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2008 DIGILAW 1497 (RAJ)

Bhanwar Lal v. State of Rajasthan

2008-05-29

DINESH MAHESHWARI

body2008
JUDGMENT 1. - For the order of remand proposed to be passed in this matter pertaining to the prayer for temporary injunction as made by the plaintiffs-petitioners, instead of elaborating on the facts, suffice it is to point out that there are incongruities apparent on the face of record. 2. In paragraph 8 of its impugned order dated 28.03.2008 (Annex.6) the Appellate Court has observed about the length of the eastern arm of the land in possession of the plaintiffs, that according to their patta, such eastern arm ought to be 100 ft. but has been found 108.3 ft. at the site by the Commissioner. The Commissioner's Report as placed on record (at pp 29-31 of the paper-book) marks the eastern side of the plot in question on the line between the points 'F to D' and its length has been stated at 101 ft. and then, the disputed portion has been marked on this very line, starting from the point 'F' and ending at 'G' measuring 7.3 ft.The learned Appellate Judge has observed,- " bl iV~Vs ds vuqlkj vihyk.V ds Hkw[k.M dh iwohZ Hkqtk dh yackbZ 100 QqV gksuh pkfg, tcfd losZ dfe'uj dh fjiksVZ ds vuqlkj bl Hkqtk dh yEckbZ 108-3 QqV gSA " The Commissioner has stated thus,- " ekdZ C, D, E, F izkFkhZx.k ds edku gS rFkk E LFkku ij nks nqdkus izkFkhZx.k gSA ekdZ E ls F dh yEckbZ 183-11 QqV] ekdZ F ls G dh pkSM+kbZ 7-3 QqV gSA ekdZ F ls D dh yEckbZ 101 QqV rFkk ekdZ C ls E dh yEckbZ 98 QqV gSA E LFkku ij nks nqdku gS ftlds vkxs pcwrjh cuh gSA " 3. If the line between the points 'F' and 'D' is taken 101 ft. and that line represents the entire length of the plot on the eastern side then the length of 7.3 ft. between the points 'F' and 'G' would only be inclusive in the larger line 'F to D'. However, the learned Judge has summed up the two figures (101 + 7.3) to find the length at 108.3 ft. 4. and that line represents the entire length of the plot on the eastern side then the length of 7.3 ft. between the points 'F' and 'G' would only be inclusive in the larger line 'F to D'. However, the learned Judge has summed up the two figures (101 + 7.3) to find the length at 108.3 ft. 4. Then, it is also noticed that the appellant has regularly requested that the measurements be carried out from the fixed point of well situated towards northern side of his plot and the Tehsildar's report dated 05.03.2008 (at page 32-33 of paperbook) as made in pursuance of the orders passed by the Additional District Judge, Nagaur though purportedly states about some excess land on the southern side of the plaintiff's plot, the subject matter of dispute in the present case, but then, so far the request of the appellant for measurements from the well in question is concerned, it has been stated that the well being surrounded by Abadi with larger constructions, measurements could not be carried out treating the well as a fixed point and such measurements from the well could be carried out only by the Settlement Department with special technique. The learned Appellate Court has commented that plaintiffs have not felt satisfied with repeated measurements and all the reports indicate their encroachment on the land of way. The plaintiffs, on the other hand, submit that they are not in possession of any land beyond the land comprised in their patta. 5. Although, if it be an encroachment on the way, the same definitely deserves to be sternly dealt with but then, the facts ought to have been got clarified and it cannot be assumed only with reference to the submissions as made by the defendants that the plaintiffs are trespassers on the land of way. 6. Yet another incongruity is noticed in the matter inasmuch as the way in question is said to be 20 ft. wide; and the Commissioner's report (at page 31) states the available width even in front of the alleged encroachment as about 20 ft. at one place, 18 ft. at another place and 21 ft. at yet another place, marked R, S and T respectively. 7. wide; and the Commissioner's report (at page 31) states the available width even in front of the alleged encroachment as about 20 ft. at one place, 18 ft. at another place and 21 ft. at yet another place, marked R, S and T respectively. 7. Having considered the matter in its totality, it appears that the learned Appellate Court has not examined all the material available on record and has not noticed the effect of the comments as made by the Tehsildar for not taking measurements from the well in question as stated in his report dated 05.03.2008 (at page 32-33 of the paper book). Having regard to the circumstances of the case, it appears appropriate to set aside the order passed by the learned Appellate Court and to remand the matter for reconsideration leaving it open for the learned Appellate Court to consider if any other proposition could be adopted for ascertaining the relevant measurements so as to clarify the position particularly for determination of the question as to whether the petitioners could be prima facie said to be the trespassers on the land of way. 8. Learned counsel for the respondents submits that the project is of laying of the road and the sanction would be coming to an end by 30.06.2008 and, therefore, even if the matter is remanded, the same be ordered to be considered at an early date during summer vacations. Learned counsel for the petitioners has no objection in consideration of the matter by the Appellate Court during summer vacations. 9. In view of the aforesaid, the impugned order dated 28.03.2008 (Annex.6) is set aside and the matter stands remanded to the learned Appellate Court for reconsideration of the appeal on merits keeping in view the observations made herein above. Civil Appeal (Order) No.15/2007 in the Court of Additional District Judge, Nagaur shall stand restored for reconsideration. The parties are directed to appear before the learned Appellate Court i.e., the Additional District Judge, Nagaur on 07.06.2008 and are permitted to make request to the said Court for taking up the matter during summer vacations and at the earliest. If there be any difficulty in taking up of the matter by the Court concerned, it shall be permissible for the parties to make an appropriate request to the District Judge concerned for appropriate orders. If there be any difficulty in taking up of the matter by the Court concerned, it shall be permissible for the parties to make an appropriate request to the District Judge concerned for appropriate orders. The parties shall stand noticed through their counsel present in this Court. 10. Having regard to the circumstances of the case, the interim order as passed in this writ petition on 25.04.2008 for maintaining status quo shall continue to remain in force till 07.06.2008 and on that date, the parties would be free to make appropriate request regarding interim relief before the Appellate Court. No costs.Writ petition disposed of. *******