JUDGMENT :

MAHENDAR KUMAR GOYAL, J.

1. The civil second appeal, which is reported to be time barred by 108 days, is accompanied with an application under Section 5 of the Limitation Act.

2. For the reasons stated in the application, the same is allowed. The delay in preferring the appeal is condoned.

3. This civil second appeal has been preferred against the judgment and decree dated 07.03.2018 passed by the learned Additional District Judge, Malpura, District Tonk (for brevity “the learned Appellate Court”) in CRA No. 11/2013 whereby, while allowing the appeal preferred by the respondent No. 1/plaintiff (for brevity “the plaintiff”), judgment and decree dated 23.08.2013 passed by the learned Civil Judge (Senior Division) Malpura, District Tonk (for brevity “the learned trial Court”) dismissing the Civil Suit No. 63/02 filed for declaration and permanent injunction, have been reversed and the suit has been decreed.

4. The relevant facts in brief are that the plaintiff filed a suit for declaration and permanent injunction against the appellant/defendant No. 1 (for brevity “the defendant”) and the proforma-respondents No. 2 to 15/defendants No. 2 to 15 stating therein that he has purchased the land of Khasra No. 59 measuring 2 bigha 3 biswa from the defendant through registered sale deed dated 23.05.2001 and was in its possession since then. It was averred that he has an easementary right of irrigation to his field through a ‘Nala’ from the Khasra No. 67; but, it is being obstructed by the defendant. Thus, the decree as aforesaid was prayed for.

5. The defendants No. 1 & 4 in their joint written statement denied the averments made in the plaint.

6. On the basis of pleadings of the parties, the learned trial Court framed three issues. Vide its judgment and decree dated 13.07.2005, the learned trial Court decreed the suit; but, in the civil first appeal preferred there-against, learned First Appellate Court remanded the matter back to the learned trial Court vide its judgment and decree dated 09.03.2011 for a decision afresh after framing additional issues. Thereafter, two more issues were settled. The learned trial Court has dismissed the suit vide its judgment and decree dated 23.08.2013 holding the suit to be hit by Section 207 of the Rajasthan Tenancy Act, 1955. The Civil First appeal preferred there-against by the plaintiff has been allowed by the learned Appellate Court vide its judgment and decree dated 07.03.2018 and holding that the civil suit claiming easementary right was maintainable, it has been decreed.

7. Learned counsel for the defendant though, in all his fairness, did not dispute that the civil suit claiming easementary right in the agricultural land was maintainable; but, inviting attention of this Court towards the judgment dated 13.02.2009 in the Appeal No. 215/2007 passed by the Court of Land Settlement Officer and Ex-Officio Revenue Appellate Authority, Tonk, would submit that therein, it was held that the plaintiff had only 1/3rd right in the land of Khasra No. 59. He, therefore, prays that the civil second appeal be allowed, the judgment and decree dated 07.03.2018 be quashed and set aside and the suit filed by the plaintiff be dismissed.

8. Heard. Considered.

9. The submission of the learned counsel for the defendant is wholly misconceived and does not merit acceptance. A perusal of the judgment dated 13.02.2009 passed by the by the learned Revenue Appellate Authority in Appeal No. 215/2007 nowhere reveals that either the sale deed dated 23.05.2001 executed in favour of the plaintiff by the defendant has been cancelled or, that the plaintiff herein is not in possession of the land of Khasra No. 59; rather, it has been held therein that the plaintiffs in that suit had 1/3rd share in the land of Khasra No. 59. Dispute involved in the present suit is not about declaration of Khatedari rights of the respective parties in the land of Khasra No. 59; but, of the easementary right of the plaintiff to irrigate the land of t