SHIVRAM Vs. STATE OF RAJASTHAN & ORS.

JUDGEMENT

(1.) Appellant-plaintiff has laid this second appeal to challenge the impugned judgment and decree dated 8th of August, 2013 passed by Additional District Judge, Rajsamand (for short, 'learned lower appellate Court'), whereby learned lower appellate Court has upheld judgment and decree dated 19th of July, 2011 passed by learned Civil Judge (Jr. Div) Kumbhalgarh, District Rajsamand (for short, 'learned trial Court') dismissing suit of the appellant-plaintiff for permanent injunction.

(2.) Facts, in brief, are that appellant-plaintiff laid civil suit for perpetual injunction against respondents precisely on the ground that he is owner of land bearing Khasras No.534 and 535 village Bhawani Ki Bhagal, Tehsil Kumbhalgarh. The positive assertion of the appellant in the plaint is that for his ingress and egress to the agricultural land the only way available is from Village Bhawani Ki Bhagal to Nathdwara Ghata Road towards south-eastern side of house of Devi Lal and Hari Shankar. Measurement of road is shown as 12 ft. The appellant-plaintiff has specifically set out a case in the plaint that he is using this path for last about 50 years, and therefore, it has created easmentary right in his favour for right to way. Appellant has also questioned the allotment of this land to respondents for construction of a school playground in violation his easmentary right. Appellant also set out a case that no other way is there for ingress and egress to his agricultural land. In the relief clause a restraining order is sought against them in the nature of permanent injunction.

(3.) The suit is contested by respondents, and it is, inter alia, averred in the reply that the land which the appellant is showing as public way is not recorded as such in the revenue record and rather the land is part of Khasra No.2021/1 which has been allotted to the school for playground right from beginning. The said land was the govt. land, and therefore, no easmentary right as such has accrued to the appellant. It is also averred in the return that earlier it was an open land, therefore, it was used as a way but that has not created any right in favour of any incumbent including appellant much less easmentary right of way.