Rajasthan High Court
Rameshwar Lal S/O Chanda Ram vs Rajendra Kumar S/O Mangi Lal on 20 October, 2021
Bench: Prakash Gupta, Vinod Kumar Bharwani
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Special Appeal Writ No. 182/2021
1. Rameshwar Lal S/o Chanda Ram, Aged About 75 Years,
2. Pannalal S/o Dilsukh,
3. Suresh Kumar S/o Mala Ram,
All R/o Didhadwa, Tehsil Chirawa, District Jhunjhunu.
----Appellants
Versus
1. Rajendra Kumar S/o Mangi Lal,
2. Bhagawana Ram
3. Jai Karan
4. Dalbeer Singh
5. Hawa Singh
All S/o Ganpat,
6. Bhadar S/o Sanwal Ram,
7. Radhey Shyam S/o Rameshwar Lal,
All R/o Dhidhawa, Tehsil Chirawa, District Jhunjhunu.
8. Nayab Tehsildar, Surajgarh, District Jhunjhunu.
----Respondents
For Appellant(s) : Mr. Harish Agrawal, Advocate
HON'BLE MR. JUSTICE PRAKASH GUPTA
HON'BLE MR. JUSTICE VINOD KUMAR BHARWANI
Judgment
20/10/2021
This special appeal has been filed by the appellants
against the order dated 20.1.2021 passed by the learned Single
Judge of this Court, whereby the writ petition filed by the
appellants has been dismissed.
(2 of 3) [SAW-182/2021]
Facts of the case are that on 8.7.2010, the respondents
no. 1 to 6 submitted an application before SDO, Chirawa for
removal of encroachment from 'Prachalit Rasta' passing through
the land belonging to Mandir Mafi in village Dhidhawa, Sub Tehsil
Surajgarh, which was marked to Naib Tehsildar, Surajgarh and
thereafter to Patwari. The Halka Patwari, Pilani submitted his
Mauka Nazri Naksha report. On the basis of the said report, Naib
Tehsildar issued notice dated 23.7.2010 to the petitioners and the
petitioners were asked to remove the encroachment. Statement of
witnesses were recorded and thereafter on 31.8.2010, Naib
Tehsildar passed the order directing to open 10 ft. wide road
through the land in question. Against the impugned order dated
31.8.2010, the petitioners preferred an appeal before District
Collector, Jhunjhunu, which was dismissed vide order dated
3.5.2011. After dismissal of the appeal, the petitioners filed a
revision under Section 230 of the Rajasthan Tenancy Act, 1955
(for short, 'the Act of 1955') before the Board of Revenue, Ajmer,
which was dismissed vide judgment dated 11.8.2020. Being
aggrieved by the judgment dated 11.8.2020, the petitioners filed
S.B. Civil Writ Petition No. 526/2011 before this Court, which
came to be dismissed vide order dated 20.1.2021. Hence, this
special appeal.
Learned counsel for the appellants submits that Section
251 of the Act of 1955 applies to private way, whereas the
respondents sought relief in relation to a public way. Hence, the
impugned orders are liable to be quashed and set-aside.
Heard. Considered.
After considering the provisions of Section 251 of the
Act of 1955, the learned Single Judge dismissed the writ petition
(3 of 3) [SAW-182/2021]
observing that Section 251 of the Act of 1955 is not restricted to
the right of way or easementary right qua any private land only.
Whenever any right of way of a land holder is obstructed, the
Tehsildar is clothed with jurisdiction to inquire into and pass an
appropriate order.
In compliance of the order dated 23.2.2021 passed by
the Coordinate Bench of this Court, the appellant placed on record
copy of the Jamabandi, Nakal Milan Kshetraphal and map, from
perusal of which, it is not evident that there is any public way.
Even a perusal of the application submitted by the
respondents shows that they sought relief in relation to a Prachalit
Rasta (prevailing way) and not in relation to a public way. In the
Patwari report, the way in question was shown as pathway and not
a public way. Thus, we find no force in the contentions of learned
counsel for the appellants.
For the aforesaid reasons, the appeal being bereft of
any merit, is liable to be dismissed, which stands dismissed
accordingly.
Consequent upon the dismissal of the appeal, the stay
application does not survive and the same also stands dismissed
accordingly.
(VINOD KUMAR BHARWANI),J (PRAKASH GUPTA),J
DK/41
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