1. This is a Letters Patent Appeal from the Judgment of Mr. Justice Pandey.
2. Nathuram has a field, Khasra No. 490, at village Mohana in Datia District Siyasharan's field. Khasra No. 489, is adjacent to it. Siyasharan made an application before the Tehsildar on the allegation that Nathuram by constructing a Bandhiya blocked his way which he had been using for long. This application was decided by the Tehsildar in favour of Siyasharan. The Tehsildar directed Nathuram to remove the obstruction and clear the way within 10 days. Nathuram appealed but did not succeed. Eventually, he filed a suit in the Civil Court for declaration that he is entitled to maintain the Bandhiya and for a declaration that the orders of the Tehsildar and the Revenue Commissioner are inoperative and ineffective. Siyasharan challenged the maintainability of the suit in the Civil Court and urged that it was barred. This objection found favour with the trial Court, the first appellate Court, and also the learned Single Judge in second appeal. However, the learned Single Judge certified the case fit for Letters Patent Appeal. Nathuram has preferred this appeal.
3. Siyasharan's application before the Tehsildar was under Section 131 of the Madhya Pradesh Land Revenue Code 1959, (hereinafter referred to as 'the Code'). That section runs thus:--
'Section 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 pasture lands of the village, otherwise than by the recognised roads, paths or common land, including those roads 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 Tehsildar may, after local enquiry, decide the matter with reference to the previous custom in each case and with due regard to the convenience 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.'
Then Section 257 of the same Code provides exclusion of the jurisdiction of civil court in these words:--
'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:--
(c) ..... etc. etc.'
In the clauses that follow under the main part of Section 257, Section 131 does not find a place.
4. It is urged for the appellant that this suit was maintainable under Sub-section (2) of Section 131 of the Code. Alternatively, it is urged that apart from that provision the plaintiff (Nathuram) can enforce his common law right in the Civil Court.
5. As we read Section 131(1) it is clear to us that the Tehsildar has jurisdiction under this section in cases of disputes relating to 'route' by which a cultivator shall have access to his field or to the waste or pasture land of the village; and (ii) to the source from or course by which he may avail himself of water'. This Section 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 Tehsildar 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 decided on the basis of convenience it is an unperfected right.
6. From the above discussion St will be seen that, irrespective of the fact that the plaintiff has a perfected right of way under the Easements Act or not, he Is entitled to approach the Tehsildar 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. Thus the provisions of Section 131 relate to a right which is of a limited nature and for the limited purposes specified in it, and the decision of the dispute is to be based on the considerations specified in the section, which are not the same as under the Easements Act.
7. That being so, it must be said that Sub-section (1) of Section 131 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 the Code.
8. The contention of Shri Motilal Gupta, is that this suit is maintainable under Sub-section (2) of Section 131. The learned Single Judge appears to have taken the view that it is only the plaintiff who having moved the Tehsildar under Sub-section (1) is enabled to institute a civil suit under Sub-section (2). The learned Judge says:--
'It is somewhat unusual that only the person, whose claim to a right of way or a water-course is refused by an order passed by the Tehsildar under Sub-section (1) of Section 131 of the Code, is given by Sub-section (2) of that section the right to file a suit to establish such right of easement as he may claim.'
We are clearly of the view that Sub-section (2) has been enacted by way of abundant caution and for removal of doubt. We have already pointed out the distinction between a right which the revenue authorities may recognise, and decide the dispute before them in favour of one of the parties, and the right of easement under the general law. Now by enacting Sub-section (2) room has not been left for doubt whether decision of the revenue authorities under Sub-section (1) will be a bar to a civil suit for establishing such rights of easement as could be done in the civil court, otherwise than under Sub-section (1) of Section 131 of the Code. In our view, it is not only the plaintiff who moved the Tehsildar 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.
9. It must, however, be remembered that the provisions of Sub-section (2) 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.
10. For these reasons the contention that by virtue of Sub-section (2) of Section 131 of the Code the present suit was maintainable must be rejected.
11. It must now at once be said that we do not agree with the learned Single Judge in his observations that the subject-matter of Sub-section (1) of the Code is a right which is not a creature of a special statute and is a common law right.
12. For the reasons already stated we are of the view that the rights contained in Section 131 are special and have been created by special statute. They are not common law rights to enforce which, cognizance of a suit could be taken under Section 9 of the Civil Procedure Code. As was said in Kamla Mills Ltd. v. State of Bombay, AIR 1965 SC 1942 the normal rule prescribed by Section 9 of the Code of Civil Procedure is that the Courts shall (subject to the provisions contained in the Code) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. Gaiendragadkar C. J., speaking for the Court, succinctly made the following observations:'-
'Whether it is urged before a Civil Court that its jurisdiction is excluded either expressly or by necessary implication to entertain claims of a civil nature, the Court naturally feels inclined to consider whether the remedy afforded by an alternative provision prescribed by a special statute is sufficient or adequate. In cases where the exclusion of the Civil Courts' jurisdiction is expressly provided for, the 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 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 andliability shall be determined by the 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.'
Again in K.S. Venkataraman & Co. (P) Ltd. v. Stats of Madras, AIR 1966 S.C. 1089, the legal position was summarised thus:--
'If a statute imposes a liability and creates an effective machinery for deciding questions of law or fact arising in regard to that liability, it may, by necessary implication, bar the maintainability of a civil suit in respect of the said liability. A statute may also confer exclusive jurisdiction on the authorities constituting the said machinery to decide finally a jurisdictional fact thereby excluding by necessary implication the jurisdiction of a Civil Court in that regard.'
Further in State of Kerala v. N. Ramaswami lyer and Sons, AIR 1966 SC 1738, after referring to earlier cases, the view was reiterated that where the legislature sets up a special tribunal to determine questions relating to rights or liabilities which are the creation of a statute, the jurisdiction of the Civil Court would be deemed excluded by implication,
13. It is wrong to think that Sub-section (2) enables a plaintiff, who has not succeeded before the Tehsildar 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 been 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.
14. The present suit is not for establishing any right of easement. The plaintiff's suit is essentially and specifically for setting aside and avoiding the decisions of Revenue authorities given against him in proceedings under Section 131(1) of the Code on the ground that those decisions are wrong on merits. It is averred in the plaint that the plaintiff might have occasionally passed through the Medh of his field Khasra No. 490 and it is further stated that in the Panchayat the defendant agreed to pass through only two and a half cubits of the plaintiff's land as he occasionally did and the plaintiff gave permission to that effect. But that did not create any right in his favour. He further alleged in the plaint that the order of the Tehsildar was erroneous. Such a suit is barred by the provisions of Section 257 of the Code. If the suit had been for establishing a right under the general law of easement under the Easements Act, it would not have been barred. The present suit is not such. The second contention is also rejected.
15. The appellant has also contended that this suit is maintainable because the revenue authorities had no jurisdiction to order removal of the appellant's Ban-dhiya. But this contention must be rejected in view of the specific powers conferred on the Tehsildar under Section 133 of the Code.
16. This appeal is dismissed. The parties are left to bear their own costs in this appeal