High Court dismissed criminal revision petition challenging dismissal of civil application under CPC Order VII Rule 11. Court held suit for negative easement declaration is maintainable in Civil Court under Rajasthan Tenancy Act.
Revision petition dismissed; impugned order of Senior Civil Judge Ratangarh upheld.
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.
[2023:RJ-JD:28937]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
S.B. Civil Revision Petition No. 78/2017
Shivdayal Singh S/o Shri Indersingh, By Caste Rajput, Resident of Ladhasar, Tehsil Ratangarh, District Churu.
----Petitioner
Versus
(2 of 8)
[2023:RJ-JD:28937]
[CR-78/2017]
Resident Of Village Ladhasar, Tehsil Ratangarh, District Churu.
(3 of 8)
[2023:RJ-JD:28937]
[CR-78/2017]
----Respondents
| For Petitioner(s) | : Mr. Vikas Bijarnia |
|---|---|
| For Respondent(s) | : Mr. Gyan Jyoti Gupta |
| Mr. Rakesh Chotiya |
HON'BLE MS. JUSTICE REKHA BORANA
Order
12/09/2023
[2023:RJ-JD:28937]
[CR-78/2017]
(4 of 8)
in the plaintiffs’ agricultural land. It was averred in the plaint that defendant No.3 was forcibly trying to create a public way across the agricultural land of the plaintiffs whereas he had no such easementary right of a way qua plaintiffs’ agricultural land.
The application as preferred by defendant No.3 has been rejected by the trial Court vide the order impugned against which the present revision petition has been preferred.
First , whether a suit for declaration of an easementary right in negative can be held to be maintainable?
Second , whether a suit for declaration that the defendant does not have an easementary right can be maintained before a Civil Court and the suit would not be barred by law in terms of Section 207 of the Act of 1955?
(5 of 8)
[2023:RJ-JD:28937]
[CR-78/2017]
case (supra), the Hon’ble Apex Court, in clear terms, held as under:
“10. When a person (dominant owner) has an easementary right, and the servient owner disturbs, obstructs or interferes with his easementary right, or denies his easementary right, the remedy of the dominant owner is to approach the civil court for the relief of declaration and/or injunction. Similarly, when a person who does not have an easementary right, tries to assert or exercise any easementary right over anothers’ land, the owner of such land can resist such assertion or obstruct the exercise of the easementary right and also approach the civil court to declare that the defendant has no easementary right of the nature claimed, over his land and/or that the defendant should be prevented from asserting such right or interfering with his possession and enjoyment.”
In view of the above ratio, it is clear that a suit for assertion that any person does not have an easementary right and further, to restrain the said person from asserting such right can be maintained before a Civil Court.
“16. A bare perusal of the above provisions makes it clear that :
(i) firstly, any suit or proceeding pertaining to any matter arising under the Tenancy Act would not lie in any Civil Court;
(ii) secondly, any suit/application of the nature specified in Third Schedule to the Tenancy Act shall be heard and decided by a revenue Court and a dispute pertaining to right of way or other easement is specified under Article 81 of the Third Schedule to the Tenancy Act; and
(iii) thirdly, right of way and other private easement can also be claimed in a regular suit before a competent Civil Court.
(6 of 8)
[2023:RJ-JD:28937]
[CR-78/2017]
Meaning thereby, a dispute pertaining to an easementary right qua an agricultural land can be raised before the Revenue Court as well as the Civil Court. It is only the nature of easement and the relief prayed which would decide the jurisdiction.”
“ 251. Rights of way and other private easement
(2) No order passed under this section shall debar any person from establishing such right or easement as he may claim by a regular suit in a competent civil court.”
[2023:RJ-JD:28937]
[CR-78/2017]
(7 of 8)
matter also. In Ram Kanya Bai’s case, the Hon’ble Apex Court held that a suit for declaration that the defendant does not have any easementary right over plaintiffs’ property or a suit for injunction to restrain a defendant from interfering with the possession of plaintiff or exercising any easementary right over plaintiffs’ property is not barred by the Code. The Court concluded that the contention that Tehsildar alone has the jurisdiction and not the Civil Court to decide upon the existence or otherwise to customary easement would not be tenable. The said ratio would squarely cover the dispute in the present matter too.
(8 of 8)
[2023:RJ-JD:28937]
[CR-78/2017]
(REKHA BORANA),J
203-T.Singh/-
2 issues framed by the court
Whether a suit for declaration of an easementary right in negative can be held to be maintainable?
Whether a suit for declaration that the defendant does not have an easementary right can be maintained before a Civil Court under Section 207 of the Rajasthan Tenancy Act, 1955?
Colour shows how this judgement treated each authority
3 provisions across 2 enactments
Shivdayal Singh
Bhagirath
Rekha Borana
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
