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1993 DIGILAW 200 (RAJ)

Narain Singh : Khem Singh : Narain Singh v. Narain Singh

1993-03-30

RAJESH BALIA

body1993
JUDGMENT 1. These three revisions arise out of the same order and are being disposed of by a common order. Revision No. 1/91 & 45/91 are by two sets of defendants-non-applicants of Civil Misc. Case no. 178/91, proceedings under Order 39 Rule 1 & 3 Civil Procedure Code instituted by petitioners in Civil revision No. 90/91 in the court of Additional Munsiff & Judicial Magistrate no. 1, Jodhpur. 2. For the present purposes facts are briefly stated with reference to Civil revision no. 90/91. Plaintiff-petitioners filed a suit in representative capacity on behalf of the residents of Nayapura colony in Mandore alleging that Khasra no. 1861 is the suit property. Though it is recorded in the name of defendants non-petitioners, it is not occupied or used by the defendants for last more than 60 years. There exist two ways in the suit property from A to B from North to South on the Eastern side of the disputed land and from East to West on the Southern side of the disputed land over which the residents of the Nayapura Colony have acquired easementry right of way. An application for grant of temporary injunction restraining respondents from alienating the suit property by dividing it into plots and for maintaining the status-quo about user of way was also made. 3. The trial court by its order dated 12.10.90 found that no prima facie case exist in favour of the plaintiffs as no public was through the agricultural land in dispute appears to exist and according to Commissioner's report also there exist only a Pedestrian way (Pagdandi). In view of the aforesaid finding, the trial court rejected the application for grant of temporary injunction. 4. On appeal by the plaintiffs. by taking into consideration the entire material on record and Commissioner's report, the appellate court came to the conclusion that prima facie the existence of way from North to South towards the eastern side of the plot in the form of a Pagdandi is made out. Though no evidence of exact width of the said way from North to South has come on record, the appellate court in the facts and circumstances issued a temporary injunction for restraining the defendants from raising any obstruction in 20 ft. width of land from North to South in the Eastern side of the Khasra no. 1861. Rest of the prayer of the plaintiffs was refused. 5. width of land from North to South in the Eastern side of the Khasra no. 1861. Rest of the prayer of the plaintiffs was refused. 5. Aggrieved with the aforesaid order, defendants in two sets as well as plaintiffs have filed the aforesaid 3 revisions. While defendants contended that no injunction at all ought to have been granted or at any rate the lower appellate court had seriously erred in allowing 20 ft. wide way as pagdandi by way of temporary injunction to the plaintiffs, on the other hand plaintiffs contended that they are entitled to injunction in respect of other way claimed by them and also for restraining the defendants from alienating the suit property by dividing the same into small plots. 6. Having considered the contentions raised by the learned counsel for the parties, I am of the opinion that so far as finding about the prima facie case arrived at by the lower appellate court is concerned, no error of jurisdiction appear to have been committed by the court below nor there appears to be any illegality or material irregularity in exercise of its jurisdiction. However, it does appear that while the finding of the lower appellate court is that prima facie one Tagdandi' exist from South to North towards the Easterm side of the plot, issue of a temporary injunction n respect of 20 ft. wide way which is capable of being used by even cars and vehicular transport, does not appear to be justified as being contrary to its own finding.A Pedestrian way or pagdandi only means that one or two persons may pass and repass on the way on foot or cattle can pass or repass but not vehicular transport. By any standard 6ft. width for that purpose would be sufficient and to that extent lower appellate court's order needs to be modified. 7. Accordingly the order passed by the Civil Judge, Jodhpur is modified to the extent that defendants non-applicants, in the injunction application are restrained through temporary injunction for interfering with the use of 6 ft. wide land situated from South to North towards Eastern side of Khasra no. 1861 from being used as way. 7. Accordingly the order passed by the Civil Judge, Jodhpur is modified to the extent that defendants non-applicants, in the injunction application are restrained through temporary injunction for interfering with the use of 6 ft. wide land situated from South to North towards Eastern side of Khasra no. 1861 from being used as way. The alienation if made by the defendants during the pendency of suit property excluding the aforesaid way, shall be subject to final decision of the suit and this fact may be mentioned as a condition in any deed of transfer that may be executed by the defendants. 8. As a result, all the revisions are partly allowed. 9. There will be no order as to costs.Revisions partly allowed. *******