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Thursday, June 16, 2016

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.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. 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 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.

                                             1



                                                                               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


                                                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.




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


                                                          4



            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.


                                                 5



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,


                                                   6



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


                                                       7



        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


                                                8



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.


                                              9



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


                                                   10



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


                                               11



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


                                                      12



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."  


                                                     13





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


                                                         14



                    (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


                                               15



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


                                                 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.




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