RAMKANYA BAI Vs. JAGDISH

JUDGEMENT

(1.) Leave granted.

(2.) The appellants claim to be the owners of lands bearing Khasra Nos.29/2/2 and 29/1. The first respondent Jagdish claims to be the owner of Khasra Nos.36/3 and 36/4. The first respondent made an application to the Naib Tahsildar, Tappa Betma, Depalpur, Indore District, under section 131 of the Madhya Pradesh Land Revenue Code, 1959 ('Code' for short) claiming a right of way over Khasra Nos.29/2/2 and 29/1 of the appellants, to reach his lands bearing Khasra Nos.36/3 and 36/4. The Naib Tahsildar made on order dated 25.10.2001, under section 131 of the Code, holding that first respondent, with his agricultural equipments, bullock-cart etc., was entitled to pass through the Government Road, Khasra No.21 (East to West) of the village Salampur and thereafter pass through Khasra Nos. 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 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 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 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 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 appellants was also dismissed by the High Court on 19.1.2007. The said judgment is under challenge in this appeal by special leave.