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2018 Supreme(Raj) 549
IN THE HIGH COURT OF RAJASTHAN
PUSHPENDRA SINGH BHATI, J.
MANI BAI - Appellant
Vs.
PURUSHOTTAM - Respondent
C.W.P. No. 14441 of 2016
Decided On : 05-03-2018
Prashant Tatia, Sajjan Singh, Tribhuvan Gupta, Advocates.
The court has the discretion to grant an injunction to maintain the status quo, balancing the interests of both parties.
Headnote:
EASEMENT ACT - RIGHT OF WAY - SECTION 15, 17 - RIGHT OF WAY OVER ANOTHER'S LAND - INTERPRETATION - COURT'S DISCRETION TO GRANT INJUNCTION TO MAINTAIN STATUS QUO - BALANCE OF CONVENIENCE.
Fact of the Case:
Petitioners sought to set aside the lower courts' orders denying their claim for a right of way over a path leading to their fields. They argued that the courts failed to consider evidence supporting their claim and relied on conjectures and surmises. The respondents contended that the status quo had been maintained for 11 years, causing them inconvenience.
Finding of the Court:
The court found that a prima facie case, irreparable loss, and balance of convenience were in favor of the petitioners. It set aside the lower courts' orders and directed that the petitioners shall not make changes to the path, while the respondents shall be entitled to make shades, drainage, and enjoy other rights over the path without obstructing it.
Issues: 1. Whether the lower courts erred in denying the petitioners' claim for a right of way. 2. Whether the court should grant an injunction to maintain the status quo.
Ratio Decidendi: The court held that the lower courts had misinterpreted the rights under the Easement Act and failed to consider the evidence supporting the petitioners' claim. It exercised its discretion to grant an injunction to maintain the status quo, balancing the interests of both parties.
Final Decision: The court set aside the lower courts' orders and directed that the petitioners shall not make changes to the path, while the respondents shall be entitled to make shades, drainage, and enjoy other rights over the path without obstructing it. The court also directed the lower court to decide the suit finally within one year.
Pushpendra Singh Bhati, J.
The petitioners have preferred this writ petition under Article 227 of the Constitution of India, claiming the following reliefs :
"It is, therefore, humbly and respectfully prayed that the writ petition filed by the petitioners may kindly be allowed with cost and by an appropriate writ, order or direction, the impugned judgment dated 02.09.2016 (Annex.9) and order dated 05.02.2014 (Annex.8) may kindly be set aside and consequence thereof the appeal filed by the appellants-petitioners as well as application for temporary injunction may kindly be allowed, as prayed for.
Any other relief, which this Hon'ble Court may kindly be deemed just and proper in the facts and circumstances of the case, may kindly be granted in favour of the petitioners."
2. Learned counsel for the petitioner has argued that the status-quo regarding the path way in question is being maintained for last 11 years as there were repeated court orders. Learned counsel for the petitioner has shown the record of the petition including the photographs, the way in question is 11 feet x 147 feet.
3. Learned counsel for the petitioner has shown the Najri Naksha of the way in question and the commissioner's report is also on record. The orders by both the courts below have been passed after taking into consideration the failure of the petitioner to give exact specification for the path in question.
4. Learned counsel for the petitioner has pointed out the exact location and the exact specification of the land in question in the map enclosed.
5. Learned counsel for the petitioner states that the learned courts below have failed to consider the admitted evidence available on record and at the same time relied over the fact as alleged by the non-applicant No.1 that towards eastern side there is way which is not in existence nor prima facie proved by the non-applicant viewed from any angle, moreover, the learned courts below have misreaded the revenue trace map and based their findings on conjectures and surmises, rather, no legal evidence and foundation.
6. Learned counsel for the petitioner further states that a bare perusal of material evidence available on record, makes it clear that the applicants have only way to approach their field/house and same is prima facie proved on record, on bare perusal of Commissioner's report as well as revenue record and evidence submitted by the applicants. The objection raised over the Commissioner's report by the non-applicant No.1 has been turned down and rejected by the learned trial court, therefore, there is no occasion to disbelieve the Commissioner's report. Learned counsel for the petitioner submits that apart from the Commissioner's report, if the revenue record is taken into consideration, then it is evident and prima facie proved on record that non-applicants have their khaterdari land being Khasra No.729, 730, 731 and 735. It is also evident from the perusal of revenue record that applicants have their Khatedari land bearing Khasra No.732, 747, 748, 756 and 1150. The learned courts below have given findings that towards eastern side of Araji No.745, 746 and 756, there is a way, which is evident from the perusal of Naksha trace, but from the perusal of alleged naksa trace, there is no piece of evidence available on record that the land adjacent to Khasra No.756 towards eastern side recorded as way/public way etc., on the contrary the said land is recorded in revenue record and existed at site as nala-wala, which could not be and cannot be used for way looking to its nature and situation viewed from any angle. Therefore, looking to material available on record as well as admission of non-applicant No.1 in his reply to temporary injunction application that the disputed way is existing in Khasra No.731, but it is only for the use of non-applicants, the alleged defence used by non-applicants of disputed way is completely contrary to material evidence available on record and there is no justifi
