:: J U D G M E N T ::

S.B. CIVIL SECOND APPEAL No.171/2013 Shivram V/s. State of Rajasthan & Ors.

Date of Judgment ::: 03.08.2015 P R E S E N T H ON'BLE MR. JUSTICE P.K. LOHRA, J.

Mr. Deelip Kawadia, for the appellant.

Mr. B.L. Bhati, for the respondents.

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BY THE COURT:

Appellant-plaintiff has laid this second appeal to challenge the impugned judgment and decree dated 8th of August, 2013 passed by Additional District Judge, Rajsamand (for short, 'learned lower appellate Court'), whereby learned lower appellate Court has upheld judgment and decree dated 19th of July, 2011 passed by learned Civil Judge (Jr. Div) Kumbhalgarh, District Rajsamand (for short, 'learned trial Court') dismissing suit of the appellant-plaintiff for permanent injunction.

Facts, in brief, are that appellant-plaintiff laid civil suit for perpetual injunction against respondents precisely on the ground that he is owner of land bearing Khasras No.534 and 535 village Bhawani Ki Bhagal, Tehsil Kumbhalgarh. The positive assertion of the appellant in the plaint is that for his ingress and egress to the agricultural land the only way available is from Village Bhawani Ki Bhagal to Nathdwara Ghata Road towards south-eastern side of house of Devi Lal and Hari Shankar. Measurement of road is shown as 12 ft. The appellant-plaintiff has specifically set out a case in the plaint that he is using this path for last about 50 years, and therefore, it has created easmentary right in his favour for right to way. Appellant has also questioned the allotment of this land to respondents for construction of a school playground in violation his easmentary right. Appellant also set out a case that no other way is there for ingress and egress to his agricultural land. In the relief clause a restraining order is sought against them in the nature of permanent injunction.

The suit is contested by respondents, and it is, inter alia, averred in the reply that the land which the appellant is showing as public way is not recorded as such in the revenue record and rather the land is part of Khasra No.2021/1 which has been allotted to the school for playground right from beginning. The said land was the govt. land, and therefore, no easmentary right as such has accrued to the appellant. It is also averred in the return that earlier it was an open land, therefore, it was used as a way but that has not created any right in favour of any incumbent including appellant much less easmentary right of way.

Learned trial Court, on the basis of pleadings of rival parties, framed issues for determination. The crucial issue, i.e. Issue No.2, related to the right of easement of the appellant-plaintiff. Learned trial Court, on appreciation of evidence, has partially recorded a finding in favour of appellant that disputed land was used as a way but has completely repudiated the theory of appellant that it has created easmentary right in his favour i.e. right to way. While adverting to Issue No.3, about allotment of land for construction of playground from Khasra No.2021, measuring 4 bighas and 3 biswas, appellant has set out a case that in the revenue records same is recorded as Khasra No.2021/2, whereas in fact the disputed land is part of 2021/1, and therefore, that entry further clarifies that it has not been allotted to school for construction of playground This aspect of the matter is also examined by the learned trial Court that it was a typographical error and even considering the evidence of the appellant wherein the witness has admitted that land has been allotted to school for construction of playground, the issue is decided against the appellant. Eventually, learned trial Court dismissed the suit for permanent injunction.

Being aggrieved by the judgment and decree of the learned trial Court, appellant approached the learned lower appellate Court and the learned lower appellate Court also made endeavour to examine the matter afresh. Learned lower appellate Court has examined the material available on r