1 S.B.CIVIL WRIT PETITION NO. 7204/2009 (Narain & ors. Vs. The State of Rajasthan & ors.) DATE OF ORDER : 24th July 2009 HON'BLE MR.JUSTICE DINESH MAHESHWARI Mr.Dron Kaushik for the petitioners. Mr.R.S.Choudhary for the respondent No. 3 (Caveator). … The plaintiffs-petitioners filed a revenue suit essentially contending against existence of the way as recorded in the revenue records between khasra No.294/2 and khasra No.337 and between khasra No.294/3 and khasra No.337/1; and sought a declaration that the way, instead of the recorded one, had in fact been existing on the eastern boundary of the land comprised in khasra Nos.337 and 337/1. The learned Trial Court proceeded to dismiss the suit by the judgment and decree dated 27.09.1995 after being satisfied, inter alia, on the facts that the petitioners had attempted to carve out a zigzag way in place of the straight way already available and recorded in the revenue records. The first appeal preferred by the petitioners was dismissed by the Revenue Appellate Authority on 23.03.2002 while endorsing the views of the Trial Court; and the second appeal taken by the petitioners was also dismissed by the Board of Revenue on 15.07.2009 finding no error or illegality in the orders as passed by the subordinate Courts. Aggrieved, the petitioners have preferred this writ petition. 2 It has strenuously been contended by the learned counsel for the petitioners that the three Courts have not examined the precise case as submitted by the petitioners of wrong entries having been made during the settlement operations that were carried out at the time when the respective agricultural fields were lying vacant and were not cultivated; and else, there had been specific evidence produced by the plaintiffs in support of their case that the way existed on the eastern side of khasra Nos.337 and 337/1. It is further submitted that the approach of the learned Courts in rejecting the claim of the petitioners as if they were seeking declaration per Section 16 of the Rajasthan Tenancy Act was entirely erroneous inasmuch as the matter related essentially to the right of way; and was required to be dealt with per Section 251 of the Rajasthan Tenancy Act. The learned counsel submitted that the petitioners would suffer substantial loss if would be forced to provide the way between their fields; and on the other hand, if the way is provided at the place pointed out by the petitioners, that would not be of any loss or injury or inconvenience to any party. Reference has also been made to the order dated 18.01.1990 as passed by the Tehsildar, Parbatsar in Case No.9/1989, which was taken up against the petitioners under Section 91 of the Rajasthan Land Revenue Act alleging encroachment on the land in dispute and wherein the Tehsildar found the way existing on the eastern boundary of khasra 3 No.337/1 and recommended correction of the revenue records accordingly. On being questioned if the said order dated 18.01.1990 was produced in evidence before the learned Trial Court, the learned counsel answered in the negative and candidly submitted that the said document was not marked exhibit. Having given a thoughtful consideration to the submissions made on behalf of the petitioners and having perused the material placed on record, this Court is unable to find any reason to entertain this writ petition. The order as passed by the Tehsildar, Parbatsar in the proceedings under Section 91 of the Rajasthan Land Revenue Act cannot be taken conclusive of the issue if the way should only be provided at place suggested by the petitioners instead of the way already marked and recorded in the revenue records. Moreover, when the said order was not even tendered in evidence before the subordinate Courts and when the subordinate Courts have had no occasion to examine the same, the petitioners rather do not appear justified in placing reliance on the same for the purpose of consideration of this writ petition under Article 227 of the Constitution of India preferred against the orders as passed by the subordinate Courts. The submissions do not appear correct that the subordinate Courts have viewed the case from a wrong angle or that they have 4 not dealt with the issues in accordance with law. Perusal of the judgment of the learned Trial Court and so also of the learned First Appellate Court makes it clear that they have precisely dealt with the material as available on record and found no reason to decree the suit particularly when the suggestions of the petitioners, if accepted, would lead to the situation that a zigzag way shall have to be carved out in the place of the straight and direct way as recorded in the revenue records. There appears no illegality if the learned subordinate Courts have not agreed with the submissions made on behalf of the petitioners. Apart that there appears no illegality or jurisdictional error in the findings of the learned subordinate Courts, having examined the plan (Annex.1) as placed on record by the petitioners; and the respective position of the recorded way and the suggested way, this Court is satisfied that the suggestions of the petitioners seem to be rather contrary to the ordinary likelihood of the way. There appears no logic or reason that a straight way across several parcels of land would be diverted in the middle, only at the fields of the petitioners. The impugned orders neither suffer from any jurisdictional error nor could be said to be leading to failure of justice. There is no scope for interference; and the writ petition is required to be dismissed. 5 The learned counsel at the last made a submission that the petitioners have carried out operations for the purpose of cultivation at the land in question and if they would be deprived of the disputed portion at this stage, the cultivation might go waste. In the first place, there appears no material on record to fortify such submissions of the petitioners; and secondly, there cannot be considered the likelihood of substantial loss by providing the way at the place as it ought to exist. However, in case of any difficulty, the petitioners may make the request to the Tehsildar concerned who may, while providing for the way, if not already opened, consider the request of the petitioners and may take necessary steps. So far the impugned orders are concerned, there is no reason to interfere. The writ petition fails and is, therefore, rejected. (DINESH MAHESHWARI), J. MK