Prithvi Raj vs Gopilal and Others

Dr. Vineet Kothari, J.—The present second appeal has been filed by the appellant/plaintiff-Prithvi Raj S/o Sh. Tak Chand, who was in possession of agricultural land of Khasra Nos. 1394 and 1395, which he purchased from one Chunnilal Rav, aggrieved by the concurrent judgment and decree dated 30.07.2007 passed by learned Additional District Judge (FT), Rajsamand, whereby the First Appeal No. 60/2007 (32/2000) - Prithvi Raj Vs. Gopilal and Ors., was dismissed while upholding the judgment and decree dated 01.06.2000 passed by learned Civil Judge (Jr. Division), Railmagra, rejecting the plaintiffs Suit No. 1/1995 - Prithvi Raj Vs. Gopilal and Ors., for claiming easmentary right with respect to passage/way to his agricultural land though Khasra Nos. 1390, 1391 of the defendants in Village Gawadi, Tehsil: Railmagra, District: Rajsamand.

The findings of the learned trial court in this respect while partly giving relief to the plaintiff on the relevant issue are quoted herein below for ready reference:-

The First Appeal No. 60/2007 (32/2000) filed by the appellant/plaintiff also came to be dismissed while affirming the findings of the learned trial court vide judgment and decree dated 30.07.2007 in the following manner:-

Mr. B.L. Choudhary, learned counsel for the appellant/plaintiffs submitted that the relevant evidence was not considered by the learned trial court in proper manner and there was also a report of Patwari (Mangilal) dated 10.06.1994 (Exhibit-20) before the learned trial court, which clearly mentioned that there was a passage or way up to the Well (''Kuwa'') situated in Khasra No. 1389 of the defendants and since both the parties, plaintiff and defendants, had purchased respective fields from the same seller i.e. Sh. Chunnilal Rav, therefore, the passage up to said Well and further a way to village road, however, the courts below could not have refused the same. He also submitted that the courts below have also erred in holding that the plaintiff/appellant had an alternative passage through Khasra No. 1382 up to the agricultural field of plaintiff situated in Khasra Nos. 1394 and 1395.

Learned counsel for the appellant/plaintiff, Mr. B.L. Choudhary, also relied upon the provisions of Section 13(a) of the Indian Easements Act, 1882, which provides, where one person transfer or bequeaths immovable property to another, if an easement in other immovable property of transferor or testator is necessary for enjoying the subject of the transfer or bequest, the transferee or legatee shall be entitled to such easement. He, therefore, submitted that on account of misreading of evidence and report of the Patwari (Ex.20) and the provisions of law aforesaid, the courts below have erred in refusing to such easementary right of the plaintiff and dismissing the suit; and thus a substantial question of law arises in the present second appeal.

Mr. Vijay Rajpurohit, for Mr. Sandeep Saruparia, learned counsel for the respondents/defendants, on the other hand, prayed for time, since the arguing counsel Mr. Sandeep Saruparia, is not available in the Court. He also supported the impugned orders on merits.

Having heard the learned counsel for the parties and upon the perusal of the judgments and decrees of the courts below, this Court is satisfied that no substantial question of law arises for further consideration by this Court in the concurrent findings of facts arrived by by the courts below. Both the courts below have concurrently held that the plaintiff had an alternative way/passage through Khasra No. 1382, which is adjacent to his Khasra No. 1394 and merely because both Khasra No. 1389 and 1391, which were purchased by the defendants from the same seller (Sh. Chunnilal Rav), no easementary rights of passage can be said to be available to the plaintiff on this ground. The learned trial court had, of course, allowed the right of passage to the plaintiff through Khasra No. 1401, 1399, 1397 and 1396, when the crops are not standing on this agricultural field and he can also also take his bullocks without pair on the said "Pal" of the said Khasra(s) of the defendants. Not only this, both the courts below have found that the plaintiff/appellant had an alternative passage through Khasra No. 1382 and, therefore, no mandatory injunction, as prayed by plaintiff could be given.

As far as provisions of Section 13(1) of the Indian Easement Act of 1882 relied upon by the learned counsel for the appellant/plaintiff are concerned, suffice it to say that the same would apply only if such easement is necessary for enjoying the subject of the transfer or bequest only then, the transferee or legatee shall be entitled to such easement. In the present case, the courts below have found that since an alternative passage is available to the plaintiff to reach his agricultural fields, therefore, such easementary rights claimed cannot be said to be necessary for enjoyment of the property or land purchased by him from Chunnilal Rav and be given to the plaintiff. The courts below were, therefore, justified in holding that the plaintiff/appellant had no right to have the passage through the agricultural fields belong to the defendants.

In view of above discussions, this Court finds no substantial question of law arising in the present second appeal of the plaintiff and the present second appeal being bereft of any merit, deserves dismissal.

Resultantly, the present second appeal of the plaintiff is hereby dismissed. No costs. A copy of this order be sent to the concerned parties and both the courts below forthwith.