JUDGMENT - MOHTA V.A., J.:---The ambit of power of the Deputy Collector in the matter of modification of entry or insertion of any new entry in Wajib-ul-arz under section 165(4) of the Maharashtra Land Revenue Code, 1966 (the Maharashtra Code) falls for determination in this writ petition against the following backdrop. 2. First the facts: Respondent No. 1 Mango Lende purchased field Survey Nos. 54/3, 54/5 and 54/4 of Mouza Kuhi, Tahsil Umrer, District Nagpur in the year 1961. First two fields were purchased from petitioner No. 1 Shrikrishna Naik (since deceased) and the third field from one Babusingh. Field Survey No. 171 of the same village is a tank and its recorded owners are petitioner No. 1 deceased Shrikrishna, petitioner No. 2 Ramkrishna Dhenge, petitioner No. 3 Sadashiv Dhenge, respondent No. 2 Smt. Rukhmabai Deshmukh, respondent No. 3 Baburao Deshmukh, respondent No. 4 Firangrao Deshmukh and Smt. Indirabai. Respondent No. 1 Mango filed an application on 31st October, 1977 before the Deputy Collector under section 165(4) of the Maharashtra Code for insertion of entry in the wajib-ul-arz about his customary right of irrigation to his fields from the tank in field Survey No. 171. Seven recorded owners of field Survey No. 171 were arrayed therein as non-applicants. The Deputy Collector issued a proclamation in the village inviting objections to be filed on or before 5th December, 1977 for insertion of an entry as required by the respondent No. 1. The arrayed non-applicants opposed by raising objections on 12th June 1978. Petitioner No. 4 Fakira to petitioner No. 17 Upasrao claim to be the title holders of field Survey No. 171 by virtue of various transfers. Four of them appeared before the Deputy Collector and raised objections on 24th July, 1978. The Deputy Collector granted the application overruling on merits the objections filed by the original non-applicants. Objections raised by the transferees were not considered on merits on the ground that those objectors were not recorded as owners in the revenue papers and their objections were filed beyond prescribed date. The Deputy Collector granted the application overruling on merits the objections filed by the original non-applicants. Objections raised by the transferees were not considered on merits on the ground that those objectors were not recorded as owners in the revenue papers and their objections were filed beyond prescribed date. The transferees - petitioner No. 4 Fakira to petitioner No. 17 Upasrao filed an appeal before the Collector who, inter alia, held that since all the affected parties did not wish to have the new entry inserted, no such order could be passed under section 165(4)(a) without recourse to the remedy of a suit before competent Civil Court under section 165(4)(b) to (e). Against the said appellate order of the Collector setting aside the order passed by the Deputy Collector, respondent No. 1 Mango filed a review which also came to be dismissed. Thereafter respondent No. 1 mango filed a revision before the Commissioner, who was pleased to allow the said revision and to restore the order passed by the Deputy Collector. The substance of the view taken by the Commissioner is the order passed by the Deputy Collector was correct on merits and since the original non- applicants had not challenged the order of the Deputy Collector in appeal and the objections raised by others were unauthorised and beyond time, consent of all the interested parties must be presumed .That order of the Commissioner dated 20th December, 1980 is impugned in this petition. 3. Wajib-ul-arz is a village administration paper containing record of certain existing customary rights of easement in private land and fishing in private water. In the Berar Land Revenue Code, 1928, there was no provision for maintenance of such paper, but in the Central Provinces Land Revenue Act, 1917 (the C.P. Act) there was, (section 79). In the M.P. Land Revenue Code, 1954 (the M.P. Code) which unified revenue laws of the then State of Madhya Pradesh, a provision was incorporated (section 225). Section 165 of the Maharashtra Code is a provision in pari materia with section 225 of the M.P. Code. Sub-section (1) of section 165 enjoins upon the Collector to ascertain and record such village customs soon after the code comes into force, according to any general and special order by the State. Section 165 of the Maharashtra Code is a provision in pari materia with section 225 of the M.P. Code. Sub-section (1) of section 165 enjoins upon the Collector to ascertain and record such village customs soon after the code comes into force, according to any general and special order by the State. Sub-section (2) provides for publication of such record by the Collector and thereafter making that record final and conclusive, but subject to the decision of a Civil Court in the suit instituted under sub-section (3) which permits any person aggrieved by any entry in such record to have the entry modified or cancelled by such a suit within a period of one year. Sub-section (4) empowers the Collector suo motu or at the motion by any interested person- to modify the entry or to insert a new entry in record on the grounds specified in Clauses (a) to (e). Clauses (b) and (c) relate to adjudication of rights by a Civil Court. Clause (a) relates to a wish of all the interested persons to have it modified. We produce section 165 for ready reference: "165.(1) As soon as may be after this Code comes into force the Collector shall according to any general or special order made by the State Government in that behalf, ascertain and record the customs in each village in regard to- (a) the right to irrigation or right of way or other easements. (b) the right to fishing, in any land or water belonging to or controlled or managed by the State Government or a local authority, and record shall be known as the Wajib-ul-arz of the village. (2) The record made in pursuance of sub-section (1) shall be published by the Collector in such manner as he may deem fit it and it shall subject to the decision of a Civil Court in the suit instituted under sub-section (3), be final and conclusive. (3) Any person aggrieved by any entry made in such record may, within one year from the date of the publication of such record under sub-section (2), institute a suit in a Civil Court to have entry cancelled or modified. (3) Any person aggrieved by any entry made in such record may, within one year from the date of the publication of such record under sub-section (2), institute a suit in a Civil Court to have entry cancelled or modified. (4) The Collector may on the application of any person interested therein or on his own motion modify any entry or insert any new entry in the Wajib-ul-arz on any of the following grounds:- (a) that, all persons interested in such entry wish to have it modified: or (b) that, by a decree in a civil suit. It has been declared to be erroneous; or (c) that, being founded on a decree or order of a Civil Court or on the order of a revenue officer, it is not in accordance with such decree or order; or (d) that, being so founded, such decree or order has subsequently been varied on appeal, revision or review; or (e) that, the Civil Court has by a decree determined any custom existing in the village." 4. Now, custom means practice which is practised over a considerably long period. It creates itself and is not created by outside agency like law or order which of course may prohibit or extinguish the practice of a custom Wajib-ul- arz being merely a record of existing customs, cannot be used for creation of new rights or liabilities. Even under the C.P. Act (sections 46,78 and 79) record was initially prepared after due enquiry which includes ransacking of previous history. Sanctity was, therefore, attached to the record which could be modified either on the basis of consent of parties interested or by adjudication of rights in a civil suit. Spirit of the same scheme was incorporated first in the M.P. Code and then in the Maharashtra Code. Section 165 thus will have to be read in the context of the above historical legislative background. 5. Village Kuhi is form the area of old Central Provinces which means the said record was in existence since pretty long period. There was obligation to ascertain and record such customs even under the M.P. Code which also made the entries final. Modification of ascertained customs was legalised but was safeguarded by the necessity of obtaining consent by all the interested parties or by adjudication by a competent Civil Court. There was obligation to ascertain and record such customs even under the M.P. Code which also made the entries final. Modification of ascertained customs was legalised but was safeguarded by the necessity of obtaining consent by all the interested parties or by adjudication by a competent Civil Court. Repeal of the M.P. Code by section 336 of the Maharashtra Code does not affect the finality of those entries by virtue of Clauses (a) and (b) the first proviso to section 336. It is reasonable to presume that such finalised record was in existence in 1961 when respondent no. 1 Mango purchased the three fields. It is also reasonable to presume that within reasonable period of the date coming into force of the Maharashtra Code (15th August, 1967), enquiry as contemplated under section 165(1) of the Maharashtra Code was made and the new Wajib-ul-arz finalised in accordance with section 165(2). 6. Respondent No. 1 who had purchased the property when the M.P. Code was in force in the area, had applied for modification under section 165(4) nearly ten years after the Maharashtra Code came into force. Application was not with consent of all parties interested. Indeed there was opposition by owners field Survey No. 171 who were obviously interested in the entry. We have not understood how (when the last date for filing objection was 5th December, 1977), the objections of the original non-applicants filed on 12th June, 1978 were considered within time and the objections of their transferees filed on 24th July, 1978 were considered to be beyond time. We also fail to notice logic behind a view that since the transferees were not recorded as owners in the revenue record they had no locus standi to raise objections. The Deputy Collector has himself adjudicated upon the merits of the controversy and ordered insertion of a new entry. We are not concerned with the merits of the order. We are only concerned with the jurisdictional aspect. The Commissioner was quite alive to the legal position that unless there was consent, the entry could not be inserted but has presumed consent because (i) the original non- applicants did not challenge the order of the Deputy Collector and (ii) those who challenged had no locus standi to raise objections, which were also beyond time. The Commissioner was quite alive to the legal position that unless there was consent, the entry could not be inserted but has presumed consent because (i) the original non- applicants did not challenge the order of the Deputy Collector and (ii) those who challenged had no locus standi to raise objections, which were also beyond time. We fail to see how under the circumstances the consent for insertion of new entry by persons interested in such entry could be presumed-assuming that consent by presumption is also contemplated under section 165(4)(a). The Commissioner was examining the correctness of the order of the Deputy Collector before whom admittedly there was a contest even by the recorded owners of field Survey No. 171. Only because the original non-applicants did not join in challenging the order it does not follow that they wished to have modification in the record. Indeed our view is that section 165(4)(a) permits modification or insertion of entry only when all concerned definitely agree for the same and not otherwise. Hence the presumption about consent drawn by the Commissioner was wholly unjustified as well as impermissible. The Commissioner relied upon section 8 of the Transfer of Property Act and section 13 of the Easement Act; but those aspects relate to the merits of the matter which could have been adjudicated if at all only in a civil suit, as contemplated under section 165(3) read with Clauses (b) to (e) of section 165(4) and not by the Deputy Collector under Clause (a) which does not permit modification except upon definite consent of all persons interested in the entry. 7. Under the circumstances, the impugned order passed by the Commissioner is quashed and set aside and the appellate order passed by the Collector is restored. Application of respondent No. 1 stands dismissed. Petition allows and Rule made absolute accordingly. No order as to costs. Petition allowed. -----