GIRDHARI LAL vs KANHAIYALA

Yogendra Kumar Purohit, J

Suits and applications cognizable by revenue court only—

(1) All suits and application of the nature specified in the Third Schedule shall be heard and determined by a revenue court.

(2) No court other than a revenue court shall take cognizance of any such suit or application or of any suit or application based on a cause of action in respect of which any relief could be obtained by means of any such suit or application.

Explanation—If the cause of action is one in respect of which relief might be granted by the revenue court, it is immaterial that the relief asked for from the civil court is greater than, or additional to, or is not identical with, that which the revenue court could have granted.

Bar to jurisdiction of Civil courts—

(1) Save as otherwise provided specifically by or under this Act, no suit or proceeding shall lie in any civil court with respect or any matter arising under this Act or the rule made thereunder, for which a remedy by way of suit, application, appeal or otherwise is provided therein.

(2) Save as aforesaid no order passed by the State Government or by any revenue court or Officer in exercise of the powers conferred by this Act or the rules made thereunder, shall he liable to be questioned in any civil court.

Rights of way and other private easement—

(1) In the event of any holder of land, in actual enjoyment of a right of way or other easement or right, having, without his consent, been disturbed in such enjoyment otherwise than in due course of law, the Tehsildar may, on the application of the holder of land so disturbed and after making a summary inquiry into the fact of such enjoyment and disturbance, order the disturbance to be removed or stopped and the applicant-holder to be restored to such enjoyment, notwithstanding any other title that may be set up before the Tehsildar against such restoration.

(2) No order passed under this section shall debar any person from establishing such right or easement as he may claim by a regular suit in a competent civil court.

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?

Section 131 of the Code deals with rights of way and other private easements. It is extracted below:

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 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:

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]

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 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 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.

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.