Rajasthan High Court - Jaipur
Dhane Singh S/O. Late Shri Bhur Singh vs Ramavtar S/O. Shri Hukmaram on 6 October, 2018
Bench: Mohammad Rafiq, Prakash Gupta
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D. B. Special Appeal (Writ) No. 1029/2018
In
S.B. Civil Writ Petition No. 12753/2018
Dhane Singh S/o. Late Shri Bhur Singh, by caste Rajput, R/o.
Panlawa Tehsil Laxmangarh District Sikar, Rajasthan
----Appellant/Petitioner
Versus
1. Ramavtar S/o. Shri Hukmaram, by caste Jat, R/o.
Panlawa Tehsil, Laxmangarh, District Sikar, Rajasthan
Respondent/Petitioner
2. Nathu Singh S/o. Late Shri Bhur Singh, by caste Rajput, Resident of Panlawa Tehsil, Laxmangarh, District Sikar, Rajasthan
----Performa Non-Petitioner For Appellant(s) : Mr. R.P. Garg.
For Respondent No. : Mr. Akhilesh Kumar Saini. 1
HON'BLE MR. JUSTICE MOHAMMAD RAFIQ HON'BLE MR. JUSTICE PRAKASH GUPTA Judgment 06/10/2018 (Per Hon'ble Mr. Justice Mohammad Rafiq) This special appeal has been filed by the appellant Dhane Singh against the order dated 13.07.2018 passed by the learned Single Judge whereby the writ petition filed by the appellant was dismissed. The appellant in the writ petition challenged judgments dated 13.09.2017 and 07.05.2018 passed by the Board of Revenue, Ajmer as also order dated 28.02.2014 passed by the Tehsildar, Neem Ka Thana, Sikar.
(2 of 5) [SAW-1029/2018] Mr. R.P. Garg, learned counsel for the appellant argued that the learned Board of Revenue as also the Tehsildar, Neem Ka Thana have erred in law in not appreciating the fact that no easementary rights can accrue to a tenant if he has an alternate route for approaching from his agricultural holding to his house. He therefore cannot claim for a direct route. The Tehsildar, Neem Ka Thana as well as the Board of Revenue have wrongly exercised the power under Section 251 of the Rajasthan Tenancy Act, 1955 (for short 'the Act') by directing to provide way to Respondent No. 1 from his agricultural holding to his house. It is argued that even if the existing way is slightly longer that cannot be a reason to claim the way through the agricultural land of the appellant wholly on the ground of its being short. It is argued that application under Section 251 of the Act was not maintainable as according to Section 251A of the Act, the Tehsildar, Neem Ka Thana was not having any jurisdiction. Order dated 28.02.2014 passed by the Tehsildar was without jurisdiction. The Tehsildar, Neem Ka Thana has exceeded its jurisdiction under Section 251 of the Act in passing the impugned order for providing the way to Respondent No. 1 by use of bullock carts and tractors etc. Learned counsel, during the course of arguments, referred to order dated 16.11.2016 passed by the Additional District Collector, Sikar (for short 'the Additional District Collector'), who in the appeal filed by the appellant has reversed the order dated 28.02.2014 passed by the Tehsildar, Neem Ka Thana and argued that the Board of Revenue was wholly unjustified in interfering in that order on its whims and fancies. Order dated 16.11.2016 passed by the Additional District Collector, Sikar was based on objective (3 of 5) [SAW-1029/2018] assessment of the records. Learned counsel for the appellant, in support of his arguments, relied upon the judgment rendered by Co-ordinate Single Bench of this Court at Principal Seat at Jodhpur in Bagh Singh Vs. The Board of Revenue, Ajmer & Others, 2016 (1) WLC (Raj.) UC 338.
Learned counsel for Respondent No. 1 opposed the appeal and supported the orders passed by the learned Single Judge, learned Board of Revenue and the Tehsildar, Neem Ka Thana, Sikar.
Perusal of the order dated 13.09.2017 passed by the Board of Revenue indicates that Respondent No. 1 had to approach the Tehsildar, Laxmangarh, Sikar under Section 251 of the Act because the appellant created obstruction on the way that was available for his access from agricultural holding to his house. The matter was transferred to the Tehsildar, Neem Ka Thana, Sikar. The Tehsildar, Laxmangarh on 02.07.2010 and the Tehsildar, Neem Ka Thana on 05.04.2013 inspected the site in the presence of both the parties and concluded in both the reports that the obstruction on the way was especially created by the appellant and that the way in dispute was being used for quite some time. The Board of Revenue has noted that the Additional District Collector in his order dated 16.11.2016 has mentioned that he inspected the site on 28.10.2016, but no report of any such inspection whatsoever was prepared or otherwise available on record. There was also no evidence of the fact that the notice was issued to the parties to remain present at the time of inspection. The Board of Revenue concluded that no inspection was actually carried out by the Additional District Collector. The (4 of 5) [SAW-1029/2018] Board of Revenue therefore held that the Additional District Collector had no justification to completely ignore two consistent inspection reports carried out by two different Tehsildars. The Additional District Collector in his order had not given any cogent reason for not accepting those two reports. It was therefore held that the appellant has created an obstruction on the way in Khasra No. 64 and the Tehsildar, Neem Ka Thana vide order dated 28.02.2014 directed for removal of such obstruction.
We have glanced through the order dated 16.11.2016 passed by the Additional District Collector as also order dated 28.02.2014 passed by the Tehsildar, Neem Ka Thana. In our opinion, apart from the reasons given by the Board of Revenue for not agreeing with the view expressed by the Additional District Collector, we also find that he has not given any convincing reason to discard the findings recorded by the Tehsildar, Neem Ka Thana. On the contrary, the Tehsildar, Neem Ka Thana in his order has referred to inspection conducted by the Patwari Halka on 14.12.2009 and the inspection report of the Tehsildar, Laxmangarh dated 02.07.2010 as also 'parcha mauka' of the then Tehsildar, Neem Ka Thana dated 05.08.2013. Patwari Halka in his report has mentioned that in the revenue records a way in double dotted line runs through Khasra No. 107 recorded as 'gair mumkin abadi' ('seva ka bas') which commences from Village Panlawa and runs through Khasra No. 107 and then passes through Khasra No. 106/1 and Khasra No. 66/1, thereafter through Khasra No. 64 and meets with the way existing in Khasra No. 128 recorded as 'gair mumkin rasta'. Even in this case, the way is indicated in the records up to the boundary of Village Rahnava in revenue record (5 of 5) [SAW-1029/2018] in map ('lattha') in double dotted line. Motbirs present at the spot mentioned to the Patwari that the way had been obstructed by khatedars of Khasra No. 64 and prior to this camel carts, tractors etc. used to pass through this old way. The Tehsildar Laxmangarh in his report dated 02.07.2010 also made similar observations and thereafter, the then Tehsildar, Neem Ka Thana in his report dated 05.04.2013 also mentioned so. The Additional District Collector therefore could not have rightly interfered with the findings recorded by the Tehsildar, Neem Ka Thana vide its order dated 28.02.2014. Learned Single Judge, in our view, was therefore perfectly justified in upholding the orders passed by the Board of Revenue restoring the order dated 28.02.2014 passed by the Tehsildar, Neem Ka Thana.
In view above discussion, there is no merit in this special appeal and the same is accordingly dismissed.
Stay Application No. 14812/2018 also stands dismissed.
(PRAKASH GUPTA),J (MOHAMMAD RAFIQ),J
Manoj/27
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