Advocates:
['DEELIP KAWADIA', '', 'RANJEETA KAWADIA', 'GS RATHORE', 'BL BHATI']

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN

AT JODHPUR.

:: 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

HON'BLE MR. JUSTICE P.K. LOHRA, J.

Mr. Deelip Kawadia, for the appellant.

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

- -

BY THE COURT:

Appellant-plaintiff has laid this second appeal

to challenge the impugned judgment and decree dated

8^th 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 19^th 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.

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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

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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

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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 Cou