1 S.B.Civil Revision Petition No.707/2001 Balveer Singh vs.Dayanand & anr. Date of Order: 26.7.2006 HON'BLE MR. PRAKASH TATIA, J. Mr. Sunil Beniwal for the petitioner. Mr. Sandeep Shah for the respondent. ... Heard learned counsel for the parties. It appears from the facts of the case that the plaintiff filed the suit for permanent injunction with the allegations that for plaintiff's agricultural land, there is a way from agricultural field of various other agriculturists including the defendants' agricultural field. The defendants tried to obstruct the way, upon which the Tehsildar inspected the site and prepared a map on 24.1.1992 and found the way on spot running from the defendants' agricultural fields 416/1, 416/2 and 416/Min. Despite said decision of the Tehsildar, the defendants again obstructed the plaintiff on 6.2.1992, therefore, the plaintiff filed the present suit for injunction and in para 2 of the plaint clearly stated that the defendants be restrained from obstructing the plaintiff's way so that the plaintiff may take his cattle, bullock-cart, tractor etc. from the way. The dispute was settled by compromise decree on 27.6.1992. In the compromise decree, there is no mention about the width of the way. In the compromise decree, there is only mention that the plaintiff shall be entitled to use the way shown by dark black line shown in the map and 2 the defendants shall not obstruct the way. After the decree when the defendants judgment debtors obstructed the way, the plaintiff submitted execution petition. The executing court held that there is no specific width given in the decree for the way but the way should be of 8 ft. The executing court directed the Sales Amin to keep the way of 8 ft. in place of way of 12 ft. which was opened by the court officer, by order dated 26.2.1998. The above order of the executing court dated 26.2.1998 was challenged by the defendants judgment debtors by filing appeal under Order 41 Rule 1. The appellate court, relying upon the facts mentioned in para no.2 of the plaint wherein there is reference of the site inspection report of the Tehsildar and wherein there is mention of way of 3 ft., the appellate court held that the way can be of only 3 ft. width and the executing court committed error of fact and law in declaring the way to be 8 ft. wide. Being aggrieved against the order of the appellate court, the petitioner-plaintiff preferred this revision petition. According to the learned counsel for the petitioner, the first appeal before the court of District Judge against the order of the executing court dated 26.2.1998 was not maintainable because the order was not appealable. The learned counsel for the petitioner also submitted that the first appellate court failed to construe the decree properly. It is also submitted that it is true that there is no mention of 3 width of the way in the decree but that can be gathered from the plaint and the relevant documents. It is also submitted that even if the width of the way cannot be gathered from pleadings of the parties or other documents, even then the executing court could have determined what should have been the width of the way. The plaintiff pleaded that he has a right to bring the bullock cart, cattle and the tractor to his field from the disputed way and he has no other way. So far as the right of the way of the plaintiff is concerned, that cannot be disputed in view of the admission of the defendants themselves on the basis of which the decree was granted by the trial court. Therefore, the decree is required to be construed and for that purpose even the executing court could have looked into pleadings of the parties. The learned counsel for the respondents judgment-debtors vehemently submitted that the appeal was preferred by the judgment- debtors under Order 43 Rule 1(r), C.P.C. It is also submitted that the objection about non-maintainability of the appeal was not taken by the plaintiff decree holder before the first appellate court nor it has been raised in the revision petition, therefore, the petitioner cannot be allowed to take the objection after such delay. On merits, the learned counsel for the respondents vehemently submitted that the plaintiff's own case was that the way is of pagdandi. 4 He tried to get his right determined through the Tehsildar and after the site inspection, the Tehsildar found the width of the way 3 ft. Only. In view of the above facts pleaded by the plaintiff and the documents produced by the plaintiff, the first appellate court rightly held that the plaintiff cannot claim the the width of the way more that what he himself has pleaded. I considered the submissions of the learned counsel for the parties and perused the facts of the case. It is clear from the Order 41 Rule 1,C.P.C. that said provision nowhere provides for appeal against the orders passed under on application under Section 151,C.P.C. that too in execution. The question raised by the petitioner against the maintainability of the revision petition preferred by the judgment debtors, is a pure question of law and is also in relation to the inherent lack of jurisdiction of the court of Addl. District Judge who set aside the order of the executing court dated 26.2.1998.The order of the executing court dated 26.2.1998 could have been challenged only by way of revision and not by way of appeal. Therefore on this ground alone, the present revision petition deserves to be allowed. Otherwise also, it appears from the reasons given by the appellate court in its order dated 8.8.2000 that the first appellate court merely picked up the part of the pleading for the purpose of construing 5 the decree and ignored the remaining part of the plaint. The way sought by the plaintiff was not for any residential building but was for agricultural field. The plaintiff in his plaint in para no.4 clearly stated that he has right to take not only cattle but bullock cart and tractor to his agricultural field through the disputed way. Otherwise also, the way for the agricultural field, unless there exists some strong reason, cannot be of such small width of 3 ft. only where through which the tractor cannot enter. In view of the above, the order of the first appellate court dated 8.8.2000 appears to be absolutely erroneous. In view of the above discussion, the revision petition is allowed. The order of the first appellate court dated 8.8.2000 is set aside. The order of the executing court is restored. ( PRAKASH TATIA ),J. mlt.