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2012 DIGILAW 306 (RAJ)

Phool Chand v. Board of Revenue, Rajasthan

2012-02-06

ALOK SHARMA

body2012
Hon'ble SHARMA, J.—This petition has been filed against the order dated 21.4.2010, passed by the Board of Revenue, Ajmer in review No. 1849/2009 under Section 230 of the Rajasthan Tenancy Act, 1955 (hereinafter `the Act of 1955'), setting aside the order dated 24.2.2009, passed by the District Collector, Jhunjhunu. Earlier, the District Collector had set aside the order dated 6.2.2008, passed by the Naib Tehsildar, Sub Tehsil, Surajgarh under Section 251 of the Act of 1955 holding that the respondent, Smt. Shanti Devi had a right to access her agricultural field in khasra Nos. 204 and 205 through the existing way in khasra Nos. 201 and 203. 2. I have heard the counsel for the parties and perused the writ petition as also the impugned order dated 21.4.2010. 3. The issue in the present writ petition is an to whether the respondent, Shanti Devi W/o Kishan Lal had a right of way through khasra Nos. 201 and 203 belonging to the petitioner Phool Chand in terms of Section 251 of the Act of 1955. Section 251 of the Act of 1955 provides that "in the event of any holder of land, in actual enjoyment of a right of way or 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." 4. In the context of the aforesaid provision of law, the respondent, Shanti Devi moved an application under Section 251 of the Act of 1955 before the Naib Tehsildar, Sub Tehsil Surajgarh stating that she had a parcel of agriculture land i.e. khasra No. 204 and 205 which for several year was accessed through the fields now belonging to Phool Chand and his family members who had "now" sought to obstruct her right of way to access her field. It was stated that as early as 25.5.1990, her husband Kishanlal had paid a consideration of Rs. It was stated that as early as 25.5.1990, her husband Kishanlal had paid a consideration of Rs. 10,000/- and entered into an agreement dated 24.7.1992 with the erstwhile owner one Shankar Lal (predecessor in interest of Phool Chand) for using of the said way and since then the said right of way had been available without obstruction to her family members. It was stated that Shankar Lal had subsequently sold his agriculture fields to the petitioner Phool Chand who had vide agreement dated 24.7.1992 endorsed the earlier agreement with Shankar Lal with regard to the right of way in question but obstructed the existing right of way. 5. The matter was considered by the Naib Tehsildar who inter alia took a report of the facts alleged by Shanti Devi from the Patwari. The Patwari reported that the there was indeed an existing right of way in khasra Nos. 201 and 203 earlier belonging to Shankar Lal and thereafter to Phool Chand with a width of about 6 ft. used by Kishanlal, Shanti Devi and their family members and that right of way has been obstructed by Phool Chand by putting a stack of sticks/bushes thereon. The concerned Gram Panchayat has also stated in the course of inquiry that there was an existing right of way as claimed. Based on the inquiry of fact under Section 251 of the Act of 1955 made by the Naib Tehsildar after due notice to the legal heirs of the erstwhile owner of Shankar Lal and on the site inspection, the Naib Tehsildar vide order dated 6.2.2008 came to a conclusion that the right of way as claimed by Shanti Devi through Khasra Nos. 201 and 203 with a width of 6 ft, to access her agriculture fields in Khasra No. 204 and 205 had existed for several years and had been sought to be obstructed unlawfully by the petitioner Phool Chand. An order in favour of Shanti Devi was thus passed. 6. The order dated 6.2.2008 was challenged in appeal before the District Collector, Jhunjhunu, who vide order dated 24.2.2009 set aside the aforesaid order. An order in favour of Shanti Devi was thus passed. 6. The order dated 6.2.2008 was challenged in appeal before the District Collector, Jhunjhunu, who vide order dated 24.2.2009 set aside the aforesaid order. A further appeal by the respondent, Shanti Devi to the Board of Revenue entailed the Board of Revenue coming to a conclusion, on a consideration of the material on record, that the District Collector, Jhunjhunu has misdirected himself in holding that the proceedings by the respondent Shanti Devi under Section 251 of the Act of 1955 were being sought to be used for obtaining a new right of way and not for protecting her subsisting right of way with reference to Section 251 of the Act of 1955. The Board of Revenue held that from the material on record, more particularly reports of the Patwari and Gram Panchayat, the agreement dated 24.7.1992 between the husband of Shanti Devi and Shankar Lal, the agreement dated 24.7.1992 with Phool Chand himself as also the site inspection by the Tehsildar it was established that the respondent, Shanti Devi was seeking the protection of the existing right of way and not the creation of new way to the agriculture field in Khasra Nos. 204 and 205 through Khasra Nos. 201 and 203. 7. Having considered the impugned orders dated 21.4.2010, passed by the Board of Revenue, the order dated 24.2.2009 passed by the District Collector Jhunjhunu and also the order dated 6.2.2008 passed by the Naib Tehsildar, I am of the view that the issue in the present writ petition is as to whether the findings of fact required to be arrived at in a summary inquiry under Section 251 of the Act of 1955 are perverse. On a conspectus of the matter, I find that the Board of Revenue has taken into consideration various material referred to above and come to a correct finding that a right of way did indeed exist through Khasra Nos. 201 and 203 belonging to the petitioner to be agricultural fields of the respondent Shanti Devi situated in Khasra No. 204 and 205. 201 and 203 belonging to the petitioner to be agricultural fields of the respondent Shanti Devi situated in Khasra No. 204 and 205. The Board of Revenue has also rightly held that the findings of the Collector, Jhunjhunu to the contrary were perverse on the facts on record and that the case set up by Shanti Devi was fully covered by Section 251 of the Act of 1955 as what was sought was to protect an existing right of way and not the creation of a new one. The Board of Revenue thus upheld the findings of fact arrived at by the Naib Tehsildar that the respondents application under Section 251 of the Act of 1955 was to be allowed. 8. I find that the order of the Board of Revenue is based on the evidence on record and ought to be sustained. In this view of the matter, I find no reason to interfere with the order dated 21.4.2010, passed by the Board of Revenue. 9. The writ petition is without force and same is dismissed.