A suit for declaration of right of easement by customary right is not covered by section 4(c) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 and the consolidation authorities have no jurisdiction to adjudicate upon such a suit.

Ashwini Kumar Sinha, J.-This second appeal is by defendant no.3 against a JUDGMENT : of modification.

2. The present suit was brought by the plaintiffs in representative capacity on behalf of the people of the village in question and the defendants as well were sued in their representative capacity as Karta of their respective families. The dispute is related to a strip of land over plot no. 288 having an area of 12 decimals as described in Schedule I of the plaint. The plaintiffs put the claim of Easement by customary right and asked for a declaration that the suit land (as described in schedule I of the plaint) was a Public rasta over which none of the defendants has any personal interest. According to the plaintiff, this rasta having an area of 12 decimals had always been used as a public road for the people of the village Sambhor in the district of Bhojpur. The plaintiff's case was that though the land was recorded under the Khata of defendants no.1, it was not his personal property. It was a common public road. According to the plaintiffs; the sale deeds executed by defendant no. 1 in favour of other defendants (vide schedule II of the plaint) were null and void, as defendant no. 1 had no right to sell the land. The plaintiffs also prayed for a declaration that the defendants had no right to put any objection to other persons in the use of the rasta. The plaintiffs further prayed for a permanent injunction against the defendants and further asked for a relief that the defendants' possession over a portion of the disputed land by virtue of the ORDER :passed in the proceeding under section 145 of the Code of Criminal Procedure was void and without jurisdiction.

3. The suit was contested by defendant no. 2 to 4. Defendant no. 1 also filed a written statement. The common defence was that the plaintiffs had no right to sue in the representative capacity for the public. The suit plot no. 288 with an area of 12 decimals was rightly recorded in the name of defendant no. 1 under his khat a no.46. It was his agricultural land but according to the contesting defendants, it had been recorded as rasta in the khatian by mistake. Further defence was that defendant no. I had every right to sell the same to anybody he liked. The defence case was that though the land was recorded as rasta, it also remained in possession of other defendants for many years and the other defendants had purchased the plot in parts from defendant no. 1 for valuable consideration through registered sale deeds and since then they were coming in possession over the same. The defence further was that none of the plaintiffs had any right to use this land as a rasta nor had they ever done so.

4. The trial court decreed the suit and held that though the plot in question did not belong to public, the public had perfected their Easementary right. The trial court held that though the title lay with defendant no. 1, the members of the public had perfected Easementary right. It further held that though the sale deeds executed by defendant no. 1 in favour of other defendants were not void, yet the members of the public had perfected their Easementary right.

5. Against the JUDGMENT : and decree of the trial court defendant no. 3 and 4 preferred an appeal. The lower appellate court dismissed their appeal and held that the entries in the cadestral survey about the plot in question that it was a rasta was perfectly correct. It further held that though plot no. 288 was recorded as rasta under khata no. 46 of defendant no. 1 alone, it was used as rasta by other persons also. It further hold that though the ORDER :passed in a proceeding under section 145 of the Code of Criminal Procedure went in favour of the defendants, yet no absolute right vested in them with regard to the suit land which was a rasta.

6. The lower appellate court further held that the defendant no. 1 had no right to sell it in favour of other defendants and as such the sale deeds mentioned in schedule II o