U.C. Dhyani, J. (Oral)

1. Present Appeal from Order has been filed by the plaintiff /appellant being aggrieved against the order dated 18.08.2015, passed by Additional Civil Judge (S.D.), Haridwar, District Haridwar, whereby learned court below has rejected the temporary injunction application paper no. 7C2 filed by the plaintiff-appellant.

2. The main grounds, which have been taken by the plaintiff/appellant, in his A.O., are being reproduced herein below for ready reference:

i. The learned trial court failed to appreciate that Hajari Lal Jain was the original owner of a property. Four plots were being casted in the said property by said Hajari Lal. From the North of 10 ft. wide road the second plot was being initially sold by said Hajari Lal to one Smt. Kashmiri Devi Gupta w/o Krishna Murari Gupta vide registered sale-deed dated 04.07.1978. In the said sale deed boundaries of the plot subject of the sale-deed were specifically described. In the boundaries it was mentioned that on the West of the plot there exists a road and park BHEL. Kashmiri Devi from the date of the sale-deed became the absolute owner in possession of the said plot in question together with the right of the way/passage. Subsequently said Kashmiri Devi executed a sale deed dated 31.01.2001 in respect of the said plot in favour of the appellant and his wife namely Smt. Bala Devi. In the said sale-deed again in the boundaries, on the West side 15 ft. wide road was being mentioned as the boundary on the West side. Thus after the said sale-deed dated 31.01.2001 the appellant and his wife became the sole owner of the aforesaid plot in question together with the right of passage to the said property as was mentioned in the first sale-deed dated 04.07.1978.

ii. The trial court failed to appreciate that the original owner of the property namely, Hajaari Lal has casted four plots adjoining to each other. The appellant’s plot was second from the North side of the appellant’s plot and one on the South of the appellant’s plot. The first sale deed executed by the original owner Hajari Lal contains a description of road on the West side in the sale-deeds of first and second lot and of BHEL in the third and fourth plot. In all the sale-deeds, there was no description of any property belonging to the seller being left over on the west side. Thus it was a clear admission on behalf of the original owner that on the West of all the four plots, the seller ceases to have any portion of land left being owned by him.

iii. The learned Trial Court failed to appreciate that the said 15 ft. passage/road on the West side of the plot belonging to the appellant was meant for being used as road/passage by the appellant and the appellant ahs all rights to use the same as such. The appellant was using the same as road since the execution of the sale-deed. After the 15 ft. wide passage there exits the property of BHEL which is clear from the sale-deeds also and thus between the plot of the appellant and BHEL there happens to be a road alone and nobody’s property exists on the West of the plot of the appellant except as aforesaid.

iv. The learned trial court failed to appreciate that the said 15 ft. wide road/passage connects to the 10 ft. wide passage which exists on the South of the fist plot adjoining to the plot of the appellant. In the said 10 ft. wide passage there exists a sewer line, drain and the same is a mettle road constructed out of Government funds.

v. Learned trial court failed to appreciate the contents of the Amin report, wherein the depth of 15 ft. wide passage as on spot was found to be 142 ft., however, in the sale-deed claimed by the respondent the same was mentioned to be 128 sq ft.

vi. The learned trial court failed to appreciate that the sale-deed executed by the original owner in favour of the appellant and in respect of the other adjoining plots were prior in time to the sale deed dated 10.04.1990 and in the sale deed executed prior in time