Reportable IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4922 OF 2011 [Arising out of SLP [C] No.8497 of 2007]

Smt. Ramkanya Bai & Anr. … Appellants

Vs.

Jagdish & Ors. … Respondents

J U D G M E N T

R.V.RAVEENDRAN, J.

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  

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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  

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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 :

“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  

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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.  

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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 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,  

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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  

[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  

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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 -  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.  

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  

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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.

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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.  

11. 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  

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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”.  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  

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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.  

12. 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  

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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 -  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 –  

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 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.”     

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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  

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(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.”  

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  

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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  

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  

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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.

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