1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR Shri Devaram & Anr. V/s. Shri Narsingh Mandir Trust & ors. (S.B. Civil Writ Petition No.9613/2010) S.B. Civil Writ Petition under Articles 226 and 227 of the Constitution of India Date of Order :: August 3, 2010 HON'BLE MR.JUSTICE R.S.CHAUHAN Mr. Bharat Saini for the petitioners. Aggrieved by the order dated 19.09.2008 passed by Additional Civil Judge ( J.D.) No.2, Beawar, whereby the learned Magistrate had dismissed the T.I. Application under Order 39 Rules 1 & 2 CPC and also aggrieved by the order 29.03.2010 passed by the Additional District & Sessions Judge (F.T.) No.2, Beawar whereby the learned Judge has upheld the order dated 19.09.2008, the petitioners have approached this Court. The brief facts of the case are that the petitioners had filed a suit for declaration and permanent injunction along with an application under Order 39 Rules 1 & 2 CPC. In his application, he had claimed that the ancestral land of the 2 petitioners is situated in Khasra Nos. 1, 2, 3 and 4 in Village Govindpura, Tehsil Beawar and petitioner No.2 is cultivating the said land as his father, petitioner No.1 remains in Guajrat due to business purpose. The land of aforesaid Khasras were purchased in the year 1974 through a registered sale-deed which is not disputed. It was further stated in the application that in the Southern and Eastern sides, the land of the petitioners are covered by the land of defendant Nos. 1 to 3 and in the Northern and Western sides, it is covered by a river. It was further stated that initially the whole land belonged to respondent No.1, but later on, some part of this land was handed over to respondent No.3 for opening an educational institution. The institution wants to obstruct the way of the petitioners. The respondents filed their written statements. In the reply, all the contentions raised in the application were denied. After hearing both the parties, the learned Magistrate dismissed the said application ostensibly on the ground that since an alternative way did exist for the petitioners to reach their farm land, prima faice, no case was made out in favour of the petitioners. Since the petitioners were aggrieved by the said order, they filed an appeal before the learned Judge. However, vide order dated 29.03.2010, the learned Judge dismissed the appeal and upheld the order dated 19.09.2008. Hence, this petition before this Court. 3 Mr. Bharat Saini, the learned counsel for the petitioners, has contended that it was case of the petitioners that there was a single way to approach their fields and since the respondents were trying to obstruct their way to reach their farm-land, they should be prevented from doing so. He has further contended that according to the Commissioner's report although an alternative way does exist but nonetheless, the learned Judge should have discussed the contentions raised by the petitioners. However, the learned Judge has failed to do so. Heard the learned counsel for the petitioners and perused the impugned order. A bare perusal of the impugned order clearly reveals that according to the Commissioner's report, there is, indeed, an alternative way for the petitioners to reach their farm land. Since they have an alternative route to reach their land, the learned Judge was justified in concluding that the petitioners have not been able to establish a prima facie case in their favour. Once the petitioners have alternative route, they cannot complain that the action proposed by the respondent would prejudice their cause. Moreover, the learned Judge is certainly justified in concluding that, although the petitioners claim that they have been using a particular route, since time immemorial they have not submitted the revenue record which shows the 4 existence of that particular route; moreover, it is a matter of evidence during the course of trial. Thus, the said fact cannot be commented upon at the initial stage. Hence, there is neither any perversity, nor any illegality in the impugned orders. This petition is devoid of any merit; it is, hereby, dismissed. (R.S.CHAUHAN)J. A.Asopa/-