Dismissed

Ramkaran S/O Panna v. Hanuman S/O Bajranga

Rajasthan HC18 Aug 2021CW/352/2021

Case brief

AI extract

What is this about?

The High Court dismissed the writ petition challenging the dismissal of a fresh application under Section 251-A of the Rajasthan Tenancy Act. The Court held that Section 12 CPC does not bar a fresh application if the compromise on which the earlier withdrawal was based was not adhered to, directing the SDO to decide the application expeditiously.

What did the court decide?

The writ petition is dismissed; the SDO is directed to decide the Section 251-A application within three months after hearing all parties.

Ramkaran S/O Panna Vs Hanuman S/O Bajranga — Landlord and Tenant | Rajasthan HC (2021)

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(1 of 5)

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[CW-352/2021]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Writ Petition No. 352/2021

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Ramkaran S/o Panna, Aged About 78 Years, Resident Of Gadoli, Tehsil Uniyara, District Tonk (Raj.)

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----Petitioner

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Versus

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Hanuman S/o Bajranga, Resident Of Gadoli, Tehsil Uniyara, District Tonk (Raj.)

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State Of Rajasthan, Through Tehsildar, Uniyara, District Tonk (Raj.)

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	----Respondents
For Petitioner(s)	: Mr. R K Daga
For Respondent(s)	: Mr. Naresh Kumar Singhal

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HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA

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Order

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18/08/2021

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The petitioner assails the order passed by the SDO as well as the order passed by the Revenue Board dated 18.09.2020 and 17.12.2020 respectively whereby the application moved by the petitioner under Section 11, 12 and under Section 151 CPC dismissing the application moved by the respondent/s under Section 251-A of Rajasthan Tenancy Act was rejected.

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The matter comes up today on an application under Article 226(3) of the Constitution of India for vacating the interim order passed by the Court dated 18.01.2021.

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Keeping in view the short controversy involved, counsels were heard finally on merits of the case.

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Learned counsel for the petitioner submits that as per Section 12 CPC, the fresh application moved by the respondent/s

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(2 of 5)

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[CW-352/2021]

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under Section 251-A of the Rajasthan Tenancy Act was not maintainable as the earlier application moved by the respondent/s under Section 251-A was not pressed and accordingly dismissed as not pressed by the SDO. Thus, the same would be treated as akin to withdrawing the suit as envisaged under Order 23 Rule 1, the provisions of Section 12 would be applicable to the case and the second application moved was not maintainable. The SDO has thus committed an error in rejecting the application moved by the petitioner.

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Learned counsel further submits that the Revenue Board has failed to examine the provisions of Section 12 and has wrongfully dismissed the revision petition vide order dated 17.12.2020 solely relying on the provisions of Section 11 CPC. Learned counsel submits that while provisions of Section 11 may not be applicable in the case, however the provisions of Section 12 will have its application. Learned counsel has further pointed out that though the petitioner had moved a review petition before the Revenue Board, before filing of the writ petition the same was already withdrawn by moving an appropriate application.

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Per contra, learned counsel appearing for the respondents points out that the application moved earlier under Section 251-A of the Rajasthan Tenancy Act had been dismissed as not pressed as a compromise had arrived at between the respondents and the petitioner for providing a way to the fields and therefore, the earlier application was dismissed as not pressed however, after the same was dismissed the petitioner turned around and did not adhere to their promise of providing a way to the fields therefore, he had to perforce moving a fresh application under Section 251-A for providing a way to his fields. The said aspect has been

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(3 of 5)

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[CW-352/2021]

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considered by the SDO while rejecting the application moved by the petitioner.

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I have heard learned counsels and perused the provision of Section 12 CPC. While provisions of CPC are to be considered as guidinglines for disposal of matters before the Revenue Courts which are not essentially a course within the meaning of CPC, generally the said provisions are considered for the purpose of deciding the revenue suits.

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However, a suit withdrawn in terms of Order 23 Rule 1 CPC cannot be said to be akin to an application moved under Section 251-A of the Rajasthan Tenancy Act. The provisions of Section 251-A of the Rajasthan Tenancy Act which reads as under:-

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“251A . Laying of underground pipeline or opening a new way through another khatedar's holding or enlarging the existing way. - (1) Where -

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(a) a tenant intends to lay an underground pipeline through the holding of another khatedar for the purpose of irrigation of his holding; or

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(b) a tenant or a group of tenants intend to have a new way, or enlargement or widening of an existing way, through the holding of another khatedar to have access to his holding or, as the case may be, their holdings of and the matter is not settled by mutual agreement, the tenant or the tenants, as the case may be, may apply for such facility to the Sub-Divisional Officer concerned, and the Sub-Divisional Officer, if he is satisfied after a summary inquiry, that

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(i) the necessity is absolute necessity and it is not for mere convenient enjoyment of holding; and

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(ii) particularly in case of a new way through another khatedar's holding, that absence of alternative means of access proved may, be order, allow the applicant, to lay pipeline, at least three feet beneath the surface of the land, along 'the line demarcated or pointed out by the

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(4 of 5)

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[CW-352/2021]

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tenant who holds that land, or to have a new way. not wider than thirty feet, through the land on such track as pointed out by the tenant who holds that land, and if no such track is pointed out, through the shortest or nearest route, or to enlarge or widen the existing way, not exceeding up to thirty feet, on payment of such compensation as may be determined by the SubDivisional Officer, in the prescribed manner, to the tenant who holds the land through which the right to lay pipeline or have a new way or enlarge or widen an existing way is granted.

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(2) Where a right to have a new way or enlarge or widen an existing way is granted under sub-section (1), the tenancy in respect of the land comprising such way shall be deemed to have been extinguished and the land shall be recorded as rasta in the revenue records.

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(3) The persons permitted to avail any of the facilities referred to in sub-section (1) shall not, by virtue of the said facility, acquire any other right in the holding through which such facility is granted.”

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From the perusal of the aforesaid facts, it is apparent that a person who does not have a proper or suitable way to reach his fields for the purpose of cultivation, can move an application before the concerned Revenue Authority namely, SDO for providing a way to his fields. The application would be moved if there is no suitable compromise between the agriculturist and the neighbouring cultivators do not provide a way to the concerned person. Thus, it is the laws resort.

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Taking into consideration the facts as which have come on record with the earlier application moved by the petitioner, the same was not pressed after compromise was arrived at however, if the compromise was not adhered to the parties the only course available for a person is to move an application akin to Section 251-A and in the opinion of this Court the bar contained under

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(5 of 5)

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[CW-352/2021]

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Section 12 would not have any hindrance for moving such an application.

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Accordingly, the view taken by the SDO as well as by the Revenue Board, does not warrant any interference. The writ petition is wholly frivolous and is devoid of merits. The same is accordingly dismissed. The SDO is directed to proceed accordingly and decide the application after hearing all the parties concerned, expeditiously, preferably within a period of three months.

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All pending applications, if any, stand disposed of.

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(SANJEEV PRAKASH SHARMA),J

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saurabh/94

Ramkaran S/O Panna v. Hanuman S/O Bajranga

Case brief

What is this about?

What did the court decide?

Ramkaran S/O Panna v. Hanuman S/O Bajranga

Case brief

What is this about?

What did the court decide?

What the court decided

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