IMPORTANT POINT
If no way available to plaintiff for approach to agriculture field, appropriate remedy available to him under law.

Sangeet Lodha, J.—These writ petitions are directed against order dated 2.5.2014 passed by the Additional District Judge, Sujangarh in Appeal No.6/10, affirming the order dated 29.5.2010 passed by the Civil Judge (J.D.), Sujangarh in Civil Misc. Case No.13/10 granting injunction in favour of the plaintiff Ram Singh.

2. The relevant facts are that the plaintiff-Ram Singh preferred a suit for declaration of easementary right and permanent injunction against the defendants-Smt.Jethi and others, accompanied by an application seeking temporary injunction. The plaintiff claimed that he is using a way passing through the agriculture field of the defendants since the time of his forefathers and therefore he has acquired an easementary right to use the way. The temporary injunction was sought by the plaintiff in terms that pending disposal of the suit, the defendants may be restrained from obstructing the existing way available to the petitioner and may not create hindrance in movement of his livestock, tractor, camel cart etc. passing through the existing way.

3. The application seeking temporary injunction was contested by the defendants by filing 3 reply thereto. The defendants specifically denied existence of any way passing through their agriculture field. It was averred that the plaintiff is having way through the land of his brother, which was their joint khatedari land prior to partition thereof and even at present, the petitioner is using the way passing through the land fallen in the share of his brother.

4. During the pendency of the application seeking temporary injunction, when submitted the site inspection report accompanied by the map on 4.8.2009, observing that a ‘pagdandi’ exists at the place B to C in the agriculture field of the defendants but no way exists at the place marked as C to D. However, the report submitted by the Commissioner was rejected by the court vide order dated 29.9.2009 on the application being preferred on behalf of the defendants and a new Commissioner was appointed for site inspection, who submitted the report after site inspection on 5.10.2009 wherein, it was specifically observed that no approach road to the petitioner’s agriculture field exists at the disputed place. However, it was observed that at the place marked in the map as B to C, there exists some signs of existence of the way.

5. After due consideration of the rival submissions and the site inspection report submitted by the Commissioner, the trial court passed an order granting temporary injunction in favour of the plaintiff in terms that except the time when the crop is standing, the defendants shall not obstruct the passing of livestock, camel cart and tractor of the plaintiff through their agriculture field and during the time when the crop is standing, the plaintiff shall not be restrained from using the ‘pagadandi’ as approach road to his agriculture field. Aggrieved by the injunction granted as aforesaid, the defendants preferred an appeal before the appellate court. The appellate court found that from the inspection report, it appears that there is no existing way available for passing of the camel cart, tractor and livestock, however, it appears that the way is being used as ‘pagdandi’. The appellate court observed that the plaintiff has partially proved the facts for establishing his easementary right and therefore, it is not relevant as to whether an alternative way is available to the plaintiff or not. Accordingly, the appellate court declined to interfere with the order of injunction granted by the trial court and dismissed the appeal by the order impugned. Hence, these petitions by the rival parties.

6. Mr. A.R. Godara, learned counsel appearing for the defendants-non applicants, submitted that the appellate court has seriously erred in affirming the order passed by the trial court granting temporary injunction in favour of the plaintiff. Learned counsel submitted that as per the site inspection report, no way p