DANA RAM Vs. CIVIL JUDGE

JUDGEMENT

(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 :

(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.