MANU/SC/0859/2011

Equivalent/Neutral Citation: AIR2011SC 3258, 2011 4 AWC 3901SC , 2011 (2) C G.L.R.W. 387, 112(2011)C LT630(SC ), 2011(II)C LR(SC )286, 2011
INSC 442, JT2011(7)SC 515, (2011)7MLJ797(SC ), 2011(4)MPHT346, 2012(2)RC R(C ivil)956, RLW2012(2)SC 1248, 2011(7)SC ALE50, (2011)7SC C 452,
[2011]7SC R817

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 4922 of 2011 (Arising out of SLP (C) No. 8497 of 2007)
Decided On: 04.07.2011
Ramkanya Bai and Ors. Vs. Jagdish and Ors.
Hon'ble Judges/Coram:
R.V. Raveendran and A.K. Patnaik, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Ujjal Singh, J.P. Singh and R.C. Kaushik, Advs.
For Respondents/Defendant: Sushil Kumar Jain, Puneet Jain, B.L. Joshi, Pratibha Jain,
Vikas Upadhyay and B.S. Banthia, Advs.
Case Note:
Property - Enforcement of easementry rights - Jurisdiction of Civil Court -
Sections 44, 131, 131(1), 131(2), 242, 242(1), 242(2), 242(3), 242(5) and
257 of Madhya Pradesh Land Revenue Code (Code), 1959;�Section 9 of
Civil Procedure Code (CPC), 1908 - (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, was barred by Section 257 of the Code, on the ground that it was a
matter which the Revenue Officer (Tahsildar) was empowered to decide under
Section 131 of CPC - (b) Whether the civil court had no jurisdiction to
entertain 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 CPC recognizing such
right, was illegal and erroneous - Held, the Code nowhere bars the
jurisdiction of civil courts to decide upon easementary rights relating to
agricultural or other lands - 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 CPC - 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 - Jurisdiction of the civil court to try any suit relating to
easements was not affected by Section 131, 242 or Section 257 of CPC -
Impugned judgments set aside - Appeal allowed.
Ratio Decidendi:
"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."
Case Category:
LAND LAWS AND AGRICULTURAL TENANCIES

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 JUDGMENT
R.V. Raveendran, J.
1. Leave granted.
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
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 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.
4 . On the contentions urged by the parties, the following 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
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 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?
5. Section 131 of the Code deals with rights of way and other private easements. It is
extracted below:
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 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:
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 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--
(a) to (z-2) xxxxx [not extracted as not relevant]
6. 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 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 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.
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 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.
7 . 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

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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 contemplated or prescribed by the Easement Act. Easements 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 enjoyment, without interruption for twenty years.
Customary easement can be are acquired by virtue of a local custom.
8. 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
barred. In Kamala Mills Ltd. v. State of Bombay MANU/SC/0291/1965 : AIR 1965 SC
1942 this Court held:
The normal rule prescribed by Section 9 of the Code of Civil Procedure is that
the courts shall (subject to the provisions contained in the Code) have
jurisdiction to try all suits of a civil nature excepting suits of which their
cognizance is either expressly or impliedly barred... Whenever it is urged before
a civil court that its jurisdiction is excluded either expressly or by necessary
implication to entertain claims of a civil nature, the Court naturally feels
inclined to consider whether the remedy afforded by an alternative provision
prescribed by a special statute is sufficient or adequate. In cases where the
exclusion 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 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)
In Dhulabhai v. State of Madhya Pradesh MANU/SC/0157/1968 : 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 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 with or the statutory tribunal has not acted in
conformity with the fundamental principles of judicial procedure....
(2) Where there is an express bar of the jurisdiction of the court, an
examination of the scheme of the particular Act 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.

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 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.
9 . The Code nowhere bars the jurisdiction of civil courts 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 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 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 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.
10. 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 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 court to declare that the Defendant has 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.
1 1 . 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 Plaintiff's property or a suit for injunction to
restrain a Defendant from interfering with the possession of Plaintiff or exercising any
easementary right over Plaintiff's 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 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".
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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 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 court in any civil suit by any party relating to that
matter. Therefore it has to be held that 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.
1 2 . But some decisions of the Madhya Pradesh High Court have proceeded on the
assumption, rather erroneously and without any basis, that the private easements
including right of way referred under Section 131 of the Code, are not the easements
which are dealt with in the Indian Easement Act, but are a new type of easement
unknown to general law of easements, which require to be decided by the Tahsildar
only with reference to the previous customs and conveniences of parties. A distinction is
sought to be drawn by those decisions, between easements under the Easement Act and
easements under Section 131 of the Code, by holding that the Easement Act deals with
easements perfected by prescription, whereas Section 131 of the Code refers to private
easements, which are not perfected by prescription. They also proceed on the basis that
in view of Section 131 of the Code providing for a Revenue Authority, that is a
Tahsildar, to deal with the special type of private easements provided for in Section 131
of the Code, civil courts will have no jurisdiction to entertain or decide any matter
relating to such type of private easements, having regard to the bar contained in
Section 257 of the Code; and consequently any decision of the Tahsildar under Section
131 of the Code is amenable only to an appeal and thereafter a revision provided under
the Code itself, and is not open to challenge in a civil suit [See: Nathuram v. Siyasharan
MANU/MP/0019/1970 : 1969 JLJ 115 and Rambai v. Harchand 1979 RN 532].
13. On the other hand, other decisions of the Madhya Pradesh High Court have taken
the view that a civil court is not 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 Krishna
Pandey MANU/MP/0124/1968 : 1971 JL J 825 andFakka 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 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
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 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.
14. At this juncture we may refer to the relevance of Wajib-ul-arz while dealing with
cases of customary easements. Section 242 of the Code deals with Wajib-ul-arz and is
extracted below:
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 -
(a) the right to irrigation or right of way or other easement;
(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 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.
(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.
(4) The record made under Sub-section (1) shall, subject to the decision of the
civil court in the suit instituted under Sub-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 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
(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 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
(e) That the civil court has by a decree determined any custom existing
in the village.

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Rules have been made under Section 242 relating to Wajib-ul-arz vide notification dated
2.2.1966, Rule 2 thereof is extracted below:
2 . Customs under Sub-section (1) of Section 242 shall be ascertained and
recorded in the Wajib-ul-arz under the following heads, namely: -
(i) Right to irrigation;
(ii) Other water-rights;
(ii) Right to fishing;
(iv) Rights of way, village roads, paths, drains and the like;
(v) Rights of persons of other villages over the lands of the village;
(vi) Rights 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-
grounds, (g) Rights to graze and take fuel, (h) Manure and rubbish;
(viii) Other miscellaneous rights.
15. 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
privately 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. 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 and 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, it would make the task of civil courts comparatively
easy, as there will be no need for detailed evidence to establish the custom. Be that as
it may. If the remedy for violation of a customary easement recognized and recorded in
the Wajib-ul-arz is by way of a civil suit, it is inconceivable that in regard to violation of
a customary easement not recognized or recorded in the Wajib-ul-arz, the remedy would
be only by way of a summary enquiry by the Tahsildar under Section 131 of the Code,
and not by a suit, before the civil court.
Conclusion
1 6 . In the circumstances, we reject the contention 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 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
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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.
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