Second appeal against judgment and decree in a suit for declaration of easementary right to use a specific way and permanent injunction. The High Court dismissed the appeal, holding that the findings of fact regarding the existence of the way and lack of alternative route were not perverse.
The second appeal was dismissed with no costs awarded.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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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.305/2009
Sinjari Devi & Ors.
vs.
Noratmal
Date of Judgment :: 07th May, 2014
PRESENT
HON'BLE MR. JUSTICE ARUN BHANSALI
Mr. Bharat Devasi, for the appellants.
BY THE COURT:
This second appeal under Section 100 CPC is directed against judgment and decree dated 01.09.2009 passed by Additional District Judge (Fast Track), Parbatsar, District Nagaur, whereby, the appeal filed by the appellants against judgment and decree dated 07.12.2007 passed by Civil Judge (Senior Division), Parbatsar, District Nagaur has been dismissed.
The facts in brief may be noticed thus : the respondent filed a suit for declaration and permanent injunction against the appellants, inter alia, with the averments that the old way as indicated in the site map exists for the use of the plaintiff, which was 10 ft. wide; the defendants were not entitled to obstruct the use of the said field, however, on 22.07.1998 the defendants and other relatives threatened the plaintiff from use of the way; it was claimed that the way for ingress and egress to his field situated in Khasra No.203 was the only way marked as A to B
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and, therefore, the defendants are not entitled to stop the said way; several other averments were also made indicating that in documents pertaining to transfer of land in and around the said field, the way has clearly been indicated; it was prayed that the declaration be given that the plaintiff has the customary and easmentry right for use of the way and the defendants be restrained from interfering in the said way.
Written statement was filed by the appellants, wherein, it was claimed that no way as claimed by the plaintiff exists; it was further indicated that alternative way was available and, therefore, there was no question of any customary or easmentry right; allegations were made that there was wrong entries in the revenue record and several of the documents, which are sought to be utilized by the plaintiffs; ultimately, it was prayed that the suit be dismissed.
The trial court framed six issues; on behalf of the plaintiff five witnesses were examined and eight documents were exhibited; on behalf of the defendants also five witnesses were examined and four documents were exhibited.
After hearing the parties, the trial court came to the conclusion that the plaintiff has the customary and easmentry right to use the way and the way does exist; in view of the existence of the way, the plaintiff was entitled to permanent injunction; the plea regarding valuation was decided against the defendants; the suit was held within limitation; the State was not a necessary party and ultimately the suit was decreed and it was
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declared that the plaintiff had easmentry right to use the way and a permanent injunction against the interference in the said way was passed by the trial court.
The appellate court after hearing the parties and after thoroughly examining the pleas raised in this regard upheld the findings on all the issues and dismissed the appeal filed by the appellants.
It is submitted by learned counsel for the appellants that as the alternative way existed, the courts below were not justified in decreeing the suit based on easment and, therefore, the appeal deserves to be admitted.
I have considered the submissions made by learned counsel for the appellant and perused the judgments passed by both the courts below and the record which was summoned by this Court.
From a perusal of the judgment passed by the trial court it is apparent that the trial court has specifically formulated a question as to whether the alternative way was available and after examining the legal and factual aspect, it came to the conclusion that except for the disputed way no other way was available; the first appellate court also examined the said aspect and reiterated the conclusions arrived at by the trial court.
Learned counsel for the appellant failed to point out any aspect from the record and/or the findings so as to indicate any perversity in the said finding, which can give rise to any substantial question of law. The findings of both the courts below
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are findings of fact regarding existence of the way and absence of any alternative way and, therefore, no substantial question of law arises for consideration in this second appeal.
Consequently, the appeal has no substance and the same is, therefore, dismissed. No costs.
(ARUN BHANSALI), J.
A.K.Chouhan/-
2 issues framed by the court
Whether a substantial question of law arises given the findings on the existence of the disputed way and the absence of an alternative way.
Whether the lower courts' findings regarding customary and easementary rights support are perversity warranting interference.
1 provisions across 1 enactments
Sinjari Devi & Ors.
Noratmal
Arun Bhansali
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
