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1956 DIGILAW 252 (RAJ)

Jairam v. Narayan

1956-11-19

KANWAR BAHADUR, S.L.AHUJA

body1956
These two applications in revision, one filed by Narayan S/o Ramkanwar Chamar and the other filed by Jairam and others, are directed against an appellate order of the Additional Collector, Jaipur, dated 31.5.1956 by which an order of the Tehsildar Chaksu, dated 25.2.1956, was affirmed with some modifications in a case relating to a right of way which was claimed by Narain through the fields of Jairam and others under sec. 251 of the Rajasthan Tenancy Act (hereinafter referred to as the said Act). It will be convenient to dispose of both these applications by the same order as they arise out of the same case and involve a question of law which turns up on the scope and interpretation of sec 251 of the said Act. 2. We have heard the learned counsel appearing for the parties and have also examined the record. The material facts of the case are that Narayan submitted an application to the Tehsil Panchayat Chaksu alleging that he was prevented by the non-applicants from having access to his fields situated in village Titarya after going along the path which ran through their fields and which he had been using previously in order to have access to his fields. After holding an enquiry into the matter the Panchayat realised that it was not competent to accede to the request of the applicant. It sent the file to the Tehsildar Chaksu on 19.12.1955. On 25.2.1956 the Tehsildar who had inspected the spot earlier directed the Girdawar Halqa to proceed to the spot and to point out to the applicant the path through fields Nos. 385, 357, 323, 324, 316, 317 and 318. He required the non-applicants to furnish bonds in the amount of Rs 51/-each that they would not prevent the applicant from going along that path in order to have access to his fields. The non-applicants aggrieved by the order of the learned Tehsildar went up in appeal against it to the learned Additional Collector, Jaipur. The learned Additional Collector when into the matter and came to the conclusion that Narayana, respondent, was justified in asserting his right to the use of the path which ran through the fields of the appellants. This path was shown in settlement papers and the appellants were not justified in preventing the respondent from using it. The learned Additional Collector when into the matter and came to the conclusion that Narayana, respondent, was justified in asserting his right to the use of the path which ran through the fields of the appellants. This path was shown in settlement papers and the appellants were not justified in preventing the respondent from using it. The learned Additional Collector however added a rider to the order of the learned Tehsildar which was to the effect that the applicant while driving his cattle through these fields should take steps to ensure that they did not do any damage to the standing crops. He was required to the extent to which it was possible to place a cover on their mouths It was also pointed out that the respondent would not drive a cart over the path so long as the crop was standing in those fields. To this extent the order of the learned Tehsildar was modified and the appeal preferred by the non-applicants was partially accepted As the order of the learned Additional Collector was considered by both the parties as prejudicial to their rights they have come up in revision to the Board impugning its legality and propriety on different grounds. 3. It was contended on behalf of Jairam and others that the learned Tehsildar had clearly misconstrued the provisions of sec. 251 of the Rajasthan Tenancy Act and had committed a material irregularity in the exercise of a jurisdiction which was vested in him. 4. It was urged on behalf of Narayan that Jairam and others were debarred from urging in revision that the learned Tehsildar had not pursued any local enquiry nor had he collected sufficient evidence pointing to the existence of a custom which would govern the rights of the parties to the user of the path about which there was a dispute. They were sent lor by the learned Tehsildar and they had failed to appear before him in response to the notice issued to them. They had allowed their case to go by default and were not justified in subsequently questioning the propriety of the order of the learned Tehsildar. As the only question which is involved for determination in these applications relates to the scope of sec. They had allowed their case to go by default and were not justified in subsequently questioning the propriety of the order of the learned Tehsildar. As the only question which is involved for determination in these applications relates to the scope of sec. 251 of the said Act we think it necessary to indicate the necessary ingredients of this provision of the law in order to determine the extent to which they were either established or infringed in this case. Sec. 251 runs as follows— Rights of way and other private easements—(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 course or source by which he may avail him self of water or as to the waste or pasture lands of the village 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 or easement as he may claim by a regular suit in a competent civil court. It is abundantly clear from the wording of sec. 251 that the Tehsildar is given an ample discretion to decide a dispute arising as to the right by which a holder of land shall have access to his fields. The party aggrieved has to make an application to the Tehsildar in that behalf. It is incumbent upon him to decide the matter after a local enquiry. In reaching a decision in the matter the Tehsildar has to be guided by the previous custom in each case and has to pay due regard to the convenience of the parties concerned. An order passed by him is not a final adjudication upon the rights of the parties which can only be determined by a regular suit in a competent civil court. If we examine the facts of the present case in the light of these requirements we discover that the learned Tehsildar did not pursue any local enquiry in the matter. An order passed by him is not a final adjudication upon the rights of the parties which can only be determined by a regular suit in a competent civil court. If we examine the facts of the present case in the light of these requirements we discover that the learned Tehsildar did not pursue any local enquiry in the matter. Mere inspection of the spot would fulfil the requirements of a local enquiry. Again he failed to collect evidence about the existence of a previous custom affecting the rights of the parties to the user of the path. He clearly went astray when he required Jairam and others to furnish a bond in the amount of Rs. 50 each. This step was taken by him in order to secure their compliance to his order that Narayana be permitted to use the path which ran through their fields. Failure on the part of the learned Tehsildar to comply with these requirements of the law vitiated his order and amounted to a material irregularity in the exercise of a jurisdiction which was vested in him in the matter. 5. It is not difficult to make out why the Legislature has laid a great deal of stress on the point that the Tehsildar after a local enquiry has to decide the matter with reference to the previous custom. It has been aptly remarked that custom is to society what law is to the State. Each is the expression and realisation, to the measure of mans insight and ability, of the principles of right and justice. Custom embodies those principles as law acknowledged and approved not by the power of the State but by the public opinion of the society at large. There is more than one reason for attributing to custom the force of law. In the first place custom is frequently the embodiment of those principles which have commanded themselves to the community as principles of justice and public utility. There is more than one reason for attributing to custom the force of law. In the first place custom is frequently the embodiment of those principles which have commanded themselves to the community as principles of justice and public utility. In the second place the efficacy of custom is to be found in the fact that the existence of an established usage is the basis of rational expectation of its continuance in the future (See Jurisprudence by Sir John Salmond, 10th edition, pages 201-203) It is for these reasons which have apparently a great dial of weight in them that on certain occasions the Legislature is induced to give express statutory authority to bodies of local or national custom. It is also pertinent to point out that in order to establish previous custom it was incumbent upon Narayan applicant to adduce cogent evidence which would clearly lead to an inference about the existence of the custom affecting the rights of the parties to the user of the path. The correct approach to a case where a party seeks to prove a custom is the one emphasised by their Lordships of the Privy Council in Abdul Hussain Khan vs. Mst. Bibi Sona Deva, AIR 1917 Privy Council 181. The observations of the Privy Council were referred to at considerable length in Saraswathi Ammal vs. Jagamba, A.I. R. 1953 Supreme Court page 205. We may reproduce the observations of their Lordships of the Privy Council with advantage in this case. "It is of the essence of special usages modifying the ordinary law that they should be established to be so by clear and unambiguous evidence. It is only by means of such evidence that the courts can be ensured of their existence and that they possess the condition of antiquity and certainty on which alone their legal title to recognition depends". 6. Burning to the facts of the present case we feel constrained to observe that not only the" learned Tehsildar but also the learned Additional Collector approached the whole matter from a wrong angle. The learned Tehsildar did not make any attempt whatsoever to ascertain the previous custom which should form the basis of his decision The learned Additional Collector though he inspected the spot did not make any effort to discover the previous custom which would govern the rights of the parties to the user of the path. The learned Tehsildar did not make any attempt whatsoever to ascertain the previous custom which should form the basis of his decision The learned Additional Collector though he inspected the spot did not make any effort to discover the previous custom which would govern the rights of the parties to the user of the path. It is hardly necessary fur us to go into the question whether sec. 251 of the said Act applies only when there is a dispute about a right of way which has not been recognised as such in the settlement records because the decision of these applications can rest on the point that the courts below committed a material irregularity in the exercise of their jurisdiction by falling to ascertain the previous custom which should have formed the basis of their decisions. The argument urged before us by the learned counsel for Narayana is clearly devoid of substance. Failure on the part of Jairam and others to adduce evidence in support of their contention that no path ran through their fields would not relieve the courts of an obligation which was imposed on them by the law to base their decisions on previous custom. For the aforesaid reasons we are clearly of opinion that the orders of the learned Tehsildar and of the learned Additional Collector cannot be sustained We, therefore, allow these applications and after setting aside the orders of the learned Tehsildar dated 25.2.1956 and the learned Additional Collector dated 31.5.56 remand the case to the learned Tehsildar with the direction that he shall dispose of it in accordance with law and in the light of the observations made above.