Jagat Narayan, J. - (1.) THESE are connected revision applications by the defendant and the plaintiff respectively against an appellate order of the District Judge, Kota passed on an application under Order 39, Rule 2 C. P. C. filed by the plaintiff before the trial court. The application was rejected by the trial court but was allowed in part by the appellate court.
(2.) I have heard the learned counsel for the parties and perused the material which was before the trial court when it passed its order. I am satisfied that the plaintiff is entitled to an injunction as prayed by him. The plaintiff took on lease two plots measuring 2500 ft. x 1500 ft. and 1000 ft. 500 ft. respectively from the State in 1958 for quarrying stone and constructed an approach road bout four miles long at his own cost connecting these plots with Kota-Rawat Bhata public road. In 1960 he took two more plots on lease for the same purpose. They measured 400 ft. x 200 ft. each and are adjacent to the plots taken on lease in 1958. He has been working the quarries on these plots and has been transporting stone by means of the approach road constructed by him. In 1962 the defendant took on lease a plot measuring 600 ft. x. 300 ft. from the State for quarrying stone. This plot lies north-east to the plots of the plaintiff and is very near his biggest plot. The location of these plots is shown in plan Ex- R. 17/ a reference to which is necessary to understand the dispute between the parties. The defendant wanted to transport the stone from his plot through the plot leased out to the plaintiff by constructing a road along the line of way shown in single dotted line in plan Ex. R. 17 upto the office of the plaintiff and thereafter to transport it by using the approach road constructed by the plaintiff. The plaintiff instituted the present suit on 27. 8. 62 for a permanent injunction restraining the defendant from doing so and along with his plaint he filed an application for a temporary injunction under Order 39, Rule 2 C. P. C. He filed an affidavit in support of this application. The trial court issued an ad interim injunction restraining the defendant from trespassing into the leased area of the plaintiff". It however declined to issue any injunction in respect of the approach road of the plaintiff outside the leased area. The defendant opposed this application by filing a reply in writing supported by his own affidavit. He has not filed any written statement yet. The case of the defendant in his reply is that he wishes to construct a road on the leased area at the place where a public cart road already exists and that the approach road which the plaintiff claims to have been constructed is also a public cart road which he has only improved and as such he has a right to use both these paths. In the alternative his case is that the plaintiff is bound to allow him to pass over the leased area and to use the approach road constructed by him over the unleased area under the terms of his lease. The trial court made a local inspection and found that there was no existing cart road or public path in the area leased to the plaintiff. But it was of the opinion that under rule 17 (11) of the Rajasthan Minor Mineral Concession Rules, 1959, the plaintiff was bound to allow reasonable facilities to the defendant, of access to his leased land. It discharged the ad interim injunction with the observation that the defendant should use the passage facilities over the leased area in such a way that the plaintiff is not unnecessarily obstructed in his work. It did not lay down any line of passage. With regard to the approach road of the plaintiff on the unleased area the trial court was of opinion that as the plaintiff held no lease of the land on which this road was constructed he had no right to prevent other persons from using it. The plaintiff preferred an appeal against the order passed by the trial court. The learned District Judge also made a local inspection. He found that the approach road was not wide enough for the passage of two trucks at several places. He was accordingly of the opinion that if the defendant is allowed to use this road the work of the plaintiff will be obstructed. It was not disputed before him that the plaintiff had spent a large sum of money in constructing the approach road and was already working his quarries when the defendant took the lease. Further he found that the latter had only taken out a small quantity of stone from his plot and no part of it had been transported. He thought that the balance of convenience would be in favour of issuing a temporary injunction against the defendant restraining him from passing over the leased area of the plaintiff". He according set aside the order of the trial court and issued a temporary injunction restraining the defendant from passing over the leased area of the plaintiff till the decision of the suit. In the grounds of appeal the plaintiff claimed an injunction both in respect of the leased area as well as in respect of the approach road on the unleased area. The order of the learned District Judge is mainly based on the fact that the approach road was not wide enough for two trucks to pass at several places so that if both parties are allowed to use it the work of the plaintiff would suffer. It is thus clear that the learned District Judge intended to issue an injunction in respect of both the leased area and the approach road on the unleased area. But he accidentally omitted to make a mention of the approach road in his order. The learned District Judge however failed to apply his mind to all the relevant considerations. So far as the facts are concerned it cannot be disputed on the material on record that there is neither public cart way nor a public path in the leased area and that there never was any public path at the place where the approach road has been constructed. A public path on the leased area is ruled out by the local inspection made by the learned Munsif. The defendant filed a copy of a letter from the Mining Engineer No. C/kt/4000 dated 9. 8. 62 addressed to 'him (paper No. 21 /4g) from which it is clear that the approach road was constructed by the plaintiff at his own cost. There is also no doubt that the approach road is not wide enough at several places for the passage of two trucks as found by the learned District Judge at the time of his local inspection. A commissioner was appointed by this Court. He has reported that the road is wide enough for the passage of two trucks at all places. This does not appear to be correct. The defendant' himself complained to the Mining Engineer that he wanted to widen the approach road but the plaintiff did not allow him to do so. This is clear from the letter of the Mining Engineer dated 17. 8. 62 a copy of which was sent to the defendant under endorsement No. G/kt/4146 of the same date (paper No. 21/3c ). Coming now to the legal aspect of the matter I shall deal with the question of passage over the leased area first. The plaintiff normally has a right to quarry stone from his leased area without any disturbance from the defendant or other lessees subject to the condition contained in rule 17 (11) of the Rajasthan Minor Mineral Concession Rules, 1959 which runs as follows: - "the lessee shall allow existing and future licensees or lease holders, of any land which is comprised in or adjoins or is reached by the land held by the lessee reasonable facilities for access thereto" Prima facie this condition does not entitle one lessee to carve out a passage on the land leased put to another lessee unless it is not reasonably practicable for him to approach his leased area otherwise. It was not pleaded by the defendant in his reply to the application that it is not reasonably practicable for him to approach his leased area by constructing a road outside the leased area of the plaintiff. The plaintiff has thus a strong prima facie case with respect to the leased area and the defendant has not shown that he has any legal right to get a passage through it. So far as the approach road constructed by the plaintiff over the unleased area is concerned it is a private road of the plaintiff constructed by him in exercise of the right of easement of necessity which he has under section 13 (a) of the Easements Act. Section 4 of the Act provides that an occupier of the land is entitled to exercise rights of easement. With regard to the approach road the plaintiff is the dominant owner and the State is thus the servient owner. Section 9 of the Easements Act runs as follows: - "subject to the provisions of section 8, a servient owner may impose on the servient heritage any easement that does not lessen the utility of the existing easement. But he cannot, without the consent of the dominant owner, impose an easement on the servant heritage which would lessen such utility. Illustrations (a) A has, in respect of his mill, a right to the uninterrupted flow thereto, from sunrise to noon, of the water of B's stream. B may grant to C the right to divert the water of the stream from noon to sunset; Provided that A's supply is not thereby diminished. (b) A has, in respect of his house, a right of way over B's land. B may grant to C, as the owner of a neighbouring farm, the right to feed his cattle on the grass growing on the way; Provided that A's right of way is not thereby obstructed. "
(3.) THE State cannot therefore impose an easement in favour of the defendant on this approach will have the effect of lessening its utility for the plaintiff without the consent of the latter. If the defendant is allowed to use the approach road there will be some obstruction to the passage of vehicles of the plaintiff over it. Further there will be greater wear and tear of this road which is being maintained by the plaintiff. THE consent of the plaintiff to the imposition of another easement in favour of another lessee can be presumed only to the extent laid down in rule 17 (11) of the Rajasthan Mineral Concession Rules 1959. THE rule has been quoted above. That rule will only permit the defendant to use the approach road provided it is not reasonably practicable for him to construct his own road. Further he must himself widen it at his own expense so as to permit the passage of two trucks simultaneously before he can be allowed to use it. It was not even alleged by the defendant in his reply that it is not reasonably practicable for him to construct another approach road. Further he has not yet widened the approach road at places at which it is so narrow that two trucks cannot pass with ease. On behalf of the defendant it was argued that in his affidavit filed in this Court the defendant alleged that it was not possible for him to approach his leased area without using the approach road and the leased area of the plaintiff and the plaintiff has not been able to point out another alternative way. This argument cannot be accepted as it was for the defendant not only to take this plea in the trial court but also to produce some material to support the allegation. There is no such material on record. The plaintiff did suggest an alternative route in reply to the affidavit filed by the defendant in this court. The case of the defendant however is that it is not possible to use that way as the road to Kota Dam is a private road of the State which the public cannot use. The burden however did not lie on the plaintiff to prove the absence of an alternative way. The trial court appears to have been under the misapprehension that if any lessee constructs a road on unleased land belonging to the State every other lessee has a right to use it. Unless a way is dedicated to the public the public does not have a right of way over it even though the land may belong to the State. The right of the plaintiff under section 13 (a) of the Easements Act is a private right of way and not a public right of way. It will thus be seen that the plaintiff has a strong prima facie case both. with regard to the leased area as well as with regard to the approach road constructed by him over the unleased area and the defendant has failed to show that he has any legal right to use them for passage. If the defendant is allowed to construct a road over the leased area and to use the approach road of the plaintiff, material injury will be caused to the latter. The amount of damages which the plaintiff will thereby suffer cannot be ascertained in the circumstances of the case. The leases granted to the plaintiff are for fixed terms and although such leases are renewed, ordinarily, the possibility of their being terminated cannot be excluded. The final disposal of the suit may take a long time. Taking all these circumstances into consideration it is clear that if an order of temporary injunction is not granted as prayed by the plaintiff, irreparable injury may be caused to him. The balance of convenience is also in favour of the grant of injunction. The plaintiff filed a copy of a letter from the Deputy Minister dated 8th May, 1963 (Ex. R/14) along with a copy of a plan (Ex. R 15) which was attached to the letter. The learned counsel for the defendant stated that his client did not agree to the proposal contained in this letter before the Deputy Minister. The case was accordingly heard on merits. ;