Decided on December 11,1967



- (1.) THIS appeal under Order XLIII, rule 1 (u) of the Civil Procedure Code is directed against an order dated 19th January 1967 by the First Additional District Judge, Raipur, remanding a suit under Order XLI, rule 23 of the Code.
(2.) THE short question involved in this appeal is, whether a suit for modification of entries in the village Wajib-ul-urz is barred under section 257 of the M.P. Land Revenue Code (Act No. 20 of 1959). THE question has to be answered in the negative because the jurisdiction of the civil Courts to entertain such a suit is not barred either expressly or by necessary implication. The jurisdiction of the civil Courts is not to be readily inferred but the exclusion of jurisdiction must be explicitly expressed or clearly implied. See, Secretary of State v. Mask and Co. (AIR 1940 PC105=L R 1940 67 IA 222 PC). Shri D. L. Dubey, learned counsel for the appellants, contends that a revenue officer is empowered to ascertain and record customs in regard to a right of way and other easements, under section 242 (1) (a) of the Code, and, therefore, the jurisdiction of the civil Courts to entertain a suit for the establishment of an alleged right of way is barred by necessary implication. The contention cannot be accepted. According to the learned counsel, although such a dispute does not come within the purview of any of the clauses (a) to (z-2) of section 257, nevertheless, it would be covered by the operative part of the section, and the power of a revenue officer to make an adjudication in regard thereto, is preserved by the words "without prejudice to the generality of this provision." In so far as the learned counsel contends that clauses (a) to (z-2) are merely illustrative of the different subject-matters which a revenue officer is empowered to determine, he is perfectly right. Their Lordships of the Privy Council in Emperor v. Sibnath Bannerjee (AIR1945 PC 156=LR 145 72 IA 241PC), held that the enumeration of particular functions is merely illustrative, and the use of the words "without prejudice to the generality of", is to preserve that general power which always exists, in the nature of things. By parity of reasoning, it must be held that the ambit of the language used in the opening part of section 257, is in no way controlled or limited by the specification of different subject-matters in clauses (a) to (z-2). This construction, however, is of no avail to the appellants for reasons which I shall presently state.
(3.) THE scheme underlying the Code is clear. While, section 242 (1) (a) casts a duty on the Sub-Divisional Officer to determine the existence of a custom as regards a public right of way and to record it in the village Wajib-ul-arz, it must be borne in mind that the section provides for a summary remedy without in any manner depriving the aggrieved person of a right of suit. On the contrary, the Legislature has been extremely jealous in preserving this right. Any person aggrieved by an entry made in the village Wajib-ul-arz, may, within one year from the date of its publication, institute a suit in a civil Court to have such entry cancelled or modified, under section 242 (3). If the provisions rested there, I would unhesitatingly agree with the learned counsel for the appellants that the making of an entry in the Wajib-ul-arz under section 242 (1) (a) was a condition precedent to the institution of a suit under section 242 (3). But the provisions of the Code do not end there. The Code goes further and provides for a different kind of suit, namely, a suit for the establishment of a custom like the public right of way. This is manifest from the plain language of section 242 (5) (e) which casts a duty on the Sub-Divisional Officer to "modify" an entry or "insert" a new entry in the Wajib-ul-arz on the ground that the civil Court has by a decree determined any custom existing in the village. It must, accordingly, be held that a suit lies for the establishment of a customary right of way in the village.;

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