Rajasthan High Court
Nopa Ram And Others vs Hardeva Ram And Others on 6 May, 2022
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No. 240/2014
1. Nopa Ram, Son of Late Shri Tulcha,
2. Daluram, Son of Late Shri Tulcha,
3. Gopiram @ Gopal, Son of Late Shri Tulcha,
4. Smt. Surji, wife of Late Shri Tulcha,
All resident of Village Rampura, Tehsil & District Sikar
(Rajasthan)
----Appellants/Defendants
Versus
1. Hardevaram, Son of Shri Choturam
2. Dungaram, Son of Shri Lacharam
3. Bajranglal, Son of Shri Bhuaram
4. Bhagwanaaram, Son of Shri Ganeshram
5. Chandraram, son of Shri Gangaram (Deceased)
(LR of deceased Respondent No.5 is already on record as
Respondent No.6 Mohanlal)
6. Mohanlal, Son of Late Shri Chandraram
7. Jhabarmal, Son of Shri Begaram
8. Padmaram, Son of Shri Bhudaram
All resident of Village Rampura, Tehsil & District Sikar
(Rajasthan)
----Respondents/Plaintiffs
For Appellant(s) : Mr. Ashok Sharma
For Respondent(s) :
HON'BLE MR. JUSTICE SUDESH BANSAL
Judgment
06/05/2022
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
(2 of 6) [CSA-240/2014]
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:-
अतः वादीगण का वाद बाबत उद्घोषणा, आदशशाात्मक व्ादशशा तथा सथाई
निषशधाजा नवरुद्ध प्रनतवादीगण सव्् नसव्यय डियय डिक्यय डिक्री नक्ा री किया जाकर उद्घोनषत नक्ा री किया जाता ह
क्यय डिक्री वादपत्र क्यय डिक्री धारा ३ म वनणव त तथा सलसलगि मािन मानचित्र प्रदशाव म सव्यय डिरदर्श में डॉट-सव्यय डिरदर्श में डॉट सश दनशाव त
रासता वादीगण कश खशतेतों मं आवागमि का रासता ह, नरी किया जस रासता का उप््घोग,
उपभ्घोग म प्रनतवादीगण वण उसकश पपररवाररी किया जि क्घोई बाधा िह नहीं सव्यय डिालश तथा री किया ज्घो रासता
पवप व सश न्ा्ाल् कश आदशशा सश मानचिाल प ह, नरी किया जसक्घो मानचिाल प रखश। नि्मािससार नसव्यय डियय डिक्यय डिक्री
पर मानचिा बिा्ा री किया जावश।
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
(3 of 6) [CSA-240/2014]
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 "क" to "ख". 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 " क" to "ख",
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 ( पगसव्यय डिंसव्यय डिी). Even
(4 of 6) [CSA-240/2014]
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 (पगसव्यय डिंसव्यय डिी), 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 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
(5 of 6) [CSA-240/2014]
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. 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
(6 of 6) [CSA-240/2014]
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.
(SUDESH BANSAL),J
SACHIN/34
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