Decided on February 03,1967

BHULIBAI Appellant
AMBARAM Respondents


- (1.) THIS is a second appeal by the defendant from the concurrent judgments of the lower Courts directing the removal of certain encroachments and obstructions from a strip of village common land which the plaintiff claimed and the Court declared to be a public pathway belonging to Government. The question at this stage is whether the revenue Courts, have exclusive jurisdiction in this manner provided in section 142 and 147 of the madhya Bharat Land Revenue and Tenancy Act which was the law applicable at the time of the initiation of this litigation. Actually there are corresponding provisions in the Madhya Pradesh Land Revenue Code of 1969 the wordings themselves being to the same effect; I may note even here that we are concerned primarily with section 142 of the Madhya Bharat Act which corresponds to section 133 of the Madhya Pradesh Code (which again corresponds to section 213 of the Vindhya Pradesh Law which will be discussed presently)and incidentally that section 140 of the Madhya Bharat law which again corresponds to section 131 of the Madhya Pradesh Code (corresponding again with section 212 of the Vindhya Pradesh Law ). The corresponding provisions in the Vindhya Pradesh Act of 1953 have been referred to by the party while arguing about the impact on the present controversy of the decision of this High court in Ramadhar v. Nyaya Panchayat Hanumana and others (1961 M P L J Note 143=miscellaneous Petition No. 146 of 1960, decided by a Divisional bench at Jabalpur on 31-1-1961)
(2.) THE facts of the case are the following : The plaintiffs resident in a village called Kharsod Khurd filed a suit in the civil Court averring that there was government-owned land in their village used as a public path. The defendants while rep tiring their house encroached more than half-way into the path and reduced the width from the original 10' to less than 5' over the frontage of their house and thereby made it impossible for the plaintiffs to take their carts and cattle by that way to which they were entitled They prayed for a declaration that the strip indicated on the map was public pathway and also asked for a mandatory injunction on the defendants enjoining them to remove the obstructions. The trial Court went into the facts and found that it was a public pathway and that the defendants had constructed an Ota over it and dirtied the removal. At this stage the defendants did not take the position that the case was exclusively cognizable by the Revenue Courts ; but after the trial Court's decision they went in appeal and inter alia raised the question of jurisdiction. The appellate Court rightly felt that it was a case of basic jurisdiction and accordingly the mere delay in pleading it did not disqualify the defendants from raising this question However, it felt on merits that this was not a case within the exclusive jurisdiction of the revenue Court because it was not shown that "the pathway was one recorded in the record of rights". The appellate Court proceeded on the assumption that the provision applicable was section 141 of the Madhya Bharat Act and not the first half of section 142, and came to the conclusion that there was no exclusive jurisdiction. Moreover it feat that there being a prayer for a declaration of a right of free access over the path it was a matter cognizable only by the civil Court Accordingly it dismissed the appeal.
(3.) IN second appeal the whole problem of jurisdiction has been agitated and besides interpreting the sections concerned, the plaintiffs have urged that the judgment of a Bench of this Court in Ramadhar v. Nyaya Panchayat hanumana and others, in a case from the erstwhile Vindhya Pradesh area is conclusive, to the effect that the Tehsildar has no jurisdiction in regard to such disputes. That case arose under the Vindhya Pradesh Land Revenue and tenancy Act but it is argued that the provisions are similar, and the decision would apply to cases under section 142 of the Madhya Bharat Act as well. I shall deal with this matter separately after examining the main problem.;

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