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2023 DIGILAW 1738 (RAJ)

Shivdayal Singh v. Bhagirath

2023-09-12

REKHA BORANA

body2023
ORDER : 1. The present revision petition has been filed by petitioner-defendant No. 3 against order dated 08.02.2017 passed by Senior Civil Judge, Ratangarh (Churu) in Civil Original Suit No. 04/2014 whereby an application under Order VII Rule 11 of the Code of Civil Procedure as preferred by him has been dismissed. 2. Before proceeding on with the facts of the present case, it is relevant to note that the present revision petition was earlier dismissed vide order dated 01.06.2017 but review petition against the said order having been allowed vide order dated 02.04.2019, the present revision petition was restored and the same was directed to be listed for consideration afresh. 3. The facts of the case are that a suit for declaration and permanent injunction was filed by Bhagirath, plaintiff No. 1 for declaration that the defendants have no easementary right of way in the plaintiffs' agricultural land. It was averred in the plaint that defendant No. 3 was forcibly trying to create a public way across the agricultural land of the plaintiffs whereas he had no such easementary right of a way qua plaintiffs' agricultural land. 4. An application under Order VII Rule 11, CPC was filed by petitioner-defendant No. 3 with a submission that the suit in question pertained to an agricultural land and hence, in terms of Section 207 of the Rajasthan Tenancy Act, 1955 (hereinafter referred to as, 'the Act of 1955'), would be maintainable only before the Revenue Court. It was prayed that the suit being barred by law, the plaint be dismissed. The application as preferred by defendant No. 3 has been rejected by the trial Court vide the order impugned against which the present revision petition has been preferred. 5. Two questions arise for consideration before this Court in the present petition: First, whether a suit for declaration of an easementary right in negative can be held to be maintainable? Second, whether a suit for declaration that the defendant does not have an easementary right can be maintained before a Civil Court and the suit would not be barred by law in terms of Section 207 of the Act of 1955? 6. To find an answer to question No. 1, this Court would not be required to delve into any further consideration as the reference to the Hon'ble Apex Court judgment in the case of Ram Kanya Bai and Anr. 6. To find an answer to question No. 1, this Court would not be required to delve into any further consideration as the reference to the Hon'ble Apex Court judgment in the case of Ram Kanya Bai and Anr. v. Jagdish and Ors., AIR 2011 SC 3258 would be apt for the said purpose. In Ram Kanya Bai's case (supra), the Hon'ble Apex Court, in clear terms, held as under: “10. When a person (dominant owner) has an easementary right, and the servient owner disturbs, obstructs or interferes with his easementary right, or denies his easementary right, the remedy of the dominant owner is to approach the civil court for the relief of declaration and/or injunction. Similarly, when a person who does not have an easementary right, tries to assert or exercise any easementary right over anothers' land, the owner of such land can resist such assertion or obstruct the exercise of the easementary right and also approach the civil court to declare that the defendant has no easementary right of the nature claimed, over his land and/or that the defendant should be prevented from asserting such right or interfering with his possession and enjoyment.” In view of the above ratio, it is clear that a suit for assertion that any person does not have an easementary right and further, to restrain the said person from asserting such right can be maintained before a Civil Court. 7. The issue involved in the second question also is no more res integra. Dealing with the similar issue and considering the ratio as laid down in the case of Ram Kanya Bai (supra), this Court, in the matter of Aam Janta Butati Dham through its legal representatives v. Maan Singh and Ors., S.B. Civil Second Appeal No. 63/2018 decided on 03.07.2023, held as under: “16. A bare perusal of the above provisions makes it clear that: (i) firstly, any suit or proceeding pertaining to any matter arising under the Tenancy Act would not lie in any Civil Court. (ii) secondly, any suit/application of the nature specified in Third Schedule to the Tenancy Act shall be heard and decided by a revenue Court and a dispute pertaining to right of way or other easement is specified under Article 81 of the Third Schedule to the Tenancy Act. (ii) secondly, any suit/application of the nature specified in Third Schedule to the Tenancy Act shall be heard and decided by a revenue Court and a dispute pertaining to right of way or other easement is specified under Article 81 of the Third Schedule to the Tenancy Act. (iii) thirdly, right of way and other private easement can also be claimed in a regular suit before a competent Civil Court. Meaning thereby, a dispute pertaining to an easementary right qua an agricultural land can be raised before the Revenue Court as well as the Civil Court. It is only the nature of easement and the relief prayed which would decide the jurisdiction.” 8. Applying the above ratio in the present matter, a perusal of the reliefs as prayed for by the plaintiffs in the present suit, makes it clear that the same is for declaration that the defendants do not have any easementary right qua their agricultural land. Meaning thereby, the declaration as prayed for is qua their private land. Section 251 of the Act of 1955 provides as under: “251. Rights of way and other private easement: (1) 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. (2) No order passed under this section shall debar any person from establishing such right or easement as he may claim by a regular suit in a competent civil court.” 9. As held in Aam Janta Butati Dham's case (supra), for any relief for right of way or other private easement, a suit can be maintained before a Civil Court. (2) No order passed under this section shall debar any person from establishing such right or easement as he may claim by a regular suit in a competent civil court.” 9. As held in Aam Janta Butati Dham's case (supra), for any relief for right of way or other private easement, a suit can be maintained before a Civil Court. So far as the case of Ram Kanya Bai (supra) is concerned, the provision of Section 131 of the Madhya Pradesh Land Revenue Code, 1959 under consideration in the said judgment being para materia to Section 251 of the Act of 1955, the principles/ratio as laid down in Ram Kanya Bai's case (supra) would be applicable to the present matter also. In Ram Kanya Bai's case, the Hon'ble Apex Court held that a suit for declaration that the defendant does not have any easementary right over plaintiffs' property or a suit for injunction to restrain a defendant from interfering with the possession of plaintiff or exercising any easementary right over plaintiffs' property is not barred by the Code. The Court concluded that the contention that Tehsildar alone has the jurisdiction and not the Civil Court to decide upon the existence or otherwise to customary easement would not be tenable. The said ratio would squarely cover the dispute in the present matter too. 10. In view of the above position of law, this Court is of the specific opinion that rejection of the application under Order VII Rule 11, CPC by the Court below is totally in consonance with law and does not deserve any interference. So far as the judgments relied upon by learned counsel for the petitioner are concerned, all of them pertain to the matters wherein the Court was of a clear opinion that the suits in question were frivolous or vexatious. It is in view of the said observation that the Court observed that such litigation ought to be nipped in the bud at the earliest and the plaint ought to be rejected in terms of Order VII Rule 11, CPC. The ratio as laid down in the said judgments would clearly not apply to the present matter as neither the suit as preferred by the plaintiffs is vexatious or frivolous nor the issue raised in the same can be decided without a full-fledged trial and hearing on the same. 11. The ratio as laid down in the said judgments would clearly not apply to the present matter as neither the suit as preferred by the plaintiffs is vexatious or frivolous nor the issue raised in the same can be decided without a full-fledged trial and hearing on the same. 11. In view of the above analysis, this Court does not find any ground to interfere with the order impugned and the revision petition is hence dismissed. 12. Stay petition and all the pending applications, if any, stand disposed of.