with directions to the Trial Court however since certain factors had been brought to the notice of this Court, the Court is touching upon the facts in detail giving rise to this Appeal for the purpose of issuing the directions at the admission stage without notice to the respondents/defendants.

5. The dispute relates to the property which according to the plaintiffs has been earmarked as the pathway to reach the upper estate of the plaintiffs measuring an extent of 18.75 acres of land. The plaintiff's grandfather one Karian Chettiar had purchased an extent of 27.73 acres in Old Survey Nos.211, 212, 213, 215/5, 215/3B,216/3D, 216/3E, 2163F and 217 in Hulical Village, Coonoor. The lie of the above estate is such that the lower estate comprised in S.Nos.215/3B, 216/3D and 216/3F total measuring 9.56 acres is separated from the suit schedule properties by a highway road. The remaining extent of 18.75 acres is situate above the suit property (Upper Estate). The suit property lies between the lower and upper estate. The plaintiffs have no other access to their lands except through this pathway. It is the case of the plaintiffs that the property had been purchased by his great grandfather under a registered Sale Deed dated 11.03.1943 with a right of way through the suit property.

6. The suit properties were originally part of a larger extent which belonged to one John Fritschis and his wife. They had sold the property to Sagothorai Nilgiris Tea Estate Limited under a registered Sale Deed dated 27.05.1943. In the said Deed, the vendors had inserted the following clause to emphasize the right of way given to the purchaser through the lands of the vendor:-

“ To pass and re-pass on foot and with horses on the existing paths in the portions of S.Nos.216 and 215 D reserved by the Vendors TOGETHER with all other rights liberties easements privileges advantages and appurtenances whatsoever belonging to or in any wise appertaining or usually enjoyed or reputed to belong or be appurtenant thereto and all the estate right title interest and demand whatsoever TO HAVE and TO HOLD the same unto the Purchaser Company for ever…”

7. Thereafter, the property had been sold to the great grandfather of the appellants herein by Sagothorai Nilgiris Tea Estate Limited under a Sale Deed dated 11.03.1946. The sale Deed also contained a sketch drawn to scale indicating both the S.Nos.215 and 216 and indicating the right of way. In this Deed as well, the right of way through S.F.No. 215/D has been set out which is hereinbelow extracted:

“Together with all rights of way including in particular the rights for the Purchaser his tenants and agents at all times to pass and re-pass on foot with horses carts carriages motor cars an