Bhanwara Ram and Others vs Pritam Singh and Others

Mohd. Yamin, J.—This is a revision against the order of learned Additional District Judge. Parbalsar dated 28.5.1999 by which he confirmed the order of learned. Civil Judge (JD). Makarana dated 24.10.1998.

I have heard the Learned Counsel for both the parties at length.

Briefly stated, plaintiffs filed a representative suit for declaration and injunction. An application "under Order 39 Rules 1 and 2 CPC was also filed. Plaintiffs arc residents of Nagwara. Aasrawa, Rathlia and Laroli. Facts arc that there existed a public way in between village Bhinchawa to-Rathlia which passed through Akhcpura. Nawara and Aasrawa. The way was bifurcated in Bhinchawa. This path way was left by erstwhile Jagirdars and the residents of these villages use to pass through it. The way was about 12 ft. wide. It was also used by villagers in order to come and go to their fields. But it so happened that at the time of settlement it could not be recorded as a way. The plaintiffs had right of easement to use this 12 A. way as they had been using it for times immemorial without any objection and hindrance. The defendants closed this way and on 23.6.1998 during the night when they blocked it in field No. 7/1 and 4, then the villagers approached the Gram Panchayat, Bhinchawa which passed an order on 25 6.1998 to remove the obstacles. Defendants did not obey the order. Then the Gram Panchayat took the help of Assistant Collector and of the police and way was opened on 27.6.1998. The defendants again threatened to close it. They ploughed the land by tractor and were thus denying the right of the plaintiffs. Number of affidavits were filed alongwith the application.

The defendants'' reply was that the petitioners were not the representatives of different villages. There was a recorded way on the eastern side of Khasra No. 7/1,4.3/ I, 2, 1/1 and 1. This has been the only way and the way, as alleged by the petitioners, never existed. They denied the right of easement of petitioners. It was submitted that there was an alternate way which is recorded one. The way claimed by petit loners could not be granted to the petitioners as they want as it never existed.

Learned Civil Judge, after going through the reports of the Commissioners and the evidence submitted before him, granted temporary injunction and also ordered that the obstacles put in the way be removed and further injected the defendants not to put any hindrance till the decision of the suit. On appeal this order was confirmed.

Learned Counsel for the petitioners submitted that both the courts have committed illegality and they have given more than what was asked by the plaintiffs. According to him this way never existed and an illegality was committed and the order is amenable to the revisional jurisdiction u/s 115 CPC.

On the other hand, Learned Counsel for the respondents submitted that it is well proved prima-facie that there existed a way. He also submitted that the courts below did not, commit any error of jurisdiction and that it is clear from the order of the appellate Judge in para No. 8 that when the defendants were putting obstacles in the way, the trial court ordered to remove the same. He submitted that when there is a concurrent finding of two courts that there existed a way, this Court would not interfere in the finding of fact.

Learned Counsel for the petitioners cited Cliandgi Ram v. Ram Lal, RLW 1962 458, and contended that in India there is a customary right vested in a tenant of every field whether or not his tenancy is heritable and alienable to have access to it for agricultural purpose and this right is available to him to members of his family, his hired labourers at his partners in cultivation. Making a premises on this argument, he submitted that had there been a case that there existed a way to have access to agricultural purpose then there would have been no objection but the petitioners claimed that there existed a 12 ft. wide way to go from one village to. other while there existed an independent way which is recorded in settlement, the petitioners do not have any right. The counsel forgets that the trial court as well as appellate court have given a concurrent finding that there existed a way as alleged by the plaintiff petitioners for the purpose of coming and going from one village to other through the fields as alleged in the plaint. The citation does not apply to the facts of the case in hand. Courts below have held that there existed a way as described by plaintiffs in order to go from one village to other.

Counsel for the petitioners then cited Mst. Govindi Bai v. Mahant Lakshmi Chand, RLW 1952 page 404; Shayak Mohammad and Others v. Iqbal Ahmed, AIR 1973 Raj. 115; and Ramchandra Tanwar Vs. Ram Rakhmal Amichand and Another, and contended that the trial court as well as appellate court have committed error of law. These, citations also do not apply to the facts of this case.

Learned Counsel for the petitioners submitted that no irreparable injury will be caused to the respondents if they are not allowed to go through the alleged way because there is an alternative way. He emphasised that Shayak Mohammad''s case should be followed. In Shayak Mohammad and other''s case (supra) there was a dispute about pipe line and the appellate court was of the view that the pipe line would be removed if the plaintiff succeed in the suit and the defendant can be made to pay compensation for this removal. The facts of the case in hand arc quite different. Here, if the plaintiffs are not allowed to use the way which they used for times immemorial and over which they have an easementary right, would be deprived of their right to use the way. The question of irreparable loss is to be looked into not from the monetary point of view but from the point of view of the rights of the plaintiffs. Therefore, Shayak Mohammad''s case (supra) does not apply. Ramchandra Tanwar''s case (supra) also does not help the petitioners for the simple reason that the allegations in the petition were that there existed a way through the fields which is found proved by both the courts below and a petition was filed that the defendants petitioners after filing of the suit had changed the situation and had put hindrances in the way. On this application u/s 151 CPC the matter was considered and the petitioners were ordered to remove the abstrictions. Such an order could be passed in such circumstances.

Learned Counsel for the respondents cited (1987) 4 Reports (CD) 618, Films Rover International Ltd. & Ors. v. Cannon Film Sales Ltd., in which it was held that interlocutory mandatory injunction can be granted when there is a greater risk of injustice even though the court is not sure of the plaintiff''s chance of establishing his right. Thus, when the trial court has passed an interlocutory injunction order in the mandatory form in the circumstances of this case, it does not lie in the mouth of the petitioners to say that something more has been given by the courts below than what was desired in the case. In Devla & Ors. v. Khem Chand, RLR 1990 (1) 644, the mandatory order passed by trial court for demolishing the wall constructed over public lane by plaintiff during the pendency of suit was held to be justified in the facts and circumstances of the case. The order cannot be said to be unjustified in the facts and circumstances of this case.

The settled law is that the finding of fact cannot be reversed in revision. It was so held in Jhunta Ram @ Suraj Narain v. Surendra Mohan, 1998 (1) WLC 708; Shanti Chander Bairatiu v. Shan Patni & Company and Anr., RLR 1990 (1) 726; Mange Ram v. Roop Chand & Ors., RLR 1990 (1) 334; R.S.E.B. v. Chhitar, 1997 WLC (Raj.) UC 365; and P. Udayani Devi v. V.V. Rajeshwara Prasad Rao & Anr., 1995 (1) CCC 612.

In para No. 9 of the order of learned trial Judge it was held on the basis of evidence produced that there existed a way as established prima-facie by the petitioners plaintiffs, The finding is based on evidence produced and the different reports of Commissioners. The finding of fact cannot be interfered by this Court under the provisions of Section 115 CPC.

In The Managing Director (MIG) Hindustan Aeronautics Ltd. and Another, Balanagar Vs. Ajit Prasad Tarway, it was held that the interference by High Court is not proper even if the order is right or wrong or in accordance with the law or not unless the courts below exercised jurisdiction illegally or with material irregularity. I do not find such lacunae.

Consequently, there is no force in this revision petition and it is hereby dismissed. No order as to costs.