JUDGMENT 1. - This is an application under Article 226 of the Constitution against an order of the Board of Revenue dated 6th October, 1956, 2. The ancestors of the petitioners were Jagirdars in the erst while State of Jaipur. They had constructed two tanks on plots Nos. 662, 203 and 204 which were in their Khudkasht. Sometime after the construction of the tanks the jagirs were resumed in 1942 and the tanks became part of the Khatedari holdings of the ex jagirdars. On 3rd August, 1954 two cultivators of the village filed an application before the Assistant Collector in which they alleged that the petitioners were preventing them from irrigating their fields from the above two tanks. They claimed that they had a right to irrigate their fields from these tanks, The case of petitioners was that they were their private tanks and the other cultivators of the village had no right to irrigate their fields from them. The Assistant Collector held an inquiry and found that the other cultivators of the village had no right to irrigate their fields from the tanks. He accordingly rejected the application. One Nathu filed an 'appeal' against the order of the Assistant Collector, which was heard and disposed off by the Additional Commissioner on 9th March, 1956. The Additional Commissioner agreed with the findings of the Assistant Collector and dismissed the 'appeal'. Nathu then filed a 'revision application' before the Board of Revenue against the order of the Additional Commissioner, After hearing the parties, the Board held that all the villagers whose fields were situated in the vicinity of the above two tanks had a right to irrigate their fields from them. 3. The Board purported to treat the original application filed on 3rd August 1954 as one under Sec 251 of the Rajasthan Tenancy Act. This Act came into force on 15th October, 1955, that is long after the original application was filed before the Assistant Collector. The learned counsel for the respondents drew our attention to Section 206 of the present Tenancy Act and contended that the provision of the Rajasthan Tenancy Act were made to take effect retrospectively by virtue of this provision. This section occurs in Chapter XV the heading of which is 'Procedure and Jurisdiction of Revenue Courts." We have carefully perused the wordings of Section 206. This section occurs in Chapter XV the heading of which is 'Procedure and Jurisdiction of Revenue Courts." We have carefully perused the wordings of Section 206. They only provide for the decision of all pending suits, cases, appeals, applications, references and proceedings relating to matters dealt within the Rajasthan Tenancy Act in accordance with the procedure prescribed therein. These suits and proceedings are, however, to be decided in accordance with the substantive law in force on the date of their institution. The application, dated 3rd August, 1954 could not have, therefore, been disposed of, treating it as one under Section 251 of the Rajasthan Tenancy Act. When the application dated 3rd August, 1954 was filed the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, 1951 was in force. Item No. 27 of Group B of the first Schedule of this Act contained a provision for suit "for the right of irrigation from another's well". It did not contain any provision for bringing a suit to establish the right of irrigation from another's tank. In this view of the matter, the application, dated 3rd August, 1954 was filed to the Assistant Collector for action in his executive capacity. His order on the application was, therefore, not subject to any appeal or revision. The decision by the Additional Commissioner purporting to treat the order as an appealable one can, therefore, only be treated as an order passed by him in his executive capacity. No revision lay against that order to the Board of Revenue. In this view of the matter, therefore, the impugned order of the Board of Revenue is without jurisdiction. 4. Assuming, however, that item No. 27 of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, 1951, is wide enough to cover a suit to establish the right of irrigation from another's tank, the proceedings In the original court were judicial proceedings which were instituted by Priyagsing and Surajmal Patel. They alone had a right to file an appeal against the decision of the Assistant Collects. In this view of the matter, the "appeal" filed by Nathu to the Additional Commissioner and the "revision application" filed to the Board of Revenue were incompetent as he was not a party to the suit. In this view of the matter also the order of the Board of Revenue is without jurisdiction. 5. In this view of the matter, the "appeal" filed by Nathu to the Additional Commissioner and the "revision application" filed to the Board of Revenue were incompetent as he was not a party to the suit. In this view of the matter also the order of the Board of Revenue is without jurisdiction. 5. We would like to observe that the Board of Revenue has erred in interpreting the provision of Sec, 251 of the Rajasthan Tenancy Act. That section runs as follows: "Rights of way and other private easements 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, ha 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." The heading of the section shows that a summary procedure for determining a tight of way and other private easement has been provided.by this section. What can be determined under this section is a right of way or a right to any other private easement. The first question to which the Tehsildar has to address himself in an inquiry under Section 251 is whether the applicant has a right of way or of any other private easement. If he finds that he has such a right, then he has to determine how it should be exercised having regard to the local custom and convenience of all parties concerned. It is only in determining the mode of enjoyment of the right that the question of the custom and the convenience of the parties becomes relevant. So far as the right to the easement is concerned, it is to be determined on the basis of the law of the land relating to easements. This law is contained in the Easements Act. So far as the right to the easement is concerned, it is to be determined on the basis of the law of the land relating to easements. This law is contained in the Easements Act. Section 15 of the Act lays down that where a right of easement has been peaceably and openly enjoyed by any person claiming title thereto, as an easement, and as of right, without interruption, and for twenty years, it shall be absolute. Section 18 of the Act lays down that a customary easement may be acquired by virtue of a local custom. The necessary requisites of the valid custom are that it should be reasonable, ancient, invariable and certain, continuous, and lastly found to have always been peaceably and openly enjoyed. Section 22 provides that the dominant owner must exercise his. rights in the mode which is least onerous to the servant Owner. It is in the light of these provisions of law that the Tehsildar has to determine whether or not a right of way or other private easement exists. 6. The words "with due regard to the convenience of all parties concerned" occurring in Section 251 of the Rajasthan Tenancy Act have been incorporated to give effect to the provision of law contained in Section 22 of the Easements Act. Section 251 is not purport to lay down any substantive law relating to easements different from that contained in the Easements Act. 7. In the result, we set aside the order of the Beard of Revenue dated 6th October, 1956, In the circumstances of the case, we direct that the parties shall beat their own costs. *******