Dismissed

Aam Janta Butati Dham and Ors. v. Maan Singh and Ors.

Rajasthan HC3 Jul 2023CSA/63/2018

Case brief

AI extract

What is this about?

The First Additional High Court declined to interfere with the First Appellate Court's finding that a suit for declaring land as Nadi/Agore falls within the exclusive domain of Revenue Courts under the Land Revenue Act and Rajasthan Tenancy Act, dismissing the Second Appeal.

What did the court decide?

Second Appeal dismissed; Impugned judgment affirmed; Stay petition and pending applications dismissed.

Aam Janta Butati Dham and Ors. Vs Maan… — Civil Procedure and Limitation | Rajasthan HC (2023)

¶1

[2023/RJJD/013660]

¶2

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

¶3

S.B. Civil Second Appeal No. 63/2018

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Aam Janta Butati Dham through its legal representatives

¶5

Gaurishankar S/o Shri Jaggaram, Caste Bishnoi, aged 43 years, R/o Butati, Tehsil Degana, District Nagore.

¶6

Hukmaram S/o Shri Motaram, Caste Bishnoi, aged 60 years, R/o Butati, Tehsil Degana, District Nagore.

¶7

Ghanshyam S/o Shri Shankarlal, Caste Jaat, R/o Butati, Tehsil Degana, District Nagore.

¶8

----Appellants

¶9

Versus

¶10

Maan Singh S/o Shri Sangram Singh, Caste Rajput, R/o Butati, Tehsil Degana, District Nagore.

¶11

State of Rajasthan through District Collector Nagore.

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Tehsildar, Degana.

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Nayab Tehsildar, Sanju.

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Sub-Registrar, Degana.

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Halka Patwari, Butati.

¶16

----Respondents

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For Appellant(s)	: Mr.	H.S. Kachwaha
For Respondent(s)	: Mr.	Gajender Singh Rathore

¶18

HON'BLE MS. JUSTICE REKHA BORANA

¶19

Judgment

¶20

03/07/2023

¶21

The matter comes up on an application under Order 39 Rule 4 of Code of Civil Procedure (CPC) preferred on behalf of respondent No.1 for vacation of the interim order dated 29.08.2018 whereby status quo as it existed on the said date was directed to be maintained. It has been submitted in the application that the interim order is being flouted by the appellants and therefore, the same be vacated.

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Although the matter has been listed for hearing/orders on the stay petition, with the consent of learned counsel for the parties, the appeal itself has been heard finally.

¶26

The present second appeal has been preferred against the judgment and decree dated 24.01.2018 passed by the Additional District Judge, Merta in Civil Appeal No.141/2015 reversing the judgment and decree dated 26.09.2013 passed by the Civil Judge (Sr. Division), Merta in regular suit No.34/2008 whereby the suit for declaration and permanent injunction as preferred by the plaintiffs had been decreed.

¶27

The present appeal was admitted on 29.08.2018 and the following substantial questions of law were framed:

¶28

“(i) Whether the First Appellate Court was justified in coming to the conclusion that the plaintiffs have not sought any relief pertaining to declaration of easementary right and, therefore, civil court had no jurisdiction to deal with the matter?

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(ii) Whether in the facts and circumstances of the case, the suit filed by the appellants is triable by the Civil Court?

¶30

(iii) Whether the First Appellate Court was justified in reversing the decree passed by the trial court without dealing with any other issue?”

¶31

Before entering into an analysis on the questions of law as framed, a brief of the facts is essential.

¶32

A representative suit for declaration and injunction was preferred by the Aam Janta of Village-Butati with the following prayers :

¶33

“ 8& ;g gSa fd oknhx.k dh izkFkZuk gSa fd fMØh cgd oknhx.k fo:) izfroknhx.k fuEufyf[kr rjhds ls lkfnj QjekbZ tkos dh %&

(3 of 12)

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1& ;g gS fd ?kks’k.kk dh fMØh lkfnj QjekbZ tkosa dh [kljk uEcj 1073 jdck 2 fc?kk [kljk uEcj 1074 jdck 10 fc?kk 11 fcLok xSjeqedhu ukMh o vaxksj dh lkoZtfud vke turk cqVkVh dh ?kksf’kr dh tkos rFkk ;g Hkh ?kksf’kr fd;k tkos dh [kljk uEcj 1073 xSjeqedhu ukMh lkoZtfud ukMh gS ftldks vke turk cqVkVh ds ikuh ihus o i”kq/ku ds ikuh ihus dk dke esa ysus dk vf/kdkj gS rFkk [kljk uEcj 1074 jdCkk 10 fc?kk 11 fcLok lkoZtfud vaxkSj dh Hkqfe ?kksf’kr dh tkos tks [kljk uEcj 1073 dk dSpesaV ,sjh;k ?kksf’kr fd;k tkosA rFkk vke turk dks vius i”kq/ku o vU; tho dks pjus o pjkus dk ?kksf’kr fd;k tkosA

¶38

2& dh jktLo jsdMZ dks nqjLr djus dh fMØh lkfnj QjekbZ tkos dh [kljk uEcj 1073 jdck 2 fc?kk xSjeqedhu ukMh jktdh; Hkqfe [krkSuh esa ntZ dh tkos o [kljk uEcj 1074 jdck 10 fc?kk 11 fcLok Hkqfe xSjeqedhu vaxkSj dh Hkqfe jktdh; Hkqfe [krkSuh esa ntZ dh tkosA

¶39

3& ;g gS fd LFkkbZ fu’ks/kkKk dh fMØh lkfnj QjekbZ tkos dh [kljk uEcj 1073 jdck 2 fc?kk [kljk uEcj 1074 jdck 10 fc?kk 11 fcLok dks izfroknh uEcj ,d fdlh dks Hkh cSpku] gLrkarj.k] jgu] c[“kh”k vknh ugha djsa uk fdlh vU; ls djkosa] rFkk izfroknh la[;k 2 ls 6 jktLo jsdMZ dh fLFkrh dks ;Fkkor cuk;s j[ksa rFkk izfroknhx.k ekSds dh fLFkrh dks ;Fkkor cuk;s j[ksa rFkk izfroknh uEcj uEcj ,d fdlh Hkh laLFkk] fofRr; laLFkk ls _.k vknh mDr Hkqfe ij ugha ysosa uk vU; ls fyjokosaA

¶40

4& ;g gS fd bl okn dk [kpkZ o gtkZ oknh dks izfroknh uEcj ,d ls fnyk;k tkosA vU; izkFkZuk tks oknhx.k ds i{k esa mfpr izrhr gks oks oknhx.k ds i{k esa Lohdkj QjekbZ tkosA ”

¶41

On basis of the pleadings of the parties, the learned trial Court initially framed as many as 6 issues and subsequently, issue no.6A regarding jurisdiction of the Court was framed as under:

¶42

“vk;k izLrqr okn dks lquokbZ dk {ks=kf/kdkj bl U;k;y; dks ugha gksdj jktLo U;k;ky; dks gS ?"

¶43

Learned trial Court proceeded on to decide issue no.6A in favour of the plaintiffs holding the suit to be maintainable before the Civil Court and further, while deciding other relevant issues in favour of the plaintiffs, decreed the suit.

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(4 of 12)

In the appeal preferred by the defendants, learned First Appellate Court proceeded on to reverse the finding of the learned trial Court on issue no.6A and held that the present suit was not maintainable before the Civil Court as the reliefs as prayed for in the suit were totally within the domain of the Revenue Court. Because of the finding on issue no.6A being reversed, the learned First Appellate Court did not venture into the other issues and dismissed the suit of the plaintiffs. Aggrieved against the same, the present second appeal has been preferred.

¶48

The substantial questions of law No.(i) & (ii) as framed by this Court while admitting the appeal pertain to the issue whether present suit was triable by the Civil Court and whether the First Appellate Court was justified in concluding that as the plaintiffs had not sought any relief for declaration of easementary rights, the Civil Court had no jurisdiction to proceed with the matter. 11. While submitting on the above issues, learned counsel for the appellants aruged that the pleadings as made by the plaintiffs in the plaint specifically laid down a case for declaration of easementary rights and when the complete suit of the plaintiffs was on the basis of easementary rights only, the learned First Appellate Court erred in concluding that no relief for declaration of easementary rights was sought in the suit and further in holding the suit to be not maintainable before the Civil Court.

¶49

Submitting on the second issue, learned counsel submitted that the present was not a simplicitor suit for declaration of the land as Nadi/Agore/Catchment but was for declaration of the land as Nadi/Agore/Catchment on the basis of easementary rights. He submitted that the prayer for entering the land as

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Nadi/Agore/Catchment in the revenue record was a relief consequential/ancillary to relief no.1. A declaration regarding easementary rights can only be made by the Civil Court and therefore, the learned trial Court rightly decided issue no.6A in favour of the plaintiffs. In support of his submissions, learned counsel relied upon the judgment in the case of Ram Kanya Bai

¶54

& Anr. Vs. Jagdish & Ors.; AIR 2011 SC 3258.

¶55

Per contra, learned counsel for the respondents, while supporting the judgment as passed by the learned First Appellate Court submitted that a bare perusal of the reliefs as prayed for in the suit is sufficient to prove that the present suit was not at all for declaration of any easementary rights. So far as the declaration of any agricultural land to be a public land in whatsoever nature, Nadi/Agore/Catchment is concerned, the same can be made only by the revenue authorities in terms of the revenue laws and qua any dispute of such nature or for declaration of the land as such, the suit can be maintained only before the Revenue Court. The Civil Court does not have jurisdiction to determine any suit/application qua any agricultural land as the same is specifically barred under Section 207 of the Rajasthan Tenancy Act, 1955.

¶56

Heard learned counsel for the parties and perused the material available on record.

¶57

Section 207 of the Rajasthan Tenancy Act, 1955 provides as under:

¶58

“ 207. Suits and applications cognizable by revenue court only – (1) All suits and application of the nature specified in the Third Schedule shall be heard and determined by a revenue court.

(6 of 12)

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(2) No court other than a revenue court shall take cognizance of any such suit or application or of any suit or application based on a cause of action in respect of within any relief could be obtained by means of any such suit or application.

¶63

Explanation– If the cause of action is one in respect of which relief might be granted by the revenue court, it is immaterial that the relief asked for from the civil court is greater than, or additional to, or is not identical with, that which the revenue court could have granted.”

¶64

Section 251 of the Rajasthan Tenancy Act, 1955 provides as

¶65

under:

¶66

“ 251. Rights of way and other private easement – [(1) In the event of any holder of land, in actual enjoyment of a right of way or other easement or right, having, without his consent, been disturbed in such enjoyment otherwise than in due course of law, the Tehsildar may, on the application of the holder of land so disturbed and after making a summary inquiry into the fact of such enjoyment and disturbance, order the disturbance to be removed or stopped and the applicant-holder to be restored to such enjoyment, notwithstanding any other title that may be set up before the Tehsildar against such restoration].

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(2) No order passed under this section shall debar any person from establishing such right or easement as he may claim by a regular suit in a competent civil court.”

¶68

Section 256 of the Rajasthan Tenancy Act, 1955 provides as

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under:

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“ 256. Bar to jurisdiction of Civil courts – (1) Save as otherwise provided specifically by or under this Act, no suit or proceeding shall lie in any civil court with respect or any matter arising under this Act or the rule made thereunder, for which a remedy by way of suit, application, appeal or otherwise is provided therein.

¶71

(2) Save as aforesaid no order passed by the State Government or by any revenue court or officer in exercise of the powers conferred by this Act or the rules made thereunder shall be liable to be questioned in any civil court.”

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Article 81 of the Schedule to the Rajasthan Tenancy Act, 1955 provides that the Tehsildar would be the competent officer to decide an application for decision of dispute as to right of way or other easement or right in terms of Section 251 of the Rajasthan Tenancy Act, 1955.

¶76

A bare perusal of the above provisions makes it clear that : (i) firstly, any suit or proceeding pertaining to any matter arising under the Tenancy Act would not lie in any Civil Court; (ii) secondly, any suit/application of the nature specified in Third Schedule to the Tenancy Act shall be heard and decided by a revenue Court and a dispute pertaining to right of way or other easement is specified under Article 81 of the Third Schedule to the Tenancy Act; and

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(iii) thirdly, right of way and other private easement can also be claimed in a regular suit before a competent Civil Court.

¶78

Meaning thereby, a dispute pertaining to an easementary right qua an agricultural land can be raised before the Revenue Court as well as the Civil Court. It is only the nature of easement and the relief prayed which would decide the jurisdiction.

¶79

In view of the above analysis, the finding as reached by the trial Court to the effect that the revenue court does not even have the jurisdiction to grant a relief of declaration qua an easementary right cannot be held to be tenable. The Third Schedule in the Rajasthan Tenancy Act, 1955 specifically provides that the Tehsildar would be the competent authority to decide a dispute pertaining to easementary right. Further, Section 251 of the Rajasthan Tenancy Act, 1955 also specifically provides for the dispute pertaining to right of way and other private easements to

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be laid before a Tehsildar. The jurisdiction granted to a Civil Court under Section 251(2) of the Act of 1955 cannot be read to be a bar to the jurisdiction of the Revenue Court ipso facto . The Revenue Court therefore, does have the jurisdiction to decide the dispute pertaining to easementary rights. It is only that even if an order has been passed under Section 251 of the Act of 1955, the right to claim and establish a private easementary right before a Civil Court would still survive.

¶84

Now coming on to the relief as prayed for by the plaintiffs in the present suit, it is clear that Prayer No.1 is for declaration of the land to be a public land in the nature of gair mumkin, nadi and agore and relief No.2 as prayed for is for correction in the entries in the revenue record wherein it has been prayed that the land of khasra Nos.1073 & 1074 be entered as gair mumkin, nadi and agore in the revenue records.

¶85

In the opinion of this Court, so far as the land in dispute is concerned, the same is specifically within the domain of the revenue authorities in terms of the Land Revenue Act, 1956. So far as declaration of a land to be a ‘public land’ is concerned, Section 92 of the Land Revenue Act, 1956 provides for setting apart of any land for any specific purpose such as for free pasture of cattle, for forest reservation, for development of abadi or for any other public or municipal purpose. Section 173 of the Land Revenue Act, 1956 provides for preparation of all Wajib-ul-arz or Dastoor Ganwai for each village by the Settlement Officer to ascertain and record the customs in the village in regard to irrigation, rights of way and other easement . A specific procedure for such ascertainment and recording has also been

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prescribed and even a provision for an objection to be raised by any person has been prescribed. Section 174 of the Land Revenue Act, 1956 provides that all such entries as made under Section 173 shall be presumed to be true until the contrary is proved.

¶90

Admittedly, in the present matter, the land in dispute of khasra No.1074 is a land entered in the khatedari of the defendants and therefore, a prayer for correction in the revenue record has also been made. On an analysis of the reliefs as prayed for in the plaint and the above provisions of land revenue law as well as the tenancy act, it can be concluded that the present is not a suit for declaration of any right of way or any private easement in terms of Section 251 of the Rajasthan Tenancy Act, 1955. The present is a suit for declaration of the land as nadi/agore which, in terms of the above provisions of law, is specifically within the domain of the revenue authorities. The settlement operations to ascertain the right of easement are to be carried out by the revenue authorities in terms of the land revenue act and the classification of the land on basis of its user can also to be determined by the revenue authorities only. 21. In view of the above observations, in the specific opinion of this Court, the reliefs as prayed for in the present suit specifically fall within the domain of the revenue court and therefore, in view of Sections 207 and 256 of the Rajasthan Tenancy Act, 1955 the revenue courts would only have the jurisdiction to entertain the same and to grant the reliefs as prayed for. Therefore, finding on Issue No.6A as recorded by the learned appellate Court cannot be interfered with. The substantial question Nos.1 & 2 as framed by this Court are answered in the manner that the appellate Court

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was justified in holding that the Civil Court does not have the jurisdiction to deal with the matter and further that the suit filed by the appellants cannot be held to be triable by the Civil Courts.

¶95

So far as substantial question No.3 is concerned, the first appellate Court specifically concluded that the civil court did not have the jurisdiction to deal with the matter and therefore when the civil court was not found to have jurisdiction, any analysis of the subject matter or findings on the other issues would have been totally irrelevant. Therefore, Issue No.3 is also answered in the manner that the first appellate Court was very well justified in reversing the decree passed by the Trial Court without dealing with any other issue.

¶96

So far as the judgment passed by the Hon’ble Apex Court in the case of Ram Kanya Bai (supra) is concerned, the same dealt with Section 131 of the Madhya Pradesh Land Revenue Code, 1959 which is a provision akin to Section 251 of the Rajasthan Tenancy Act, 1955. The ratio as laid down in the said judgment that the Code nowhere bars the jurisdiction of civil courts to decide upon easementary rights relating to agricultural or other lands cannot be disputed. As observed above, firstly, the present is not a suit based on private easement and secondly, it is not the position of law that the revenue court does not at all have the jurisdiction to decide the disputes pertaining to easement. To conclude whether the dispute at hand can even be termed to be a dispute on basis of easementary rights, a perusal of definition of term ‘easement’ would be essential. The Easement Act, 1882 defines easement as under:

(11 of 12)

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“ 4. “Easement” defined – An easement is a right which the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done, in or upon, or in respect of, certain other land not his own.

¶101

Dominant and servient heritages and owners – The land for the beneficial enjoyment of which the right exists is called the dominant heritage, and the owner or occupier thereof the dominant owner; the land on which the liability is imposed is called the servient heritage, and the owner or occupier thereof the servient owner.”

¶102

A perusal of the above definition makes it clear that for a right of easement to be declared, there has to be a dominant and a servient owner. In the present matter, neither is there any owner of the land nor any occupier of the land which can be termed to be a dominant owner.

¶103

As held by the High Court of Kerala in the case of

¶104

Irinjakuda Bank Ltd. vs. Irinjalakuda St. Mary’s Church and Ors.; AIR 1962 Ker 312:

¶105

“There can be no easement properly so called unless there is both a servient and a dominant tenement. There can be no such thing, according to our law, or according to the civil law, as an easement in gross . An easement must be connected with a dominant tenement.”

¶106

Meaning thereby, a right of easement is not a right in gross, but a right to appurtenant to a dominant tenement. In the present case, from a bare reading of the plaint it cannot be concluded that there was any dominant tenement who claimed right to easement and to whom such easement can be deemed to be appurtenant. Therefore, even if it is assumed that the pleadings qua the right of easement were made in the plaint, the reliefs could not be termed to be a relief for declaration on the

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basis of such easementary right. Therefore also, in the specific opinion of this Court, the present one could not be termed to be a suit based on easementary right and the civil court therefore did not have any jurisdiction to deal with the same. It was clearly a suit for declaration of a land to be a public land of nadi/agore and such right of declaration was clearly within the domain of the revenue authorities in terms of Land Revenue Act as well as Rajasthan Tenancy Act.

¶111

In view of the above observations, this Court does not find any ground to interfere with the impugned judgment and decree dated 24.01.2018 passed by the first appellate Court and the same is therefore, affirmed.

¶112

All the substantial questions of law having been answered in favour of the respondents, the present second appeal is dismissed .

¶113

The stay petition and all the pending applications also stand dismissed.

¶114

(REKHA BORANA),J

¶115

54-vij/abhishekS/-

Aam Janta Butati Dham and Ors. v. Maan Singh and Ors.

Case brief

What is this about?

What did the court decide?

Aam Janta Butati Dham and Ors. v. Maan Singh and Ors.

Case brief

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