RAMIBAI Vs. HARCHAND

JUDGEMENT

(1.) This second appeal has been filed by the appellants against the Judgment and decree passed by Civil Judge Class II Narayangarh and maintained on appeal by the Additional District Judge, Mandsaur.

(2.) The appellant-defendants submitted an application before the Tehsildar Malhargarh under Section 131 of the Madhya Pradesh Land Revenue Code (hereinafter referred to as 'the Land Revenue Code') for a right of way to approach the agricultural lands in their possession. The Tehsildar, after examining the evidence and also visiting the spot and hearing the parties, by his order dated 30-3-1966 allowed the application of the appellants and granted them way through the lands of the plaintiff-respondents. This order passed toy the Tehsildar was ultimately affirmed by the Board of Revenue, Thereafter the respondents filed the present suit seeking an injunction restraining the appellants from using the right of way granted by the revenue tribunals. It was alleged in the plaint that this right has been conferred on the basis of easement. The appellant-defendants in their written statement raised the question of jurisdiction of the civil court to entertain such a suit and the learned Judge framed issues and treated the issue of jurisdiction as preliminary issue and disposed it of by holding that the civil court had jurisdiction to entertain the suit. Against this a revision petition was filed in this Court and by orders of this Court dated 24-3-1975 the revision petition filed by the appellants was dismissed. Thereafter the suit was tried on merits and has been decreed and the decree has been affirmed on appeal. Hence the present second appeal has been filed by the appellants.

(3.) Learned counsel for the appellants contended that under Section 131 of the Land Revenue Code the order passed by the revenue tribunals conferred a right of way as based on custom and convenience. The order passed by the Tehsildar is not at all based on any easementary rights. It was therefore contended that such a right granted under Sub-section (1) of Section 131 of the Code cannot be challenged in a civil suit except on the ground of want of jurisdiction or on the ground of the decision having been obtained arbitrarily without following the judicial procedure. It was therefore contended that the suit itself was not competent as the civil Court had no jurisdiction to entertain the suit. Consequently learned counsel contended that the decree passed against the appellants deserves to be set aside.