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2022 DIGILAW 1453 (RAJ)

Nopa Ram v. Hardevaram

2022-05-06

SUDESH BANSAL

body2022
JUDGMENT 1. Appellants-defendants have preferred this second appeal, invoking the jurisdiction of the High Court under Section 100 CPC assailing the judgment and decree dated 19.03.2014 passed in Civil Regular Appeal No.(1/2004) (9/2004) 95/2005 by the Court of Additional District Judge No.2, Sikar affirming the judgment and decree dated 11.12.2003 passed in Civil Suit No.17/2003(53/1997) by the Court of Additional Civil Judge (Senior Division), Sikar District, Sikar whereby and whereunder the civil suit for declaration and permanent injunction, filed by respondents-plaintiffs, has been decreed in following manner:- 2. On perusal of record, it transpires that respondent-plaintiffs claimed a way from village Rampura to Bhagsar Talai, Vilage Puran Bari to have access to their agricultural land and since the aforesaid way, passes through the agricultural lands of appellant- defendants, in which defendants raised some obstruction, hence the present civil suit was filed. 3. It was claimed by plaintiffs that the way in question is being used by them since time of their predecessors and the same has been indicated in the revenue map with dotted lines. Plaintiffs claimed that there is no alternative way to have access to their agricultural land, hence plaintiffs have an easementary right by way of necessity to have their way through the way in question. The width of the way as alleged to be near about 8 hands wide. In counter to the claim of plaintiffs, defendants submitted written statements denying the way in question and alleged that during course of settlement, the way through dotted lines in the revenue map has wrongly been indicated for which defendants moved an application under Section 136 of the Land Revenue Act for seeking correction in the map before the Sub-Divisional Officer. Defendants also contended that plaintiffs have an alternative way, which was shown by defendants in the site map (Exhibit-A1) from mark "?" to "?'. Defendants contended that in view of having the alternative way, plaintiffs cannot claim a declaration of the right of easement and their civil suit deserves to be dismissed. 4. Defendants also contended that plaintiffs have an alternative way, which was shown by defendants in the site map (Exhibit-A1) from mark "?" to "?'. Defendants contended that in view of having the alternative way, plaintiffs cannot claim a declaration of the right of easement and their civil suit deserves to be dismissed. 4. Having considered rival pleadings of both parties and after framing issues as also recording the evidence of both parties, learned trial court has recorded a finding of fact that plaintiffs have proved that the way in question exists at site and they, since time of their predecessors, are using the way in question for having access to their fields, on foots as well as through vehicles like bullock carts, tractors etc. 5. The oral evidence of plaintiffs and their witnesses finds corroboration with the report of the Court Commissioner [Exhibit- 12(3)], which shows that the way in question is available at site having width of 15 feet wide. It may be noticed that defendants have not raised any objection against the report of the Court Commissioner. Plaintiffs and their witnesses, categorically denied having any alternative way and explained that the alternative way, shown by defendants in map (Exhibit-A1) from mark "?" to "?', does not link the agricultural land of plaintiffs. 6. The trial court also observed that in the revenue map also the way in question has been shown. Further, by the evidence of defendants and their witnesses, it transpires on record that defendants and their witnesses have also admitted the existence of the way in question at site like a trail/beaten path Even the witness of defendants, DW.4, admits that the width of this trail is 6 to 7 feet wide. 7. The trial court further observed that defendants in their written statements categorically denied the existence of any way, however, in evidence they have admitted the existence of way in form of trail ,hence defendants have not disclosed the correct facts in their pleadings. The trial court observed that as far as the availability of alternative way is concerned as shown by defendants, the same does not link plaintiffs' agricultural land to have access in their agricultural fields. 8. The trial court observed that as far as the availability of alternative way is concerned as shown by defendants, the same does not link plaintiffs' agricultural land to have access in their agricultural fields. 8. The trial court has discussed giving Khasra numbers of plaintiffs and defendants' land, while considering the availability of alternative way and has concluded that there is no alternative way to have access to plaintiffs' fields except the way in question. 9. On appreciation of such oral and documentary evidence, the trial court decided issue Nos. 1 & 2 in favour of plaintiffs and decided issue No.6 against defendants. 10. The trial court has also taken into consideration the nature of the application moved by defendants under Section 136 of the Land Revenue Act before the SDO and observed that pendency of such application does not affect the declaration of the way in question by way of easementary right and passing injunction order by the civil court. Accordingly, issue No.5 has been decided against defendants. 11. After appreciation of fact and material available on record including pleadings and evidence of both parties, report of the Court Commissioner, revenue map and pendency of the application filed by defendants under Section 136 of the Land Revenue Act, the trial court has passed the decree for declaration and permanent injunction in the manner mentioned hereinabove. 12. Appellants-defendants challenged the judgment and decree of the trial court by way of first appeal. The first appellate court re-appreciated the fact and law as also re-considered the pleadings and evidence of both parties and concurred that fact findings recorded by the trial court do not suffer from any infirmity and the same is within the parameters of law and within jurisdiction. Accordingly, the first appeal was dismissed vide judgment and decree dated 19.03.2014 affirming fact findings of the trial court. 13. Having heard learned counsel for appellants, on perusal of impugned judgments and record, this Court finds that the defence, of defendants that plaintiffs have an alternative way and that the way in question does not exist at site, have properly been considered and dealt with by both courts below. 13. Having heard learned counsel for appellants, on perusal of impugned judgments and record, this Court finds that the defence, of defendants that plaintiffs have an alternative way and that the way in question does not exist at site, have properly been considered and dealt with by both courts below. At one hand, plaintiffs by way of their oral and documentary evidence have proved the existence of way and having no alternative way, on the other hand even as per the admission of defendants and their witnesses, the existence of the way in question has been found at site. It has been observed that no alternative way is available to have access to plaintiffs' agricultural fields. 14. Such findings, recorded by two courts below, are based on appreciation/re-appreciation of evidence. 15. It is a trite law that while exercising the jurisdiction of the High Court under Section 100 of CPC, re-appreciation of evidence as a whole to draw a fresh conclusion, than the conclusion recorded by two courts below, is impermissible unless and until fact findings of two courts below suffer from any infirmity/perversity which leads to miscarriage of justice. 16. In the present case, counsel for appellants could not point out any perversity in the fact findings. In absence of any perversity, no substantial question of law arises against the concurrent findings of fact recorded by two courts below. The substantial question of law is sine qua non to entertain the second appeal and in absence of involvement of any substantial question of law, this second appeal deserves to be dismissed and the same is hereby dismissed. 17. Stay application as well as other pending application(s), if any, also stand(s) disposed of. 18. Record of both courts be sent back.