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Wednesday, April 20, 2016

The appellate court has held that for claiming a right of easement, it has to be established that the petitioners have been using the same continuously and uninterruptedly. However, there is no such evidence on record. The Amin commissioner had exceeded its power in mentioning in his report that the alleged Rasta seems to be in existence from the year 1975. It has been further noted in the order of the lower appellate court that during consolidation operations, only a four feet wide Rasta was left. For coming to such conclusion, reliance has been placed on the order dated 2.7.2012 passed by Deputy Director of Consolidation, in revision filed by the petitioners. The claim of the petitioners, in relation to existence of a 15 feet wide Rasta, was held to be unsustainable. The lower appellate court has also held that there is neither any prima facie case in favour of the petitioners nor the balance of convenience lies with them. In such view of the matter, the contention of the petitioners that report of the Amin commissioner has not been considered by the courts below, cannot be accepted.

HIGH COURT OF JUDICATURE AT ALLAHABAD 

?Court No. - 58 
Case :- MATTERS UNDER ARTICLE 227 No. - 3738 of 2015 
Petitioner :- Jai Narayan Singh & Another 
Respondent :- Vijay Prakash & 2 Others 
Counsel for Petitioner :- A.D. Singh 

Hon'ble Manoj Kumar Gupta,J. 
The petitioners, by means of this petition, have challenged the order dated 30.5.2013 passed by Civil Judge (Senior Division), Jaunpur rejecting the application 6 Ga for temporary injunction in Original Suit No.179 of 2013 and the order dated 18.10.2014 passed by Additional District Judge, Court No.1, Jaunpur dismissing the appeal. 
The petitioners instituted a suit for permanent prohibitory injunction in respect of an alleged Rasta shown with letters a, b, c, e, d in the plaint map, restraining the defendant-respondents from causing any interference in its use by plaintiffs. It is alleged that the Rasta exists on the northern side of the house of the petitioners and one Surendra and has been in existence since 1975. It is further claimed that the disputed Rasta is the only passage from their house to the main road. The petitioners have easementary rights over it. The suit was contested by the defendant-respondents with a specific plea that the suit property belongs to them. It is pointed out that during the consolidation operations, a four feet wide Rasta was left over Arazi No.57, belonging to Surendra. Beyond that, the plaintiff-petitioners have no right to claim any land as part of Rasta. It was categorically denied that the suit property was being used as Rasta by the petitioners or they have perfected easementary rights over the same. It is further pleaded that there also exists Chak road on the western side of the plot No.57, which is also being used by the plaintiffs for ingress and egress from their house. 
The trial court, after considering the entire evidence on record, has held that the petitioners could not prove prima facie case in their favour. It has been held that the only evidence available on record is regarding existence of a four feet wide Rasta, left during consolidation operations. It has been further held that the petitioners could not prove that they have perfected their rights by way of easement. The balance of convenience was not found in favour of the petitioners. The appellate court has concurred with the findings recorded by the trial court and has dismissed the appeal. 
The submission made by learned counsel for the petitioners is that the Amin commissioner has inspected the site and has submitted a report dated 8.3.2013, wherein the existence of a 15 feet Kachcha Rasta has been mentioned. It is also noted in the report of the Amin commissioner that on inquiry, he found that the Rasta is being used since the year 1975. It is thus urged that the courts below have committed a manifest error of law in not considering the report of the Amin commissioner, which establishes the existence of the Rasta. 
Similar contention was raised before the lower appellate court. It had duly taken into consideration the report of the Amin commissioner Paper No.11 Ga and the map prepared by him Paper No.12 Ka. The appellate court has held that for claiming a right of easement, it has to be established that the petitioners have been using the same continuously and uninterruptedly. However, there is no such evidence on record. The Amin commissioner had exceeded its power in mentioning in his report that the alleged Rasta seems to be in existence from the year 1975. It has been further noted in the order of the lower appellate court that during consolidation operations, only a four feet wide Rasta was left. For coming to such conclusion, reliance has been placed on the order dated 2.7.2012 passed by Deputy Director of Consolidation, in revision filed by the petitioners. The claim of the petitioners, in relation to existence of a 15 feet wide Rasta, was held to be unsustainable. The lower appellate court has also held that there is neither any prima facie case in favour of the petitioners nor the balance of convenience lies with them. 
In such view of the matter, the contention of the petitioners that report of the Amin commissioner has not been considered by the courts below, cannot be accepted. 
The findings recorded by the courts below are pure findings of fact and do not call for any interference in exercise of supervisory power under Article 227 of the Constitution. The petition lacks merit and is dismissed. 
It is, however, clarified that while deciding the suit, the trial court shall not be prejudiced by any of the findings recorded in the impugned orders or by this Court in the instant petition.� 

(Manoj Kumar Gupta, J.) 
Order Date :- 4.8.2015 
SL 

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