Plaintiffs failed to establish a continuous right of way over the property claimed for access to agricultural lands.

IN THE HIGH COURT OF MADHYA PRADESH AT INDORE BEFORE HON'BLE SHRI JUSTICE SANJEEV S KALGAONKAR th ON THE 9 OF JULY, 2025 SECOND APPEAL No. 513 of 2025 SANJEEV KUMAR RATHORE AND OTHERS Versus MURLI AND OTHERS Appearance:

Shri Mahendra Kumar Jain - Advocate for the appellants (through V.C.) with Shri Sajid Iqbal Ansari, learned counsel for the appellant.

ORDER Record of the trial Court as well as the first Appellate Court is received.

Heard on admission.

This second appeal is filed by the appellants/plaintiffs Sanjeev Kumar Rathore, Mahesh Kumar Rathore, Vinod Kumar Rathore and Shivnarayan feeling aggrieved by the concurrent judgment and decree of the trial Court as well as first Appellate Court rejecting their civil suit for declaration, permanent injunction and mandatory injunction with regard to their right to way on Survey No. 30(Kankad) of Village Kudana Tehsil Gulana Distt.

Shajapur.

2. Plaintiffs - Sanjeev Kumar Rathore, Mahesh Kumar Rathore, Vinod Kumar Rathore and Shivnarayan had filed a suit for declaration, permanent injunction and mandatory injunction, inter-alia pleading that they Signature Not Verified are bhoomiswami of agricultural land in Survey No. 31/2 in Village Kudana, Tehsil Gulana Distt. Shajapur. They used to access their agricultural land from the way situated on Survey No. 30(Kankad). The defendants - Murli Prasad and Narayan Prasad have included the land falling in Survey No. 30 in their agricultural land in Survey No. 29 with the assistance of revenue authorities. They have encroached upon the land falling in Survey No. 30(Kankad) and restrained the way of plaintiffs used for transportation of agricultural artizen, tractor and cattle. Plaintiffs had filed an application u/S 131 of M.P. Land Revenue Code for removal of obstruction on the way situated on Survey No. 30(Kankad). The Tehsildar rejected the application concluding that there is no established way on Survey No. 30(Kankad). Other alternate way is available to the plaintiffs. The Sub Divisional Officer, Shajapur rejected the appeal of plaintiff. The upper Collector, Shajapur rejected the revision petition filed by the plaintiffs and affirmed the order of SDO in appeal. Therefore, the plaintiffs have filed a civil suit for declaring their right to way from the road situated on Survey No. 30(Kankad) and also for declaring that the orders passed by the Revenue authorities are not binding on them.

3. The trial Court, on completion of trial, dismissed the civil suit vide impugned judgment dated 30.04.2024 passed in RCS 8A of 2023. The judgment and decree of trial Court was assailed in RCA 27/2024 before the Principal District Judge, Distt. Shajapur. The first Appellate Court vide impugned judgment dated 26.11.2024 rejected the appeal and affirmed the judgment and decree of the trial Court.

Signature Not Verified

4. Learned counsel for the appellants, in addition to the facts and grounds stated in the memo of appeal contends that the trial Court and the first Appellate Court did not consider the revenue maps (Ex.P-9 and Ex. P- 8) filed by the plaintiff, which show existence of way on Survey No. 30 to reach Survey no. 31.

5. Learned counsel further referred to registered sale deed(Ex. P-1)

to contend that the recital of the description of the property comprised in the sale deed also mentions that the purchaser will have way from 'Kankad'. The trial Court and the first Appellate Court committed grave error of law and fact in ignoring these evidence. Therefore, the present appeal deserves to be admitted on the proposed questions of law.

6. The appellants proposed the following questions of law: "1. Whether under the facts and circumstances of the case both the learned courts below erred in law in dismissing plaintiff's suit vide impugned judgement and decree ?

2. Whether under the facts and circumstances of the case learned lower appellate court erred in law in passing impugned judgement a