Shanker Lal and anr. Vs. Ratan Lal and anr. - Court Judgment

Excerpt:
civil procedure code, 1908 - order 39 rules 1 and 2--temporary injunction--since as per commissioner's report, defendants had an alternative way to reach their khasra no. 416 via khasra no. 417, trial court was justified in refusing interim injunction claiming way through khasra nos. 463 and 464 belonging to the plaintiffs. - - had clearly found in favour of the petitioner-defendant shankar lal that they had right to the said public way on the north portion of khasra nos. 02.01.2009. the learned appellate court in para para 9 of the order has clearly found that since the defendant-petitioner shankar lal is joint khatedar in khasra no.vineet kothari, j.1. heard learned counsels.2. this writ petition is directed against the order dt. 02.01.2009 passed by the learned district judge, sirohi allowing the appeal of the plaintiff against the order dt. 04.11.2008 of the learned trial court whereby the learned trial court had rejected the application under order 39 rules 1 and 2 c.p.c. of the plaintiff.3. learned counsel for the defendant-petitioner before this court, mr. s.l. jain submits that the public way in question existed for long through the khasra nos. 463 and 464 which belong to the plaintiffs nathu and ratan lal and, therefore, since they had closed the said public way, the same denied access to khasra no. 416 belonging to the present petitioner shankar lal.4. learned counsel for the petitioner-defendant shankar lal, mr. s.l. jain drew the attention of the court towards the map produced before the learned trial court annexed at page 39 of the writ petition and submitted that from the point marked 'a' on public way, the defendants used to have access through the public way on the top north of the khasra nos. 463 and 464 to their own agricultural field in khasra no. 416 and, therefore, since the revenue courts of tehsildar and s.d.o. had clearly found in favour of the petitioner-defendant shankar lal that they had right to the said public way on the north portion of khasra nos. 463 and 464, the first appellate court could not have reversed those findings and denied the access to the present petitioners through that way. he also submitted that the civil court had no jurisdiction to decide the said civil suit since it was a revenue matter and under section 251 of the rajasthan tenancy act, the said revenue courts had the appropriate jurisdiction to decide the question of way.5. mr. gajendra mehta, learned counsel for the respondents contended that the present defendant shankar lal had a joint khatedari in the adjacent khasra no. 417 and while coming from the public way on point 'a' as mentioned above he could have his access through khasra no. 417 to his agricultural field in khasra no. 416 and there was no reason to permit the present petitioner-defendant shankar lal to have his way through the north side of the agricultural fields of the present plaintiffs namely khasra nos. 463 and 464.6. heard learned counsels at some length and perused the reasons given by the learned appellate court in the impugned order dt. 02.01.2009. the learned appellate court in para para 9 of the order has clearly found that since the defendant-petitioner shankar lal is joint khatedar in khasra no. 417 and from the commissioner's report also there was no existence of public way towards the north of the khasra nos. 463 and 464 belonging to the present plaintiffs, the respondents herein, therefore, the court below had erred in rejecting the application for temporary injunction in favour of the plaintiff and the defendant was not entitled to access through the alleged public way towards the north of khasra nos. 463 and 464.7. the learned appellate court, therefore, granted temporary injunction in favour of the plaintiff, the respondents herein. this court finds no error in the impugned order dt. 02.01.2009 wherein discussing the entire position of land in question and adjacent khasras and after taking commissioner's report, the appellate court found that the plaintiffs were entitled to the temporary injunction as granted by it in their favour. since the defendant shankar lal, the present petitioner has or can have an alternative way through khasra no. 417 to his khasra no. 416, there appears to be no justification for allowing him the access to his field of khasra no. 416 through plaintiff's khasra nos. 463 and 464 during the pendency of the suit. in the opinion of this court, no interference is called for in the impugned order dt. 02.01.2009 passed by the learned district judge.8. the writ petition is found to be devoid of merit. the same is accordingly dismissed. no costs.