The central legal point established in the judgment is the recognition and interpretation of customary easement rights under M.P. Land Revenue Code, 1959, Section 131, and the application of this provision to determine the entitlement of the defendants to construct a road on the disputed land.

The defendants who are the State of M. P. and it is functionaries have assailed the judgment and decree dated 21-9-1999 passed by learned First Additional District Judge, Dhar in Civil Appeal No. 123- A/1997 decreeing the suit of the plaintiff-respondent and thereby reversing the judgment and decree dated 21-7-1997 passed by learned First Civil Judge, Class-II Dhar in Civil Suit No. 165-A/1996 dismissing the suit of plaintiff.

2. The suit of the plaintiff is that the disputed property is owned by her in her Bhumiswami right and she is also possessing it. On this land, defendants do not have any right, title, interest. The first and second defendants are keen enough to construct a road upon the suit land from Lohari to Baggad and when the plaintiff-respondent restrained the employees of first and second defendants, they told that they have been directed to construct road by these defendants. Hence, the plaintiff filed the instant suit for injunction and prayed relief that defendants be restrained by passing a decree of permanent injunction from constructing the road from Lohari to Baggad upon the suit land. The first defendant-Gram Panchayat Lohari filed a written statement and pleaded that the disputed property is being used as public path having width 25 feet from the ancient time and from this path the bullock-carts and tractors of the inhabitants of village pass-by and they use it for access. The road has already been constructed and only asphalt is to be made. Further it has been pleaded that on this 25 feet wide path the plaintiff never remained in possession. According to first defendant, the Gram Panchayat is not constructing the road and it has been made party unnecessarily and therefore the suit be dismissed against it by awarding special damages.

3. The second and third defendants namely Jila Gramin Vikas Abhikaran (D.R.D. A.) and State of M. P. filed their joint written-statement and pleaded that there is a customary easement right of way for last 500 years on the public path having width 25 to 30 feet. From this path, several bullock-carts, cattle, tractors and inhabitants of village access. No objection was ever raised by the plaintiff earlier and therefore she is estopped from raising any dispute. The plaintiff never remained in possession of suit property. The suit is also barred by time.

4. Learned trial Court framed necessary issues and after recording the evidence of the parties, dismissed the suit. However, the first appeal which was filed has been allowed by the impugned judgment and decree.

5. In this manner this second appeal has been filed by the State of M. P. and its functionaries which was admitted for hearing on 22-6-2000 on the following substantial questions of law :-

(1) Whether the 1st Appellate Court has committed the error of law in not dismissing the suit when it held that the road in question is a public road?

(2) Whether the 1 st Appellate Court has committed error in holding that the State of M. P. is entitled to construct PAKKA road on road in question properly so as to make it usable by villagers of village Baggad Dist. Dhar and villagers of other villages for plying their vehicles including bullock-carts (sic.), tractors along with using for trafficking?

(3) Whether, impugned judgment and decree is perverse and illegal?

6. The contention of Smt. Mehta, learned Panel Lawyer appearing for appellants is that having arrived at a conclusion by learned First Appellate Court that the village path is already in existence upon the suit land for last several years and is being used as a public road, learned First Appellate Court has erred in substantial error of law in decreeing the suit of the plaintiff by passing a decree of injunction. It has also been put forth by her that there is clear admission of plaintiff that suit land is being used as village path from ancient time by the inhabitants of the village and therefore when there is an admission of plaintiff in that regard, learned First App