Shivdayal Singh vs Bhagirath And Ors. ...
2023 Latest Caselaw 7070 Raj

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Revision Petition No. 78/2017

Shivdayal Singh S/o Shri Indersingh, By Caste Rajput, Resident of Ladhasar, Tehsil Ratangarh, District Churu.

----Petitioner Versus

1. Bhagirath S/o Keshuram, By Caste Brahmin, Resident Of Village Ladhasar, Tehsil Ratangarh, District Churu.

2. Mahaveer S/o Bajranglal, By Caste Brahmin, Resident Of Village Ladhasar, Tehsil Ratangarh, District Churu.

3. Toluram Alias Tolu S/o Bajranglal, By Caste Brahmin, Resident Of Village Ladhasar, Tehsil Ratangarh, District Churu.

4. Narsi Alias Narsaram S/o Bajranglal, By Caste Brahmin, Resident Of Village Ladhasar, Tehsil Ratangarh, District Churu.

5. Banshi Alias Banshidhar S/o Late Sh. Jeetu Alias Ajeetaram, By Caste Brahmin, Resident Of Village Ladhasar, Tehsil Ratangarh, District Churu.

6. Sohan Ram S/o Jeeta Ram, By Caste Brahmin, Resident Of Village Ladhasar, Tehsil Ratangarh, District Churu.

7. Smt. Vidhya Devi S/o Late Madanlal, By Caste Brahmin, Resident Of Village Ladhasar, Tehsil Ratangarh, District Churu.

8. Ramniwas S/o Late Madanlal, By Caste Brahmin, Resident Of Village Ladhasar, Tehsil Ratangarh, District Churu.

9. Gajanand S/o Late Madanlal, By Caste Brahmin, Resident Of Village Ladhasar, Tehsil Ratangarh, District Churu.

10. Subhash S/o Late Madanlal, By Caste Brahmin, Resident Of Village Ladhasar, Tehsil Ratangarh, District Churu.

11. Sukhdev Minor S/o Late Madanlal, Through Mother Vidhya Devi W/o Late Madanlal, By Caste Brahmin, Resident Of Village Ladhasar, Tehsil Ratangarh, District Churu.

12. Inder Singh S/o Late Kesu Ram, By Caste Brahmin, Resident Of Village Ladhasar, Tehsil Ratangarh, District Churu.

13. Santosh Minor D/o Late Madanlal, Through Mother Vidhya Devi W/o Late Madanlal, By Caste Brahmin, Resident Of Village Ladhasar, Tehsil Ratangarh, District Churu.

14. Phoosa Ram S/o Ganpat Ram, By Caste Brahmin, Resident Of Village Ladhasar, Tehsil Ratangarh, District Churu.

15. Smt. Anchi W/o Late Ganpat Ram, By Caste Brahmin, Resident Of Village Ladhasar, Tehsil Ratangarh, District Churu.

16. Bhoja Ram S/o Late Omprakash, By Caste Brahmin,

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Resident Of Village Ladhasar, Tehsil Ratangarh, District Churu.

17. Gajanand S/o Late Omprakash, By Caste Brahmin, Resident Of Village Ladhasar, Tehsil Ratangarh, District Churu.

18. Manakchand S/o Late Omprakash, By Caste Brahmin, Resident Of Village Ladhasar, Tehsil Ratangarh, District Churu.

19. Bhadar S/o Late Omprakash, By Caste Brahmin, Resident Of Village Ladhasar, Tehsil Ratangarh, District Churu.

20. Laxmi D/o Late Omprakash, By Caste Brahmin, Resident Of Village Ladhasar, Tehsil Ratangarh, District Churu.

21. Pooja D/o Late Omprakash, By Caste Brahmin, Resident Of Village Ladhasar, Tehsil Ratangarh, District Churu.

22. Santosh D/o Late Omprakash, By Caste Brahmin, Resident Of Village Ladhasar, Tehsil Ratangarh, District Churu.

23. Devi Singh S/o Ram Singh, By Caste Raput, Resident Of Village Ladhasar, Tehsil Ratangarh, District Churu.

24. Nirmal D/o Late Omprakah, By Caste Brahmin, Resident Of Village Ladhasar, Tehsil Ratangarh, District Churu.

25. Late Savitri D/o Late Kesu Ram, By Caste Brahmin, Resident Of Village Ladhasar, Tehsil Ratangarh, District Churu Through Legal Representatives

26. Mohni D/o Late Kesu Ram, By Caste Brahmin, Resident Of Village Ladhasar, Tehsil Ratangarh, District Churu.

27. Rampyari D/o Late Kesu Ram, By Caste Brahmin, Resident Of Village Ladhasar, Tehsil Ratangarh, District Churu.

28. Savitri W/o Bheekaram, By Caste Brahmin, Resident Of Village Ladhasar, Tehsil Ratangarh, District Churu.

29. Satyanarayan S/o Bheekaram, By Caste Brahmin, Resident Of Village Ladhasar, Tehsil Ratangarh, District Churu.

30. Manoj Kumar S/o Bheekaram, By Caste Brahmin, Resident Of Village Ladhasar, Tehsil Ratangarh, District Churu.

31. Shivdayal S/o Bheekaram, By Caste Brahmin, Resident Of Village Ladhasar, Tehsil Ratangarh, District Churu.

32. Guddi D/o Bheekaram, By Caste Brahmin, Resident Of Village Ladhasar, Tehsil Ratangarh, District Churu.

33. Babita D/o Bheekaram, By Caste Brahmin, Resident Of Village Ladhasar, Tehsil Ratangarh, District Churu.

34. Prahlad Singh S/o Devi Singh, By Caste Raput, Resident Of Village Ladhasar, Tehsil Ratangarh, District Churu.

35. Smt. Saida Hajan W/o Haji Mangtu, By Caste Teli Musalman, Resident Of Near Raniwala Kua, Ratangarh,

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District Churu.

36. Sadul Singh S/o Inder Singh, By Caste Raput, Resident Of Village Ladhasar, Tehsil Ratangarh, District Churu.

37. Parvat Singh S/o Devi Singh, By Caste Raput, Resident Of Village Ladhasar, Tehsil Ratangarh, District Churu.

38. Prabhu Singh S/o Jeevraj Singh, By Caste Raput, Resident Of Village Ladhasar, Tehsil Ratangarh, District Churu.

39. Sarpanch, Gram Panchayat Ladhasar, Tehsil Ratangarh, District Churu.

40. State Of Rajasthan Through Tehsildar, Ratangarh, District Churu.

                                                                 ----Respondents


For Petitioner(s)          :    Mr. Vikas Bijarnia
For Respondent(s)          :    Mr. Gyan Jyoti Gupta
                                Mr. Rakesh Chotiya



              HON'BLE MS. JUSTICE REKHA BORANA

                                     Order

12/09/2023

1. The present revision petition has been filed by petitioner-

defendant No.3 against order dated 08.02.2017 passed by Senior

Civil Judge, Ratangarh (Churu) in Civil Original Suit No.04/2014

whereby an application under Order VII Rule 11 of the Code of

Civil Procedure as preferred by him has been dismissed.

2. Before proceeding on with the facts of the present case, it is

relevant to note that the present revision petition was earlier

dismissed vide order dated 01.06.2017 but review petition against

the said order having been allowed vide order dated 02.04.2019,

the present revision petition was restored and the same was

directed to be listed for consideration afresh.

3. The facts of the case are that a suit for declaration and

permanent injunction was filed by Bhagirath, plaintiff No.1 for

declaration that the defendants have no easementary right of way

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in the plaintiffs' agricultural land. It was averred in the plaint that

defendant No.3 was forcibly trying to create a public way across

the agricultural land of the plaintiffs whereas he had no such

easementary right of a way qua plaintiffs' agricultural land.

4. An application under Order VII Rule 11, CPC was filed by

petitioner-defendant No.3 with a submission that the suit in

question pertained to an agricultural land and hence, in terms of

Section 207 of the Rajasthan Tenancy Act, 1955 (hereinafter

referred to as, 'the Act of 1955'), would be maintainable only

before the Revenue Court. It was prayed that the suit being

barred by law, the plaint be dismissed.

The application as preferred by defendant No.3 has been

rejected by the trial Court vide the order impugned against which

the present revision petition has been preferred.

5. Two questions arise for consideration before this Court in the

present petition:

First, whether a suit for declaration of an easementary right

in negative can be held to be maintainable?

Second, whether a suit for declaration that the defendant

does not have an easementary right can be maintained before a

Civil Court and the suit would not be barred by law in terms of

Section 207 of the Act of 1955?

6. To find an answer to question No.1, this Court would not be

required to delve into any further consideration as the reference to

the Hon'ble Apex Court judgment in the case of Ram Kanya Bai

and Anr. vs. Jagdish and Ors., AIR 2011 Supreme Court

3258 would be apt for the said purpose. In Ram Kanya Bai's

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case (supra), the Hon'ble Apex Court, in clear terms, held as

under:

"10. When a person (dominant owner) has an easementary right, and the servient owner disturbs, obstructs or interferes with his easementary right, or denies his easementary right, the remedy of the dominant owner is to approach the civil court for the relief of declaration and/or injunction. Similarly, when a person who does not have an easementary right, tries to assert or exercise any easementary right over anothers' land, the owner of such land can resist such assertion or obstruct the exercise of the easementary right and also approach the civil court to declare that the defendant has no easementary right of the nature claimed, over his land and/or that the defendant should be prevented from asserting such right or interfering with his possession and enjoyment."

In view of the above ratio, it is clear that a suit for assertion

that any person does not have an easementary right and further,

to restrain the said person from asserting such right can be

maintained before a Civil Court.

7. The issue involved in the second question also is no more res

integra. Dealing with the similar issue and considering the ratio

as laid down in the case of Ram Kanya Bai (supra), this Court, in

the matter of Aam Janta Butati Dham through its legal

representatives vs. Maan Singh and Ors., S.B. Civil Second

Appeal No.63/2018 decided on 03.07.2023, held as under:

"16. A bare perusal of the above provisions makes it clear that :

(i) firstly, any suit or proceeding pertaining to any matter arising under the Tenancy Act would not lie in any Civil Court;

(ii) secondly, any suit/application of the nature specified in Third Schedule to the Tenancy Act shall be heard and decided by a revenue Court and a dispute pertaining to right of way or other easement is specified under Article 81 of the Third Schedule to the Tenancy Act; and

(iii) thirdly, right of way and other private easement can also be claimed in a regular suit before a competent Civil Court.

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Meaning thereby, a dispute pertaining to an easementary right qua an agricultural land can be raised before the Revenue Court as well as the Civil Court. It is only the nature of easement and the relief prayed which would decide the jurisdiction."

8. Applying the above ratio in the present matter, a perusal of

the reliefs as prayed for by the plaintiffs in the present suit, makes

it clear that the same is for declaration that the defendants do not

have any easementary right qua their agricultural land. Meaning

thereby, the declaration as prayed for is qua their private land.

Section 251 of the Act of 1955 provides as under:

"251. Rights of way and other private easement

- [(1) In the event of any holder of land, in actual enjoyment of a right of way or other easement or right, having, without his consent, been disturbed in such enjoyment otherwise than in due course of law, the Tehsildar may, on the application of the holder of land so disturbed and after making a summary inquiry into the fact of such enjoyment and disturbance, order the disturbance to be removed or stopped and the applicant-holder to be restored to such enjoyment, notwithstanding any other title that may be set up before the Tehsildar against such restoration].

(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. As held in Aam Janta Butati Dham's case (supra), for any

relief for right of way or other private easement, a suit can be

maintained before a Civil Court. So far as the case of Ram

Kanya Bai (supra) is concerned, the provision of Section 131 of

the Madhya Pradesh Land Revenue Code, 1959 under

consideration in the said judgment being para materia to Section

251 of the Act of 1955, the principles/ratio as laid down in Ram

Kanya Bai's case (supra) would be applicable to the present

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matter also. In Ram Kanya Bai's case, the Hon'ble Apex Court

held that a suit for declaration that the defendant does not have

any easementary right over plaintiffs' property or a suit for

injunction to restrain a defendant from interfering with the

possession of plaintiff or exercising any easementary right over

plaintiffs' property is not barred by the Code. The Court

concluded that the contention that Tehsildar alone has the

jurisdiction and not the Civil Court to decide upon the existence or

otherwise to customary easement would not be tenable. The said

ratio would squarely cover the dispute in the present matter

too.

10. In view of the above position of law, this Court is of the

specific opinion that rejection of the application under Order VII

Rule 11, CPC by the Court below is totally in consonance with law

and does not deserve any interference. So far as the judgments

relied upon by learned counsel for the petitioner are concerned, all

of them pertain to the matters wherein the Court was of a clear

opinion that the suits in question were frivolous or vexatious. It is

in view of the said observation that the Court observed that such

litigation ought to be nipped in the bud at the earliest and the

plaint ought to be rejected in terms of Order VII Rule 11, CPC.

The ratio as laid down in the said judgments would clearly not

apply to the present matter as neither the suit as preferred by the

plaintiffs is vexatious or frivolous nor the issue raised in the same

can be decided without a full-fledged trial and hearing on the

same.

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11. In view of the above analysis, this Court does not find any

ground to interfere with the order impugned and the revision

petition is hence dismissed.

12. Stay petition and all the pending applications, if any, stand

disposed of.

(REKHA BORANA),J 203-T.Singh/-

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