Chhangani, J. - (1.) THIS is a reference by the Civil Judge, Beawar under sec. 243 of the Rajasthan Tenancy Act, 1955 for resolving a conflict of jurisdiction in respect of a. suit for declaration of a right of way.
(2.) THE facts giving rise to this reference may be broadly stated as follows: - Shri Nenuram originally filed a suit on 10th February, 1958. against the defendant Smt. Jaswanti and others in the court of the Civil Judge, Beawar for a declaration that the plaintiff, his agents, servants and assignees had a right or way and user with regard to certain agricultural holdings and for grant of a mandatory injunction restraining the defendants and their agents, etc. from obstructing in any way with the plaintiffs and his servants in the exercise of their right of way. After the Rajasthan Tenancy Act, 1955 came into force in that part of the State, the Civil Judge held the view that the suit is triable by a revenue court and he by his order dated 9th May, 1958 transferred the case to the court of the Sub-divisional Officer & Assistant Collector, Beawar. The Assistant Collector, Beawar did not agree with the opinion expressed by the Civil Judge and found, vide his order dated 15th of October, 1958, that the case is triable by a civil court. He accordingly sent the case to the Collector, Ajmer for making a reference to this Court for decision on the point of jurisdiction. The Collector, however, instead of making a reference to this Court himself decided the conflict of jurisdiction and sent the case to the court of the Civil Judge, Beawar. The Civil Judge in his reference has found fault with the procedure adopted by the Collector in himself adjudicating upon the conflict of jurisdiction and sending the case to the Civil Judge direct without making a reference to this Court. I agree with the learned Civil Judge that once when the Civil Judge had transferred the case to the S. D. O. & Asstt. Collector, he or his superior authority, the Collector, had no jurisdiction to over-rule the views expressed by the civil court and send the case back to his court. In fact, the S. D. O. very rightly submitted the case to the Collector for sanctioning the making of a reference to this Court. However, the Collector fell into an error in assuming the jurisdiction to decide the question relating to the conflict of jurisdiction and over-ruling the views expressed by a civil court and in omitting to make a reference to this Court. There will be, however, no point in now sending the case back to the Collector and requiring him to make a reference. The whole case is before me and in order to cut short the matter, I proceed to decide the question as to whether it is a case triable by a civil court or a revenue court. The relevant provisions bearing upon this question are contained in sec. 251 of the Rajasthan Tenancy Act, 1955, which may be quoted here: - "right of way and other private easement: - (1) In the event of a dispute arising as to the route by which a holder of land shall have access to his fields otherwise than by the recognised roads; paths or common land including roads and paths mentioned as such in the settlement records or as to the waste or pasture lands of the village, or as to the course or source by which he may avail himself of water, to which he is entitled, from a tank, well or other source, the Tehsildar, may on application, after local enquiry decide the matter with reference to the previous custom in each case and with due regard to the convenience of all parties concerned, (2) No order passed under this section shall debar any person from establishing such right of easement as he may claim by a regular suit in a competent civil court. " It appears that under this section in the event of a dispute arising as to the route by which a holder of land shall have access to his fields, the Tehsildar has been empowered on an application to decide the matter in a summary manner. The proceedings to be taken by the Tehsildar on this application cannot be considered as a substitute of a civil suit and, therefore, the mere fact that the Tehsildar had jurisdiction to decide in a summary manner, a dispute relating to the right of way does not and could not have been intended to oust the jurisdiction of the civil court in respect of declaration of rights with regard to easement, and to make such suits exclusively triable by a revenue court. The provisions of the Rajasthan Tenancy Act, generally speaking, purport to create suits for rights to be conferred by that Act as exclusively triable by a revenue court, but do not seek to embrace suits for the enforcement of rights arising under other laws, such as the Pre-emption Act or the Easements Act. Sub-sec. (2) further clarifies the position. According to this sub-sec. an order of a Tehsildar under sub-sec. (1) shall not debar a person from establishing such rights and easements* as he may claim by a regular suit in a competent civil court. The use of the expression, "no. . . shall debar. . . " is suggestive of the fact that a right to file a suit in the Civil Court, in the first instance, stands automatically recognised and a previous application to the Tehsildar and obtaining his summary decision is not a condition precedent to the filing of a civil suit. In this view of the matter, I hold that the suit is triable by a civil court. The reference is disposed of in these terms and the record of the case is returned to the Civil Judge, Beawar, who will dispose it of in accordance with law. A copy of this order may be sent to the Collector, Ajmer. .;