IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Revision No. 1137 of 2009 (O & M)
Date of decision:- 29.07.2009.
Imperial Hotel and Restaurants Pvt. Ltd. ...Petitioner
Versus
M/s J.M.P. Enterprises ...Respondent
CORAM: HON’BLE MR. JUSTICE A.N.JINDAL
Present:- Mr. R.S. Bajaj, Advocate
for the petitioner.
Mr. N.C.Kinra, Advocate
for the respondent.
A.N.JINDAL J.
Both the Courts below declined to grant temporary injunction
in favour of the petitioner-plaintiff restraining the defendant-respondent
from raising/creating construction in the passage used by them, therefore,
the present revision petition has been preferred.
The factual background of the case is that the petitioner
purchased the property in dispute for Rs.40,00,000/- from the defendant-
respondent (herein referred as the defendant) vide sale deed dated
09.07.1990 . Defendant-respondent vide the aforesaid sale deed had given
liberty to the petitioner-plaintiff to raise the construction of shops on all the
four sides of the plot thus implied by giving them right to use passage on the
Northern side of the plot in question also. It has been averred that the
plaintiff has as such right of common passage towards the Northern side of
the purchased property. It was also submitted that the tenants of the
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plaintiff namely Imperial Furniture House, Noor Communication and
Sukhdeep Repair Works have their entrance from the common passage
existing on the Northern side of its building. The plaintiff and its tenants
have been using this common passage as entrance due to the rights having
purchased vide sale deed as referred to above. However, on hurdles being
created, the plaintiff-petitioner preferred present suit. Alongwith the suit an
application for temporary injunction was also filed. The suit as well as
application were contested by the defendant with all vehemence admitting
that the sale deed was executed and registered by it. However, with regard
to specific boundaries, there was nothing mentioned about the use of
passage by the plaintiff on the Northern side, therefore, the plaintiff cannot
be allowed to use the passage on the Northern side.
Heard.
Without going deep into the controversy, and without
commenting on the merits of the case, there is no denying fact that there
exists a passage on the Northern side and that the plot was sold by the
defendant to the petitioner on 09.7.1990 and it has also not been denied that
respondent gave liberty to the petitioner to construct shops on all four sides,
which implies that the plaintiff could also use the passage on the Northern
side. In order to establish the existence of passage on the Northern side of
the property of the plaintiff , the local commission appointed by the Court
visited the spot, who has also not denied about existence of the passage at
the spot. Even the photographs placed on record reveals that there is a
passage on the Northern side of the building of the plaintiff. Anyway
without commenting regarding appreciation of evidence and by leaving it to
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the trial Court to make true interpretations of the sale deed it is prima facie
observed that liberty to construct shops to the plaintiff on all the four sides
of the plot was given with intention that he could use the passage on the
Northern side also. Finding the recital in the sale deed, which implies the
use of the land as passage on the Northern side, I deem it appropriate to
hold that plaintiff has a prima facie case in his favour that the occupants of
the shops are now prevented to use the passage on the Northern side, thus,
certainly they shall suffer irreparable loss.
Resultantly, I hereby partly allow the petition and set aside the
impugned order and direct both the parties to maintain status quo with
regard to use of the passage by the petitioner as it exists today.
July 29, 2009 (A.N.JINDAL) vj JUDGE