AMOL S/O. DHANRAJ KOHALE v. PANDURANG S/O. MANIKRAO NIKAM
Interlocutory Mandatory Injunction for Right of Way: Distinguishing Easement by Grant from Easement of Necessity and Balancing Equities through Monetary Compensation.
Court: Bombay High Court
Citation: 2026:BHC-NAG:5485
Decision Date: 06-04-2026
List of Laws
The Indian Easements Act, 1882; Code of Civil Procedure, 1908 (Order XXXIX Rules 1 & 2; Order XLIII Rule 1); Constitution of India (Article 227); Civil Law - Easement by Grant vs. Easement of Necessity
- Facts: The original plaintiff (respondent) and original defendant (petitioner) own adjacent agricultural lands, Survey No.400 and No.401 respectively. The plaintiff filed a suit for declaration and mandatory injunction seeking a right of way (bullock cart way) through the defendant's land. This claim was based on a specific handwritten and counter-signed recital in a Sale Deed dated 06.04.2018, executed by the plaintiff’s brother in favor of the defendant, which expressly granted a "Bullock Cart Way" along the boundary. The defendant resisted, claiming the recital was inserted under coercion and that providing such a way would require cutting down several of his fruit-bearing Mosambi trees. A Court Commissioner's report indicated the current existence of only a pedestrian path, not a bullock cart way.
- Procedural Posture: The Trial Court initially rejected the plaintiff's application for a temporary injunction. On appeal, the District Judge reversed this decision and granted the injunction. The petitioner/defendant then approached the High Court under Article 227 of the Constitution of India challenging the Appellate Court's reversal.
- Issue: Whether the plaintiff is entitled to a temporary interlocutory mandatory injunction for a right of way based on an easement by grant, and whether the Appellate Court was justified in interfering with the Trial Court's discretionary order?
- Holding: Yes, the High Court upheld the grant of the temporary injunction with certain modifications. It held that an easement by grant, evidenced by a prima facie valid Sale Deed recital, creates a strong case for the plaintiff that outweighs the defendant's claim of hardship.
- Reasoning: The Court reasoned that an easement by grant is a matter of contract and is distinct from an easement of necessity; it does not extinguish merely because an alternative route exists. Since the recital was part of the signed Sale Deed, it established a "prima-facie" case. Regarding the balance of convenience and irreparable loss, the Court found that the plaintiff’s inability to cultivate his land without bullock cart access constituted a greater hardship than the defendant's loss of trees. To balance the equities, the Court directed the plaintiff to pay Rs.25,000 as compensation for the trees and provide an undertaking for further damages. The Court also clarified that the Appellate Court has the power to record independent findings if the Trial Court's discretion was improperly exercised.
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