1959 Supreme(Raj) 253
RAJASTHAN HIGH COURT
Ranawat, Jagat Narayan, JJ.
Mahendra Singh - Appellant
Versus
State of Raj. - Respondent
Civil Misc. Writ application No. 131 of 1957.
Decided On : 20-08-1959
The right to an easement must be determined based on the law of the land relating to easements, as contained in the Easements Act.
Headnote:
RAJASTHAN TENANCY ACT - SECTION 251 - RIGHT OF IRRIGATION FROM ANOTHER'S TANK - INTERPRETATION - SUMMARY PROCEDURE FOR DETERMINING RIGHT OF WAY OR OTHER PRIVATE EASEMENT - REQUISITES OF VALID CUSTOMARY EASEMENT - MODE OF ENJOYMENT OF RIGHT OF EASEMENT.
Fact of the Case:
Petitioners, descendants of Jagirdars, constructed two tanks on their Khudkasht land. After the resumption of jagirs, the tanks became part of the Khatedari holdings of the ex-jagirdars. A dispute arose when other cultivators claimed the right to irrigate their fields from the tanks. The Assistant Collector and Additional Commissioner rejected the claim, but the Board of Revenue held that all villagers whose fields were situated in the vicinity of the tanks had a right to irrigate their fields from them.
Finding of the Court:
The Board of Revenue erred in treating the original application as one under Section 251 of the Rajasthan Tenancy Act, which came into force after the application was filed. The application was filed under the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, 1951, which did not provide for a suit to establish the right of irrigation from another's tank. The proceedings before the Assistant Collector were judicial and only the original parties had the right to file an appeal. The appeal to the Additional Commissioner and the revision application to the Board of Revenue were incompetent.
Issues: 1. Whether the Board of Revenue had jurisdiction to entertain the revision application. 2. Whether the other cultivators had a right to irrigate their fields from the petitioners' tanks.
Ratio Decidendi: 1. The Board of Revenue lacked jurisdiction to entertain the revision application because the original application was not filed under Section 251 of the Rajasthan Tenancy Act. The application was filed under the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, 1951, which did not provide for a suit to establish the right of irrigation from another's tank. The proceedings before the Assistant Collector were judicial and only the original parties had the right to file an appeal. The appeal to the Additional Commissioner and the revision application to the Board of Revenue were incompetent. 2. The other cultivators did not have a right to irrigate their fields from the petitioners' tanks. Section 251 of the Rajasthan Tenancy Act provides a summary procedure for determining a right of way or other private easement. The right to an easement must be determined based on the law of the land relating to easements, as contained in the Easements Act. The requisites of a valid customary easement are that it should be reasonable, ancient, invariable and certain, continuous, and lastly found to have always been peaceably and openly enjoyed.
Final Decision: The order of the Board of Revenue was set aside, and the parties were directed to bear their own costs.
JUDGMENT
1. - This is an application under Article 226 of the Constitution against an order of the Board of Revenue dated 6th October, 1956,
2. The ancestors of the petitioners were Jagirdars in the erst while State of Jaipur. They had constructed two tanks on plots Nos. 662, 203 and 204 which were in their Khudkasht. Sometime after the construction of the tanks the jagirs were resumed in 1942 and the tanks became part of the Khatedari holdings of the ex jagirdars. On 3rd August, 1954 two cultivators of the village filed an application before the Assistant Collector in which they alleged that the petitioners were preventing them from irrigating their fields from the above two tanks. They claimed that they had a right to irrigate their fields from these tanks, The case of petitioners was that they were their private tanks and the other cultivators of the village had no right to irrigate their fields from them. The Assistant Collector held an inquiry and found that the other cultivators of the village had no right to irrigate their fields from the tanks. He accordingly rejected the application. One Nathu filed an 'appeal' against the order of the Assistant Collector, which was heard and disposed off by the Additional Commissioner on 9th March, 1956. The Additional Commissioner agreed with the findings of the Assistant Collector and dismissed the 'appeal'. Nathu then filed a 'revision application' before the Board of Revenue against the order of the Additional Commissioner, After hearing the parties, the Board held that all the villagers whose fields were situated in the vicinity of the above two tanks had a right to irrigate their fields from them.
3. The Board purported to treat the original application filed on 3rd August 1954 as one under Sec 251 of the Rajasthan Tenancy Act. This Act came into force on 15th October, 1955, that is long after the original application was filed before the Assistant Collector. The learned counsel for the respondents drew our attention to Section 206 of the present Tenancy Act and contended that the provision of the Rajasthan Tenancy Act were made to take effect retrospectively by virtue of this provision. This section occurs in Chapter XV the heading of which is 'Procedure and Jurisdiction of Revenue Courts." We have carefully perused the wordings of Section 206. They only provide for the decision of all pending suits, cases, appeals, applications, references and proceedings relating to matters dealt within the Rajasthan Tenancy Act in accordance with the procedure prescribed therein. These suits and proceedings are, however, to be decided in accordance with the substantive law in force on the date of their institution. The application, dated 3rd August, 1954 could not have, therefore, been disposed of, treating it as one under Section 251 of the Rajasthan Tenancy Act. When the application dated 3rd August, 1954 was filed the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, 1951 was in force. Item No. 27 of Group B of the first Schedule of this Act contained a provision for suit "for the right of irrigation from another's well". It did not contain any provision for bringing a suit to establish the right of irrigation from another's tank. In this view of the matter, the application, dated 3rd August, 1954 was filed to the Assistant Collector for action in his executive capacity. His order on the application was, therefore, not subject to any appeal or revision. The decision by the Additional Commissioner purporting to treat the order as an appealable one can, therefore, only be treated as an order passed by him in his executive capacity. No revision lay against that order to the Board of Revenue. In this view of the matter, therefore, the impugned order of the Board of Revenue is without jurisdiction.
4. Assuming, however, that item No. 27 of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, 1951, is wide enough to cover a suit to establish the right of irrigation from another
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