- (1.) This writ petition under Article 226/227 of the Constitution of India has been filed by the petitioners on 24-11-2003 against the respondents with a prayer that by an appropriate writ, order or direction, judgment dated. 16-10-2003 (Annex. 13) passed by the learned Additional Dist. Judge, Parbatsar (respondent No. 2) in civil Misc. Appeal No. 47/99 by which the learned Additional Dist. Judge upheld the order dated 29-9-1999 (Annex. 6) passed by the learned Civil Judge (J. D.), Makrana (respondent No.1) by which the learned Civil Judge (respondent No.1) by which application of the plaintiffs (respondents No. 3 to 10) was allowed against the defendants petitioners and the plaintiffs (respondents Nos. 3 to 10) were allowed to use 8 ft. wide way which crosses Khasra No. 401/2 and 401/3 and goes ahead to Khasra No. 409/3, be quashed and set aside.
(2.) The facts of the case as put forward by the petitioner are as under : (i) That the respondents Nos. 3 to 10 (plaintiffs) filed a suit (Annex, 1) on 24-9-1998 before the respondent No. 1 (Civil Judge) for declaration of rights, permanent injunction and declaration of easementary rights. Along with the suit, an application (Annex. 2) for temporary injunction under Section 39 Rule 1 and 2 CPC was also filed. In the application (Annex. 2), the respondents Nos.3 to 10 (plaintiffs) alleged that they are residing in Jhajharon Ki Dhani in Sarhad Manana and Khasra No. 398 is gair mumkin pasture land. The respondents Nos.3 to 10 (plaintiffs) also pleaded in their suit (Annex. 1) that towards north-east corner, there is an ancient way which crosses Khasra No. 401 in the south-east corner and touches the boundary of Khasra No. 401/3 and it goes ahead to the south boundary of Khasra No. 409/3 and ultimately, the aforesaid way joins the Katani Abadi Dhani. It was further pleaded by the plaintiffs (respondents No.3 to 10) in their application (Annex. 2) that the Khasras Nos, 401/2 and 401/3 belonged to the defendants and alleged way has not been entered in the Revenue Record. (ii) Further case of the petitioners is that during pendency of application (Annex. 2), the respondent No. 1 (Civil Judge) appointed a Commissioner to prepare a report and site plan of the disputed way and the Commissioner submitted its report on 26-9-1998 (Annex. 3). (iii) Further case of the petitioners is that report dated 7-7-1999 (Annex. 4) of another Commissioner was also obtained. (iv) Further case of the petitioners is that defendants (petitioners) filed reply (Annex. 5) to the application (Annex. 2) stating that the plaintiffs (respondents Nos.3 to 10) are residing in Khasra No. 409/1 and411/l and all the respondents Nos.3 to 17 are members of one family and they have got their separate Katan (way) in Khasra No. 419 and they were using the said way and thus, they are not entitled to use the way as claimed by the plaintiffs in their plaint (Annex. 1) as well as in the application for temporary injunction (respondent No. 2) (iv) That the respondent No. 1 (Civil Judge) after hearing both the parties through order dated 29-9-1999 (Annex. 6) allowed the application (Annex. 2) filed by the respondents Nos.3 to 10 (plaintiffs) after discussing all the three necessary ingredients for issuing temporary injunction inter alia holding: (i) That the first report of the Commissioner dated 26-9-1998 (Annex. 3) is of Laxman Singh, Advocate in which there is specific mention that there is 12 ft. wide way and similarly way has been shown by another Commissioner (Mohd. Umar) in his report dated 7-7-1999 (Annex. 4) (ii) there is no dispute on the point that Khasra No. 398 is Gair Mumkin Nadi and there is also a way in Khasra No. 409/3, but the dispute is only whether there is way in khasra No. 401/2 and 401/3 belonging to the defendants (petitioners) or not and for that respondent No. 1 (civil Judge) came to the conclusion that since the way has been shown in both the reports (Annex. 3 and 4) of the Commissioner and thus, he found a prima facie case in favour of the plaintiffs - respondents Nos.3 to 10 and also found another two conditions for issuing temporary injunction in favour of the plaintiffs, and issued temporary injunction in favour of the plaintiffs (respondents Nos.3 to 10), but width of the way was restricted to 8 ft. instead of 12ft. (v) Aggrieved from the order dated 29-9-1999 (Annex. 6), the petitioners defendants preferred an appeal (Annex, 7) before the respondent No. 2 (Additional Dist. Judge). (vi) That the respondent No. 2 (Additional Dist. Judge) also appointed a Commissioner to prepare the report of disputed way. (vii) Further case of the petitioners - defendants is that 3rd Commissioner submitted Its report on 27-10-1999 (Annex. 8). (viii) That the learned Additional Dist. Judge through judgment dated 16-10-2003 (Annex. 13) dismissed the appeal filed by the petitioners - defendants and upheld the order dated 29-9-1999 (Annex. 6) passed by the learned Civil Judge (respondent No.1) inter alia holding : (i) That the Commissioner was appointed on the application of the defendants - petitioners and the Commissioner submitted its report on 27-10-1999 (Annex. 8) in which also existence of way as claimed by the plaintiffs (respondents Nos.3 to 10) was found, but towards south and west, the width of way is only 8 ft. (ii) That as per the Commissioner report dated 27-10-1999 (Annex. 8) no other alternative way was found. (ix) Being aggrieved by the order dated 29-9-1999 (Annex. 6) and judgment dated 16-10-2003 (Annex. 13), this writ petition has been preferred by the petitioners.
(3.) In this writ petition following submissions have been raised by the learned counsel for the petitioners: (i) That it is admitted fact that the alleged disputed land is not katani/way in the revenue record and the disputed land belongs to the defendants-petitioners, therefore, the impugned order dated 29-9-1999 (Annex.6) and judgment dated 16-10-2003 (Annex. 13) are beyond jurisdiction and should be set aside. (ii) That there is alternative way available to the plaintiffs (respondents Nos.3 to 10) through Khasra No. 419 and it is settled proposition of law that if an alternative passage is available easementary right of necessity cannot be claimed and hence from the point of view also, the findings recorded by both the Courts below are erroneous one and should be set aside.;