Rajasthan High Court
Dharampal S/O Shivpal vs Hanuman Prasad Lamroad S/O ... on 23 September, 2022
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Revision Petition No. 201/2022
Dharampal S/o Shivpal, Aged About 48 Years, R/o Mehada
Jatuwas, Tehsil Khetri District Jhunjhunu.
----Petitioner/Defendant No.1
Versus
1. Hanuman Prasad Lamroad S/o Pemaram Lamrod, Aged
About 42 Years, R/o Jaroda, Tehsil Merta City District
Nagaur.
2. Pradeep Singh Shekhawat S/o Hoshiyar Singh, Aged
About 27 Years, R/o Kanakpura, District Jaipur.
----Respondents/Plaintiffs
3. Land Holder Tehsildar, Khetri District Jhunjhunu.
----Respondent
For Petitioner(s) : Mr. Gajanand Yadav with
Mr. Subhash Sharma
For Respondent(s) :
HON'BLE MR. JUSTICE SUDESH BANSAL
Judgment
23/09/2022
1. Petitioner-defendant No.1 has preferred this revision petition
under Section 115 of Code of Civil Procedure, assailing the Order
dated 04.07.2022 in Civil Suit No.24/2022 passed by the Court of
Additional Civil Judge, Khetri, Jhunjhunu, whereby and
whereunder his application dated 23.05.2022 filed under Order 7
Rule 11 CPC has been dismissed.
2. Heard counsel for petitioner, perused the impugned order
and plaint.
3. It appears from perusal of plaint that respondents-plaintiffs
have instituted a civil suit for prohibitory and mandatory injunction
against petitioner-defendant No.1 and the Land Holder Tehsildar
on 28.03.2022, stating inter alia that plaintiffs have a mining lease
(2 of 3) [CR-201/2022]
M.S. No.306/2003, in respect of land of Khasra No.920 at Village
Mehada Jatuwas, Tehsil Khetri District Jhunjhunu and for the
purpose of ingress/egress of vehicles to reach the mining leased
land, a way is available in the land of Khasra No.937, which is
recorded in the revenue map as also open at site. It has also been
averred by plaintiffs that this way in question is being used by
plaintiffs and general public since long and plaintiffs have acquired
easementary rights to use this way. It has further been averred
that since defendant No.1 threatened to close the way and in
order to obstruct the way, put some stones and wooden sticks etc.
in the way, therefore, the instant civil suit has been filed.
4. Petitioner-defendant No.1 by way of application under Order
7 Rule 11 CPC has raised three objections:-
(I) No relief for declaration of the way in question has been
prayed for in the plaint,
(II) Plaint does not disclose a cause of action, and
(III) The suit is not triable by the Civil Court.
5. As far as objection with regard to not making prayer for
declaration of the way is concerned, plaintiffs have averred in the
plaint that the way in question is already recorded in the revenue
record and the way in question is a public way as well.
6. As far as non-disclosure of cause of action is concerned, on
perusal of pleadings of the plaint as a whole, it may not be said
that the plaint does not disclose a cause of action giving a clear
right to sue to plaintiffs.
7. In respect of having no jurisdiction by the Civil Court, it may
be observed that as per Section 251(2) of the Rajasthan Tenancy
Act, 1955, the Civil Court is competent to entertain and try a suit
relating to a right of way on the basis of easement.
(3 of 3) [CR-201/2022]
8. Perusal of the impugned order dated 04.07.2022 goes to
show that the trial court after perusal of pleadings of plaint, has
observed that the plaint is not liable to be rejected under Order 7
Rule 11 CPC. All grounds raised by defendant No.1 have been
taken into account and declined to be accepted at this stage.
9. This Court does not find any infirmity/material illegality or
jurisdictional error in the impugned order dated 04.07.2022 and
does not deem it just and proper to interfere with the impugned
order while exercising its jurisdiction under Section 115 CPC.
10. However, it is hereby observed that any findings either
recorded by the trial court in the impugned order dated
04.07.2022 or by this Court for not interfering in the impugned
order, the same would not affect rights of petitioner to raise such
objection in the written statement and to consider by the court on
merits while deciding the suit.
11. After discussions made hereinabove, the present revision
petition is dismissed.
12. All pending application(s), if any, also stand(s) disposed of.
(SUDESH BANSAL),J
SACHIN/15
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