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[Citation : RLW 2010(1) RJ 587 (HC)]
(Rajasthan High Court)
Hemraj Vs. State & Ors. (Gupta, J.)
HON'BLE N.P. GUPTA, J.
HON'BLE GOVIND MATHUR, J.
Hemraj
Versus
State & Ors.
D.B. Civil Special Appeal (Writ) No. 212 of 2002, decided on 15.09.2009
Appeal dismissed.
Both the contesting parties have purchased the lands from the same ultimate owner, who had recorded way upto Kila No. 22 of Murabba, No. 81 which led to his entire chunk of land/and when he sold his entire land in peace meal to different persons, may be at the same time, per force Section 13 of the Easements Act, easement of necessity does arise, and interference in Article 226 by setting aside the orders Annexs. 9, 10 and 11, so also the impugned order of the learned Single Judge, would have the affect of depriving the respondents of that right, which statutorily arise in their favour; We are not unmindful of the report of Patwari, being Annex. 6, but then, a close reading of this report dated 25.6.1995 shows, that crops of 'narma' and 'san' (jute) is cultivated. These two crops are species of kharif crop, and the date of inspection being 25.6.1995, possibilities are not ruled out about those having been sown recently. In the application (Annex. 5), it was pleaded that the present appellant is out and out to obstruct the way, and report (Annex. 6) does not show as to how old the crop is, or since when the alleged way has ceased to exist. It is also significant to note, that it is nowhere shown on the side of the present appellant that till 1995 what was the alternative way, which was being enjoyed by the private respondents to reach to their field, which may have persuaded us to take a different view regarding aspect of Section 13 of the Easements Act. (Para 24)
jktLFkku dk'rdkjh vf/kfu;e] 1955] /kkjk 251( lq[kkpkj vf/kfu;e] 1882] /kkjk 13 & jkLrs ls ck/kk gVkuk & eqdnek yM+us okys nksuksa i{kdkjksa us ,d gh vfUre Lokeh ls Hkwfe [kjhnh mlesa ntZ jkLrk Fkk tks Hkwfe ds mlus lEiw.kZ pd esa tkrk Fkk & ;g Hkwfe fofHkUu O;fDr;ksa dks VqdM+ks-VqdM+ksa esa csph xbZ & dksbZ vU; jkLrk miyC/k ugha Fkk & mi[kaM vf/kdkjh us dkWyksuh daMh'kul dh dMh'ku la- 8 ds rgr 'kfDr;ksa dk iz;ksx djrs gq, jkLrk eatwj fd;k & vfHkfu/kkZfjr & lq[kkpkj vf/kfu;e dh /kkjk 13 ds vuqlkj vko';drk dk lq[kkpkj vo'; mRiUu gksrk gS vkSj vkns'kksa dks vikLr dj vuqPNsn 226 esa gLr{ksi dk izHkko gksxk izR;FkhZx.k dks ml vf/kdkj ls oafpr djuk tks laoS/kkfud :i ls muds i{k esa mRiUu gksrs gS & u rks /kkjk 251 vkSj u gh d.Mh'ku la- 8 mi[k.M vf/kdkjh dks u rks dksbZ 'kfDr vkSj u gh dksbZ vf/kdkfjrk ,slk vkns'k ikfjr djus gsrq iznku djrh gSA ¼in la[;k 9] 17] 20] 22 ls 25½ vihy [kkfjt dhA
2. The necessary facts are that an application was moved by Rajbala and Shanti purportedly under Section 251 of the Rajasthan Tenancy Act, 1955 before the Tehsildar praying for removing the obstruction of 8 Feet 3" wide way existing on the southern edge of Kila No. 21 of Murabba No. 81, which leads to the lands comprising of Kila Nos. 14, 17, 23 to 25 of Murabba No. 80, also Kila Nos. 12, 13, 15, 18 and 22 of Murabba No. 80. Also pleading that there is no other alternative way. It was pleaded that for the last few days, the present appellant is trying to obstruct the way. This application was filed on 13.6.1995. Thereafter the Patwari inspected the site in presence of Rajbala and the present appellant and noticed that according to record, way is available upto Kila No. 22 of Murabba No. 81, while in Kila No. 21 of Murabba No. 81, which belongs to the present appellant, there is no recorded way and on the site also there is no available way, rather in Kila No. 21 on the spot crop of Narma and jute has been cultivated. It was also noticed that for going to Kila Nos. 14, 17, 23 and 25 of Murabba No. 80, there is no recorded way and there is a dispute between the parties on the spot for the way, through Kila No. 21 of Murabba No. 81. On this report, the Naib-Tehsildar observed that there is no way available to applicants and that she can reach to her fields if the prayed for way is sanctioned. With this recommendation the matter was forwarded to the S.D.O., Nohar.
3. Notices were issued by the S.D.O., Nohar. The present appellant submitted a reply to the S.D.O., being Annex.8 contending inter alia that the application under Section 251 of the Rajasthan Tenancy Act is not cognizable by this Court. The land is of old khatedari, on which Colony Conditions do not apply and that this "Court has no right to sanction way. In para-3, it was pleaded that if Rajbala secures way from the land of southern adjacent Murabba, that will be convenient. It was also pleaded that if Rajbala is given way as prayed, Hemraj will have to give his land, which is not possible as the fields of both the parties are not adjoining and, therefore, the application is required to be dismissed. Then, in the alternative it was prayed that if somehow way is sanctioned, then the applicant should also be bound down not to obstruct the non-petitioners from using this way.
4. At this place, it may be observed that neither in the report of Patwari (Annex. 6) nor in the reply (Annex. 8) was it mentioned as to what is the other way, sanctioned or otherwise, which is being used or may be used by the applicant.
5. The learned S.D.O., Nohar thereupon passed order Annex.9 dated 22.1.1996. The file was fixed to be put up on the spot but the site inspection was not done, as it was not thought, necessary. It was noticed that the Patwari has inspected the site in presence of both the parties, which shows there is requirement of way and there is no sanctioned way, then it was observed that under Colony Conditions, the S.D.O. is entitled to sanction way, so by exercising those powers the way in question was sanctioned.
6. Appeal then against the order was filed before the Revenue Appellate Authority, who held that of course it is true that under Section 251 of the Rajasthan Tenancy Act, the S.D.O. does not have the power to sanction way nor Tehsildar could get the way opened within first 45 days, but from the order of the Court below, it is clear that the order has not been passed under Section 251. Then the khatoni of Samwat 2000-2005 was considered, which showed that the land was purchased by the present appellant by registered sale-deed but in those jamabandies, the lands were shown to be of Kila No. 63 and 176 but no khasra milan has been produced to show, that those land fall in Murabba No. 81. Thus, it is not clear that the land on which way has be
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