Rajasthan High Court

Om Prakash S/O Dhanna vs Narayan S/O Bhairu on 21 November, 2022

Bench: Sudesh Bansal

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

            S.B. Civil Second Appeal No. 611/2018

Om Prakash S/o Dhanna, R/o Gram Samod, Tehsil Chomu
District Jaipur
                                               ----Appellant-Defendant
                                 Versus
1.     Narayan S/o Bhairu, R/o Gram Samod Tehsil Chomu
       District Jaipur (Died During The Pendancy Of First Appeal)
1/1.   Smt. Pachi Devi W/o Narayan,
1/2.   Mohan Lal S/o Narayan,
1/3.   Dayashankar S/o Narayan,
       All R/o Gram Samod Tehsil Chomu District Jaipur
1/4.   Smt. Nathi Devi W/o Ganpat D/o Narayan, R/o Samod
1/5.   Smt. Manbhari Devi W/o Rameshwar D/o Narayan, R/o
       Grham Dholi Aamlod Tehsil Shahpura
1/6.   Smt. Kailashi W/o Nanchuram D/o Narayan, R/o Grham
       Kaledera Tehsil Chomu District Jaipur
1/7.   Smt. Rudi W/o Radheyshyam,
1/8.   Banwari S/o Radhey Shyam,
1/9.   Puranmal S/o Radhey Shyam,
1/10. Ramdhan S/o Radhey Shyam,
1/11. Sitaram S/o Radhey Shyam,
1/12. Chotilal S/o Radhey Shyam,
1/13   Arjun Lal S/o Radhey Shyam,
1/14. Govindram S/o Radhey Shyam,
       All R/o Grham Samod Tehsil Chomu District Jaipur
1/15. Smt. Parwati W/o Kalyan Sahai D/o Radhey Shyam, R/o
       Harnathpur District Jaipur
                                            .......Plaintiff-Respondents

2. Suni Lal S/o Dhanna (Died During The Pendency Of First Appeal), 2/1. Smt. Phooli Devi W/o Suni Lal, 2/2. Pooranmal S/o Suni Lal, 2/3. Sawarmal S/o Suni Lal, 2/4. Govind Ram S/o Suni Lal,

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All R/o Grham Samod Tehsil Chomu District Jaipur 2/5. Smt. Sharda W/o Jagdish D/o Suni Lal, R/o Ishwarisinghpura Tehsil Amber District Jaipur 2/6. Smt. Anita Devi W/o Sonu D/o Suni Lal, R/o Nanusar Tehsil Amber District Jaipur

3. Barji W/o Dhanna, R/o Grham Samod Tehsil Chomu District Jaipur

--Defendants-performa-Respondents

For Appellant(s) : Mr. Amit Gupta For Respondent(s) :

HON'BLE MR. JUSTICE SUDESH BANSAL

Judgment

21/11/2022

1. Appellant-defendant (hereafter referred to as 'defendant')

has filed this second appeal under Section 100 of C.P.C, assailing

the judgment and decree dated 29.08.2018 passed in civil first

appeal No.34/2010 (117/2010) by Additional District Judge,

Chomu, District Jaipur affirming the judgment and decree dated

23.11.2010 passed in civil suit No.33/2002 by Civil Judge (Jr.

Division) Chomu, District Jaipur whereby and whereunder

respondent-plaintiff's suit for permanent injunction in respect of a

way in question has been decreed in following terms:-

"अतः वाद वादी ववरुद्ध प्रवतवादीगण गण बागण बत बत सााई व्थाई निषानिषेधाषेधाजा बत सवीञा स्वीकार वञा स्वीकीकार किया जााञा स्वीकर प्रवतवादीगण ञा स्वीकको इस आशीकार किय ञा स्वीककी बत सााई व्थाई निषानिषेधाषेधाजा सा े पागण ब पाबंद वञा स्वीकीकार किया जााता हत वञा स्वीक वा वादग्रबत सत राबत सता ञा स्वीकको वञा स्वीकसी तरह सा सञा स्वीकसकड़ा अावा गण ब पाबंद ्थाई निहद नहीं ञा स्वीकरा और वादग्रबत सत राबत सता ञा स्वीका उे पीकार कियकोग उे पउपभकोग मो वादी ञा स्वीकको वञा स्वीकसी तरह वञा स्वीक ञा स्वीककोई गण बानिषेधा ्थाई नि तको बत सवीकार किय पाबं ञा स्वीकरीत ञा स्वीकरा ्थाई निाही अे प्थाई निा अवउपभञा स्वीकता् , ञा स्वीकम्चारी ीकार किया ञा स्वीकामगार सा ञा स्वीकरावा।

खचा् े पक्षञा स्वीकार अे प्थाई निा-अे प्थाई निा वहा पाबं ञा स्वीकर। े पचा् आषेधाजव्ञप्ति तद्थाई नििसार ववव्थाई निवम् त वञा स्वीकीकार किया जाावा। "

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2. Heard learned counsel for appellant, perused the impugned

judgments and record.

3. It appears from the record that plaintiff claimed easementary

right of way through Khasra No.1437, 1437/2353, 1440/2222 and

1424 in order to reach their agricultural land and residence in

Khasra No.1421, 1422 at village Samod, Tehsil Chomu, District

Jaipur. Plaintiff claimed 15 feet wide way is available through the

afore-stated khasra numbers through which tractor trolley, bullock

cart and other vehicles have their egress and ingress and plaintiff

has an easementary right to use this way in question. Defendants

submitted written statement and contended that land of Khasra

Nos.1437/2353 and 1440/2222 is land of their personal Khatedari

through which no way exists. Defendants also raised objection

that since plaintiff has not asked for any declaration of way in

question, therefore, his civil suit for permanent injunction is not

maintainable.

4. The trial court, on the basis of rival pleadings, settled issues

and recorded evidence of both parties.

Issue No.1 is in respect of grievance of plaintiff that

defendants are inclined to squeeze/close the way in question and

issue No.2 is in respect of jurisdiction of civil court.

5. According to the evidence of both parties, it has come on

record that as far as land of Khasra No.1437 is concerned, the

same is 'Siwai Chak' and Khasra No.1437/2353 and Khasra

No.1440/2222 belongs to defendants in the revenue record as

'Gair Mumkin Rasta' has been shown. Land of Khasra No.1424

belongs to other Khatedar, who never objected. DW-1 Om Prakash

has admitted that the way in question has been shown in the

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revenue record but he states that the same was done by

inadvertently through the land settlement proceedings. He also

admits that he never objected or took steps to correct the revenue

map/intries. DW-1 admits having way through the land of Khasra

No.1437/2353 but he submits that the way is only 5 feet wide.

DW-2 Suni Lal also admitted in his cross-examination that there

exists way in their Khatedari land through which plaintiff has also

his movement.

6. As per the respective evidence of both parties, the trial court

observed that it is not in dispute that the way through the Khasra

as claimed by the plaintiff exists at site, only the issue is whether

the width of way is 15 feet or 5 feet. As per evidence on record

that through the way in question, the bullock cart, tractor trolley

and other vehicles also have their egress and ingress, trial court

recorded fact findings that the width of way is 15 feet wide.

7. As far as objection in respect of jurisdiction of civil court is

concerned, the trial court adverted to the provisions of Section

251 (2) of Rajasthan Tenancy Act, 1955 (hereafter referred to "

the Act of 1955") and observed that the civil court has jurisdiction

to entertain a civil suit as the jurisdiction is not barred, if any

person claims or establishes his easementary right on the way.

Finally, the civil suit was decreed vide judgment and decree dated

23.11.2010.

7. Three defendants jointly instituted first appeal challenging

the judgment and decree dated 23.11.2010. The first appellate

court re-considered and re-appreciated the evidence and observed

that when defendants; DW-1 and DW-2 have admitted existence

of way in question through their fields and as per the report of

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Patwari (Ex.4), it is clear that in order to reach the land of Khasra

No.1421 and 1422 which belongs to plaintiff, the way goes

through in between the land of Khasra No.1425 and 1424 through

Khasra No.1437, 1437/2353, 1440/2222, 1420 and 1435.

Appellate court has also observed that there is no alternative

way shown/available for the plaintiff, therefore fact findings in

respect of way in question as also about its width as 15 feet was

affirmed. In respect of jurisdiction of civil court, appellate court

too held that since the plaintiff has claimed easementary right,

therefore, the jurisdiction of civil court is not barred.

8. Counsel for appellant-defendant has argued that since the

plaintiff did not ask for a relief of declaration of easementary

rights, the suit for permanent injunction before the civil court is

barred by virtue of Section 251 (2) of Rajasthan Tenancy Act,

1955. The provision of Section 251 (2) of the act of 1955 reads as

under:-

"251. Rights of way and other private easement-- (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. Having considered the aforesaid provisions, it is clear that

the jurisdiction of civil court to entertain a regular civil suit is not

barred when a person approaches the civil court to establish his

right of easement of way. In the present case, the plaintiff has

pleaded in para No.2 of the plaint that the plaintiff has an

easementary right through the way in question.

As far as existence of way is concerned, defendants

themselves admitted in their statements and the revenue record

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has already come on record which shows that the way in question

is shown in the revenue record.

10. Defendants have not challenged the record of revenue

showing the way through their agricultural fields. In that view of

matter, when the way is established in the revenue record and the

plaintiff has claimed his easementary right as also has proved by

his evidence that the plaintiff as well as other villagers have their

access through this way in question in the opinion of this Court,

two courts below have not committed any jurisdictional error or

material illegality in entertaining and decreeing the plaintiff's suit

for permanent injunction. Arguments raised by learned counsel for

appellant is not acceptable as per the pleadings, evidence and

circumstance of present case.

11. In Navaneethammal Vs. Arjuna Chetti [(1996)6 SCC

166], the Apex Court held as under:-

"Interference with the concurrent findings of the courts below by the High Court under Section 100 CPC must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to re-appreciating the evidence just to replace the findings for the lower courts............Even assuming that another view is possible on a re-appreciation of the same evidence, that should not have been done by the High Court as it cannot be said that the view taken by the First Appellate Court was based on no material."

12. In case of Gurnam Singh Vs. Lehna Singh [(2019) 7 SCC

641], the Apex Court held as under:-

"Before parting with the present judgment, we remind the High Courts that the jurisdiction of the High Court, in an appeal under Section 100 of the CPC, is strictly confined to the case involving substantial question of law and while deciding the second appeal under Section 100 of the CPC, it is not permissible for the High Court to reappreciate the evidence on record and interfere with the

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findings recorded by the Courts below and/or the First Appellate Court and if the First Appellate Court has exercised its discretion in a judicial manner, its decision cannot be recorded as suffering from an error either of law or of procedure requiring interference in Second Appeal. We have noticed and even as repeatedly observed by this Court and even in the case of Narayanan Rajendran v. Lekshmy Sarojini, (2009) 5 SCC 264, despite the catena of decisions of this Court and even the mandate under Section 100 of the CPC, the High Courts under Section 100 CPC are disturbing the concurrent findings of facts and/or even the findings recorded by the First Appellate Court, either without formulating the substantial question of law or on framing erroneous substantial question of law."

13. In case of State of Rajasthan v. Shiv Dayal [(2019)8

SCC 637], the Hon'ble Supreme Court held that a concurrent

finding of the fact is binding, unless it is pointed out that it was

recorded de hors the pleadings or it was based on no evidence or

based on misreading of the material on records and documents.

The Hon'ble Court held as under:-

"16. When any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded de hors the pleadings or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against any provision of law and lastly, the decision is one which no Judge acting judicially could reasonably have reached. (see observation made by learned Judge Vivian Bose, J. as His Lordship then was a Judge of the Nagpur High Court in Rajeshwar Vishwanath Mamidwar & Ors. vs. Dashrath Narayan Chilwelkar & Ors., AIR 1943 Nagpur 117 Para 43)."

14. In another case C. Doddanrayana Reddy and Ors. Vs. C.

Jayarama Reddy and ors. [(2020)4 SCC 659], wherein the

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Hon'ble Supreme Court has observed that where two courts have

reached a finding which is not based upon any misreading of

material documents, nor is recorded against provisions of law and

neither can it be said that any Judge acting judiciously and

reasonably could not have reached such a finding, then High

Court is not required to interfere with such fact findings while

exercising its jurisdiction under Section 100 CPC.

15. In view of concurrent findings of fact recorded by two courts

below, this court is not inclined to interfere with impugned