NARSINGH RAM Vs. UDA RAM AND RADHA KISHAN

JUDGEMENT

(1.) THIS revision is directed against the order dated 1 -8 -80 passed by the Civil Judge, Nagaur, whereby he allowed the appeal of the defendants and set aside the order passed by the Munsif Nagour dated 1 -7 -80 whereby the learned Munsif directed the defendants to remove the obstructions placed at point 'A' the passage of the plaintiff.

(2.) THE plaintiff -petitioner Narsingh Ram instituted the suit against the defendants alleging that there was away to his fields Khasra No. 368 and 422 passing through the fields Khasra No. 369 and 365 of the defendants. This right was being used by the plaintiff since long peacefully and without any interruption. It was also alleged that there was no other way except as alleged by the plaintiff It was further alleged that the defendants have obstructed that way so the plaintiff prayed for mandatory injunction. Along with the suit an application for temporary injunction was also presented. The learned Munsif prima facie found the case in favour of the plaintiff and so allowed the application and ordered for removal of the obstruction. In appeal by the defendants, the learned civil Judge observed that the plaintiff has not produced any document regarding the existence of way. Both the parties have filed affidavits regarding existence and non -existence of the way. As regards the non -existence of the way the Commissioner doubted the same so the learned Civil Judge observed that there is a fair question to be tried in the suit. However, felt bound by an authority of this Court in Ram Chandra Tanwar v. Ram Rakhmal Amichand and Ors. AIR 1971 Raj. 292 and on the basis of the observations made in that case he stated that no mandatary injunction can be granted in order to restore the previous positions. Considering the observations in that case he accepted the appeal and set aside the order passed by the Trial Court.

(3.) ACCORDINGLY , the revision petition is allowed and the defendants are directed to provide way to the plaintiff -petitioner through their lands bearing Khasra No. 369 and 365 so that the plaintiff made have access to his fields 368 and 422. As this matter has become very old, the trial court is directed to hear this case day to day and in dispose of the suit within three months.