1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR : J U D G M E N T : Birma Ram & Others Vs. Teja Ram & Others (S.B. Civil Misc. Appeal No.1251/2010) DATE OF JUDGMENT : December 01, 2010 P R E S E N T HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS __________________________________________ Mr. O.P. Joshi for the appellant. BY THE COURT : Instant appeal has been filed under Order 43 Rule 1(r) of the Code of Civil Procedure, 1908 against order dfated 13.11.2010 passed by Addl. District Judge, Parbatsar in Civil Misc. Case No.81/2010, whereby, learned trial Court granted temporary injunction upon application filed under Order 39 Rules 1, & 2, C.P.C. by the plaintiff-respondents in the suit for declaration of easement right and permanent injunction. As per facts of the case, suit was filed by the 2 plaintiff-respondents for declaration and permanent injunction in respect of way on the basis of easement right. Along with the said suit, an application under Order 39, Rules 1 & 2, C.P.C., read with Section 151, C.P.C. was also filed. As per the plaintiffs' case, their ancestral agricultural land is situated in khasra No.243/2, measuring 12 bigha 9 biswa at village Bithwaliya. The said land is recorded in the name of the plaintiffs and they are in possession and cultivating the said land. It is also pleaded that one more land situated in Khasra No.243/5, measuring 12 bigha 9 biswa is in the name of Madhu Ram and Kailash and they are also in possession. The plaintiffs further pleaded that for going into their land, one road is situated in khasra No.243/2 and khasra No.243/5 and this way is being used by them for last many years, therefore, they are having easement right to use the said way but the defendants have closed the said way, therefore, prayer was made that suit was filed for declaration on the basis of easement right that defendant shall not raise any obstruction to use the said way. 3 Learned trial Court upon application filed for temporary injunction sought reply from defendant- appellants and, thereafter, reply was filed by the appellants, in which, assertion made by the plaintiff- respondents was refuted and submitted that there are other way in existence which is usually used by the plaintiffs and land upon which they are claiming easement right is belonging to the defendants, therefore, no case is made out for temporary injunction; but, learned trial Court after providing opportunity of hearing both the parties, found that prima facie case is made out, therefore, after obtaining commissioner's report passed temporary injunction against the defendant-appellants that they shall not raise any obstruction upon the way in question, so also, whatever material has been put upon the way for raising obstruction may be removed. This order has been passed while exercising power under Section 151, C.P.C. Learned counsel for the appellants submits that the order impugned deserves to be quashed on two grounds. Firstly, as per basic concept of law, final 4 relief cannot be granted while passing order on temporary injunction if it is to be adjudicated whether public way was in existence, then, before adjudication, no injunction order or order under Section 151, C.P.C. can be passed; but, the learned trial Court while deciding the application for temporary injunction has granted the final relief and, so also, wrongly accepted that there is prima facie case in favour of the plaintiff- respondents, therefore, the impugned order may be quashed and set aside. Learned counsel for the appellants placed reliance upon two judgments reported in 2008 (1) W.L.C. (SC) (Civil) and 2002 (2) D.N.J. (Rajasthan) 631 and submits that before declaration of easement right no order of temporary injunction can be made. I have considered the arguments advanced by learned counsel for the appellants. In para 13 of the order impugned, it is specifically observed by the trial Court while deciding the temporary injunction application that as per reply of the defendants they are not disputing the existence of the way but only submissions is that said way is not 5 situated in khasra No.243/3 but it is at the side of khasra No.243/4. On the basis of such averment learned trial Court found that prima facie case is made out against the defendants. Trial Court further observed in para 14 of the order that as per Section 15 of the Easement Act it is provided that it has to be established by way of leading evidence and, in this case, easement right is to be adjudicated by the Court; but, the fact remains that defendant-appellants are not disputing the way but they are disputing that the way is not as per the pleadings of the suit. In my opinion, no error has been committed by the learned trial Court while granting the interim order in exercise of the power conferred under Section 151, C.P.C. If the said way is in existence, then, it cannot be closed. In this view of the matter, the facts of this case are altogether different, then, judgments cited by learned counsel for the appellants do not apply in the facts and circumstances of the present case. I am of the opinion that no error has been committed by learned trial Court while passing order upon application filed under Order 39 Rules 1 & 2, C.P.C. 6 Hence, this appeal is hereby dismissed. However, very short question is involved in the suit. It is, therefore, expected of the trial Court that the suit itself will be decided within a period six months from the date of receiving certified copy of this order. (Gopal Krishan Vyas) J. Ojha, a.