Ram Kanya Bai & Anr vs Jagdish & Ors

2. The appellants claim to be the owners of lands bearing Khasra Nos.29/2/2 and 29/1. The first respondent Jagdish claims to be the owner of Khasra Nos.36/3 and 36/4. The first respondent made an application to the Naib Tahsildar, Tappa Betma, Depalpur, Indore District, under section 131 of the Madhya Pradesh Land Revenue Code, 1959 (`Code' for short) claiming a right of way over Khasra Nos.29/2/2 and 29/1 of the appellants, to reach his lands bearing Khasra Nos.36/3 and 36/4. The Naib Tahsildar made on order dated 25.10.2001, under section 131 of the Code, holding that 2 first respondent, with his agricultural equipments, bullock-cart etc., was entitled to pass through the Government Road, Khasra No.21 (East to West) of the village Salampur and thereafter pass through Khasra Nos. 29/1 and 29/2/2 belonging to the appellants, for reaching his land bearing Khasra Nos.36/3 and 36/4 and the appellants shall not obstruct such passage. The appeal by the appellants filed against the said order under section 44 of the Code was dismissed and the subsequent revision filed by the appellants under section 50 of the Act was also dismissed.

3. Thereafter appellants filed Civil Suit No.66A/2002 on the file of the Civil Judge (Class II), Depalpur, Indore district for the following reliefs : (a) a declaration that the first respondent did not have any right of way over their lands bearing Nos.29/2/2 and 29/1 to reach his lands bearing Khasra Nos.36/3 and 36/4 and that they are entitled to enjoy their lands without any interference from first respondent; (b) for a declaration that the order dated 25.10.2001 passed by the Tahsildar creating a new passage, over khasra Nos.29/1 and 29/2/2, was illegal; and (c) for a consequential injunction restraining first respondent from creating/ constructing any new passage, over their lands. The said suit was dismissed by the trial court, by judgment dated 4.12.2004 on the ground that having regard to section 131 read with section 257 of the Code, the revenue court (Tahsildar) alone had jurisdiction 3 to grant relief on the basis of custom and convenience of parties, and it did not have any jurisdiction. The appeal (Appeal No.3-A/2005) filed by the appellants was dismissed by the first appellate court on 19.4.2005. The subsequent second appeal filed by the appellants was also dismissed by the High Court on 19.1.2007. The said judgment is under challenge in this appeal by special leave.

We respectfully agree with the said observations. The decisions in Nathuram and Rambai are not good law.

(5) The (Sub-Divisional Officer) may, on the application of any person interested or on his own motion, modify an entry or insert any new entry in the Wajib-ul-arz on any of the following grounds :

civil court or on the order of a Revenue Officer it is not in accordance with such decree or order; or

(d) That being so founded, such decree or order has subsequently been varied on appeal, revision or review; or

Conclusion

16. In the circumstances, we reject the contention that Tahsildar alone has the jurisdiction, and not the civil court, to decide upon the existence or 16 otherwise of a customary easement (relating to right of way or right to take water, to a person's land). The decision of the Tahsildar after a summary enquiry with reference to the `previous custom' and with due regard to the conveniences of all parties, under section 131(1) of the Code, is open to challenge in a civil suit and subject to the decision of the civil court. The jurisdiction of the civil court to try any suit relating to easements is not affected by section 131, 242 or section 257 of the Code. In view of the above, this appeal is allowed and the judgments and decrees of the courts below are set aside and it is declared that the civil court has the jurisdiction to try the suit filed by the appellants. The trial court is requested to dispose of the suit expeditiously.

............................J [R. V. Raveendran] ............................J [A. K. Patnaik] New Delhi;

July 4, 2011.