A.P. Sen, J.

This revision under Section 115 of the Code of Civil Procedure Code, by the Defendants, is directed against an interlocutory order dated 6th October 1960, passed by the 3rd Civil Judge, Class II, Khurai, upholding the jurisdiction of the Court to try the suit.

The facts giving rise to this revision may be shortly stated. The Plaintiffs have brought a suit for declaration that the Defendants have no right of way, through their bhumiswami land bearing Khasra No. 41, and for consequential injunction to restrain them from exercising any such right by virtue of the order passed by the revenue Courts under Section 131(1) of the Madhya Pradesh Land Revenue Code, 1959 (XX of 1959), in their favour. The Defendants pleaded amongst other grounds, that the civil Court had no jurisdiction to try the suit.

The short question for consideration is, whether by deciding the preliminary issues in that manner, the learned Judge is trying to usurp a jurisdiction which is not vested in him by law. The matter turns on a construction of Sections 131, 242 and 257 of the Madhya Pradesh Land Revenue Code, 1958 (XX of 1959).

The contentions urged by the Defendants in the Courts below and before me were that Section 131(1) creates a new right of way unknown to general law, namely, a right of way based on convenience. Interpreting the provision, the learned Counsel says that the section is a special provision bringing the right into existence, and it further provides for a special remedy for the enforcement of the right. He then urges: the section speaks of a "private easement" which does not mean easement perfected by prescription, but only indicates the nature of the right. If the right exists, even though not perfected by prescription, it has to be adjudicated upon under this section. Similarly, the custom envisaged in the section does not mean "custom, having the force of law", but means only a practice followed over a reasonable period. Having regard to the language used in Section 131(2), when the Tahsildar recognises a right of way or any other customary right, a civil suit is not maintainable, at the instance of the person over whose property the right is recognised to exist. In support of these contentions, reliance is placed upon Ramsingh v. Bherusingh 1966 JLJ SN 117 and Addanki Tiruvenkata Thata Desika Charyulu v. The State of A.P. : AIR 1964 SC 807 .

The argument appears to be plausible, but a deeper scrutiny reveals a fallacy. Under Section 9 of the Code of Civil Procedure Code, a civil Court can always entertain a suit of civil nature except a suit the cognisance of which is expressly or impliedly barred. It is well settled that a statute ousting the jurisdiction of a civil Court must be stricdy construed. The question really is, whether a suit for declaration and perpetual injunction which, necessarily, is a suit based on title, is either expressly or by necessary implication barred under the provisions of the Act.

Having regard to the language of Section 9(4)(c) of the Madras Estates (Abolition and Conversion into Ryotwari) Act (26 of 1948), their Lordships of the Supreme Court have held in Addanki Tiruvenkata Thata Desika Charyulu v. The State of Andhra Pradesh, that the jurisdiction of civil Courts was expressly barred. But, the language of Section 131(1), with which are concerned, is entirely different. The present section in terms does not bar the jurisdiction of a civil Court. The decision taken by the Tehsildar is not declared to be binding on all persons interested. There is no provision, saying that his decision shall be final, and will not liable to be questioned, in any Court of law. The scheme underlying the section, envisages a suit under Section 131(2) by the claimant for the establishment of his right, if such right is not recognised by the Tehsildar. This necessarily implies that the correctness of the finding reached by the Tehsildar may be questioned in subsequent legal proceedings in the ordinary Courts of law. No doubt, the language of Section 131(2) is susceptible of the Construction suggested by the learned Counsel that the right of a suit is confined to the claimant. This, however, does not result in the consequence that a person, on whose property a right of way is declared by Tehsildar to exist, should have no remedy for the protection of his rights in property, against an arbitrary or erroneous assumption of jurisdiction by the Tehsildar.

Without questioning the correctness of the view taken in Ramsingh v. Bherusingh, I would unhesitatingly hold that a suit for grant of perpetual injunction lies under the general law, at the instance of the person over whose property a right of way is declared to exist by the Tehsildar, acting under Section 131(1). This conclusion is fortified from the language of Section 257. That section confers exclusive jurisdiction on revenue Courts in certain matters specified in Clauses (a) to (z-2), which by necessary implication excludes the jurisdiction of the ordinary Courts, except to the extent preserved therein. It is noteworthy that the decision of the Tehsildar under Section 131(1) is not one of them. Apart from this, the opening words "Except as otherwise provided in any other enactment for the time being in force", preserve the pre-existing rights of suit. A suit for perpetual injunction lies under Section 34 of the Specific Reliefs Act, and that is an enactment for the time being in force, within the meaning of the section.

The result is that the revision fails and is dismissed with costs. Counsel fee Rs. 50, if certified.