GOPIDAS Vs. RAMKRISHNA PANDEY

JUDGEMENT

(1.) THIS revision under section 115 of the Civil Procedure Code, by the defendants, is directed against an interlocutory order dated 6th October 1960, passed by the 3rd Civil Judge, Class II, Khurai, upholding the jurisdiction of the Court to try the suit.

(2.) THE facts giving rise to this revision may be shortly stated. The plaintiffs have brought a suit for declaration that the defendants have no right of way, through their Bhumiswami land bearing Kh. No. 41, and for consequential injunction to restrain them from exercising any such right by virtue of the order passed by the revenue Courts under section 131 (1) of the Madhya Pradesh Land Revenue Code, 1959 (XX of 1959), in their favour. The defendants pleaded amongst other grounds, that the civil Court had no jurisdiction to try the suit.

(3.) THE contentions urged by the defendants in the Courts below and before me was that section 131 (1) creates a new right of way unknown to general Jaw, namely, a right of way based on convenience. Interpreting the provision, the learned counsel says that the section is a special provision bringing the right into existence, and it further provides for a special remedy for the enforcement of the right. He then urges: the section speaks of a "private easement" which does not mean easement perfected by prescription. But only indicates the nature of the right. If the right exists, even though not perfected by prescription, it has to be adjudicated upon under this section. Similarly, the custom envisaged in the section does not mean "custom, having the force of law", but means only a practice followed over a reasonable period. Having regard to the language used in section 131 (2), when the Tahsildar recognizes a right of way or any other customary right, a Civil Suit is not maintainable, at the instance of the person over whose property the right is recognised to exist. In support of these contentions, reliance is placed upon Ramsingh v. Bherusingh 1965 JLJ -SN 117, and Addanki Tiruvenkata Thata Desika Charyulu v. The State of A. P. AIR 1964 SC 807.