Rajasthan High Court - Jodhpur
Rameshwar & Ors vs Bheru Lal & Ors on 16 August, 2011
Author: Vineet Kothari
Bench: Vineet Kothari
S.B.CIVIL WRIT PETITION NO. 2149/2010
Rameshwar & Ors. vs. Bheru Lal & Ors.
Order dt:16/8/2011
1/4
S.B.CIVIL WRIT PETITION NO. 2149/2010
(Rameshwar & Ors. vs. Bheru Lal & Ors.)
DATE OF ORDER : 16/8/2011
HON'BLE DR.JUSTICE VINEET KOTHARI
Mr. S.L.Sukhwal, for the petitioners.
Mr. R.K.Charan, for the respondents.
Heard learned counsels.
This petition is directed against the order dated 3/2/2010 of the learned District Judge, Chittorgarh, whereby, the learned first appellate court had allowed the appeal of defendants against the order dated 7/11/2009, whereby, the learned trial court had allowed temporary injunction application of plaintiff-petitioners in a suit for injunction No. 7/2009 - Rameshwarlal & Ors. vs. Bherulal & Ors. & held that the way to agricultural field of the plaintiffs over Khasra No. 904, 907 of plaintiffs and khasra no. 925, 924, 923 of defendants would be allowed to take them to their khasra no. 922, 921 and 920. The learned appellate court held that as per the revenue record, the way existing was not via aforesaid route but via khasra no. 904, 909, 920, 911, 913, 914 and 894 for coming to khasra no. 886 of plaintiffs through which they could go down to khasra no. 887 and 892 (of S.B.CIVIL WRIT PETITION NO. 2149/2010 Rameshwar & Ors. vs. Bheru Lal & Ors.
Order dt:16/8/2011 2/4 plaintiffs) and further to khasra nos. 918, 922, 921 & 920 and accordingly the learned appellate court held that the temporary injunction granted by the learned trial court allowing the plaintiffs to use earlier passage for their agricultural field in khasra no. 922, 921 was not sustainable and during the trial of the suit the plaintiffs could not use the said way, however, they should use the way as aforesaid.
Learned counsel for the plaintiffs, Mr. Sukhwal urged that the learned trial court may be requested to expedite the trial of the suit and till then temporary injunction granted by the learned trial court may be maintained and plaintiffs may be allowed access to their agricultural field by using the land of khasra no. 921 in which a well exists and via the aforesaid way maximum land is of khasra no. 907 is used and a lesser extent of the land of defendants in khasra no. 924 and 925 is used, as this is a shorter way.
On the other hand, learned counsel Mr. R.K.Charan submitted that as per the revenue record, the said way already existed and is duly recorded and this fact was concealed by the petitioners before the learned trial court and, therefore, the learned trial court S.B.CIVIL WRIT PETITION NO. 2149/2010 Rameshwar & Ors. vs. Bheru Lal & Ors.
Order dt:16/8/2011 3/4 erroneously granted temporary injunction and this temporary way was created on the `Parat' land by the plaintiffs and, therefore, order of learned first appellate court deserves to be sustained. He, however, did not oppose the prayer of trial being expedited.
Having heard the learned counsels and upon perusal of the impugned orders and Commissioner's report along with map as aforesaid, this Court is satisfied that the learned District Judge has not committed any error in allowing the appeal of defendants by the impugned order dated 3/2/2010 and restoring the way as it existed in the revenue record on the top of khasra nos. 904, 909, 910, 911, 913, 914 & 894 to khasra no. 886 of the plaintiffs. It may be that the said way is slightly longer way but since as per the revenue record produced before this Court for perusal, the said way already existed as a public way for providing access to the various agriculturists including the plaintiffs and defendants, therefore, the learned first appellate court cannot be said to have committed any error in restoring the said way subject to right of the plaintiffs in appeal claiming the other way, which is a shorter way.
S.B.CIVIL WRIT PETITION NO. 2149/2010 Rameshwar & Ors. vs. Bheru Lal & Ors.
Order dt:16/8/2011 4/4 In view of the above, the impugned order dated 3/2/2010 passed by the learned District Judge, Chittorgarh does not require any interference in the present writ petition and same is liable to be dismissed and is hereby dismissed.
(DR.VINEET KOTHARI),J.
Item no. 7 baweja/-