Hon'ble GUPTA, J.—This appeal seeks to challenge the order of learned Single Judge dismissing the writ petition at the admission stage. 2. The necessary facts are that an application was moved by Rajbala and Shanti purportedly under Section 251 of the Rajasthan Tenancy Act, 1955 before the Tehsildar praying for removing the obstruction of 8 Feet 3" wide way existing on the southern edge of Kila No. 21 of Murabba No. 81, which leads to the lands comprising of Kila Nos. 14, 17, 23 to 25 of Murabba No. 80, also Kila Nos. 12, 13, 15, 18 and 22 of Murabba No. 80. Also pleading that there is no other alternative way. It was pleaded that for the last few days, the present appellant is trying to obstruct the way. This application was filed on 13.6.1995. Thereafter the Patwari inspected the site in presence of Rajbala and the present appellant and noticed that according to record, way is available upto Kila No. 22 of Murabba No. 81, while in Kila No. 21 of Murabba No. 81, which belongs to the present appellant, there is no recorded way and on the site also there is no available way, rather in Kila No. 21 on the spot crop of Narma and jute has been cultivated. It was also noticed that for going to Kila Nos. 14, 17, 23 and 25 of Murabba No. 80, there is no recorded way and there is a dispute between the parties on the spot for the way, through Kila No. 21 of Murabba No. 81. On this report, the Naib-Tehsildar observed that there is no way available to applicants and that she can reach to her fields if the prayed for way is sanctioned. With this recommendation the matter was forwarded to the S.D.O., Nohar. 3. Notices were issued by the S.D.O., Nohar. The present appellant submitted a reply to the S.D.O., being Annex.8 contending inter alia that the application under Section 251 of the Rajasthan Tenancy Act is not cognizable by this Court. The land is of old khatedari, on which Colony Conditions do not apply and that this "Court has no right to sanction way. In para-3, it was pleaded that if Rajbala secures way from the land of southern adjacent Murabba, that will be convenient. The land is of old khatedari, on which Colony Conditions do not apply and that this "Court has no right to sanction way. In para-3, it was pleaded that if Rajbala secures way from the land of southern adjacent Murabba, that will be convenient. It was also pleaded that if Rajbala is given way as prayed, Hemraj will have to give his land, which is not possible as the fields of both the parties are not adjoining and, therefore, the application is required to be dismissed. Then, in the alternative it was prayed that if somehow way is sanctioned, then the applicant should also be bound down not to obstruct the non-petitioners from using this way. 4. At this place, it may be observed that neither in the report of Patwari (Annex. 6) nor in the reply (Annex. 8) was it mentioned as to what is the other way, sanctioned or otherwise, which is being used or may be used by the applicant. 5. The learned S.D.O., Nohar thereupon passed order Annex.9 dated 22.1.1996. The file was fixed to be put up on the spot but the site inspection was not done, as it was not thought, necessary. It was noticed that the Patwari has inspected the site in presence of both the parties, which shows there is requirement of way and there is no sanctioned way, then it was observed that under Colony Conditions, the S.D.O. is entitled to sanction way, so by exercising those powers the way in question was sanctioned. 6. Appeal then against the order was filed before the Revenue Appellate Authority, who held that of course it is true that under Section 251 of the Rajasthan Tenancy Act, the S.D.O. does not have the power to sanction way nor Tehsildar could get the way opened within first 45 days, but from the order of the Court below, it is clear that the order has not been passed under Section 251. Then the khatoni of Samwat 2000-2005 was considered, which showed that the land was purchased by the present appellant by registered sale-deed but in those jamabandies, the lands were shown to be of Kila No. 63 and 176 but no khasra milan has been produced to show, that those land fall in Murabba No. 81. Then the khatoni of Samwat 2000-2005 was considered, which showed that the land was purchased by the present appellant by registered sale-deed but in those jamabandies, the lands were shown to be of Kila No. 63 and 176 but no khasra milan has been produced to show, that those land fall in Murabba No. 81. Thus, it is not clear that the land on which way has been sanctioned is the same land, as is mentioned on the sale-deed. Thus, the appeal was dismissed vide order dated 1.8.1997. 7. The second appeal was filed before the Board of Revenue for Rajasthan, Ajmer. The learned Board of Revenue found that the Tehsildar did not exercise the jurisdiction vested under Section 251 of the Rajasthan Tenancy Act, 1955, rather the S.D.O. passed the order under Condition 8 of Colony Conditions, therefore, the contention about the S.D.O. having no power under Section 251 was negated. It was found that notice was given by the S.D.O. after registering the case under Colony Conditions. Then the case of Jagdish Prasad vs. Badri Ram reported in 1987 RRD 279 which was cited was distinguished. Then it was found that it is not disputed that Kila No. 21 of Murabba No. 81 is recorded in the name of Hemraj but the S.D.O. is empowered to created a right of way under Condition No. 8 of the Colony Conditions, who has passed the order after giving opportunity of hearing to the appellant. It was also noticed that the report of Naib-Tehsildar disclose that no other way was available to the respondent to approach to her agricultural land and the appellant also failed to show that any alternate way was available to the respondent. Then the gap was also considered and inter alia with these findings, the appeal was dismissed. 8. The learned Single Judge in the writ petition observed that during the course of arguments it was pointed out to the learned counsel for the petitioner as to whether alternate way was available to Rajbala and Mst. Shanti. In the reply (Annex.8) no alternate way has been suggested and the reply given by the learned counsel was that under Colony Conditions, no new way can be granted on old khatedari, which has not been accepted by the Courts below. 9. Shanti. In the reply (Annex.8) no alternate way has been suggested and the reply given by the learned counsel was that under Colony Conditions, no new way can be granted on old khatedari, which has not been accepted by the Courts below. 9. The learned Single Judge found that it is admitted fact that recorded kahtedar of the land of the petitioner and non-petitioners was one Tulsi Ram and thereafter, his son Birbal Ram, then upon death of Birbal Ram his two sons Kailash Das and Durga Das, who sold the lands in the year 1980 by registered sale-deed in the manner that 3.5 bighas land was sold to the petitioner, 3.5 bighas to his wife, 5 bighas to Rajbala and 5 bighas to Shanti. From this, it was found that it cannot be said that there was old khatedari in the name of the petitioners, rather it was found in the name of Tulsi Ram and Birbal Ram and when that land has been sold, each of the purchaser will have right to access upto the land which he/she has purchased and when in the reply (Annex.8) no alternate way has been suggested, it cannot be said that the non-petitioners were not using the way as alleged in their application. It was found then that it cannot be said that the learned Court below have exceeded their jurisdiction or the petitioner had any right to cause obstruction in the way of non-petitioners. 10. The judgment in the case of Jai Singh vs. State of Rajasthan & Ors., 1993 RRD (HC) 239 which was relied upon before the learned Single Judge and before us also, was found to be distinguishable on facts. Thus, the writ petition was dismissed. 11. Arguing the appeal, much stress was laid on the aspect, that under Section 251 only existing way if obstructed could be got opened and no new way can be created. From the report of the Patwari, being Annex. 6, it is more than clear that on the spot no way existed, rather crop of 'narma' and 'san' (jute) was cultivated. In that view of the matter Section 251 of the Rajasthan Tenancy Act, 1955 could not be invoked whether by Tehsildar or S.D.O. 12. From the report of the Patwari, being Annex. 6, it is more than clear that on the spot no way existed, rather crop of 'narma' and 'san' (jute) was cultivated. In that view of the matter Section 251 of the Rajasthan Tenancy Act, 1955 could not be invoked whether by Tehsildar or S.D.O. 12. The next submission made is, that under Section 251 of the Rajasthan Tenancy Act, 1955, the S.D.O., does not possess any jurisdiction to pass any order whatever, as the order ff at all could be passed, it could be passed by the Tehsildar only and, thus, the order is wholly without jurisdiction. 13. While the next submission made is that since the S.D.O. has purportedly passed the order exercising powers conferred by Condition No. 8 of the Colony Conditions, which by virtue of .Section 20 of the Colonization Act are not applicable to the lands in question, therefore, also the order passed by the learned S.D.O is wholly without jurisdiction, and all the Courts below including the \earned Single Judge has erred in not considering this aspect of the matter, and therefore, all the orders are required to be set aside. 14. The learned counsel for the respondent on the other hand supported the impugned order. 15. At the outset, before we proceed further, we may observe that even from a look at Annex. 3 sale-deed in favour of appellant, it is clear that the land of Kila Nos. 12,19, 20 and 21 total measuring 3.5 bighas of Murabba Nos. 81 was sold to the appellant. Likewise, vide sale-deed Annex. 13 the land of Kila Nos. 12,13, 18, 19 and 22 of Murabba No. 80 was transferred to Shanti Devi in the year 2000 and in this sale-deed, it is mentioned that the land was purchased by the seller by registered sale-deed and is recorded in seller's name. This coupled with the fact that at no stage any controversy was raised, or joined issue, about identity of the land having been purchased by either of the parties, inasmuch as the land of the appellant is in Murabba No. 81, while the land of respondent is in Murabba No. 80 which adjoin each other. 16. This coupled with the fact that at no stage any controversy was raised, or joined issue, about identity of the land having been purchased by either of the parties, inasmuch as the land of the appellant is in Murabba No. 81, while the land of respondent is in Murabba No. 80 which adjoin each other. 16. In that view of the matter, the observation made by the Revenue Appellate Authority about the land in question not being shown to be the same covered by sale-deed dated 2.8.1980 cannot be accepted to be correct, and cannot sustain. 17. Coming to the merit of controversy, as noticed above, and as has been found by the learned Single Judge, it is not in dispute, that both the lands purchased by the appellant as well as the private, respondents, earlier belong to Tulsi Ram, and thereafter his son Birbal Ram and upon his death Kailash Das and Durga Das were recorded as khatedars, and they sold the land in the year 1980 to different extent to different parties by registered sale-deeds, thus, it is clear that all the contesting parties are, in the ultimate analysis, purchasers from the same owner of the land. Then it is also not in dispute, on the side of appellant that recorded way exists upto the western edge of Kila No. 22 of Murabba No. 81, which goes from Kila Nos. 25, 24 and 23. Out of these lands of Murabba No. 81, the lands of Kila Nos. 12, 19, 20 and" 21 total measuring 3.5 bighas has been purchased by the appellant, while the other adjoining land towards west, being Kila Nos. J4, 17, 23 to 25, so also Kila Nos. 12,13,15,18 and 22 of Murabba No. 80 has been purchased by the private respondents. 18. In the above factual situation, we may gainfully quote the provisions of Section 13 of the Indian Easements Act, 1882 . Material part of Section 13 reads as under :- 13. "Easements of necessity and quasi easements-Where one transfers or bequeaths immovable property to another- (a) if an easement in other immovable property of the transferor or testator is necessary for enjoying the subject of the transfer or bequest, the transferee or legatee shall- be entitled to such easement or .... .... .... .... .... "Easements of necessity and quasi easements-Where one transfers or bequeaths immovable property to another- (a) if an easement in other immovable property of the transferor or testator is necessary for enjoying the subject of the transfer or bequest, the transferee or legatee shall- be entitled to such easement or .... .... .... .... .... where a partition is made of the joint property of several persons, - (e) if an easement over the share of one of them is necessary for enjoying the share of another of them, the latter shall be entitled to such easement, or The easements mentioned in this section, clauses (a), (c) and (e) are called easements of necessity. Where immovable property passes by operation of law, the persons from and to whom it so passes are, for the purpose of this section to be deemed, respectively, the transferor and transferee. Illustrations (a) A sells B a field when used for agricultural purposes only. It is inaccessible except by passing over A's adjoining land or by trespassing, on the land of a stranger. B is entitled to a right of way, for agricultural purposes only, over A's adjoining land to the field sold. (b) A, the owner of two fields, sells one to B, and retain the other. The field retained was, at the date of the sale, used for agricultural purposes only, and is inaccessible except by passing over the field sold to B. A is entitled to a right of way, for agricultural purposes only, over B's field to the field retained". 19. Thus, in view of provisions of Section 13, on the admitted factual position the easement of necessity does arise. 20. At the cost of repetition, it may be noticed here that it is not shown or pleaded, that there is any other way available with the respondents to approach the lands purchased BY them from the same owner, rather in para-3 of reply (Annex.8), it has been pleaded that procuring way through southern murabba-adjoining to the lands of the respondents would be more convenient. It is not pleaded that their exists any way from through the southern murabba. It is in this background required to be noticed that all the authorities below have accepted the prayer of the respondents. 21. It is not pleaded that their exists any way from through the southern murabba. It is in this background required to be noticed that all the authorities below have accepted the prayer of the respondents. 21. Now, we deal with the basic contention raised by the learned counsel for the appellant, about want of jurisdiction in the S.D.O. whether under Section 25i or under Condition No. 8 of the Colony Conditions, so also non-existence of basic requirement of Section 251, being about already existence of way which have been obstructed, so also the judgment in Jai Singh's case relied upon. Section 25i of the Rajasthan Tenancy Act, 1955 reads as under :- "251. Rights of way and other private easement-(l) In the event of any holder of land, in actual enjoyment of a right of way of other easement or right, having, without his consent, been disturbed in such enjoyment otherwise than in due course of law, the Tehsildar may, on the application of the holder of land so disturbed and after making a summary inquiry into the fact of such enjoyment and disturbance, order the disturbance to be removed or stopped and the applicant-holder to be restored to such enjoyment, notwithstanding any other title that may be set up before the Tehsildar against such restoration. (2) No order passed under this section shall debate any person from establishing such right or easement as he may claim by a regular suit in a competent Civil Court." Condition No. 8 of the Colony Conditions reads as under : "Cond. 8. Right to construct or alter [or to create a right of way and construct village road.] - When the grant is made for agricultural purposes, the Government reserves and excepts to itself the following rights [x x x] (1) The rights to construct a watercourse or alter an existing watercourse, whenever this may be considered desirable by the Collector after consultation with the Divisional Irrigation Officer. (2) [x x x x x xx]. (2) [x x x x x xx]. The right to create or reserve a right of way in favour of the Government or any person or; persons or any class of persons or of the public generally, and the right to construct inter or inter-village roads, through or across the said land or any part thereof, and not over a strip exceeding at any point 4 gathas in which, as the Collector, may, from time to time, in public interest or for the benefit of any or all land-holders of the Chak or village or for the protection and maintenance of any property or exercise of any right reserved to the Government, consider desirable and may by any order in writing, direct. [Provided that no compensation of any kind shall be claimable by the grantee or any other person in respect of any area required or reserved in exercise thereof but in respect of such area no water rate, soil advantage rate, betterment fee, land revenue taxes or cesses shall be payable by the tenant.]" 22. In our view it is no doubt true, that neither the requirement of Section 251 are established nor does Section 251 or Condition No. 8 of the Colony Conditions confer any power or jurisdiction on the S.D.O. to pass the type of order like Annex. 9 0S passed in the present case, and to that extent the learned counsel for the appellant is right in his submission. 23. However, that matter does not end here inasmuch as since the appellant wants to invoke Article 226 the jurisdiction of this Court, merely showing that the order impugned is erroneous, or has been passed without jurisdiction, without telling anything else, would not always make it obligatory for this Court to invoke and exercise its extra-ordinary jurisdiction under Article 226. The consideration of substantial justice and/or failure of justice, so also the aspect as to what would be the consequence of interference under Article 226, including as to whether interference will result into bringing about or restoring another illegality are also required to be considered before invoking the extra-ordinary jurisdiction under Article 226. The consideration of substantial justice and/or failure of justice, so also the aspect as to what would be the consequence of interference under Article 226, including as to whether interference will result into bringing about or restoring another illegality are also required to be considered before invoking the extra-ordinary jurisdiction under Article 226. We are fortified in our this view by the Full Bench judgment of this Court in Jagan Singh vs. State Transport Appellate Tribunal reported in AIR 1980 Rajasthan-1, and the series of judgments of Hon'ble Supreme Court including those in Madras Fertilizers Ltd. vs. Assistant Collector of central Excise reported in JT 1994(1) SC-150, Chandigarh Administration vs. Jagjit Singh reported in JT 1995(1) SC-445, State of U.P. vs. Harish Chandra reported in JT 1996(4) SC-414, Union of India vs. Kirloskar Pneumatic Company Limited reported in JT 1996(5) SC-26, the Secretary, Jaipur Development Authority vs. Daulat MalJain, reported in JT 1996(8) SC-387, and Dattatraya Laxman Kamble vs. Abdul Rasul Moulali Kotkunde reported in (1999) 4 SCC-1. 24. In our view when on the admitted facts being, that both the contesting parties have purchased the lands from the same ultimate owner, who had recorded way upto Kila No. 22 of Murabba, No. 81 which led to his entire chunk of land/and when he sold his entire land in peace meal to different persons, may be at the same time, per force Section 13 of the Easements Act, easement of necessity does arise, and interference in Article 226 by setting aside the orders Annexs. 9, 10 and 11, so also the impugned order of the learned Single Judge, would have the affect of depriving the respondents of that right, which statutorily arise in their favour; We are not unmindful of the report of Patwari, being Annex. 6, but then, a close reading of this report dated 25.6.1995 shows, that crops of 'narma' and 'san' (jute) is cultivated. These two crops are species of kharif crop, and the date of inspection being 25.6.1995, possibilities are not ruled out about those having been sown recently. In the application (Annex. 5), it was pleaded that the present appellant is out and out to obstruct the way, and report (Annex. 6) does not show as to how old the crop is, or since when the alleged way has ceased to exist. In the application (Annex. 5), it was pleaded that the present appellant is out and out to obstruct the way, and report (Annex. 6) does not show as to how old the crop is, or since when the alleged way has ceased to exist. It is also significant to note, that it is nowhere shown on the side of the present appellant that till 1995 what was the alternative way, which was being enjoyed by the private respondents to reach to their field, which may have persuaded us to take a different view regarding aspect of Section 13 of the Easements Act. 25. In other words, rather to put it tersely, the present is the case where despite order Annex. 9 being wholly without jurisdiction, and not supported by any legal authority, if interference is made under Article 226, that would have the effect of bringing about another illegal situation, say restoring illegality thereby depriving the private respondents of easement of necessity, flowing from Section 13 of the Easements Act. In that view of the matter, though for different reasons, we do not find any sufficient ground to interfere with the order of the learned Single Judge. The appeal has thus no force and is, therefore, dismissed.