Jogilal and Others vs Mansharam and Another

A.K. Gohil, J.—This is a Second Appeal filed u/s 100 of the CPC against the judgment and decree passed on 01-01-82 by Addl. Judge to the Court of District Judge, Khargone in Civil Regular Appeal No. 34-A/81 filed against the judgment and decree dated 30-03-81 passed by Civil Judge Class II, Bhikangaon in COS No. 85-A/78.

This appeal was admitted on 05-03-82 for its final hearing on the following substantial question of law :--

"Whether the Civil Court had no jurisdiction to try the present suit ?"

The facts of the case are that the respondents Mansharam and Narayan filed a suit against the present appellant/defendants for permanent injunction stating therein that the plaintiffs are the owners of the lands bearing Khasra No. 158/1 and 158/2 and the appellant/defendants are regularly passing through that land and carrying their bullock-carts and on stopping them to do so, they are creating nuisance and quarrels. Therefore, by a permanent injunction, they be restrained not to pass through the said lands.

The learned trial Court decreed the suit in favour of the respondents and granted permanent injunction in favour of the respondents that the appellant/defendants shall not pass through the lands of the respondent/plaintiffs and shall not carry any bullock-carts or the animals and shall not interfere with the peaceful possession of the respondent/plaintiff''s lands.

The appellant/defendants preferred appeal against the said judgment and decree before the First Appellate Court of Additional Judge to the Court of District Judge, West Nimar, Khargone. The appeal was heard and dismissed by the First Appellate Court confirming the judgment and decree passed by the trial Court.

During the course of arguments before the First Appellate Court, it was argued on behalf of the appellant/defendants that the Civil Suit was not maintainable as u/s 131 of the M.P. Land Revenue Code, 1959 (hereinafter referred to as the ''Code'' for short) the Revenue Court is having jurisdiction to decide the question of right of way and right of easement. Relying on the judgment of this Court reported in Nathuram v. Siyasharan (1969 MPLJ 349), Dhannalal v. Kanha (1974 MPLJ 11) and Mahant Gopidas v. Ramchandra Pandey (1971 MPLJ 893), the First Appellate Court held that for filing the suit for permanent injunction, there is no bar u/s 131 of the Code.

Section 131 of the M.P. Land Revenue Code provides that 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, 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. Sub-section (2) of Section 131 of the Code specifically provides that no order passed under this section shall debar any person from establishing such rights of easement as he may acclaim by a Civil Suit.

I have heard the learned counsel for the parties and perused the record of the Courts below.

The provisions of Section 131 of the Code are not applicable in this case because it was for the cultivator of the lands to have the access to his field, waste or pasture lands to the source from or course by which he may avail himself of water. Where a dispute arises in respect of the above facility, powers are conferred upon a Tahsildar to decide the matter. In the case of Mahant Gopidas v. Ram Chandra Pandey (1971 MPLJ 893) (supra) it has been held that a suit for grant of perpetual injunction lies under the General Law at the instance of the person over whose property a right of way is declared or adjudged by the Tahsildar. In this case, it is an admitted position that the appellant/defendants have not filed any application before the Tahsildar for claiming any right of access to his field through the fields of the respondent/plaintiffs. Therefore, it is the defendant/appellants who could only file the application before the Tahsildar. It is not for the respondent/plaintiffs to file an application because according to them, there was no dispute of that nature. In fact u/s 131 of the Code, the suit for permanent injunction is not under the General Law of this nature. More so, no such objection was ever raised by the appellants before the trial Court in their written-statement and no issue was framed. No evidence was either recorded. A question was raised for the first time before the First Appellate Court on behalf of the appellant/defendants. Admittedly in this case, neither any dispute was referred to the Revenue Court nor was it ever decided. When a suit for permanent injunction is filed before the Civil Court restraining the opposite party not to enter or pass through the fields, the defendants cannot make an objection that the party seeking injunction should file an application before the Tahsildar u/s 131 of the Code.

In the written-statement, the appellant/defendants had claimed customary right of way of defence, but they had not filed any application u/s 131 of the Code. Since the appellant himself had failed to file an application u/s 131 of the Code claiming right of way and other right of private easement, they are not entitled to raise such an objection regarding the jurisdiction of the Civil Court. Therefore, the objection was rightly decided and rejected by the learned First Appellate Court, relying on the judgments of Mahant Gopidas v. Ramchandra (1971 MPLJ 893) (supra) and rightly held that a suit for grant of perpetual injunction lies under the General Law restraining a party interfering and it has rightly held that in such matters Section 131 of the Code does not put any bar to the jurisdiction of the Civil Court.

In view of the above, it is held that the Civil Court had the jurisdiction to hear and decide the suit for permanent injunction and Section 131 of the M.P. Land Revenue Code does not create any bar in filing such a suit against the appellant/defendants.

Therefore, the appeal is having no force and is hereby dismissed with no orders as to costs in this appeal. The judgment and decree of the Courts below are confirmed.