RAGHUNATH SINGH Vs. BHOOR SINGH

JUDGEMENT

(1.) RAGHUNATH Singh and others have filed this revision petition against the order of the Collector, Jalore dated 2-2-1964, whereby he modified the order of the Tehsildar Ahore dated 11-4-1960 passed u/s 251 of the Rajasthan Tenancy Act 1955 ordering removal of obstruction placed by the petitioners in the customary right of way enjoyed by the petitioner for going to their Khasra No. 287 through khasra No. 286 belonging to the petitioners. The Tehsildar restricted the scope of the enjoyment of the right of way as far as the bullock-cart is concerned for 3 months during the period April, May and June and the right of footpath would remain throughout the year. This restriction in appeal filed by Bhoorsingh and other respondents was removed by modifying the order. The counsel for the petitioner now contends that the Collector in removing the restricted enjoyment of right of way exceeded his jurisdiction and committed an error of law and placed inconvenience on the petitioner non-applicants. They will have to repair the irrigation channel (Nalis) damaged every time the bullock-cart passed. He further urged that when this application was filed the provision contained in Sec. 251 of the Rajasthan Tenancy Act were different as it stands remedied now. Formerly the custom and convenience of the party had to be considered in giving effect to the provisions of law u/s 251 of the Rajasthan Tenancy Act. He cited R. R. D. 1960 page 190.

(2.) I have perused the record and examined the provisions of Sec. 251. This case no doubt started long before the amendment of Sec. 251 of the Rajasthan Tenancy Act which came into force on 5-4-1961. There is no doubt that when the application was made the law as stood did recognise the custom and convenience of the parties in enjoyment of the right of easement based on custom. As far as the right of easement of way is concerned, the petitioner does not dispute this right. His only contention is that unnecessary burden should not be placed on his khasra No. 286 by way of repairing the damaged irrigation channel on the frequent passage for the bullock-cart, which was -formerly restricted to the 3 months of April, May and June. The ruling cited by the counsel for the petitioner Mahendra Singh vs. the State of Rajasthan 1960 R. R. D. page 190 only makes a passing observation that the right of way has to be exercised u/s 22 of the Easement Act which should be least onerous to the servient tenement, but the implications of this exercise of the right of way has not been clarified with any reference to the facts of this case. The question is in what way it would be inconvenient to the non-applicant petitioner has to be determined. There is no doubt that a frequent passage of the bullock-cart over the servient tenement over field No. 286 of the petitioner by the respondents bullock-cart for going to his dominant tenement khasra No. 287 channels are bound to be broken. It may be that the applicant respondents exercise this right periodically, but it may be possible that they may have to exercise this right frequently. Therefore as far as the right of way is concerned of the bullock-cart as well as pedestrians no restrictions could be placed, because the frequency of the right of way will depend upon the necessity of use of the bullock-cart for agricultural purposes. If the petitioners used the bullock-cart for any other purposes other than agricultural then there would be no doubt the servient tenement of the non-applicant petitioner would be put to onerous use and this, the law may not permit. But as far as the agricultural purposes are concerned the use of bullock-cart and its right of way over the servient tenant cannot be denied. This law has been recognised in the case of Mohan vs. Sharvan reported in 1957 R. R. D. page 93 where the easement right was claimed essentially on the servient tenant of a pond of water of one party for drinks purposes of cattle. The person now started trying to claim the use of water pond for irrigation purposes and the Court rightly held that this excess use of the pond water of the servient tenement for irrigation purposes would be onerous use of the pond-water and disallowed it. The facts of this case therefore are quite different from the one referred to above. Thus the mere use of right of way by a dominant tenement over the servient tenement for agricultural purposes cannot be called an excessive use of the servient tenement. If the inconvenience caused to the servient tenament into the frequent breakage of the irrigation channel, these may be prepared in such a way by laying a pipe underground that the bullock-cart may pass without damaging the flow of the irrigation waters.