Dismissed

Akhil Bharatvarshiya Digamber Jain Bagherwal Sangh Bundi v. State of Rajasthan through District Collector Bundi

Rajasthan HC19 Dec 2022CSA/85/2019

Case brief

AI extract

What is this about?

The High Court dismissed an appeal against the dismissal of a civil suit for permanent injunction. The appellant sought to prevent interference with access to a hostel allotment. The Court held that the appellant has access via a public way alongside the District Education Officer's office and rejected the claim of easement by prescription due to insufficient duration for government land.

What did the court decide?

None. The civil second appeal is dismissed as devoid of merit.

Akhil Bharatvarshiya Digamber Jain Bagherwal Sangh… — Property and Title | Rajasthan HC (2022)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Second Appeal No. 85/2019

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Akhil Bharatvarshiya Digamber Jain Bagherwal Sangh Bundi, Through President Lekhraj Jain S/o Bajrang Lal Jain Mahajan R/o Nainwa Road Bundi District Bundi (Raj) After Death Of Lekhraj Jain President Mahendra Jain S/o Risav Chand R/o Bundi District Bundi

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----Appellant/Plaintiff

¶5

Versus

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1. State Of Rajasthan Through District Collector Bundi, Rajasthan

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Nagar Parishad Bundi Through Executive Officer, Nagar Parishad Bundi

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Manager Rajasthan Rajya Pustak Vitran Centre Bundi, Rajasthan

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----Respondents/Defendants

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For Appellant(s) For Respondent(s)	: Mr. :	Sanjay Gangwal

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HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL

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Order

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19/12/2022

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This civil second appeal has been filed by the usuccessful plaintiff against the judgment and decree dated 29.11.20218 passed by the learned District Judge, Bundi (for brevity, ‘learned appellate Court’) dismissing the civil first appeal no.81/2017 filed by it against the judgment and decree dated 28.11.2017 passed by the learned Civil Judge, Bundi (for brevity, ‘learned trial Court’) in Civil Suit No.117/2012 (CIS No.1089/2014) whereby, the civil suit filed for permanent injunction was dismissed.

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(2 of 4)

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[CSA-85/2019]

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The relevant facts in brief are that the plaintiff filed a suit for permanent injunction against the respondents/defendants stating therein that vide letter dated 18.03.1993, it was allotted two bigha land by the defendants out of khasra no.518 village Devpura for construction of a hostel. It was averred that for access to the hostel constructed thereupon, it was using a way from the khasra no.518 which was tried to be interfered with by the respondents on 08.07.2012 on the premise that the defendant no.3 was allotted a piece of land measuring 130x190 feet for construction of its office out of the same khasra number which also included the subject way. It was, therefore, prayed in the suit that the defendant be restrained from interfering with its right of way leading to the hostel through the land of khasra no.518.

¶18

The defendants no.1 and 3 in their reply submitted that the plaintiff was allotted land for construction of a hostel which has access through - 13 feet wide public way alongside the boundary of office of District Education Officer (Elementary) and it had no right to create a new way through the subject land which was allotted to the defendant no.3 for construction of its office by the competent authority.

¶19

On the basis of pleadings of the parties, learned trial Court framed two issues including the relief. Issue no.1 was to the effect as to whether the plaintiff is entitled to the decree of permanent injunction to the effect that defendants may not obstruct the use of public way to have access to its hostel and not to damage the same.

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After recording evidence of the parties, learned trial Court dismissed the suit vide judgment and decree dated 28.11.2017

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(3 of 4)

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[CSA-85/2019]

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which was unsuccessfully challenged by the plaintiff by way of a civil first appeal which came to be dismissed by the learned appellate Court vide judgment and decree dated 29.11.2018.

¶24

Assailing the findings, learned counsel for the appellant made two fold submissions; first, no document was filed by the defendant no.3 to show that a piece of land measuring 130x190 feet was allotted by the defendant no.1 to it for construction of its office comprising out of the subject land and second, it was not appreciated that the plaintiff has acquired easementary right qua the subject way as it was being used continuously, peacefully and uninterruptedly for a period of more than 10 years. He, therefore, prays that the civil second appeal be allowed, the judgment and decree dated 29.11.2018 be quashed and set aside and the suit filed by it be decreed.

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Heard. Considered.

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The first contention of the learned counsel for the appellant does not merit acceptance. A perusal of the judgment under the challenge reveals that a copy of the order no.1405-11 dated 21.09.2010 showing allotment of a piece of land measuring 130x190 feet by the defendant no.1 to the defendant no.3 for construction of its office was placed on record marked as Ex.-5 by the plaintiff itself.

¶27

Second contention made by the learned counsel for the appellant cannot be countenanced in view of provisions of Section 15 of the Indian Easements Act, 1882 which provide that for claiming easementary rights by prescription over government land, it should be in use for 30 years or more. Although, learned counsel for the appellant has claimed easement by prescription

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(4 of 4)

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[CSA-85/2019]

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claiming use of the way for more than 10 years; but, he could not cite any law to show that easementary right by prescription over government land can be acquired by use for a period of about 10 years or for any period less than 30 years. Indisputably, it is not the case of the appellant that it has been using the way in question for a period of 30 years or more. As a matter of fact, it was allotted land in the year 1993 and filed the suit in the year 2012.

¶31

There are concurrent findings of fact by the Courts based on material on record to the effect that the plaintiff has a public way of 13 feet width available to it to have access to its hostel alongside boundary of the office of the District Education Officer (Elementary) and the subject way was not the public way. There is no substantial question of law involved in the second appeal.

¶32

Accordingly, this civil second appeal is dismissed being devoid of merit.

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(MAHENDAR KUMAR GOYAL),J

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MADAN/73

Akhil Bharatvarshiya Digamber Jain Bagherwal Sangh Bundi v. State of Rajasthan through District Collector Bundi

Case brief

What is this about?

What did the court decide?

Akhil Bharatvarshiya Digamber Jain Bagherwal Sangh Bundi v. State of Rajasthan through District Collector Bundi

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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