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2014 DIGILAW 1364 (RAJ)

Hema Ram v. Ram Singh

2014-07-08

SANGEET LODHA

body2014
JUDGMENT : Sangeet Lodha, J. These writ petitions are directed against order dated 2.5.14 passed by the Additional District Judge, Sujangarh in Appeal No. 6/10, affirming the order dated 29.5.10 passed by the Civil Judge (J.D.), Sujangarh in Civil Misc. Case No. 13/10 granting injunction in favour of the plaintiff Ram Singh. 2. The relevant facts are that the plaintiff-Ram Singh preferred a suit for 'declaration of easementary right and permanent injunction against the defendants-Smt. Jethi and others, accompanied by an application seeking temporary injunction. The plaintiff claimed that he is using a way passing through the agriculture field of the defendants since the time of his forefathers and therefore he has acquired an easementary right to use the way. The temporary injunction was sought by the plaintiff in terms that pending disposal of the suit, the defendants may be restrained from obotructing the existing way available to the petitioner and may not create hindrance in movement of his livestock, tractor, camel cart etc. passing through the existing way. 3. The application seeking temporary injunction was contested by the defendants by filing 3 reply thereto. The defendants specifically denied existence of any way passing through their agriculture field. It was averred that the plaintiff is having way through the land of his brother, which was their joint khatedari land prior to partition thereof and even at present, the petitioner is using the way passing through the land fallen in the share of his brother. 4. During the pendency of the application seeking temporary injunction, when submitted the site inspection report accompanied by the map on 4.8.09, observing that a 'pagdandi' exists at the place 'B to C' in the agriculture field of the defendants but no way exists at the place marked as 'C to D'. However, the report submitted by the Commissioner was rejected by the court vide order dated 29.9.09 on the application being preferred on behalf of the defendants and a new Commissioner was appointed for site inspection, who submitted the report after site inspection on 5.10.09 wherein, it was specifically observed that no approach road to the petitioner's agriculture field exists at the disputed place. However, it was observed that at the place marked in the map as 'B to C., there exists some signs of existence of the way. 5. However, it was observed that at the place marked in the map as 'B to C., there exists some signs of existence of the way. 5. After due consideration of the rival submissions and the site inspection report submitted by the Commissioner, the trial court passed an order granting temporary injunction in favour of the plaintiff in terms that except the time when the crop is standing, the defendants shall not obstruct the passing of livestock, camel cart and tractor of the plaintiff through their o agriculture field and during the time when the crop is standing, the plaintiff shall not be restrained from using the 'pagadandi' as approach road to his agriculture field. Aggrieved by the injunction granted as aforesaid, the defendants preferred an appeal before the appellate court. The appellate court found that from the inspection report, it appears that there is no existing way available for passing of the camel cart, tractor and livestock, however, it appears that the way is being used as 'pagdandi'. The appellate court observed that the plaintiff has partially proved the facts for establishing his easementary right and therefore, it is not relevant as to whether an alternative way is available to the plaintiff or not. Accordingly, the appellate court declined to interfere with the order of injunction granted by the trial court and dismissed the appeal by the order impugned. Hence, these petitions by the rival parties. 6. Mr. A.R. Godara, learned counsel appearing for the defendants-non applicants, submitted that the appellate court has seriously erred in affirming the order passed by the trial court granting temporary injunction in favour of the plaintiff. Learned counsel submitted that as per the site inspection report, no way passing through the agriculture field of the defendants exists, which is claimed to be used by the plaintiff as approach road to his agriculture field. Learned counsel submitted that ignoring the site inspection report placed on record and without the easementary right of the plaintiff being prima facie established, the finding arrived at by the appellate court that the plaintiff has been able to partially prove his easementary right, is ex facie capricious and perverse. Learned counsel submitted that ignoring the site inspection report placed on record and without the easementary right of the plaintiff being prima facie established, the finding arrived at by the appellate court that the plaintiff has been able to partially prove his easementary right, is ex facie capricious and perverse. Learned counsel submitted that the defendants had taken a categorical stand before the court below that there was a joint agriculture holdings of the petitioner and his brothers and even after partition, the petitioner is using his brothers and even after partition, the petitioner is using his brother's adjoining land for approach to his agriculture field, which remained uncontroverted and therefore, there was no occasion for the court below to conclude that there exists a way passing through the agriculture field of the petitioner, which is being used by the plaintiff as approach road to his agriculture field. Learned counsel submitted that even if the suitable way is not available to the petitioner for approach to his agriculture field, the defendants cannot be compelled to provide him the way and it is always open for the petitioner to approach the revenue authorities under the provisions of Rajasthan Tenancy Act, 1955 (for short "the Act of 1955") to provide him the suitable way. Learned counsel submitted that as a matter of fact, the suit preferred by the petitioner before the civil court is not maintainable by virtue of provisions of Section 207 of the Act of 1955. Accordingly, it is submitted that the order impugned passed by the appellate order affirming the order passed by the trial court granting injunction in favour of the plaintiff deserves to be set aside. 7. On the other hand, the counsel appearing for the plaintiffs-Jethi Devi and others, submitted that all the relevant aspects i.e. prima facie case, balance of convenience and irreparable loss having been found in favour of the petitioner, the court below has seriously erred in not granting the injunction as prayed for. Learned counsel submitted that the court below has 4: seriously erred in granting the limited injunction permitting the use of the way only at the time when the crops are not standing in the agriculture field of the defendants, amounts to denial of the relief inasmuch as, the way is required to be used for passing of tractors and camel cart at the time of ploughing of the field. Learned counsel submitted that no fruitful purpose will be served in so permitting the petitioner to use the 'pagdandi' at the time when there is no standing crop in the agriculture field of the defendants and therefore, the order granting injunction passed by the court below, affirmed by the appellate court, deserves to be modified. 8. I have considered the rival submissions of the learned counsel for the parties and perused the material on record. 9. It is to be noticed that thought the petitioner claimed easementary right to use the ways alleged to be passing through the agriculture field of the plaintiff but no evidence worth the name, was brought on record to prima facie establish the easementary right. As per the commissioner's report, no way exists which is alleged to be used by the plaintiff as approach road to his agriculture field. A perusal of the site inspection report submitted by the Commissioner accompanied by a map, in no manner suggests that there exists a way which could have been used by the petitioner for the said purpose. It is not disputed before this court that the petitioner and his brother were having joint agriculture holdings and there was an existence of a way for approach to their joint agriculture field. On being asked by the court as to when the partition has taken place amongst the brothers, the counsel appearing for the plaintiff had no answer. From bare perusal of the map, it appears that the plaintiff and his brother must be using the existing way as ) approach road to their joint agriculture field. Moreover, a specific stand taken by the defendants that the petitioner is using the land falling in his share of his brother as approach road to his agriculture field remains uncontroverted. Suffice it to say that on the basis of the material on record, no inference of the existence of the way as claimed by the petitioner can be drawn and 5 without there being any evidence prima facie establishing the easementary right alleged to have been accrued to the petitioner, the findings arrived at by the trial court, affirmed by the appellate court regarding prima facie case being in favour of the plaintiff, is ex facie perverse. 10. There is yet aspect of the matter. 10. There is yet aspect of the matter. As per Section 251 of the Act of a 1955, in the event of any holder of the land, in actual enjoyment of 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 the land so disturbed and after making a summary inquiry into the fact of such enjoyment and disturbance, order the disturbance to 5 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. Of course, sub- section (2) of Section 251 of the Act, specifically provides that any order passed under Section 351(1) shall not debar the person from establishing such right or easement as he may claim by a o regular suit in a competent civil court. But then, the person claiming the right to way on the basis of the easement must prima facie establish accrual of the easementary right by producing the cogent evidence on record. 11. It is pertinent to note that as per provisions of Section 251-A of the Act of 1955, a tenant or a group of tenants intended to have a new way, or is enlargement or widening of an existing way, through the holding of another khatedar to have access to his holding or, as the case may be, their holdings and the matter is not settled by mutual agreement, they may apply for such facility to the Sub Divisional Officer concerned, who in his turn on such application being made, may pass an order directing opening of the new way so from holdings of a khatedar tenant on being satisfied after summary inquiry that it is absolutely necessary and it is not for mere convenient enjoyment of the holding and there is absence of alternative means of access. In this view of the matter if no way is available to the plaintiff for approach to his agriculture field, the appropriate remedy is available to him under the law. 12. In view of the discussion above the writ petition being No. 4133/14 preferred by the petitioners/defendants- Hema Ram and others, succeeds, it is hereby allowed. The writ petition being No. 3900/14 preferred by the petitioner/plaintiff-Ram Singh is dismissed. 12. In view of the discussion above the writ petition being No. 4133/14 preferred by the petitioners/defendants- Hema Ram and others, succeeds, it is hereby allowed. The writ petition being No. 3900/14 preferred by the petitioner/plaintiff-Ram Singh is dismissed. The order impugned dated 2.5.14 passed by the Additional District Judge, Sujangarh in Appeal No. 6/10, affirming the order dated 29.5.10 passed by the Civil Judge (J.D.), Sujangarh in Civil Misc. Case No. 13/10 granting injunction in favour of the plaintiff-Ram Singh, is set aside. The application preferred by the plaintiff-Ram Singh seeking temporary injunction before the trial court being No.38/09 shall stand dismissed. Nor order as to costs. Writ petition allowed.