1968 Supreme(MP) 165

High Court Of Madhya Pradesh
Shiv Dayal and S. M. N. Raina, JJ.
NATHURAM ARJUN - Appellant
Versus
SIYASHARAN HARPRASAD - Respondents
Letters Patent Appeal 8 Of 1964
Decided On : 11/28/1968

Headnote:(1) Land Revenue Code, 1959 (M.P.) - S. 131(1) - nature of provisions and the right created therein-scope of the enquiry under -heading of the section-right is not common law right or under the Easements Act.

       Section 131(1) of the Code applies to private rights in contradistinction to public rights, i.e. by the recognised roads, paths and common land including those recorded in the village Wajib-ul-arz. So far as the right of way is concerned, this section is confined to the private right of way of an individual cultivator through the field of another for the purpose of having access to his field, or to the waste or pasture land of the village. Secondly, it is conspicuous from the scope of enquiry provided in the section that the matter is to be decided with reference to previous custom and with due regard to the convenience of the parties concerned. Thus although the heading of the section is "Rights of way and other private easements," the section does not speak of rights of easement as are enforceable under the general law i.e. the Easements Act. Under the general law, to establish a right of easement under section 15 of the Act, for instance, it has to be proved inter alia that the right has been exercised for 20 years as of right and without interruption. But under section 131 of the Code the Tahsildar is not to enter into an enquiry whether the plaintiff's right has been perfected by prescription. He has merely to decide the dispute with reference to the previous custom and he has to have regard to the convenience of the parties concerned. When a dispute is to be decide on the basis of convenience it is an unperfected right. [Para 5]

       The right under section 131(1) is a creature of statute and is not a common law right. [Para 12]

       (2) Land Revenue Code, 1959 (M.P.) - Ss. 131(1) and 44 - enquiry under section 131 - remedies for parties aggrieved-power of the appellate Courts in such cases.

       Irrespective of the fact that a person has a perfected right of way under the Easements Act or not, he is entitled to approch the Tahsildar under section 131 of the Code for a decision in his favour on the basis of custom and convenience. If he succeeds the other party is given a right to appeal to higher revenue authorities. If he does not, he also can appeal to higher revenue authorities. In other words, whether it is the plaintiff or the defendant who appeals, the decision of the appellate authority will also be based on the same considerations, i.e. custom and convenience. [Para 6]

       (3) Land Revenue Code, 1959 (M.P.) - S. 131(2) - scope of the civil suit provided in the sub-section-words 'any person'-import of-civil suit when lies to challenge the orders of revenue authorities.

       The provisions of sub-section (2) of section 131 of the Code speak of the rights of easement under the general law. To put it differently, sub-section (2) does not enable any person to bring a civil suit for establishing his right provided in section 131 (1) (access to his field, or to waste or pasture land of the village) on the basis of custom and convenience. Sub-section (2) does not enable a civil suit to be instituted for a decision on a right provided in sub-section (1), nor for setting aside a decision given under that sub-section. [Para 9]

       It is not only the plaintiff who moved the Tahsildar under sub-section (1), but also the defendant is not debarred from establishing such right of easement as he may claim by way of a civil suit. The: words "any person" in sub-section (2) are of a wide connotation and include all persons who may have been plaintiffs or defendants in a proceeding under sub-section (1) of section 131. [Para 8]

       It is wrong to think that sub-section (2) enables a plaintiff, who has not succeeded before the Tahsildar and the revenue authorities in proceedings under sub-section (2) to bring a civil suit and make the same claim which he could or did under sub-section (1). Irrespective of whether recourse had been or had not taken to the remedy provided in sub-section (1), no civil suit will lie for a right of way or water-course on the ground of convenience as provided in sub-section (1). However, if the revenue authorities decide a dispute before them under section 131 (1) not on the considerations laid down in that section but on other considerations, for instance, on the provisions contained in the Easements Act, a civil suit will lie, to question the validity of such judgment of the revenue authorities. [Para 13]

       (4) Land Revenue Code, 1959 (M.P.) - Ss. 257 and 131(1) - right to enforce customary right given under section 131(1) - nature of the right-civil suit to enforce such right is barred - Civil Procedure Code, 1908 - S. 9.

       (5) Civil Procedure Code, 1908 - S. 9 - special right created by statute-remedies provided in such statute only are available-no civil suit lies to establish such right-civil suit when lies - M. P. Land Revenue Code, 1959 – Ss. 131 and 257.

       Where the Legislature sets up a special tribunal to determine questions relating to rights or liabilities which were the creation of a statute, the jurisdiction of the civil Court would be deemed excluded by implication. AIR 1966 SC 1738, AIR 1966 SC 1089 and AIR 1965 SC 1942 relied on. [Paras 13 and 14]

       Section 131(1) of the M. P. Land Revenue Code, 1959, is self contained as regards the special right and the special remedy provided in it. It follows that by virtue of section 257 the jurisdiction of the revenue authorities is exclusive and a civil suit is not maintainable to obtain a decision or order on a matter covered by section 131 (1) of that Code. [Para 7]

       However, if the revenue authorities decide a dispute before them under section 131 (1) not on the considerations laid down in that section but on other considerations, for instance, on the provisions contained in the Easements Act, a civil suit will lie, to question the validity of such judgment of the Revenue authorities. [Para 14]

       Where a decision is given within the scope of section 131 (1), no civil suit lies to challenge or to a void such a decision. [Para 15]

       (6) Land Revenue Code, 1959 (M.P.) - Ss. 133 and 131 – Bandhiya obstructing the way given under section 131(1) - Tahsildar has power to remove such Bandhiya.

       Where a right of way is allowed under section 131(1), and a Bandhia obstructs such way, the Tahsildar has jurisdiction under section 133 to remove it. [Para 16]