Ram Lal S/o Shri Kalu v. Additonal District Judge No. 3
2016-11-19
DEEPAK MAHESHWARI
body2016
DigiLaw.ai
JUDGMENT : Mr. Deepak Maheshwari, J. 1. Petitioners have preferred this writ petition to challenge the validity of the order dated 29.09.2016 passed by Addl. District Judge No.3, Chittorgarh in Civil Case No.22/2014 (Lehru v. Shambhu Lal & Ors.) whereby the learned lower appellate Court has proceeded to allow the appeal filed by the plaintiff Lehru and reversed the order dated 13.11.2014. 2. Heard learned counsel for both the sides and perused the order dated 13.11.2014 passed by learned Civil Judge, Gangrar as also the order dated 29.9.2016 passed by learned Addl. District Judge No.3, Chittorgarh, also perused the copy of the site plan annexed with the suit and the site inspection report and sketch of the site in dispute prepared by the site commissioner. 3. Facts in brief are that plaintiff Lehru filed a civil suit against the petitioners and other proforma respondents along with an injunction application with the prayer that the defendants be restrained from demolishing the plot of his ownership and possession situated in 'aabadi' area of Gram 'Aajoliya ka Kheda" and further be restrained from causing any damage therein. A counter injunction application was also filed by the respondents for restraining the plaintiff from creating any obstruction in the 15 ft. wide way existing in north side of Khasra No.687, which connects the public way going to village 'Putholi' and the way existing in Khasra No.688. Vide order dated 13.11.2014, learned Civil Judge rejected the application filed by the plaintiff Lehru while granting the application filed by defendants. 4. Aggrieved by the said order, Lehru preferred an appeal, which came to be accepted by learned Addl. District Judge No.3, Chittorgarh vide order dated 29.09.2016 whereby the order passed by Civil Judge was reversed. 5. The present writ petition has been preferred to challenge the propriety and legality of the order dated 29.09.2016 passed by learned Addl. District Judge No.3, Chittorgarh. 6. Learned counsel for the petitioners has argued that the learned Addl. District Judge No.3, Chittorgarh has not recorded the reasons for which he has reversed the order passed by trial Court. Apart from this, he has derived his own conclusions without taking into consideration the relevant documents and ignored the fact that there was no public way available as alleged by the respondents. 7. Per contra, learned counsel appearing on caveat for respondent No.2 has urged that the order passed by learned Addl.
Apart from this, he has derived his own conclusions without taking into consideration the relevant documents and ignored the fact that there was no public way available as alleged by the respondents. 7. Per contra, learned counsel appearing on caveat for respondent No.2 has urged that the order passed by learned Addl. District Judge No.3, Chittorgarh does not suffer from any illegality. Every relevant aspect has been taken into consideration by him including the revenue record and the trace map wherein no public way has been depicted. He has also referred to the site plan prepared by site commissioner wherein it has been clearly indicated that there is no public way connecting two common ways, one going to village 'Putholi' and the other existing on Khasra No.688. He has further submitted that the petitioners herein moved an application before the Sub Divisional Officer to get the way cleared, which comes through Aaraji Khasra No.688. Thus, he submits that an alternative way is available to the petitioners to reach to their residential plot. 8. Learned counsel for the respondent No.2 has relied upon the judgment passed by Hon'ble Apex Court in case of Sadhana Lodh v. National Insurance Co. Ltd. & Anr., reported in (2003) 3 SCC p.524 wherein it has been held as below :- "7. The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is confined only to see whether an inferior court or tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an appellate court or the tribunal. It is also not permissible to a High Court on a petition filed under Article 227 of the Constitution to review or reweigh the evidence upon which the inferior court or tribunal purports to have passed the order or to correct errors of law in the decision." 9. He has also referred to the judgment rendered by this Court in Madan Lal v. Board of Revenue & Ors., reported in 2011 (3) RLW 2021 (Raj.) whereby, relying upon the judgment rendered by Hon'ble Supreme Court in Sneh Gupta v. Devi Sarup & Ors., reported in (2009) 6 SCC p.194, it has been held as under :- "26.
He has also referred to the judgment rendered by this Court in Madan Lal v. Board of Revenue & Ors., reported in 2011 (3) RLW 2021 (Raj.) whereby, relying upon the judgment rendered by Hon'ble Supreme Court in Sneh Gupta v. Devi Sarup & Ors., reported in (2009) 6 SCC p.194, it has been held as under :- "26. It is true that in exercising writ jurisdiction, High Court cannot sit in appeal over the findings of the courts below and therefore cannot be appreciate evidence. Findings of fact recorded by the fact finding authority should ordinarily be considered as final. Findings of the court below should not interfered with, in writ jurisdiction merely on the ground that material on which the court below acted was insufficient or not credible. It is also true that as long as the findings of fact are based on some materials which are relevant, findings may not be interfered with, merely because another view is also possible but where the Court below records findings on no evidence or irrelevant evidence it is open to the High Court to interfere with the order of court below." 10. On the strength of these judgments, learned counsel for the respondent No.2 submits that the scope of writ preferred under Article 227 of the Constitution of India is limited and this Court is not expected to sit as a Court of appeal over the findings given by the Court below. 11. In the light of the principles laid down in above referred judgments, the order impugned passed by learned Addl. District Judge No.3, Chittorgarh was scanned. It does not appear from the perusal of the said judgment that the relevant documents have not been considered. After analysing the site inspection report prepared by the commissioner and the trace map, which is a part of the revenue record, learned Addl. District Judge No.3, Chittorgarh has come to the conclusion that no public way was available as alleged by the present petitioners, on the contrary, an alternative way is available to the petitioners to reach their plot, which is apparent as per the site inspection report. 12. Learned counsel for the petitioners also agrees that alternative way is available for the petitioners through Khasra No.688 but at the same time, he submits that being longer it is not convenient for the petitioners.
12. Learned counsel for the petitioners also agrees that alternative way is available for the petitioners through Khasra No.688 but at the same time, he submits that being longer it is not convenient for the petitioners. More over, the alternative way has been opened in July, 2015 after the suit was filed. Be that as it may, the fact remains that an alternative way is available to the petitioners and it is not the case that no way at all is available for them. 13. In view of above referred judgments, the existing circumstances of the matter in hand do not necessitate that the supervisory jurisdiction available under Article 227 of the Constitution of India be exercised in this matter, as the relevant facts have been properly considered by the learned court below while passing the impugned order dated 29.09.2016. Hence, the writ petition does not deserve to be allowed and the same is accordingly dismissed.