Holding

Civil courts retain jurisdiction to entertain suits for declaration or injunction regarding easement rights, and the Tahsildar's order under Section 131 is not final and can be challenged in such suits.

Summary

The respondent Jagdish obtained a right of way over the appellants' land under Section 131 of the Madhya Pradesh Land Revenue Code, which the Tahsildar approved. The appellants challenged this by filing a civil suit for a declaration that no easement existed and that the Tahsildar's order was illegal. The trial court dismissed the suit, holding that Section 131 read with Section 257 gave exclusive jurisdiction to the revenue court, and the High Court upheld that dismissal. On appeal, the Supreme Court held that the Code does not bar civil courts from adjudicating easement disputes and that Section 257 does not exclude such suits; the Tahsildar's decision is subject to challenge in a civil suit. Consequently, the appeal was allowed, setting aside the lower courts' judgments and directing the trial court to dispose of the suit expeditiously.

Issues considered

Whether Section 257 of the Madhya Pradesh Land Revenue Code bars civil courts from entertaining suits concerning customary easements when the revenue officer has jurisdiction under Section 131.
Whether a civil court can grant a declaration or injunction against a Tahsildar's order recognizing an easement.
Whether the jurisdiction of civil courts to decide the existence of a customary easement is excluded by Sections 131, 242 or 257 of the Code.

Legislation cited

Code of Civil Procedure, 1908s. 9
Indian Easements Act, 1882s. 18
Madhya Pradesh Land Revenue Code, 1959s. 131, s. 242, s. 257

Subjects

easementcustomary easementright of waywater rightcivil jurisdictionsection 131section 257TahsildarWajib-ul-arzdeclaration suitinjunction

Judgment

[2011) 7 S.C.R. 817

SMT. RAMKANYA BAI & ANR. A
v.
JAGDISH & ORS.
(Civil Appeal No. 4922 of 2011)
JULY 04, 2011
B
[R.V. RAVEENDRAN AND A.K. PATNAIK, JJ.]

Madhya Pradesh Land Revenue Code, 1959:

ss. 131, 242, and 257 - Easementary rights determined c
uls. 131 by revenue court (Tahsildar) - Subsequent civil suit
by the owner of a land for declaration that seNient owner does
not have an easementary right, customary or otherwise, over
his property and the order of Tahsildar uls. 131 recognizing
such right, is illegal and erroneous - Trial court dismissed the 0
suit holding that the revenue court alone had jurisdiction to
grant relief and not the civil court - Jurisdiction of civil court
- Held: The Code does not bar the jurisdiction of civil courts
nor creates any new category of private ea,sementary rights
not covered by the provisions of the Easements Act - E
Decision of Tahsildar will not bar a subsequent civil suit by
either party to a proceeding u/s 131 in respect of easement
claimed in the proceedings uls. 131 - It cannot be said that
Tahsildar alohe has the jurisdiction, and not the civil court, to
decide upon the existence or otherwise of a customary
easement - Decision of Tahsildar after a summary enquiry F
with reference to the 'previous custom' and with due regard to
the conveniences of all parties, u/s. 131(1), is open to
challenge in a civil suit and subject to the decision of the civil
courts - s. 257 providing for exclusion of jurisdiction of civil
court in regard to certain matters, does not apply to any suit G
involving or relating to easementary rights.

s. 242 - Customary easements - Wajib-ul-arz - Held: It
is the record of customs in a village in regard to easements
817 H
818 SUPREME COURT REPORTS [2011] 7 S.C.R.

A (including the right to irrigation and right of way); and the right
to fishing in privately owned/held lands and water bodies.

The first respondent filed an application to the Naib
Tahsildar under Section 131 of the Madhya Pradesh Land
Revenue Code, 1959 claiming a right of way over the land
9
of appellants to reach his lands and the same was
allowed. The appellants filed an appeal as also revision
and the same were dismissed. The appellants then filed
a civil suif seeking a declaration that the first respondent
does not have an easementary right, customary or
C otherwise, over his property and the order of Tahisildar
under Section 131 of the Code recognizing such right, is
illegal and erroneous. The trial court dismissed the suit
on .the ground that having regard to Section 131 read
with Section 257 of the Code, the revenue court
D (Tahsildar) alone had jurisdiction to graht relief on the
basis of custom and convenience of parties, and not" the
civil court. Aggrieved, the appellants filed an appeal as
also second appeal and the same were dismissed.
Therefore, the appellant filed an instant appeal.
E
Allowing the appeal, the Court

HELD: 1.1 Under Section 131 of the Madhya Pradesh
Land Revenue Code, 1959 a dispute relating to a claim
F for a customary easement over a private land, relating to
a right of way or right to take water, which is not
recognized and recorded as a customary easement in the
village Wajib-ul-arz could be decided. [Para 6) [826-C~DJ

Kamala Mills Ltd. v. State of Bombay AIR 1965 SC
G 1942:1966 SCR 64; Dhulabhai v. State of Madhya Pradesh
1968 (3) SCR 662 - referred to.
1.2. The Code nowhere bars the jurisdiction of civil
courts to decide upon easementary rights relating to
H agricultural or other lands. It neither creates nor
RAMKANYA BAI &.ANR. v. ~AGDISH & ORS. 819

recognizes any new category of private easementary
'; ~ O · - . 1 . - . : ' • · ~. . "'· . . t I . , ; ' I l · ' . ·· .
A
rights either by way of right of way or rightto take water,
' ' . ; • ' ' •' • .... f ' . ', ' - <. ' • ' -'. • i . . . ·) • ~ - "' '.
which is not covered by the provisions of the Easements
• : l; ' • ' • ~ ' • . • , , - . ' ~ . . I i, I ,. . ~ • } ,• •

Act or which is not required ..to fulfill ·the requirements
t l 1 '·' ,, ." ' c - ' . . • ~ ~- '
prescribed by the Easements Act. An easement cannot
be acquired otherwise than in .the manner prov.ided in the B
Easement ~ct. Section 131 of the Code rnerely deals with
customary easements covered by Sectic;>n 18 of•the
Easements Act. It cannot be .said th.at the el~ments of an
easement required to be ;fulfilled under ,the Easernent Act
are not required in respect of a• private .easement .unde11 c
Section 131; Apart from the fact that. $ection ,131 of the
Code .does .not deal :with acquisition. of .any SP.,ecial
e!!sement by some metb.od which ,is not referred in the
Easetnents Act,_ sub~Section (2) of, S~ction 131 expressly
provides that irrespective of any order.. passed; by. the
0
Tahsildar under Section.131; any,person can establis.b ,
any right relating to an,.easemelit oy a-civil, suit. There is
nothing ln Section>13·for ·ar;iy other provision of the
C.odei which makes the decision of the Tahsildar. final and
'1ot open. to question in a"civil. court. .Therefore, the
decision of the .Tahsild~r will not bar.·a·subsequent ~ivil E
suit by_ either party to a proceeding: und~r Section 131;
,-fn ·respect of.the easement. c.laimed in the proceedirigs
under Section 131_: ofJhe Code, [Para ,9] [a28~~; 829-A-F]
· ,~L._: · }•'""':. · ·v~ :! '"'~·1 ,1: . · ~'\\(· .. •• ~ ~ ~ ~'. il~-· • ~. C\,
;I' ;1 ·~:; Whe.n, a ·P~!son Jdf!mina~-~. ?~~ert has .. ~p F
easementary right, and the servient own.er i,disturbs,
1 • ' -" '""' '" - ' I• . : '. : . . . -~ ;. ,. : • • .• ~

<?bstructs
· ' . '
or.interferes
I ~ . ' '
with
~ ~ii {
his easementary. ~
right,
r '
or
' '' ' ' I •'' . • ' . ;I '

~enies his.easementary right, the remedy of the dominant
o'wner
~'\.i•·~.
to
is_~. approach the' civli court f~r the '._~°">~; relief ' ,•.; .·.''' .....
of
~~c_laration and/or, i~Junctiori. Similarly, ~he11. ·a ~~rson G
~~~--~oes 1not h~v~ ~n ea~e~r'1ta!"Y r;~ght'. tri«;s to a~sert
or
· ·
.exercise
'·· ,,, • - . · •
any easementary
- • ,, • • , 1• _ 1 ,
_right •over !1.another's
,_ · •
land,
•;•t _ · r • • - , , -~· t .. - ~i· ! · • "-

t~~ _o.w,ner of1 ~_ucb l~11d c~~n: re,s,!~t-~.~c,h ,as_~ert1on. o~
9bstruct the exercise ..of the easementary
.' t l ' l • !, p
right and.also
' ' ' -._ , • ' • ,1 ~ ~ F 1 ' ;• > ~ •• , ' "_1 I I "i' ; -!

~~l?~?~~ch th~ ~!Yi!_~~ui1 to·.~eCl~r~~h~t !.~~-~efen~ant ~~~ H
820 SUPREME COURT REPORTS [2011) 7 S.C.R.

A no easementary right of the nature claimed, over his land.
and/or that the defendant should be prevented from
asserting such right or interfering with his possession
and enjoyment. [Para 10] [829-G-H; 830-A]

1.4. Section 257 of the Madhya Pradesh Land
8
Revenue Code, 1959 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
C right or for a declaration that the defendant does not have
any easementary right over plaintiffs property or a suit
for injunction to restrain.a defendant from interfering with
the possession of plaintiff or exer<:ising any easementary
right over plaintiffs property, is not barred by the Code.
Such suits do not fall under any of the excluded matters
D 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 States
Government, the Board or any Revenue Officer is
E 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". Sub-section
(2) of Section 131 of the Code reserves and retains
F 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. Therefore, the
right to decide upon the nature of easements and
enforcement of easements is expressly preserved for
G 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 isl
in the exclusive province of revenue authorities and also,
to enable either party to approach the civil court in regard!'
H to any easementary right, irrespective of the decision,
RAMKANYA BAI & ANR v. JAGDISH & ORS. 821

under Section 131 (1) by the Tahsildar. The effect of A
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 B
court in any civil suit by any party relating to that matter.
Therefore, 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. [Para 11] [830-B-H; 831-A-B] c
Nathuram v. Siyasharan 1969 JLJ 115; Rambai v.
Harchand 1979 RN 532 - disapproved.

Gopidas (Mahant) v. Ram Krishna Pandey 1971 JLJ
825; Fakka v. Hafir:am 1984 RN 422 '."'" approved. . D·
1.5. Wajib-ul-arz is the record ofcustoms in a village
in regard to easements (including the right to irrigation
and right of way); and· the right to fishing in privately
owned/held lands and water bodies. These entries could E
be modified in the manner provided in sub-section (5) of
Section 242 of the Code. Though the Code provides for
maintaining a record of all customary easements
imposed upon privately held lands and water bodies,
significantly the Code does not provide the remedies
available in the event of disturbance or interference with F
such easements recorded in Wajib-ul-arz, as the remedy
is only way of a suit before the civil court. Customary
easements are the most difficult to prove among
easements. To establish a custom, the plaintiff will have
to show that (a) the usage is ancient or from time G
immemorial; (b) the usage· is regular and continuous; (c)
the usage is certain ahd not varied; and (d) the usage is
reasonable. If the Wajib-ul-arz (where such a record is
maintained) records or shows the customary easement,
H
822 SUPREME COURT REPORTS [20~1] 7 S.C.R.

A it woul~ make the task of. civil courts comparatively easy,
as ,there will be no need for detailed evidence to establish
the custo·m. If the remedy for violation of a ,customary
· e~sement recognized and recorded in the Wajib-ul-arz is
by way of a civil suit, it is inconceivable that in regard to
B violation of a customary .easement not recognized or
recorded i~ 1 the Wajib-ul-arz, the re.medy would be only by
way Qf a summary enquiry by the Tahsildar under Section
131 of the Code, and noi by a suit, before the civil court.
[Para 15] [834-G-H; 835-A-D]

C 1.6. it cannot be said 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 sum'mary enquiry
D with reference to the 'previous custom' and with due
regard to the conveniences of all parties, under Section
a
131{1), is 'Open fo challenge in 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
E by Sections 131, 242 or 257 of the Code. The judgments
and decrees of the courts below are. set1 aside and it is
declaretj that the civil court has the ju.risdiction'to try the·
su'it filed by the
.
appellants. [Para 16]• [835-E-G]
. c .

F Case law Reference: .
1966 SCR 64 · Referred to. Para 8
--
· 1968 (3) SCR 662 Referred to: Para 8
' .
1969 JLJ 115 Disapproved .. Para 12
G
1979 RN 532 Disapproved. 'Para 12
'! •~. .: •
1971 JLJ 825 Approved •.. Para 13
1984 °RN .422 Approved. Para 13
H
RAMKANYA BAI & ANR. v. JAGDISH & ORS. 823

: CIVIL APPELui.TE JURiSDICTION : Civil App~al No. A
4922 of 2011. - . - - -
~ ' •• ·, l • . • ,, .

From ttie Judgment & Order dated 19.1.2007 of the High
Court of Madhya Pradesh Bench at Indore in First Appeal No.
1151 of'2005. ; i·:_ -
8
Ujjal Singh, J.P. Singh, R.C. Kaushik for the Appellants .
. Sushil i<uma'r 'Jain, Puneet Jain, B.L Joshi, Pratibha Jain,
Vikas Up_adhyay, B.S. Banthia for the Respondents.
·• , The Judgment of the Court was delivered by c
-R.V,RAVEENDRAN, J. 1, Leave granted.
_~. 2. Th_1{~pp,etta,n_ts claim to be the owners of lands bearing
K~asra. Nos.'29/212 and 29/f. The first respondent Jagdish
claims to be the{ciwn~rof Khasra Nos.36/3 and 36/4. The first 0
respondent h1aci'e ah: applicatfon to the Naib Tahsildar, Tappa
Betma, Depalpur, Indore District, under section 131 of the -
Madhya,Pr-a~e~h hapd_ Reven,_ue Code, 1959 ('Cgde' for short)
claiming a right of way over,Khasfa Nos.29/2/2 and 29/tof the
appellants, to reach his lands bearing Khasra Nos.36/3 and 36/ E
4. The Naib Tahsildar,made on order dated 25.10.2001, under
sectioh''131 of the Code, holding that firstresponden't, with his
agriculturi:iliequipmerits, bullock-cart etc.:'was entitled to pass
through the·Government Road; Khasra No.21 (East to West)
of _the village Salampurand thereafter pass through Khasra Nos. F
29/_1 and 29/2/2 belonging to the appellants, for .reaching his
land bearing Khasra Nos.36/3 and 36/4 and the appellants
shall not obstruct such passage. The appeal by the appellants
filed against the said order under section 44 of the Code was
dismissed and the subsequent revision filed by the appellants G
under section 50 of the Act was also dismissed.
3. Thereafter appellants filed Civil Suit No.66A/2002 on the
file of the Civil Judge (Class II), Depalpur, Indore district for the
following reliefs : (a) a declaration that the first respondent did
H
824 SUPREME COURT REPORTS [2011] 7 S.C.R.

A not have any right of way over their lands bearing Nos.29/2/2
and 29/1 to reach his lands bearing Khasra Nos.36/3 and 36/
4 and that they are entitled to enjoy their lands without any
interference from first respondent; (b) for a declaration that the
order dated 25.10.2001 passed by the Tahsildar creating a
9 new passage, over khasra Nos.29/1 and 29/2/2, was illegal;
and (c) for a consequential injunction restraining first respondent
from creating/ constructing any new passage, over their lands.
The said suit was dismissed by the trial court, by judgment
dated 4.12.2004 on the ground that having regard to section
c 131 read with section 257 of the Code, the revenue court
(Tahsildar) alone had jurisdiction to grant relief on the basis of
custom and convenience of parties, and it did not" have any
jurisdiction. The appeal (Appeal No.3-A/2005) filed by the
appellants was dismissed by the first appellate court on
19.4.2005. The subsequent second appeal filed by the
0
appellants was also dismissed by the High Court on 19.1.2007.
The said judgment is under challenge in this appeal by special
leave.

4. On the contentions urged by the parties, the following
E 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
F
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
G 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?
H
RAMKANYA BAI & ANR. v. JAGDISH & ORS. 825
[R.V. RAVEENDRAN, J.]

5. Section 131 of the Code deals with rights of way and A
other private easements. It is extracted below :
"131. 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 B
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 C
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 D
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 : E
"257. 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 F
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- G
(a) to (z-2) xxxxx [not extracted as not relevant]"
6. An analysis of section.131 of the Code shows that it
provides for the adjudication by the Tahsildar, in respect of
disputes. raised by a cultivator, relating to any of the following H
826 SUPREME COURT REPORTS [2011] 7 S.C.R.

A three private easementary rights:-
(a) the route by which a cultivator shall have access to
his fields;
(b) the route by which a cultivator shall have access to
B waste or pasture lands of the village; and

(c) the route by which a cultivator shall have access to
the source from which, or the course by which, he
may avail himself of water.

C Section 131 provides that such disputes shall be decided
in each case, by the Tahsildar, after a local enquiry, with
reference to the previous custom and with due regard to the
convenience of all parties concerned. The disputes relating to
recognized roads, paths or common land including those roads
o and paths· recorded in the village Wajib-ul-arz prepared under
section 242 of the Code are expressly excluded from the scope
of section 131 of the Code. It is thus clear that what could be
decided under section 131 of the Code is a dispute relating to
a claim for a customary easement over a private land, relating
E to a right of way or right to take water, which is not recognized
and recorded as a customary easement in the village. Wajib-
ul-arz.

7. The definition of different easements, the manner of
imposition and acquisition of easementary rights, the incidents
F of easements and the remedies in case of interference or
disturbance with easements are governed by the provisions of
the Indian Easements Act, 1882. Easement Act refers to the
different methods by which easements are acquired or
imposed, that is, namely easements by grant, easements of
G necessity, easements by prescription and customary
easements. Acquisition of an easementary right, by any of the
aforesaid methods, requires fulfillment of the conditions
prescribed under the Easements Act A private easement,
including a right of way to a person's land or right to take water
H from a source to his land, cannot be acquired in a manner not
RAMKANYA BAI & ANR. v. JAGDISH & ORS. · 827
[R.V. RAVEENDRAN, J.]

contemplated or prescribed by the Easement Act. Easements A
· by grant require a grant by the owner of the servient heritage.
Easements of necessity are based on implied grants or
reservations made by the owner of a servient heritage, at the
time of disposition such as transfers and partitions. Easements
by prescription can be acquired only by peaceable and open B
enjoyment, without interruption for twenty years. Customary
easement can be are acquired by virtue of a loca.l custom.

8. Having regard to section 9 of the Code of Civil
Procedure, a civil court can entertain any-suit of civil nature
except those, cognizance of which is expressly or impliedly C
b_arred. In Kamala Mills Ltd. v. State of Bombay [AIR 1965 SC
1942] this court held :
· "The norma.1 rule prescribed by section 9 of1the Code of
Civil Procedure is that the courts shall (subject to the o
provisions contained in the Code) have jlJrisdk:tion to try
all suits of a civil nature excepting suits of which their
cognizance is either expressly or impliedly barred .. : ..... :
· Whenev~r it is urged before a civil court that its jurisdiction
- , • is excluded either expressly or by necessary implication ·E
:· to entertain claims of a civil nature, the Cou'rt naturally feels
inclined to consider whether the remedy afforded by an
alternative
l(H .•A~
provision
,'f!j .,::;,.
prescrif)f3d
"j ·"".·"t:.t1• ·
by~ a:,·~ special
~·<--,•j
statute
~:;i.-<
is
sufficient o~ ~dequa,te. lr:i .ya~es where the ~xclusion of the
civil Courts' jurisdiction is expressly provided for, the
F
consideration as to the scheme of the statute in question
and the adequacy or the sufficiency of the remedies
provided for by it may be relevant but cannot be deCisive.
But where exclusion is pleaded as a matter of necessary
implication, such considerations would be very important,
and in conceivable circumstances, might even become G
decisive. If it appears that a statute creates a special right
or a liability and provides for the determination of the right
and liability to be dealt with by tribunals specially constituted
in that behalf, and it further lays down that all questions
about the said right and liability shall be determined by the H

'\
828 SUPREME COURT REPORTS [2011] 7 S.C.R.

A tribunals so constituted, it becomes pertinent to enquire
. whether remedies normally associated with actions in civil
Courts are prescribed by the said statute or not."
(emphasis supplied)
B In Dhu/abhai v. State of Madhya Pradesh - 1968 (3) SCR
662, a Constitution Bench of this Court held that exclusion of
the jurisdiction of the civil court is not readily to be inferred with,
unless the following, among other conditions apply :
"(1) Where the statute gives a finality to the orders of the
c special tribunals the civil court's jurisdiction must be held
to be excluded if there is adequate remedy to do what the
civil courts would normally do in a suit. Such provision,
however, does not exclude those cases where the
provisions of the particular Act have not been complied
D with or the statutory tribunal has not acted in conformity with
the fundamental principles ot judicial procedure ........... .
(2) Where there is an express bar of the jurisdiction of the
court, an examination of the scheme of the particular Act
E to find the adequacy or the sufficiency of the remedies
provided may be relevant but is not decisive to sustain the
jurisdiction of the civil court.
Where there is no express exclusion, the examination of
the remedies and the scheme of the particular Act to find
F out the intendment becomes necessary and the result of
the inquiry may be decisive. In the latter case, it is
necessary to see if the statute creates a special right or a
liability and provides for the determination of the right or
liability and further lays down that all questions about the
G said right and liability shall be determined by the tribunals
so constituted, and whether remedies normally associated
. with actions in civil courts are prescribed by the said
statute or not."

H 9. The Code nowhere bars the jurisdiction of civil courts
RAMKANYA BAI & ANR. v. JAGDISH & ORS. 829
[R.V. RAVEENDRAN, J.]

to decide upon easementary rights relating to agricultural or A
other lands. The Madhya Pradesh Land Revenue Code neither
creates nor recognizes any new category of private
easementary rights either by way of right of way or right to take
water, which is not covered by the provisions of the Easements
Act or which is not required to fulfill the requirements prescribed B
by the Easements Act. An easement cannot be acquired
otherwise than in the manner provided in the Easement Act.
Section 131 of the Code does not provide for or recognize a
new type of easement which is not contemplated or recognized
in Easement Act, but merely deals with customary easements c
covered by section 18 of the Easements Act. Nor can it be said
that the elements of an easement required to be fulfilled under
the Easement Act are not required in respect of a private
easement under section 131 of the Code. Apart from the fact
that section 131 of the Code does not deal with acquisition of 0
any special easement by some method which is not referred
in the Easements Act, sub-section (2) of section 131 expressly
provides that irrespective of any order passed by the Tahsildar
under section 131, any person can establish any right relating ·
to an easement by a civil suit. There is nothing in section 131 E
or any other provision of the Code, which makes the decision
of the Tahsildar final and not open to question in a civil court.
Therefore, the decision of the Tahsildar will not bar a subsequent
civil suit.by either party to a proceeding under section 131 of
the Code, in respect of the easement claimed in the
proceedings under section 131 of the Code. F

10. When a person (dominant owner) has an easementary
right, and the servient owner disturbs, obstructs or interferes with
his easementary right, or denies his easementary right, the
remedy of the dominant owner is to approach the civil.court for G
the relief of declaration and/or injunction. Similarly, when a
person who does not have an easementary right, tries to assert
or exercise any easementary right over another's land, the
owner of such land can resist such assertion or obstruct the
exercise of the easementary right and also approach the civil H
830 SUPREME COURT REPORTS [2011] 7 S.C.R.

A court to declare that the defendant has no easementary right
of the nature claimed, over his land and/or that the defendanr
should be prevented from asserting such right or interfering with
his possession and enjoyment.

B 11. 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
plaintiffs property or a suit for injunction to restrain a defendant
C from interfering with the possession of plaintiff or exercising any
easementary right over plaintiffs 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
D entertain any suit instituted to obtain a ~ecision 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
E 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
F 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
G 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
H decision under section 131(1) by the Tahsildar. The effect of
RAMKANYA BAI & ANR. v, JAGplSH & O.RS. 8~1
[R.V. ·RAVEENDRAN, J.]

section,2?7 and section. 131 (4) ,is ~~at the enquiry .a11d3:leci_sion A
· by the Tahsildar based. on -~·previQUS c4stoiTI'\and "conyenien~s.
of parties" in regard to any priv(\lte,easementary.rights rela_ting
to right of way or rightto water,will always be l)Ubjectto the
decision of the civil court in any civil suit by,any,p~rty,rel(lting
to that matter. Therefore it h'as to. be. held that .section •2?7. a
provi~ingJorexclusion ofjuriscUcti~n of.~iyil courtin regard..tq
certain matters, does not apply to any s.uit,i11yolving or relating
to easementary rights. . . , ,11 . 1;;; ·:. · " , '·· ·• t',, , ;..

1 .,:~12. But some decisions of the;_Madhya.P,radesh High C
Court have proceeded on the assumption, rather erroneously
and without any basis, that the private ,easement~. if!Clu~ing right
of way referred under section 131 of)h~ Code, C1re not the
easements which are dealt with in the Indian Easement Act, but
are a new type .of easement unknown. to ge.11eral law of
easements; which require to be decided1by,the.Tah§ildar:only D
witfl reference,to the previous customs and c9nvenienc~s of
partJes. A distinction is, sought to _be draYtn by; those decisions,
between e~sementsunder the Easement ·f.ct and eas.ements
under section, 131 of the Code, by holding,thatthe Easement
Act deals. with.easements peffected by prescription,_whereas E
section 131 of the Code refers to private easements, which are
not pertected by prescription. :rhey als.o proceed on,the.basis
that in view of section 131 of the Code providing for Revenue a
Authority, that is a Tahsildar, ·to:deal with the' special'type of
private' easements providedfofin section 131 ofthe"Code, civil F
co~~s wil/ hav~no jurisdi?tio~ tq_ e~~ertain. 9r 9~cide.ciny !llatter
re1ft,1~g to such typf of pnv~te ~ase;me~ts, ~av,mg r~gard to the
bar :?o~ta·ined, in sectior 257' oqhe Code; ahd · consequeht!Y
any decision cif the Tahsildar under section 131· of'. the Code.is
' ' f . .; .. :~

amenable only to an appeal and thereafter a revision provided G
under. the Code itself,, and is,not qpen to.challenge in.a civil
suit [See :.. Nathuram v. Siyasharan -J1969 JLJ. 1 t5)and
Rarribai v. Harchand - 1979 RN 532] ... , .. ,, ._.,: ,
I _ , • ~ , ,. •l •·· ~

13. On the other hand, other decisions 6f the' Madhya
Pradesh High Court have taken the vie~ that a civil court is not H
832 SUPREME COURT REPORTS [2011] 7 S.C.R.

A barred from entertaining suits for declaration and/or injunction,
against a person who has secured an order under section 131
of the Code, to declare such order of Tahsildar as illegal and
not binding ·or to restrain the defendant from exercising the right
recognized by the Tahsildar [Gopidas (Mahant) v. Ram
B Krishna Pandey - 1971 JLJ 825 and Fakka v. Hariram -
1984 RN 422]. In Gopidas (supra), a learned Single Judge of
the Madhya Pradesh High Court (A.P. Sen, J., as he then was)
explained the position succinctly, thus:
"The scheme underlying the section, envisages a suit
c under section 131 (2) by the claimant for the establishment
of his right, if such right is not recognized by the. Tahsildar.
This necessarily implies that the correctness of the finding
reached by the Tahsildar may be questioned in subsequent
legal proceedings in the ordinary Courts of law. No doubt,
D the language of section 131(2) is susceptible of the
construction suggested by the learned counsel that the
right of a suit is confined to the claimant. This, however,
does not result in the consequence that a person, on
whose property a right of way is declared by Tahsildar to
E exist, should have no remedy for the protection of his rights
in property, against an arbitrary or erroneous assumption
of jurisdiction by the Tahsildar."
We respectfully agree with the said observations. The.
decisions in Nathuram and Rambai are not good law.
F
14. At this juncture we may refer to the relevance of Wajib-
u/-arz while dealing with cases of customary easements.
Section 242 of the Code deals with Wajib-ul-arz and is
extracted below :
G
"242. Wajib-ul-arz.-(1) As soon as may be. after this Code
comes into force, the Sub-Divisional Officer shall, in the
prescribed manner, ascertain and record the customs in
each village in regard to· -
H (a) the right to irrigation or right of way or other
RAMKANYA BAI & ANR. v. JAGDISH & ORS. 833
[R.V. RAVEENDRAN, J.J

. easement; .A
(b) the right to fishing;

in any land or water not belonging to or controlled or
managed by the State Government or a local authority and
such record shall be known as the Wajib-ul-arz of the B
village.

(2) The record made in pursuance of sub-section (1 ), shall
be published by the Sub-Divisional Officer in such manner
as may be prescribed. c
(3) Any person aggrieved by any entry made in such
record may, within one year from the date of the publication
of such record under sub-section (2), institute a suit in a
civil court to have such entry cancelled or modified.
D
(4) The record mad~ under sub-section (1) shall, subject
to the decision of the civil court in the suit instituted under
· s.ub-section (3), be final and conclusive.

(5) The (Sub-Divisional Officer) may, on the application of
any person interested or on his own motion, modify an entry E
or insert any new entry in the Wajib-ul-arz on any of the
following grounds :

(a) That all persons interested in such entry wish to
have it modified; or F

(b) That by a decree in a civil suit it has been
declared to be erroneous; or

(c) That being founded on a decree or order of a
civil court or on the order .of a Revenue Officer it is G
not in accordance with such decree or order; or

(d) That being so founded, such decree or order
has subsequently been varied on appeal, revision
or review; or
H
834 SUPREME COURT REPORTS [2011) 7 S.C.R.

A (e) That the civil court has by a decree determined
any custom existing in the village."

Rules have been made under section 242 relating to
Wajib-u/-arz vide notification dated 2.2.1966, Rule 2 thereof is
extracted below :
8
"2. Customs under sub-section (1) of section 242 shall be
ascertained and recorded in the Wajib-u/-arz under the
-following heads, namely : - ··

c (i) Right to irrigation;

(ii) Other water-rights;

(ii) Right to fishing;
(iv). Rights of way, village roads, paths,·drains and the
D like;
~I! '

"
(v) Rights of persons-of other villages over the lands
of the village; '· ·
(vi) ~ights of the villagers over the lands of other
E
villages;
(vii) Other easement - (a) Burial and cremation ground,
(b) Gaothan, (c)Encamping-ground, (d) Threshing-
.. floor, (e)Bazars,· (f)'Skinning-grotmds; •{g) Rights to
F graze and take fuel, ·(h) Manure and rubbish;

, - (viii) Other miscellaneous rights."

15. Wajib-ul-arz is thus the record of customs in a village
in regard to {i) easements (including the right to irrigation and
G right of way);.and (ii) the right to-fishing in privatefy owned/held
lands and water bodies. The. entries therein could be modified
in the manner provided in sub-section (5) of section 242 of the
Code. Thougli the Code provides for maintaining a record of
all customary easements imposed upon privately held lands and
H water bodies, significantly the Code does· n'ot provide the
RAMKANYA BAI & ANR. v: JAGDISH & ORS. 835
[R.V. RAVEENDRAN, J.]

. remedies available in the event of disturbance or interference A
·: ~ithsuclreasements recorded in Wajib-ul-arz, as the remedy
.is only way of a suit before the civil court. Customary easements
are the most difficult to prove among easements. To establish
.·a custom, the plaintiff Willhave to show that(a) the usage is
ancient or from time immemorial; (b) the usage is regular and B
continuous; (c) the usage is .certain and. not varied; and (d) the
· llsageis reasonable. If the Wajib-u/-arz (where such a record
is maintained) records or shows the customary easement, it
would make the task of civil courts comparatively easy, as there
will be no need for detailed evidence tci establish the custom. c
. Be that as it may .. If the remedy for violation of a customary
. easement recognized and recorded in the Wajib-ul-aiz is by
· way of a civi.t suit, it is inconceivable that in regard to violation
.of a custom~ry easement not recognized or recorded in the
Wajib-ul-atz, the remedy ,would be only by way ofa summary
0.
./·enquirybytheTahsildar.undersection 131 cif the.Code, and
•not by.a suit •. betore·.t~e ciYil court;·
Conclusion · ··
. 16. II"\ the circurnsiances, we reject the t~ntention that E
Tahsildar alcine has the jurisdiction, and notthe civil court, to
. decide upon the existence or otherwise of a customary
. easement (relating to right Of way cir 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
F
regard to the conveniences of all parties, under section 131 (1)
of the Code, is open t() challenge in a civil suit and subject to
the decision. of the civil. court. The jurisdiction of the civil court
to try any suit.rela,ing to easements is .not affected by section
.131, 242 orsection 257 of the Code,Jn view of.the aboye, this
appeal is allowed and thejudgr:n·ents and decrees of the courts G
below are se:t:aside and itis declared thaUhe civil' court has
· the jurisdiction to try the ·suit fifed by the appellants. The trial
·court isi'equested to dispose of the suit expeditiously.

Appeal allowed. H