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IN THE HIGH COURT OF ALLAHABAD
JAYANT BANERJI, J.
Chaudhary Chandra Veer Singh and Another – Petitioners
Versus
President Ark City Residents and Another – Respondents
Matters Under Article 227 No. 4923 of 2023
Decided On : 24-07-2023
Civil Procedure Code, 1908 - Order XXXIX, Rule 2-A - Order XXVI, Rule 14 - Rules 9 and 10 - Criminal Procedure Code, 1973 - Sections 107, 116 - Societies Registration Act, 1860 - Section 4(1) - No Objection Certificate - Original Suit - Order of temporary injunction - Equity jurisdiction - Held, In Court opinion, such an observation is completely arbitrary and illegal, as on coming to such a finding, first question that ought to have arisen was whether suit would be defeated for non-joinder of necessary parties - It is pertinent to mention here that, apparently, plaintiff-petitioners have not obtained any sanctioned lay-out plan from Development Authority for carving out plots over plot no. 291 for selling to third parties - But, they are demanding access to amenities and facilities of Ark Society including membership of third parties in Welfare Association on basis of alleged NOC that purports to provide all facilities and amenities to plaintiff-petitioners in aid of plotting and sale of plot No. 291 - Such a conduct cannot entitle plaintiff-petitioner to any indulgence of this court in exercise of equity jurisdiction - Petition dismissed.
JUDGMENT :
JAYANT BANERJI, J.
1. In the aforesaid petition, the array of parties is as under:
(2) Chaudhary Vivek Ahalawat, son of Chaudhary Chandra Veer Singh, Resident of Ward No. 0, Daurala (Rural), Meerut, District Meerut - Petitioner/Plaintiff
Versus
(1) President Ark City Residents Welfare Association, Ark City, N.H. 58, Kankerkheda, Meerut, District Meerut.
(2) Secretary Ark City Residents Welfare Association, Ark City, N.H. 58, Kankerkheda, Meerut, District Meerut - Respondent/Defendant”
2. This petition impugns the order dated 28.02.2023, corrected on 09.03.2023 passed by the Additional District Judge, Court No. 5, Meerut in Misc. Appeal No. 27 of 2020 (President Ark Society vs. Chandra Veer Singh), whereby the appeal has been allowed and the order of temporary injunction granted by the trail court on 15.01.2020 has been set aside. It may be mentioned at the outset that though the order of correction dated 09.03.2023 has been mentioned to have been filed along with the impugned order of 28.02.2023, however, the same is not enclosed. In any view of the matter, the order of correction has not been referred to by learned counsel for the petitioners.
3. The petitioners claim to be tenure-holders being bhumidhar with transferable rights over Plot No. 291 admeasuring about 0.6070 hectares of land located in Village-Dayampur, District Meerut which land is stated to have been purchased by them by means of a registered sale-deed of 11.08.2016. It is stated that the petitioners are the owners in possession of the aforesaid Plot No. 291 and to the north of the petitioners' land is located a Housing Society by the name of Ark Society. It is stated that the respondents are members of the said Housing Society. It is alleged that to the north of the petitioners' land is a common 12 meters (40 feet) wide path/road [40 feet road] which goes through the Society and leads into the petitioners' land. That the predecessor-in-interest of the petitioners as well as the petitioners have been using the 40 feet road in question for their entry into the aforesaid Plot No. 291 and that there is no other approach road. In view of a dispute between the petitioners and residents of the respondent- Society regarding use of the path in question, it was resolved by the intervention of Ark City Welfare Association [Welfare Association], a Society duly registered under the Societies Registration Act, 1860 [Societies Act] and which, as per the provisions of the Uttar Pradesh Apartment (Promotion, Ownership and Maintenance) Act, 2010 [Apartment Act], is authorised to manage the affairs in relation to the apartments and the properties appurtenant thereto and common areas and facilities, to permit use of the 40 feet road by the petitioners. It is alleged that in this regard, on 11.12.2016, the Welfare Association issued a No Objection Certificate [NOC] in favour of the petitioners whereby the petitioners were permitted to use the 40 feet road as also the sewerage and electricity lines of the Society.
4. It is alleged that when on 04.07.2019, objections were raised and hurdles were created, the petitioners instituted a civil suit for permanent injunction before the court of the Civil Judge (Senior Division), Meerut, being Original Suit No. 73 of 2019. An application for temporary injunction was also filed. On 06.09.2019, the trial court granted an adinterim ex-parte temporary injunction to the petitioners. Thereafter, the respondents, who were the defendants in the aforesaid suit, filed objection to the application for temporary injunction. On an application moved by the petitioners, the trial court appointed an Amin Commissioner to carry out an inspection. The Amin Commissioner made his inspection and submitted a report on 11.11.2019 enclosing therewith a site map. The petitioners also filed their reply to the objections raised
A suit seeking injunctive relief must include a declaration of rights to be valid; otherwise, the relief sought is unsustainable if no such declaration is made.
The right to use a path for accessing one's property can be established through long-term use and relevant property documents, regardless of explicit claims under the Easement Act.
An easement of necessity requires proof of common ownership and that the easement is essential for the enjoyment of the property; mere claims of necessity without establishing these conditions are in....
The central legal point established in the judgment is the recognition of an easementary right based on continuous usage and the partition deed, allowing for the grant of perpetual injunction even in....
Easementary rights must be evidenced by uninterrupted and peaceable enjoyment for twenty years, as per Section 15 of the Indian Easements Act, to be enforceable.
To establish an easement of necessity, there must be common ownership and impossibility of enjoyment of one tenement without the other; mere lack of alternative access is insufficient.
Easement rights conveyed through property transfers can include implied grants, and a defendant cannot restrict access without legal rights to do so.
Implied easement rights for property use transfer automatically, barring explicit contradictory intentions in property deeds.
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