SMT. RAMKANYA BAI & ANR. v. JAGDISH & ORS.

p. 817 Copy page pinpoint

(Civil Appeal No. 4922 of 2011) JULY 04, 2011 B

Madhya Pradesh Land Revenue Code, 1959:

p. 818 Copy page pinpoint

A (including the right to irrigation and right of way); and the right to fishing in privately owned/held lands and water bodies.

The first respondent filed an application to the Naib Tahsildar under Section 131 of the Madhya Pradesh Land Revenue Code, 1959 claiming a right of way over the land 9 of appellants to reach his lands and the same was allowed. The appellants filed an appeal as also revision and the same were dismissed. The appellants then filed a civil suif seeking a declaration that the first respondent does not have an easementary right, customary or C otherwise, over his property and the order of Tahisildar under Section 131 of the Code recognizing such right, is illegal and erroneous. The trial court dismissed the suit on .the ground that having regard to Section 131 read with Section 257 of the Code, the revenue court D (Tahsildar) alone had jurisdiction to graht relief on the basis of custom and convenience of parties, and not" the civil court. Aggrieved, the appellants filed an appeal as also second appeal and the same were dismissed. Therefore, the appellant filed an instant appeal. E Allowing the appeal, the Court

Kamala Mills Ltd. v. State of Bombay AIR 1965 SC G 1942:1966 SCR 64; Dhulabhai v. State of Madhya Pradesh 1968 (3) SCR 662 - referred to. 1.2. The Code nowhere bars the jurisdiction of civil courts to decide upon easementary rights relating to H agricultural or other lands. It neither creates nor

RAMKANYA BAI &.ANR. v. ~AGDISH & ORS. 819

recognizes any new category of private easementary '; ~ O · - . 1 . - . : ' • · ~. . "'· . . t I . , ; ' I l · ' . ·· . A rights either by way of right of way or rightto take water, ' ' . ; • ' ' •' • .... f ' . ', ' - <. ' • ' -'. • i . . . ·) • ~ - "' '. which is not covered by the provisions of the Easements • : l; ' • ' • ~ ' • . • , , - . ' ~ . . I i, I ,. . ~ • } ,• •

Act or which is not required ..to fulfill ·the requirements t l 1 '·' ,, ." ' c - ' . . • ~ ~- ' prescribed by the Easements Act. An easement cannot be acquired otherwise than in .the manner prov.ided in the B Easement ~ct. Section 131 of the Code rnerely deals with customary easements covered by Sectic;>n 18 of•the Easements Act. It cannot be .said th.at the el~ments of an easement required to be ;fulfilled under ,the Easernent Act are not required in respect of a• private .easement .unde11 c Section 131; Apart from the fact that. $ection ,131 of the Code .does .not deal :with acquisition. of .any SP.,ecial e!!sement by some metb.od which ,is not referred in the Easetnents Act,_ sub~Section (2) of, S~ction 131 expressly provides that irrespective of any order.. passed; by. the 0 Tahsildar under Section.131; any,person can establis.b , any right relating to an,.easemelit oy a-civil, suit. There is nothing ln Section>13·for ·ar;iy other provision of the C.odei which makes the decision of the Tahsildar. final and '1ot open. to question in a"civil. court. .Therefore, the decision of the .Tahsild~r will not bar.·a·subsequent ~ivil E suit by_ either party to a proceeding: und~r Section 131; ,-fn ·respect of.the easement. c.laimed in the proceedirigs under Section 131_: ofJhe Code, [Para ,9] [a28~~; 829-A-F] · ,~L._: · }•'""':. · ·v~ :! '"'~·1 ,1: . · ~'\\(· .. •• ~ ~ ~ ~'. il~-· • ~. C\, ;I' ;1 ·~:; Whe.n, a ·P~!son Jdf!mina~-~. ?~~ert has .. ~p F easementary right, and the servient own.er i,disturbs, 1 • ' -" '""' '" - ' I• . : '. : . . . -~ ;. ,. : • • .• ~

<?bstructs · ' . ' or.interferes I ~ . ' ' with ~ ~ii { his easementary. ~ right, r ' or ' '' ' ' I •'' . • ' . ;I '

~enies his.easementary right, the remedy of the dominant o'wner ~'\.i•·~. to is_~. approach the' civli court f~r the '._~°">~; relief ' ,•.; .·.''' ..... of ~~c_laration and/or, i~Junctiori. Similarly, ~he11. ·a ~~rson G ~~~--~oes 1not h~v~ ~n ea~e~r'1ta!"Y r;~ght'. tri«;s to a~sert or · · .exercise '·· ,,, • - . · • any easementary - • ,, • • , 1• _ 1 , _right •over !1.another's ,_ · • land, •;•t _ · r • • - , , -~· t .. - ~i· ! · • "-

t~~ _o.w,ner of1 ~_ucb l~11d c~~n: re,s,!~t-~.~c,h ,as_~ert1on. o~ 9bstruct the exercise ..of the easementary .' t l ' l • !, p right and.also ' ' ' -._ , • ' • ,1 ~ ~ F 1 ' ;• > ~ •• , ' "_1 I I "i' ; -!

~~l?~?~~ch th~ ~!Yi!_~~ui1 to·.~eCl~r~~h~t !.~~-~efen~ant ~~~ H

p. 820 Copy page pinpoint

A no easementary right of the nature claimed, over his land. and/or that the defendant should be prevented from asserting such right or interfering with his possession and enjoyment. [Para 10] [829-G-H; 830-A]

1.4. Section 257 of the Madhya Pradesh Land 8 Revenue Code, 1959 relates to the exclusive jurisdiction of the revenue authorities. Any statutory provision ousting the jurisdiction of civil courts should be strictly construed. A suit for enforcement of an easementary right or for a declaration that the defendant does not have any easementary right over plaintiffs property or a suit for injunction to restrain.a defendant from interfering with the possession of plaintiff or exer<:ising any easementary right over plaintiffs property, is not barred by the Code. Such suits do not fall under any of the excluded matters enumerated in clauses (a) to (z-2) of Section 257 of the Code. Section 257, no doubt, also provides that no civil court shall entertain any suit instituted to obtain a decision or order on any matter which the States Government, the Board or any Revenue Officer is empowered to determine by the provisions of the Code. But this is subject to the opening words of the Section "except as otherwise provided in this Code or in any other enactment for the time being in force". Sub-section (2) of Section 131 of the Code reserves and retains specifically the jurisdiction of the civil court to entertain suits relating to any easements, irrespective of the decision of the Tahsildar on a similar issue. Therefore, the right to decide upon the nature of easements and enforcement of easements is expressly preserved for decision by a civil court in a civil suit. The two fold object of sub-Section (2) of Section 131 is to declare that Section 131(1) of the Code does not deal with a matter which isl in the exclusive province of revenue authorities and also, to enable either party to approach the civil court in regard!' H to any easementary right, irrespective of the decision,

RAMKANYA BAI & ANR v. JAGDISH & ORS. 821

under Section 131 (1) by the Tahsildar. The effect of A Section 257 and Section 131(2) is that the enquiry and decision by the Tahsildar based on "previous custom" and "conveniences of parties" in regard to any private easementary rights relating to right of way or right to water will always be subject to the decision of the civil B court in any civil suit by any party relating to that matter. Therefore, Section 257 providing for exclusion of jurisdiction of civil court in regard to certain matters, does not apply to any suit involving or relating to easementary rights. [Para 11] [830-B-H; 831-A-B] c Nathuram v. Siyasharan 1969 JLJ 115; Rambai v. Harchand 1979 RN 532 - disapproved.

Gopidas (Mahant) v. Ram Krishna Pandey 1971 JLJ 825; Fakka v. Hafir:am 1984 RN 422 '."'" approved. . D· 1.5. Wajib-ul-arz is the record ofcustoms in a village in regard to easements (including the right to irrigation and right of way); and· the right to fishing in privately owned/held lands and water bodies. These entries could be modified in the manner provided in sub-section (5) of Section 242 of the Code. Though the Code provides for maintaining a record of all customary easements imposed upon privately held lands and water bodies, significantly the Code does not provide the remedies available in the event of disturbance or interference with such easements recorded in Wajib-ul-arz, as the remedy is only way of a suit before the civil court. Customary easements are the most difficult to prove among easements. To establish a custom, the plaintiff will have to show that (a) the usage is ancient or from time immemorial; (b) the usage· is regular and continuous; (c) the usage is certain ahd not varied; and (d) the usage is reasonable. If the Wajib-ul-arz (where such a record is maintained) records or shows the customary easement, H

822 SUPREME COURT REPORTS [20~1] 7 S.C.R.

A it woul~ make the task of. civil courts comparatively easy, as ,there will be no need for detailed evidence to establish the custo·m. If the remedy for violation of a ,customary · e~sement recognized and recorded in the Wajib-ul-arz is by way of a civil suit, it is inconceivable that in regard to B violation of a customary .easement not recognized or recorded i~ 1 the Wajib-ul-arz, the re.medy would be only by way Qf a summary enquiry by the Tahsildar under Section 131 of the Code, and noi by a suit, before the civil court. [Para 15] [834-G-H; 835-A-D]

C 1.6. it cannot be said that ·Tahsildar alone has the jurisdiction, and not. the civil court, to decide upon the existence or 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 sum'mary enquiry with reference to the 'previous custom' and with due regard to the conveniences of all parties, under Section a 131{1), is 'Open fo challenge in 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 Sections 131, 242 or 257 of the Code. The judgments and decrees of the courts below are. set1 aside and it is declaretj that the civil court has the ju.risdiction'to try the· su'it filed by the . appellants. [Para 16]• [835-E-G] . c .

RAMKANYA BAI & ANR. v. JAGDISH & ORS. 823

: CIVIL APPELui.TE JURiSDICTION : Civil App~al No. A 4922 of 2011. - . - - - ~ ' •• ·, l • . • ,, .

From ttie Judgment & Order dated 19.1.2007 of the High Court of Madhya Pradesh Bench at Indore in First Appeal No. 1151 of'2005. ; i·:_ - 8 Ujjal Singh, J.P. Singh, R.C. Kaushik for the Appellants . . Sushil i<uma'r 'Jain, Puneet Jain, B.L Joshi, Pratibha Jain, Vikas Up_adhyay, B.S. Banthia for the Respondents. ·• , The Judgment of the Court was delivered by c -R.V,RAVEENDRAN, J. 1, Leave granted. _~. 2. Th_1{~pp,etta,n_ts claim to be the owners of lands bearing K~asra. Nos.'29/212 and 29/f. The first respondent Jagdish claims to be the{ciwn~rof Khasra Nos.36/3 and 36/4. The first 0 respondent h1aci'e ah: applicatfon to the Naib Tahsildar, Tappa Betma, Depalpur, Indore District, under section 131 of the - Madhya,Pr-a~e~h hapd_ Reven,_ue Code, 1959 ('Cgde' for short) claiming a right of way over,Khasfa Nos.29/2/2 and 29/tof the appellants, to reach his lands bearing Khasra Nos.36/3 and 36/ E

4. The Naib Tahsildar,made on order dated 25.10.2001, under sectioh''131 of the Code, holding that firstresponden't, with his agriculturi:iliequipmerits, bullock-cart etc.:'was entitled to pass through the·Government Road; Khasra No.21 (East to West) of _the village Salampurand thereafter pass through Khasra Nos. F 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 G under section 50 of the Act was also dismissed.

3Copy pinpoint3. 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 H

824 SUPREME COURT REPORTS [2011] 7 S.C.R.

A 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 9 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 c 131 read with section 257 of the Code, the revenue court (Tahsildar) alone had jurisdiction 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 0 appellants was also dismissed by the High Court on 19.1.2007. The said judgment is under challenge in this appeal by special leave.

4Copy pinpoint4. On the contentions urged by the parties, the following E questions arise for our consideration:

(a) Whether the jurisdiction of the civil court to entertain a suit for declaration or injunction, claiming a customary easement of right of way or right to take water, through the land of a servient owner, is barred by section 257 of the F Code, on the ground that it is a matter which the Revenue Officer (Tahsildar) is empowered to decide under section 131 of the Code?

(b) Whether the civil court has no jurisdiction to entertain G a suit by the owner of a land for a declaration that the defendant does not have an easementary right, customary or otherwise, over his property and the order of Tahsildar under section 131 of the Code recognizing such right, is illegal and erroneous? H

RAMKANYA BAI & ANR. v. JAGDISH & ORS. 825 [R.V. RAVEENDRAN, J.]

5Copy pinpoint5. Section 131 of the Code deals with rights of way and other private easements. It is extracted below : "131. Rights of way and other private easements.-(1) In the event of a dispute arising as to the route by which a cultivator shall have access to his fields or to the waste or pasture lands of the village, otherwise than by the recognized roads, paths or common land, including those road and paths recorded in the village Wajib-ul-arz prepared under section 242 or as to the source from or course by which he may avail himself of water, a Tahsildar may, after local enquiry, decide the matter with reference to the previous custom in each case and with due regard to the conveniences of all the parties concerned. (2) No order passed under this section shall debar any person from establishing such rights of easement as he may claim by a civil suit." Section 257 deals with the exclusive jurisdiction of revenue authorities in regard to revenue matters under the Code, and bar of jurisdiction of civil courts in regard to such matters. The relevant portion thereof is extracted below : E "257. Exclusive jurisdiction of revenue authorities.- Except as otherwise provided in this Code, or in any other enactment for the time being in force, no Civil Court shall entertain any suit instituted or application made to obtain a decision or order on any matter which the State F Government, the Board, or any Revenue Officer is by this Code, empowered to determine, decide or dispose of, and in particular and without prejudice to the generality of this provision, no Civil Court shall exercise jurisdiction over any of the following matters- G (a) to (z-2) xxxxx [not extracted as not relevant]"

6Copy pinpoint6. An analysis of section.131 of the Code shows that it provides for the adjudication by the Tahsildar, in respect of disputes. raised by a cultivator, relating to any of the following H

826 SUPREME COURT REPORTS [2011] 7 S.C.R.

A three private easementary rights:- (a) the route by which a cultivator shall have access to his fields; (b) the route by which a cultivator shall have access to B waste or pasture lands of the village; and

(c) the route by which a cultivator shall have access to the source from which, or the course by which, he may avail himself of water.

C Section 131 provides that such disputes shall be decided in each case, by the Tahsildar, after a local enquiry, with reference to the previous custom and with due regard to the convenience of all parties concerned. The disputes relating to recognized roads, paths or common land including those roads o and paths· recorded in the village Wajib-ul-arz prepared under section 242 of the Code are expressly excluded from the scope of section 131 of the Code. It is thus clear that what could be decided under section 131 of the Code is a dispute relating to a claim for a customary easement over a private land, relating to a right of way or right to take water, which is not recognized and recorded as a customary easement in the village. Wajib- ul-arz.

7Copy pinpoint7. The definition of different easements, the manner of imposition and acquisition of easementary rights, the incidents of easements and the remedies in case of interference or disturbance with easements are governed by the provisions of the Indian Easements Act, 1882. Easement Act refers to the different methods by which easements are acquired or imposed, that is, namely easements by grant, easements of necessity, easements by prescription and customary easements. Acquisition of an easementary right, by any of the aforesaid methods, requires fulfillment of the conditions prescribed under the Easements Act A private easement, including a right of way to a person's land or right to take water from a source to his land, cannot be acquired in a manner not

RAMKANYA BAI & ANR. v. JAGDISH & ORS. · 827 [R.V. RAVEENDRAN, J.]

contemplated or prescribed by the Easement Act. Easements A · by grant require a grant by the owner of the servient heritage. Easements of necessity are based on implied grants or reservations made by the owner of a servient heritage, at the time of disposition such as transfers and partitions. Easements by prescription can be acquired only by peaceable and open B enjoyment, without interruption for twenty years. Customary easement can be are acquired by virtue of a loca.l custom.

8Copy pinpoint8. Having regard to section 9 of the Code of Civil Procedure, a civil court can entertain any-suit of civil nature except those, cognizance of which is expressly or impliedly C b_arred. In Kamala Mills Ltd. v. State of Bombay [AIR 1965 SC 1942] this court held : · "The norma.1 rule prescribed by section 9 of1the Code of Civil Procedure is that the courts shall (subject to the o provisions contained in the Code) have jlJrisdk:tion to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred .. : ..... : · Whenev~r it is urged before a civil court that its jurisdiction - , • is excluded either expressly or by necessary implication ·E :· to entertain claims of a civil nature, the Cou'rt naturally feels inclined to consider whether the remedy afforded by an alternative l(H .•A~ provision ,'f!j .,::;,. prescrif)f3d "j ·"".·"t:.t1• · by~ a:,·~ special ~·<--,•j statute ~:;i.-< is sufficient o~ ~dequa,te. lr:i .ya~es where the ~xclusion of the civil Courts' jurisdiction is expressly provided for, the consideration as to the scheme of the statute in question and the adequacy or the sufficiency of the remedies provided for by it may be relevant but cannot be deCisive. But where exclusion is pleaded as a matter of necessary implication, such considerations would be very important, and in conceivable circumstances, might even become decisive. If it appears that a statute creates a special right or a liability and provides for the determination of the right and liability to be dealt with by tribunals specially constituted in that behalf, and it further lays down that all questions about the said right and liability shall be determined by the H

828 SUPREME COURT REPORTS [2011] 7 S.C.R.

A tribunals so constituted, it becomes pertinent to enquire . whether remedies normally associated with actions in civil Courts are prescribed by the said statute or not." (emphasis supplied) B In Dhu/abhai v. State of Madhya Pradesh - 1968 (3) SCR 662, a Constitution Bench of this Court held that exclusion of the jurisdiction of the civil court is not readily to be inferred with, unless the following, among other conditions apply : "(1) Where the statute gives a finality to the orders of the c special tribunals the civil court's jurisdiction must be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied D with or the statutory tribunal has not acted in conformity with the fundamental principles ot judicial procedure ........... . (2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act E to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court. Where there is no express exclusion, the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case, it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated . with actions in civil courts are prescribed by the said statute or not."

9Copy pinpoint9. The Code nowhere bars the jurisdiction of civil courts

RAMKANYA BAI & ANR. v. JAGDISH & ORS. 829 [R.V. RAVEENDRAN, J.]

to decide upon easementary rights relating to agricultural or other lands. The Madhya Pradesh Land Revenue Code neither creates nor recognizes any new category of private easementary rights either by way of right of way or right to take water, which is not covered by the provisions of the Easements Act or which is not required to fulfill the requirements prescribed by the Easements Act. An easement cannot be acquired otherwise than in the manner provided in the Easement Act. Section 131 of the Code does not provide for or recognize a new type of easement which is not contemplated or recognized in Easement Act, but merely deals with customary easements c covered by section 18 of the Easements Act. Nor can it be said that the elements of an easement required to be fulfilled under the Easement Act are not required in respect of a private easement under section 131 of the Code. Apart from the fact that section 131 of the Code does not deal with acquisition of 0 any special easement by some method which is not referred in the Easements Act, sub-section (2) of section 131 expressly provides that irrespective of any order passed by the Tahsildar under section 131, any person can establish any right relating · to an easement by a civil suit. There is nothing in section 131 E or any other provision of the Code, which makes the decision of the Tahsildar final and not open to question in a civil court. Therefore, the decision of the Tahsildar will not bar a subsequent civil suit.by either party to a proceeding under section 131 of the Code, in respect of the easement claimed in the proceedings under section 131 of the Code. F

10Copy pinpoint10. When a person (dominant owner) has an easementary right, and the servient owner disturbs, obstructs or interferes with his easementary right, or denies his easementary right, the remedy of the dominant owner is to approach the civil.court for G the relief of declaration and/or injunction. Similarly, when a person who does not have an easementary right, tries to assert or exercise any easementary right over another's land, the owner of such land can resist such assertion or obstruct the exercise of the easementary right and also approach the civil H

830 SUPREME COURT REPORTS [2011] 7 S.C.R.

A court to declare that the defendant has no easementary right of the nature claimed, over his land and/or that the defendanr should be prevented from asserting such right or interfering with his possession and enjoyment.

11Copy pinpoint11. Section 257 relates to the exclusive jurisdiction of the revenue authorities. Any statutory provision ousting the jurisdiction of civil courts should be strictly construed. A suit for enforcement of an easementary right or for a declaration that the defendant does not have any easementary right over plaintiffs property or a suit for injunction to restrain a defendant from interfering with the possession of plaintiff or exercising any easementary right over plaintiffs property, is not barred by the Code. Such suits do not fall under any of the excluded matters enumerated in clauses (a) to (z-2) of section 257 of the Code. Section 257, no doubt, also provides that no civil court shall entertain any suit instituted to obtain a ~ecision or order on any matter which the State Government, the Board or any Revenue Officer is empowered to determine by the provisions of the code.· But this is subject to the opening words of the section "except as otherwise provided in this Code or in any other enactment for the time being in force": We have already noticed that sub-section (2) of section 131 of the Code reserves and retains specifically the jurisdiction of the civil court to entertain suits relating to any easements, irrespective of the decision of the Tahsildar on a similar issue. Sub-section (2) of section 131 provides that no order passed under section 131 shall debar any person from establishing such rights of easements as he may claim by a civil suit. Therefore the right to decide upon the nature of easements and enforcement of easements is expressly preserved for decision by a civil court in a civil suit. The two fold object of sub-section (2) of section 131 is to declare that section 131(1) of the Code does not deal with a matter which is in the exclusive province of revenue authorities and also to enable either party to approach the civil court in regard to any easementary right, irrespective of the decision under section 131(1) by the Tahsildar. The effect of

RAMKANYA BAI & ANR. v, JAGplSH & O.RS. 8~1 [R.V. ·RAVEENDRAN, J.]

section,2?7 and section. 131 (4) ,is ~~at the enquiry .a11d3:leci_sion A · by the Tahsildar based. on -~·previQUS c4stoiTI'\and "conyenien~s. of parties" in regard to any priv(\lte,easementary.rights rela_ting to right of way or rightto water,will always be l)Ubjectto the decision of the civil court in any civil suit by,any,p~rty,rel(lting to that matter. Therefore it h'as to. be. held that .section •2?7. a provi~ingJorexclusion ofjuriscUcti~n of.~iyil courtin regard..tq certain matters, does not apply to any s.uit,i11yolving or relating to easementary rights. . . , ,11 . 1;;; ·:. · " , '·· ·• t',, , ;..

1 .,:~12. But some decisions of the;_Madhya.P,radesh High C Court have proceeded on the assumption, rather erroneously and without any basis, that the private ,easement~. if!Clu~ing right of way referred under section 131 of)h~ Code, C1re not the easements which are dealt with in the Indian Easement Act, but are anew type .of easement unknown. to ge.11eral law of easements; which require to be decided1by,the.Tah§ildar:only D witfl reference,to the previous customs and c9nvenienc~s of partJes. A distinction is, sought to _be draYtn by; those decisions, between e~sementsunder the Easement ·f.ct and eas.ements under section, 131 of the Code, by holding,thatthe Easement Act deals. with.easements peffected by prescription,_whereas E section 131 of the Code refers to private easements, which are not pertected by prescription. :rhey als.o proceed on,the.basis that in view of section 131 of the Code providing for Revenue a Authority, that is a Tahsildar, ·to:deal with the' special'type of private' easements providedfofin section 131 ofthe"Code, civil co~~s wil/ hav~no jurisdi?tio~ tq_ e~~ertain. 9r 9~cide.ciny !llatter re1ft,1~g to such typf of pnv~te ~ase;me~ts, ~av,mg r~gard to the bar :?o~ta·ined, in sectior 257' oqhe Code; ahd · consequeht!Y any decision cif the Tahsildar under section 131· of'. the Code.is ' ' f . .; .. :~

amenable only to an appeal and thereafter a revision provided under. the Code itself,, and is,not qpen to.challenge in.a civil suit [See :.. Nathuram v. Siyasharan -J1969 JLJ. 1 t5)and Rarribai v. Harchand - 1979 RN 532] ... , .. ,, ._.,: , I _ , • ~ , ,. •l •·· ~

13Copy pinpoint13. On the other hand, other decisions 6f the' Madhya Pradesh High Court have taken the vie~ that a civil court is not H

832 SUPREME COURT REPORTS [2011] 7 S.C.R.

A barred from entertaining suits for declaration and/or injunction, against a person who has secured an order under section 131 of the Code, to declare such order of Tahsildar as illegal and not binding ·or to restrain the defendant from exercising the right recognized by the Tahsildar [Gopidas (Mahant) v. Ram B Krishna Pandey - 1971 JLJ 825 and Fakka v. Hariram - 1984 RN 422]. In Gopidas (supra), a learned Single Judge of the Madhya Pradesh High Court (A.P. Sen, J., as he then was) explained the position succinctly, thus: "The scheme underlying the section, envisages a suit c under section 131 (2) by the claimant for the establishment of his right, if such right is not recognized by the. Tahsildar. This necessarily implies that the correctness of the finding reached by the Tahsildar may be questioned in subsequent legal proceedings in the ordinary Courts of law. No doubt, the language of section 131(2) is susceptible of the construction suggested by the learned counsel that the right of a suit is confined to the claimant. This, however, does not result in the consequence that a person, on whose property a right of way is declared by Tahsildar to exist, should have no remedy for the protection of his rights in property, against an arbitrary or erroneous assumption of jurisdiction by the Tahsildar." We respectfully agree with the said observations. The. decisions in Nathuram and Rambai are not good law. F

14Copy pinpoint14. At this juncture we may refer to the relevance of Wajib- u/-arz while dealing with cases of customary easements. Section 242 of the Code deals with Wajib-ul-arz and is extracted below : G "242. Wajib-ul-arz.-(1) As soon as may be. after this Code comes into force, the Sub-Divisional Officer shall, in the prescribed manner, ascertain and record the customs in each village in regard to· - H (a) the right to irrigation or right of way or other

RAMKANYA BAI & ANR. v. JAGDISH & ORS. 833 [R.V. RAVEENDRAN, J.J

. easement; .A (b) the right to fishing;

in any land or water not belonging to or controlled or managed by the State Government or a local authority and such record shall be known as the Wajib-ul-arz of the B village.

(2) The record made in pursuance of sub-section (1 ), shall be published by the Sub-Divisional Officer in such manner as may be prescribed. c (3) Any person aggrieved by any entry made in such record may, within one year from the date of the publication of such record under sub-section (2), institute a suit in a civil court to have such entry cancelled or modified. D (4) The record mad~ under sub-section (1) shall, subject to the decision of the civil court in the suit instituted under · s.ub-section (3), be final and conclusive.

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

(a) That all persons interested in such entry wish to have it modified; or F

(b) That by a decree in a civil suit it has been declared to be erroneous; or

(c) That being founded on a decree or order of a civil court or on the order .of a Revenue Officer it is G 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 H

834 SUPREME COURT REPORTS [2011) 7 S.C.R.

A (e) That the civil court has by a decree determined any custom existing in the village."

Rules have been made under section 242 relating to Wajib-u/-arz vide notification dated 2.2.1966, Rule 2 thereof is extracted below : 8 "2. Customs under sub-section (1) of section 242 shall be ascertained and recorded in the Wajib-u/-arz under the -following heads, namely : - ··

c (i) Right to irrigation;

(ii) Other water-rights;

(ii) Right to fishing; (iv). Rights of way, village roads, paths,·drains and the like; ~I! '

" (v) Rights of persons-of other villages over the lands of the village; '· · (vi) ~ights of the villagers over the lands of other villages; (vii) Other easement - (a) Burial and cremation ground, (b) Gaothan, (c)Encamping-ground, (d) Threshing- .. floor, (e)Bazars,· (f)'Skinning-grotmds; •{g) Rights to graze and take fuel, ·(h) Manure and rubbish;

, - (viii) Other miscellaneous rights."

15Copy pinpoint15. Wajib-ul-arz is thus the record of customs in a village in regard to {i) easements (including the right to irrigation and right of way);.and (ii) the right to-fishing in privatefy owned/held lands and water bodies. The. entries therein could be modified in the manner provided in sub-section (5) of section 242 of the Code. Thougli the Code provides for maintaining a record of all customary easements imposed upon privately held lands and water bodies, significantly the Code does· n'ot provide the

RAMKANYA BAI & ANR. v: JAGDISH & ORS. 835 [R.V. RAVEENDRAN, J.]

. remedies available in the event of disturbance or interference A ·: ~ithsuclreasements recorded in Wajib-ul-arz, as the remedy .is only way of a suit before the civil court. Customary easements are the most difficult to prove among easements. To establish .·a custom, the plaintiff Willhave to show that(a) the usage is ancient or from time immemorial; (b) the usage is regular and B continuous; (c) the usage is .certain and. not varied; and (d) the · llsageis reasonable. If the Wajib-u/-arz (where such a record is maintained) records or shows the customary easement, it would make the task of civil courts comparatively easy, as there will be no need for detailed evidence tci establish the custom. c . Be that as it may .. If the remedy for violation of a customary . easement recognized and recorded in the Wajib-ul-aiz is by · way of a civi.t suit, it is inconceivable that in regard to violation .of a custom~ry easement not recognized or recorded in the Wajib-ul-atz, the remedy ,would be only by way ofa summary 0. ./·enquirybytheTahsildar.undersection 131 cif the.Code, and •not by.a suit •. betore·.t~e ciYil court;· Conclusion · ·· . 16. II"\ the circurnsiances, we reject the t~ntention that E Tahsildar alcine has the jurisdiction, and notthe civil court, to . decide upon the existence or otherwise of a customary . easement (relating to right Of way cir 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 t() challenge in a civil suit and subject to the decision. of the civil. court. The jurisdiction of the civil court to try any suit.rela,ing to easements is .not affected by section .131, 242 orsection 257 of the Code,Jn view of.the aboye, this appeal is allowed and thejudgr:n·ents and decrees of the courts below are se:t:aside and itis declared thaUhe civil' court has · the jurisdiction to try the ·suit fifed by the appellants. The trial ·court isi'equested to dispose of the suit expeditiously.

Appeal allowed. H