IMPORTANT POINT
Suit for assertion that any person does not have an easementary right and further, to restrain said person from asserting such right can be maintained before Civil Court.

ORDER

The present revision petition has been filed by petitioner-defendant No.3 against order dated 08.02.2017 passed by Senior Civil Judge, Ratangarh (Churu) in Civil Original Suit No.04/2014 whereby an application under Order VII Rule 11 of the Code of Civil Procedure as preferred by him has been dismissed.

2. Before proceeding on with the facts of the present case, it is relevant to note that the present revision petition was earlier dismissed vide order dated 01.06.2017 but review petition against the said order having been allowed vide order dated 02.04.2019, the present revision petition was restored and the same was directed to be listed for consideration afresh.

3. The facts of the case are that a suit for declaration and permanent injunction was filed by Bhagirath, plaintiff No.1 for declaration that the defendants have no easementary right of way in the plaintiffs’ agricultural land. It was averred in the plaint that defendant No.3 was forcibly trying to create a public way across the agricultural land of the plaintiffs whereas he had no such easementary right of a way qua plaintiffs’ agricultural land.

4. An application under Order VII Rule 11, CPC was filed by petitioner-defendant No.3 with a submission that the suit in question pertained to an agricultural land and hence, in terms of Section 207 of the Rajasthan Tenancy Act, 1955 (hereinafter referred to as, ‘the Act of 1955’), would be maintainable only before the Revenue Court. It was prayed that the suit being barred by law, the plaint be dismissed.

The application as preferred by defendant No.3 has been rejected by the trial Court vide the order impugned against which the present revision petition has been preferred.

5. Two questions arise for consideration before this Court in the present petition:

First, whether a suit for declaration of an easementary right in negative can be held to be maintainable?

Second, whether a suit for declaration that the defendant does not have an easementary right can be maintained before a Civil Court and the suit would not be barred by law in terms of Section 207 of the Act of 1955?

6. To find an answer to question No.1, this Court would not be required to delve into any further consideration as the reference to the Hon’ble Apex Court judgment in the case of Ram Kanya Bai and Anr. vs. Jagdish and Ors., AIR 2011 Supreme Court 3258 would be apt for the said purpose. In Ram Kanya Bai’s case (supra), the Hon’ble Apex Court, in clear terms, held as under:—

“10. When a person (dominant owner) has an easementary right, and the servient owner disturbs, obstructs or interferes with his easementary right, or denies his easementary right, the remedy of the dominant owner is to approach the civil court for the relief of declaration and/or injunction. Similarly, when a person who does not have an easementary right, tries to assert or exercise any easementary right over anothers’ land, the owner of such land can resist such assertion or obstruct the exercise of the easementary right and also approach the civil court to declare that the defendant has no easementary right of the nature claimed, over his land and/or that the defendant should be prevented from asserting such right or interfering with his possession and enjoyment.”

In view of the above ratio, it is clear that a suit for assertion that any person does not have an easementary right and further, to restrain the said person from asserting such right can be maintained before a Civil Court.

7. The issue involved in the second question also is no more res integra. Dealing with the similar issue and considering the ratio as laid down in the case of Ram Kanya Bai (supra), this Court, in the matter of Aam Janta Butati Dham through its legal representatives vs. Maan Singh and Ors., S.B. Civil Second Appeal No.63/2018 decided on 03.07.2023, held as under:—

“16. A bare perusal of the above provisions makes it clear that:

(i) firstly, any suit or proceeding pertaining to any matter arising