Harchand vs Magharam and Others

This is revision petition filed under section 230 of the Rajasthan Tenancy Act against the judgment of Additional Collector Bikaner arising out of the facts that initially one application was filed by present non-petitioner that there is public way which leads to applicant''s khejri parellel to their village but this right of way has been obstructed by the present applicant. Hence an application was filed under Section 251 before the gram panchayat Somalsar. This application was accepted on 22.7.81. Aggrieved from this an appeal was filed before the court of Additional Collector Bikaner which was dismissed on 13.3.91. Hence, the revision.

Heard the parties and perused the record.

Learned counsel for the applicant argued that since it is alleged that it was public way and provisions of Section 251 does not apply, under the facts. Even during the settlement of St. 2004 this public right of way had been shown in the revenue records. He submits that site inspection was made by the gram panchayat which was exparte. Site inspection was not made after issuing intimation to the parties.

On the contrary other side argued that this right of way leads to his agricultural fields. There is pagdandi also on the spot. Right of way recognized.

After careful examination of the submission made by the rival parties and perusal of the record I am of the candid view that so far as incarving of public right of way provisions of Section 251 does not apply. Under the Rajasthan Tenancy Act in the event of any holder of land, in actual enjoyment of a right of way or other easement or right, having, without his consent, been disturbed in such enjoyment otherwise than in due course of law, the Tehsildar may, on the application of the holder of land so disturbed and after making a summary inquiry into the fact of such enjoyment and disturbance, order the disturbance to be removed or stopped and the applicant holder to be restored to such enjoyment. Thus it is clear this section provides a summary remedy to a holder of land at the nearest point when his right is disturbed, but this is not a final remedy and it does not bar the regular remedy of filing a suit in a competent civil court for establishing such right or easement therein meaning thereby that it does not provide remedy for public right of way. However, in the present case it has come to the notice through evidence that there is old ''catan'' and pagdandi therefore no disturbance can be caused by any party in the old pagdandi or old catan. But at the same lime under the garb of section 251 fresh right of way cannot be given or allowed. Thus the present revision is partially allowed with the above observation and disposed accordingly.

Pronounced in open court.