Madhya Pradesh High Court
Oran Singh vs Bhoopat Singh on 8 October, 2025
1
NEUTRAL CITATION NO. 2025:MPHC-JBP:50525
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DEEPAK KHOT
ON THE 8th OCTOBER, 2025
MISC. PETITION No. 327 of 2025
ORAN SINGH
Versus
BHOOPAT SINGH AND OTHERS
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Appearance:
Shri Ashok Lalwani - Senior Advocate with Shri Abhishek Singh -
Advocate for the petitioner.
Shri Sanjay Agrawal - Senior Advocate with Shri Aditya Raj Shukla -
Advocate for respondent No.1.
Shri Mukund Agrawal - Government Advocate for respondent/State.
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Heard on : 03.09.2025
Pronounced on : 08.10.2025
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ORDER
The present petition has been filed by the petitioner/plaintiff being
aggrieved by the orders of the appellate Court and Civil Court; whereby,
the application submitted by the petitioner/plaintiff under Order 39 Rule
1 & 2 of CPC has been dismissed by the Civil Court and confirmed by
the appellate Court. The petitioner has assailed the order dated
27.09.2024 (Annexure P/13) passed in MCA No.11/2023 and order dated
24.08.2023 (Annexure P/12) passed in CS No.49A/2023 respectively, in
the present petition.
NEUTRAL CITATION NO. 2025:MPHC-JBP:50525
2. It is the case of the petitioner that the Civil Suit No.49A/2023 has
been filed by the petitioner for permanent Injunction that the
respondents/defendants be restrained from impeding the use of
agricultural land bearing Survey No.62 and 63 by creating a new way
over the land by submitting false and fabricated facts. It has been averred
in the plaint that the petitioner/plaintiff is the title and possession holder
of agricultural land bearing survey No.62 admeasuring 0.800 Hect. and
Survey No.63 admeasuring 2.250 Hect., total area 3.050 Hect. at village
Parwariya, Tehsil Barasiya, District Bhopal.
3. The petitioner inherited the said land from his father. It is averred
that on the southern side of Government minor canal, Petitioner/plaintiff
is the title and possession holder of agricultural land bearing Survey
No.63, respondent/defendant No.1 is the title and possession holder of
agricultural land bearing Survey No.66 and 67, the respondent/defendant
No.2 is the title and possession holder of agricultural land bearing Survey
No.65 and respondent/defendant No.3 is the title and possession holder
of agricultural land bearing Survey No.72 and 74, over which the parties
are cultivating. Over the land of respondent/defendant No.3 land bearing
Survey No.72 and 74, there is a way of 2 feet broad and 8 feet long from
where the respondents No.1, 2 and 3 commute and transport tractor. It is
further submitted that the respondents have never commuted or
transported their vehicle over the way of petitioner/plaintiff. Now,
because of their ulterior motive, the respondents, on false and fabricated
facts, have filed an application under Section 131 of the Madhya Pradesh
Land Revenue Code, 1959 (hereinafter referred to as 'the MPLRC') for
creating the customary road.
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4. In the said proceeding, the petitioner/plaintiff had submitted the
reply stating that such way is not available on the spot. It has never been
in existence till date of filing of reply before the Tehsildar and the
respondents/defendants have never been using the road which is stated
hereinabove and shown in the map from C to B. However, the
respondents, in collusion with the Tehsildar, have got an order for the
way to access their land vide order dated 02.08.2023 (Annexure P/5). The
said order of Tehsildar was challenged in the appeal before the SDO,
which was confirmed by the SDO vide dated 18.01.2024 (Annexure P/6).
The said order dated 21.03.2023 passed by SDO was challenged in
MP.No.1694/2024 before this Court which was also dismissed as
withdrawn vide order dated 22.04.2024 (Annexure P/9), with the
observation the petitioner/plaintiff is at liberty to prosecute his case in the
pending Civil Suit. The petitioner/plaintiff has averred that the
respondents have never used such way from last 50 years and on the said
land the petitioner/plaintiff has been in possession. It is further submitted
that 27-28 years before, minor Government canal was constructed on the
western side of the land bearing survey No.63 owned by the
petitioner/plaintiff. The petitioner's/plaintiff's land has not been acquired.
In the minor canal the respondents have installed a pipe of 2 feet
diameter and over that they have made a way for their access to their land
and that has deliberately been hidden by the respondents. The cause of
action to file the suit has arisen when the petitioner/plaintiff has received
the notice by the Tehisldar of the proceedings initiated under Section 131
of MPLRC and as such it has been continuing. On the basis of said facts,
the suit has been filed.
NEUTRAL CITATION NO. 2025:MPHC-JBP:50525
5. The respondents/defendats have filed the written statement and
denied the averments made by the petitioner/plaintiff and stated that they
do not have any alternate way except the way directed by the Tehsildar,
therefore, they had filed an application for way over the land adjoining
the Govt. minor canal. The said application was allowed and confirmed
in the appeal by the SDO and Misc. Petition filed against the said order
has also been dismissed as such the orders passed by the subordinate
authorities have been affirmed.
6. On the basis of aforesaid facts, the petitioner/plaintiff has filed an
application under Order 39 Rule 1 & 2 of CPC stating that during
cultivation time, if such way is allowed, the petitioner/plaintiff crops will
be ruined and spoilt, therefore, the respondents be restrained by issuing
temporary injunction from creating a new way over the
petitioner's/plaintiff's land bearing survey No.62 and 63. The said
application has been dismissed by the Civil Court vide order dated
24.08.2023 (Annexure P/12) and same has been confirmed by the
appellate Court vide order dated 27.09.2024 (Annexure P/13). Being
aggrieved by the said orders, the petitioner/plaintiff has filed the present
petition.
7. It has been contended by learned senior counsel for the
petitioner/plaintiff that the direction for use of way by the Tehsildar under
Section 131 of MPLRC can be issued only in cases where there is no
access road by giving weightage to the previous custom, otherwise, then
by the recognized road, paths or common land, including those roads and
paths recorded in the village wajib-ul-arz prepared under Section 242 of
the MPLRC. It is submitted that the Tehsidar violating the principle of
NEUTRAL CITATION NO. 2025:MPHC-JBP:50525
granting the order for alternate way has not considered that the said way
has not been recorded in wajib-ul-arz prepared under Section 242 of the
MPLRC as well as without deciding the fact that there already exist a
road/way to access the fields of the respondents/defendants which the
respondents/defendants have been using from past so many years. The
Tehsildar in collusion with the respondents/defendants has allowed the
application by creating a new way over the lands of the
petitioner/plaintiff for which photograph Annexure P/4 has been
submitted. It is submitted that the Tehsildar and Revenue Authorities
have committed a grave error of law in not considering the factual
background of the case by which it has been established that there has
never been a road/way over the land where the right to way has been
created. It has been submitted that the Tehsildar in collusion with the
respondents has given a finding that there is no alternative way for the
respondents to access their fields and allowed the application and the
same has been affirmed by the SDO, de hors the provision of law and
evidence tendered by the parties. Therefore, on the basis, prayed for
temporary injunction. However, the same has been denied by the learned
Court below on the ground that the revenue authorities by calling the
report, Panchnama and collecting the evidence have found that there is no
alternate way to access the fields of the respondents and, therefore, the
way which has been granted by the authorities being a customized road,
no prima facie case is found to be in favour of petitioner/plaintiff. The
appellate court has also considered the principle of prima facie case,
balance of convenience and irreparable loss and found that the
petitioner/plaintiff could not establish prima facie case, balance of
NEUTRAL CITATION NO. 2025:MPHC-JBP:50525
convenience and irreparable loss in his favour and also failed to establish
that the respondents/defendants have alternate access to their fields which
is more convenient than the way based on the custom. It has also been
opined that the petitioner/plaintiff could have challenged the orders of the
revenue court in the higher forum. It is submitted that such findings are
perverse and against the record.
8. Per contra, learned counsel for the respondents/defendants has
submitted that both the Courts below after applying the due principle of
law have found that the petitioner/plaintiff could not establish prima facie
case, balance of convenience and irreparable loss in his favour from the
factual background submitted before the Court below and the Court
below has rightly rejected the application filed under Order 39 Rule 1 &
2 of CPC as well as the appeal filed against the said order. The learned
counsel for the respondents/defendants has also relied on the judgment
passed by the Hon'ble Apex Court in the case of Ramkanya Bai vs.
Jagdish (2011) 7 SCC 452, Rukmani Bai vs. Chunnilal 2011 (4) MPLJ
and Nathuram Arjun vs Siyasharan Harprasad AIR 1970 MP 79, to
bolster his submission that the alternate way which is to be decided by
the Tehsilder under Section 131 of MPLRC is not the road which is
required to be registered under wajib-ul-arz under Section 242 of
MPLRC and is not recorded as a customary easement in the village
wajib-ul-arz. On the basis of aforesaid submissions, has prayed for
dismissal of the petition.
9. Heard learned counsel for the parties and perused the record.
10. The Civil court while dealing with the application submitted under
Section 39 Rule 1 & 2 of CPC has found that once the revenue authorities
NEUTRAL CITATION NO. 2025:MPHC-JBP:50525
have recognized the customary route on the basis of available evidences
and record, then the petitioner/plaintiff has no prima facie case at the
stage of 39 Rule 1 & 2 of CPC to pray for restrain against the
respondents/defendants who have no alternate way, as held by the
authorities. Similarly, the appellate Court also relying on the revenue
orders has held that once the revenue authorities has held on the basis of
the record, no interference at the stage of Order 39 Rule 1 & 2 is called
for and no opinion can be given on the basis of averments of the parties
in regard to the customary route and found that the petitioner/plaintiff has
failed to establish prima facie case, balance of convenience and
irreparable loss in his favour.
11. It is the case of the respondents that the dispute arose because the
petitioner/plaintiff has obstructed the way which the respondents have
been using to access their fields for cultivating their lands and, therefore,
application under Section 131 of MPLRC has been filed. The Tehsildar
after due inquiry and the report from the local villagers and Patwari
found that the petitioner/plaintiff has obstructed the customary route
which is over the land of the petitioner/plaintiff and directed for 12 feet
road over the land of the petitioner/plaintiff bearing survey No.63 for
access to the land bearing survey No.65, 66 and 67, between the southern
side boundary and the canal which has been affirmed by the SDO vide
order dated 18.01.2024 (Annexure P/6). The said orders were assailed by
filing a Misc. Petition and the same has been dismissed by observing
"after arguing the matter at length, counsel for the petitioner seeks
permission of this Court to withdraw this petition with liberty to pursue
the civil suit which is pending between the parties."
NEUTRAL CITATION NO. 2025:MPHC-JBP:50525
12. On perusal of the said order, it is abundantly clear that the
petitioner/plaintiff could not establish his case before the revenue
authorities to state that there was no way which he has obstructed, in fact
the respondents have been using the alternate way which is a customary
route for access to their fields. The said orders were confirmed and
attained finality after withdrawal of the petition by the petitioner/plaintiff
from this Court. The order of this Court suggest that the
petitioner/plaintiff after argument could not satisfy this Court that said
orders are illegal, perverse or the authorities have committed
jurisdictional error. The petitioner/plaintiff could not also establish the
prima facie case before the Courts below on the basis of the factual
background of the case. This Court under supervisory jurisdiction
enshrined under Article 227 of the Constitution of India has a limited
scope to interfere in the matter.
13. The Hon'ble Apex Court while dealing with the question of law in
regard to the customary way/easement over a private land under Section
131 of MPLRC has held that it is a route which is not recognized or
recorded as a customary easement in the village wajib-ul-arz, meaning
thereby that if there is no record of such way and the route exists which
has been in use by the parties and has been obstructed, then the Tehsildar
has a right to grant access through such route.
14. The Hon'ble Apex Court in the case of Ramkanya Bai (supra), has
held :
"13. It is thus clear that what could be decided under Section 131 of
the Code is a dispute relating to a claim for a customary easement
over a private land, relating to a right of way or right to take water,
NEUTRAL CITATION NO. 2025:MPHC-JBP:50525
which is not recognised and recorded as a customary easement in
the village wajib-ul-arz."
15. In Rukmani Bai (supra), a coordinate Bench of this Court has
held :
"17. On analyzing this section, it is luminously clear that Tehsildar has
jurisdiction under this section in cases of disputes relating to route by
which a cultivator shall have access to his fields or to waste or pasture
lands of the village and to the source from or course by which he may
avail himself of water. This section applies to private rights in
contradiction to public rights, i.e., by the recognized roads, paths and
common land including those recorded in village Wajib-Ul-Arz So far as
the right of way is concerned, this section is confined to the private right
of way of an individual cultivator through the field of another for purpose
of having access to his field, or to waste or pasture land of the village.
The scope of inquiry by Tehsildar is also guided by this section that the
matter is to be decided with reference to previous custom and with due
regard to the convenience of the parties concerned."
16. In Nathuram Arjun (supra), Division Bench of this Court has
held :
"6. As we read Section 131(1) it is clear to us that the Tehsildar has
jurisdiction under this section in cases of disputes relating to 'route' by
which a cultivator shall have access to his field or to the waste or pasture
land of the village; and (ii) to the source from or course by which he may
avail himself of water". This Section applies to private rights in
contradistinction to public rights, i.e., by the recognised roads, paths and
common land including those recorded in the village Wajib-ul -Arz. So far
as the right of way is concerned, this section is confined to the private
right of way of an individual cultivator through the field of another for
the purpose of having access to his field, or to the waste or pasture land
of the village. Secondly, it is conspicuous from the scope of enquiry
provided in the section that the matter is to be decided with reference to
previous custom and with due regard to the convenience of the parties
concerned. Thus although the heading of the Section is "Rights of way
NEUTRAL CITATION NO. 2025:MPHC-JBP:50525
and other private easements," the section does not speak of rights of
easement as are enforceable under the general law i.e., the Easements
Act, Under the general law, to establish a right of easement under Section
15 of the Act, for instance, it has to be proved inter alia that the right has
been exercised for 20 years as of right and without interruption. But
under Section 131 of the Code the Tehsildar is not to enter into an
enquiry whether the plaintiff's right has been perfected by prescription.
He has merely to decide the dispute with reference to the previous custom
and he has to have regard to the convenience of the parties concerned.
When a dispute is to be decided on the basis of convenience it is an
unperfected right."
17. On the basis of aforesaid enunciation of law, it is ample clear that
the Tehsildar and the revenue authorities have a jurisdiction to allow a
person to access their fields through a customary route after due inquiry
under Section 131 of MPLRC. The authorities have rightly exercised
their jurisdiction and granted the access to the route to the respondents
after going through the record as well as the evidence made available to
the authorities. The Civil Court at the stage of Order 39 Rule 1 & 2 of
CPC cannot dissect the orders of the revenue authorities which are
primarily based on the collected evidence. As per the principle laid down
by the Hon'ble Apex Court, such customary way is not required to be
registered under any record or wajib-ul-arz. So the argument advance by
learned counsel for the petitioner is not in consonance with the law laid
down by the Hon'ble Apex Court.
18. As such, this Court, in exercise of powers under Article 227 of the
Constitution, cannot interfere with the concurrent findings of facts
leading to non grant of injunction, unless the findings arrived at are
perverse in nature (See : Skyline Education Institute (India) Pvt. Ltd.
Vs. S.L.Vaswani, (2010)2 SCC 142). The findings recorded by the Civil
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Court, as well as, the first appellate Court, by no stretch of imagination,
can be said to be perverse.
19. In the considered opinion of this Court, the courts below have not
committed any illegality or irregularity in passing the impugned
orders. No jurisdictional error or perversity could be pointed out by the
petitioner in the impugned order which calls for any interference in
exercise of supervisory jurisdiction of this court under Article 227 of the
Constitution of India.
20. Accordingly, the petition filed by the petitioner sans merit is hereby
dismissed.
(DEEPAK KHOT)
JUDGE
anand
