Halka Gram Abhaypura Tehsil Dantaramgarh District Sikar Rajasthan v. Kaluram S/o

Kaluram S/o Shri Kanaram, Resident Of Nangal Patwar Halka Gram Abhaypura Tehsil Dantaramgarh District Sikar Rajasthan. ----Respondent Connected With S.B. Civil Second Appeal No. 513/2024 Kaluram S/o Kanaram, Aged About 66 Years, R/o Nangal, Tehsil Dantaramgarh, District Sikar Versus ----Appellant Dhonkalram S/o Nathuram, R/o Nangal, Tehsil Dantaramgarh, District Sikar ----Respondent S.B. Civil Second Appeal No. 523/2024 Kaluram S/o Sh. Kanaram, Aged About 66 Years, R/o Nangal, Tehsil Dantaramgarh, District Sikar. Versus ----Appellant

1. Laduram S/o Late Goruram, R/o Village Nangal, Tehsil Dantaramgarh, District Sikar.

2. Dharamveer @ Kaluram S/o Ballaram, R/o Village Nangal, [2025:RJ-JP:13121] (2 of 7) [CSA-100/2025] Tehsil Dantaramgarh, District Sikar.

3. Mangalchand S/o Rattaram, R/o Village Nangal, Tehsil Dantaramgarh, District Sikar.

4. Goruram S/o Ramnath, R/o Village Nangal, Tehsil Dantaramgarh, District Sikar. ----Respondents For Appellant(s) : Mr. M.S. Choudhary Mr. Vikram Singh For Respondent(s) : Mr. Vijay Singh Yadav, PP Mr. S.K. Lamba HON'BLE MR. JUSTICE ASHOK KUMAR JAIN 17/03/2025 Order S.B. Civil Second Appeal No.100/2025:-

1. Instant second appeal is preferred by appellants-plaintiff aggrieved from dismissal of Civil Appeal No.14/2022 by learned Additional District Judge, Dataramgarh, Sikar on 23.10.2024 in a matter arising out of judgment and decree dated 30.09.2022 in Civil Suit No.143/2014 passed by learned Senior Civil Judge, Dataramgarh, District Sikar.

2. Learned counsel for appellants while relying upon judgment in case of Balveer Singh Vs. Dayanand & Anr. 2007 (2) RRT 792=RLW 2007 (1) 525 has submitted that the Trial Court has decreed the suit of plaintiff for a road/passage of six feet whereas the Hon’ble High Court after considering that for thoroughfare of bullock cart and tractor a minimum width of eight feet is required. He submits that the Appellate Court has not allowed the appeal for widening of road from six feet to eight feet. He submits that his [2025:RJ-JP:13121] (3 of 7) [CSA-100/2025] case is only to increase the width of road to eight feet and same is supported with evidence on record.

3. Above contentions were opposed by learned counsel for respondent-defendant on the ground that the case of plaintiff was only for 5-6 feet road (pathway) and after decree dated

30.9.2022, the appellants-plaintiff have unnecessarily filed an appeal before the Appellate Court for enhancing the width of road from six feet to eight feet. At last, he submitted that appellants- plaintiff cannot seek a relief more than what has been claimed in suit and proved by them in their evidence.

4. Heard learned counsel for the parties and perused the record of Trial Court, also considered the judgment as referred by learned counsel for appellant.

5. Appellants-plaintiff have filed a suit for declaration, mandatory and permanent injunction against defendant-Kallu Ram on the ground that a pathway, which is 6-7 feet wide was obstructed by the defendant, thus, to restrain defendant, a suit for injunction and declaration was filed. The defendant has denied the averments made in the plaint. Learned Trial Court has framed as many as 11 issues. Six witnesses were examined by plaintiffs and four documents were exhibited whereas two witnesses were examined by defendant and twenty documents were exhibited.

6. While considering issues Nos.1 to 3, it was stated by the plaintiffs that there was a pathway of six feet width and same was used by them for more than the last 30 years. Nowhere, was it mentioned by the plaintiffs that the pathway is eight feet wide. The Trial Court on the basis of evidence of the parties has passed a decree of declaration about six feet wide pathway. [2025:RJ-JP:13121] (4 of 7) [CSA-100/2025]

7. Herein this case, dissatisfied plaintiffs have filed an appeal to enhance the width of pathway from this six to eight feet and for this purpose relied upon judgment in case of Balveer Singh Vs. Dayanand and Anr. (supra).

8. A perusal of judgment facts considered by a Coordinate Bench of this Court at Jodhpur in case of Balveer Singh Vs. Dayanand and Anr. (supra) clearly indicates that the parties have entered into a compromise and the order was passed by a Coordinate Bench only on the basis of compromise between the parties. The judgment in case of Balveer Singh Vs. Dayanand and Anr. (supra) is not applicable in the instant case.

9. The appellants-plaintiffs have claimed six feet wide pathway and they have led evidence only to establish a six feet wide pathway, therefore, they cannot claim beyond the relief and scope of the plaint. Thus, the instant second appeal does not give rise to any substantial question of law, the First Appellate Court has rightly dismissed the appeal of present appellants-plaintiff.

10. In view of aforesaid, the instant second appeal No.100/2025 preferred by appellants-plaintiff is hereby dismissed.

11. Misc. application, if any, stands disposed of. S.B. Civil Second Appeals No.513/2024 & 523/2024:-

1. Aggrieved from dismissal of Civil Appeal No.13/2022 on

23.10.2024 by learned Additional District Judge, Dataramgarh, District Sikar in a matter arising out of Civil Suit No.98/2014, S.B. Civil Second Appeal No.513/2024 is preferred by appellant- defendant.

2. S.B. Civil Second Appeal No.523/2024 is preferred by appellant-defendant aggrieved from dismissal of Civil Appeal [2025:RJ-JP:13121] (5 of 7) [CSA-100/2025] No.15/20252 on 23.10.2024 in a matter arising out of judgment and decree dated 30.09.2022 in Civil suit No.143/2014.

3. Both the appeals relates to a common subject matter, therefore, both the appeals are tagged together and we have heard the submission of learned counsels for the parties on the basis of joint submission.

4. In both the appeals, an application under Order 41 Rule 27 CPC was filed by appellant-defendant and by orders dated

29.11.2024/05.12.2024, we have already directed that the application shall be considered at the time of final adjudication.

5. Learned counsel for appellant while relying upon grounds of appeal has submitted that the Trial Court has passed a decree ignoring the material on record including evidence of defendant. He also submitted that a suit was filed on the basis of right to easement which clearly means the suit property is in Khatedari land of defendant-appellant. He also submitted that there was no pathway as claimed by plaintiff(s). He also referred the material and submitted that there is a regular and alternative way available in revenue record (trace) and same was admitted by the plaintiffs. He also submitted that the plaintiff(s) have neither been able to establish the right of prescription, used continuously for 20 years nor have they been able to establish the ground of necessity as alternative road is available with each of plaintiff(s). He also referred to the evidence and admission and submitted that the Trial Court and the Appellate Court have committed grave error while passing a decree and affirming the decree. He further referred the documents submitted by him and submitted that a revenue suit is also pending before the SDO, Dataramgarh for [2025:RJ-JP:13121] (6 of 7) [CSA-100/2025] correction of trace map. At last, he submitted that a suit for declaration is not maintainable on revenue land of defendant.

6. Aforesaid contentions were opposed by learned counsel for respondents-plaintiffs and he submitted that the defendant has caused an obstruction and hindrance in a pathway used by plaintiff(s) to carry bullock cart and tractor etc. He also submitted that there is a concurrent finding of fact in both the matters and right of way is not only a necessity, but in the instant case, it has also matured as in form of prescription. He further submitted that neither the Trial Court nor the Appellate Court have committed any error in passing the judgment and decree against the appellants.

7. Heard learned counsels for the parties and perused the entire record of both the files.

8. Plaintiff-respondent (Dhonkalram) has filed a Civil Suit No.475/2014 on the ground that a pathway was shown as dotted line in revenue record in Khasra No.792 and 818 and he is using this pathway for last 45-50 years. The defendant has denied the claim made by the plaintiff, but he pleaded that the dotted line as shown in trace is just a walkway. It is admitted by plaintiff that Khasra No.792 is recorded in the name of appellant-defendant.

9. Laduram and others have filed a Civil Suit No.143/2014 for same pathway with relief of declaration and injunction, but with right of using from time im-memorial. The defendant has denied the claim of plaintiff and he objected that there are other co- tenants of Khasra No.792 and 818, who were not made party. [2025:RJ-JP:13121] (7 of 7) [CSA-100/2025]

10. After considering the entire material, the grounds give rise to following substantial questions of law which require consideration:- (i) Whether plaintiff(s) can file a suit for declaration and injunction of customary easementary right, when a Khatedari land owned by appellant-defendant (other person)? (ii) Whether the Courts below have ignored the evidence both documentary and oral while passing a decree of declaration and injunction in favour of respondent-plaintiff(s)? (iii) Whether the Courts below have ignored the alternative way available to the plaintiff(s) while passing a decree against appellant-defendant? (iv) Whether the suit of plaintiff(s) is liable to be dismissed due to non-joinder of party and both the Courts below have ignored the legal position?

11. Admit.

12. Considered stay application No.4411/2024 in S.B. CSA No.513/2024 and stay application No.4501/2024 in S.B. CSA No.523/2024.

13. An interim order was passed on 29.11.2024 in S.B. CSA No.513/2024.

14. After considering the submission of learned counsels for the parties, both the parties are directed to maintain status quo till disposal of appeal.

15. The decree for mandatory injunction shall not be executed till disposal of both the appeals.

16. Both the stay applications stand disposed of.

17. List for hearing in the month of August, 2025. GAURAV /26-28 (ASHOK KUMAR JAIN),J