Rajasthan High Court - Jodhpur

Lrs Of Bhawani Singh vs Karan Singh (2023:Rj-Jd:28618) on 4 September, 2023

Bench: Rekha Borana

[2023:RJ-JD:28618]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

S.B. Civil Second Appeal No. 8/2020

LR's of deceased Bhawani Singh

1. Dilip Singh S/o Late Shri Bhawani Singh, Aged About 46 Years, B/c Rajput, R/o Village Nimbera Kallan, Tehsil Raipur, District Pali (Raj.).

----Appellant Versus

1. Karan Singh S/o Shri Anand Sing, (Delete Dated 14-11-2018)

2. Hanuwant Singh S/o Shri Karan Singh, R/o Village Nimbera Kallan, Tehsil Raipur, District Pali (Raj.).

3. Vijay Singh S/o Shri Rawat Sing, R/o Village Nimbera Kallan, Tehsil Raipur, District Pali (Raj.).

4. Bhawani Singh S/o Shri Vijay Singh, R/o Village Nimbera Kallan, Tehsil Raipur, District Pali (Raj.).

5. Shivraj Singh S/o Shri Vijay Singh, R/o Village Nimbera Kallan, Tehsil Raipur, District Pali (Raj.).

6. Hari Vikram Singh S/o Late Shri Bhanwani Singh, R/o Village Nimbera Kallan, Tehsil Raipur, District Pali (Raj.).

7. Surender Singh S/o Late Shri Bhanwari Singh, R/o Village Nimbera Kallan, Tehsil Raipur, District Pali (Raj.).

8. Chawand Singh S/o Shri Ugam Singh, Adopted son of Mod Singh, R/o Village Nimbera Kallan, Tehsil Raipur, District Pali (Raj.).

9. Smt. Samander Kanwar W/o Shri Mahendra Singh, R/o Village Nimbera Kallan, Tehsil Raipur, District Pali (Raj.).

10. Bhom Singh S/o Shri Mahendra Singh, R/o Village Nimbera Kallan, Tehsil Raipur, District Pali (Raj.)

----Respondents

For Appellant(s) : Appellant Mr. D.S. Rathore, present in person.

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HON'BLE MS. JUSTICE REKHA BORANA

Judgment

04/09/2023

1. The present second appeal has been preferred against the

judgment and decree dated 21.08.2018 passed by the Additional

District Judge, Jaitaran, District Pali in Civil Appeal No.07/2013

whereby the appeal against the judgment and decree dated

31.05.2013 passed by the Civil Judge (Junior Division), Bar,

District Pali in Original Civil Suit No.31/2007 has been dismissed

and the judgment of the trial Court decreeing the suit of the

plaintiffs for declaration of easement of way and permanent

injunction has been affirmed.

2. The plaintiffs preferred a suit for declaration of easement of

way and permanent injunction against the defendants. Along with

the plaint, a site map was annexed which was exhibited as Ex.1. It

was averred by the plaintiffs that the way marked as v to l

and further l to N in the map, though not recorded as public way in the revenue record, was used by the plaintiffs and the

defendants as a way, since years. It was averred that the property

in question was obtained by the defendants in some execution

proceedings initiated against ancestors of the plaintiffs and at that

point of time too, the way v to l and l to N existed on the

site and as per the mutual consent, it is being used by all the

parties since centuries. It was therefore, prayed that it may be

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declared that the plaintiffs have a right of easement qua the said

way and the defendants, who were trying to obstruct the said way,

be restrained from the same.

3. The case of the defendants was that there was an alternative

way available to the plaintiffs to have access to their agriculture

fields and therefore, they cannot claim right of easement qua the

way in question.

It is relevant to note that the defendants did not deny the

factum of existence of the way v to l and l to N which ran

across their fields.

4. Both the Courts below reached to a specific finding that the

way in question existed on the site since years and the parties had

been using the same therefore, the plaintiffs definitely possessed

the right of easement qua the said way. It is also the specific

finding of both the Courts below that there is no alternative way

connecting the field of the plaintiffs to the recorded way marked

as d [k in the site map. In view of above findings, the suit of the plaintiffs was decreed and it was declared that the plaintiffs

had right of easement qua the way in question and further, the

defendants were restrained from raising any obstruction in the

user of the said way.

5. Learned counsel for the appellants submitted that the

findings as recorded by both the Courts are totally contrary to the

material available on record and hence deserve to be set aside. He

submitted that the site map Ex.1 as placed on record by the

plaintiffs was neither the actual map of the site nor the same was

[2023:RJ-JD:28618] (4 of 6) [CSA-8/2020]

prepared by any revenue authority and hence the same could not

have been relied upon. Learned counsel submitted that it was

proved on record that there was an alternative way available to

the plaintiffs which fact has been cursorily ignored by the Court

below.

6. Heard learned counsel for the appellants and perused the

material available on record.

7. A bare perusal of the site map Ex.1 as placed on record by

the plaintiffs and the revenue map Ex.2, the official map of the

site, makes it clear that the same are identical so far as the

position of khasras and the recorded way is concerned. The

recorded way d [k as well as l n has been shown in both the

maps at the same place. Even the way v to l has also been shown at the same place therefore, the ground as raised by

learned counsel for the appellants that Ex.1 could not have been

relied upon, does not hold water.

So far as the existence of way in question and user of the

same by the plaintiffs since years is concerned, the same was also

proved on record. The site report was prepared in presence of

concerned Tehsildar and Patwari wherein the way in question was

reported to be existing and no alternate way was reported to be

available. The said report was prepared in presence of one of the

defendants also. When cross-examined on the aspect of the said

site report, DW1 Bhawani Singh specifically admitted that he had

no objection to the said report. It was further admitted that

Chawand Singh, his brother, in whose presence the site map was

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prepared, did not inform the Tehsildar of any alternate way and

further that he never raised any objection regarding the site

report. It was also admitted that the interim order to maintain

status quo on basis of the report of Tehsildar was passed with the

consent of both the parties.

8. Learned trial Court considered the specific admissions of the

defendants' witnesses as under :

"fcuk; nkok ds lEcU/k esa i=koyh ij vkbZ lk{; dk voyksdu djs rks

xokg Mh MCyq 1 Hkokuhflag o Mh MCyq 2 ds"kosUnz flag us viuh eq[;

ijh{kk esa fnukad 01-09-07 o 05-09-07 dks ekxZ vo:) ugh djuk crk;k

gSA odhy oknh }kjk dh xbZ ftjg esa mlus Lohdkj fd;k gS fd

fookfnr jkLrk [kqyk gqvk FkkA ml ij ckM oxSjg ugha FkhA mlds HkkbZ

pko.M flag us fookfnr jkLrs ls vkus tkus ds fy, fdlh dks ugh

jksdkA"

9. Learned trial Court on basis of evidence as led by the parties,

concluded as under :

"izfroknh us oknhx.k ds bl dFku dk [k.Mu viuh lk{; ls ugha

fd;k gS fd mlds ikl tehu vkus ls iwoZ fookfnr jkLrs fcUnq n]p o

N]l o l]c o v]c dk jkLrk mldh tehu [kjhns tkus ls iwoZ gh

vfLrRo esa ugh jgk gksA fnukad 01-03-08 dks U;k;ky; ds vkns"kkuqlkj

i+{kkdkjku o muds izfrfuf/k rFkk vf/koDrkx.k dh mifLFkfr esa

rglhynkj jk;iqj ds }kjk ns[ks x;s] ekSds dh fjiksVZ izn"kZ 11 esa Hkh

fookfnr jkLrs dh fLFkfr dks Li'V fd;k x;k gSA fookfnr jkLrs ds

vfLrRo dks ,]ch]lh rFkk Mh] bZ fcUnqvks ls Li'V fd;k x;k gS vkSj

mldk ekSds ij mi;ksx gksuk crk;k gSA ml le; izfroknhx.k us ;g

Li'V fd;k x;k gS fd mUgsa jkLrs dks dHkh cUn ugha fd;k x;k gSA

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mDr ekSdk fjiksVZ ds lEcU/k esa i{kdkjksa ds }kjk vkifr Hkh ugha dh xbZ

gSA U;k;ky; esa ifjf{kr gksus ds le; oknhx.k ds xokgksa us fookfnr

jkLrs ds vfLrRo dks lkfcr fd;k gSA jktLo fjdksMZ esa nf"kZr jkLrk

[kljk uEcj 463] [kljk uEcj 466 o 467 esa nf"kZr jkLrs ls fdlh Hkh

izdkj ls tqM+k gqvk ugha gSA oknhx.k dh [kkrsnkjh Hkwfe;ksa ds ykHkizn

mi;ksx ds fy, fookfnr jkLrk gh ,dek= jkLrk gSA tks vukfndky ls

dkLrdkjksa ds }kjk mi;ksx esa fn;k tkrk jgk gSA"

10. In view of the specific findings of both the Courts below as

above, this Court is of the clear opinion that the findings as

reached by the Courts does not deserve any interference, firstly,

for the said findings being factual in nature, secondly, they being

the concurrent findings of the facts and thirdly, learned counsel

for the appellants, even before this Court, failed to establish that

there was any other alternate way available to the plaintiffs to

have access to their fields/houses.