Writ Petition No.4027 of 2009

13th July, 2010

Petitioner Counsel: Shri. S. P. CHAPALGAONKAR
Respondent Counsel: Shri. P. B. SHIRSAT

JUDGMENT

JUDGMENT:- This writ petition challenges the judgment and order dated 9.3.2009 passed by the Sub-Divisional Officer, Sangamner in Revision Application No.77/2008. By this order, the Sub-Divisional Officer has confirmed the judgment and order dated 17.12.2008 passed by the Tahsildar, Kopargaon in Road Case No.5/2008. As a result of both these orders, the petitioners in the present writ petition are directed to remove obstructions in the way from their field Gat Nos. 40/8, 40/9 for approach to the field Gat No.40/10, owned by the respondent. It is further directed that the petitioners shall not create any obstruction or impediment in the way from Gat Nos.40/8 and 40/9.

2. Notice in this matter was issued on 1st July 2009, in response to it, Shri. P. B. Shirsat, the learned counsel has appeared for the respondent. The learned counsels for the parties agree that the matter can be finally disposed of at the stage of admission. Hence, Rule, returnable forthwith. The matter is heard by consent of parties.

3. The petitioners are the owners of the Gat Nos.40/8, 40/9 of village Derde-Korhale, whereas the respondent is the owner of Gat No.40/10. The respondent filed an application on 25.4.2008, invoking the jurisdiction of the Mamlatdars' Court under Section 5 of the Mamlatdars' Courts Act, 1906, claiming the relief of direction to the petitioners, (who were joined as respondents) to remove obstructions, and clear the way through their Gat Nos. 40/8 and 40/9 to Gat No.40/10, owned by the respondent. Notice of this application was issued by the Tahsildar on 5.5.2008 and the present petitioners were asked to appear before him on 22.5.2008. Upon receipt of this notice, the petitioners filed Regular Civil Suit No. 108/2008 on 26.5.2008, which is pending in the Court of Civil Judge, Junior Division, Kopargaon. The suit is for declaration that the respondent herein, who was joined as defendant in that suit, has no right of way through Gat Nos.40/8 and 40/9.

4. The Tahsildar Kopargaon, by his order dated 17.12.2008, decided the application filed by the respondent under Section 5 of the Mamlatdars' Courts Act, 1906. The application was allowed and the petitioners were directed to remove obstructions to clear the way through Gat Nos. 40/8 and 40/9 to Gat No. 40/10. It is further directed that the petitioners should not create any obstruction or impediment in the way of the respondent. This order was subject matter of challenge at the instance of the petitioners before the Sub-Divisional Officer, Sangamner by filing revision under Section 22 (2) of the Mamlatdars' Courts Act, 1906. The said revision has been dismissed on 9.3.2009, confirming the order dated 17.12.2008 passed in Road Case No. 5/2008 by the Tahsildar. Thus, this petition challenges the orders dated 17.12.2008 and 9.3.2009.

5. Shri. Chapalgaonkar, the learned counsel for the petitioner submits that a detail procedure has been provided under the provisions of Sections 7, 8, 9, 10 and onwards for dealing with the matter. However, this procedure has not been followed, parties are not called upon to lead evidence and the abrupt conclusion has been drawn that the defendant has right of way through Gat No.40/8 and 40/9. He submits that the petitioners have filed Regular Civil Suit No. 108/2008 and the jurisdiction of the Civil Court is wider than the jurisdiction of the Mamlatdars' Courts and hence, the Mamlatdars' Courts should not have exercised its jurisdiction when it was pointed that Regular Civil Suit No.108/2008 is pending. He further submits that there is no evidence on record, led by the respondent to establish his right of way. The findings are, therefore, perverse and liable to be set aside.

6. Shri. Shirsat, the learned counsel for the respondent has urged that the Regular Civil Suit No. 108/2008 filed by the petitioners is subsequent to the notice issued by the Mamlatdars' Court and hence, the said civil suit was barred under Section 29 of the Mamlatdars' Courts Act, 1906. He further submitted, that the findings of facts are recorded by the authorities below and the same are supported by the evidence available on record. He further urged that there is no perversity in recording such findings nor any error of jurisdiction and hence, no interference is called for under Articles 226 and 227 of the Constitution of India.

7. The contention of Shri. Shirsat, the learned counsel for the respondent that Regular Civil Suit No. 108/2008 filed by the petitioners was barred under Section 26 of the Mamlatdars' Courts Act, 1906, needs to be considered. Hence, the provisions of Section 26 are reproduced below :

"26. No suit shall lie under this Act,-

(a) against Government or against any Government Officer in respect of any act done or purporting to be done by any such officer in his official capacity, except where acting as a manager or guardian duly constituted under any law for the time being in force; or

(b) in respect of any removal of any impediment or of any dispossession, recovery of possession or disturbance of possession, that has been the subject of previous proceedings, to which the plaintiff or his predecessor in interest was a party, under this Act, or in a Civil Court or under Chapter XII of the Code of Criminal Procedure, 1989."

According to the learned counsel, the proceedings under Section 5 were initiated by respondent on 25.4.2008 whereas Regular Civil Suit No. 108/08 was filed on 26.5.2008 i.e. subsequently and therefore, it was barred by Section 26 above. The contention cannot be accepted for the reason that Section 26 opens with the sentence "No suit shall lie under this Act". It creates a bar for entertaining a suit to be filed under the said Act and it does not take away the jurisdiction of the Civil Court to entertain, try and decide the suit in respect of matters covered by clause (b) of Section 26 above. On the contrary, if it shown that a Civil Suit is filed in respect of matter covered by Section 26 (b) of the said Act, prior to initiation of proceedings under Section 5 of the Mamlatdars' Courts Act, then there is a bar to entertain the suit under the provisions of Mamlatdars' Courts Act. It is then urged, that Section 26 (b) would be attracted only in case where there is already a decision of a Civil Court, as the phraseology used therein is "that has been the subject of previous proceedings" in a Civil Court. However, this is also not acceptable for the reason that the legislature would have used the word "decided" or "concluded" in respect of the proceedings or Civil Suit covered by Section 26(b) of the said Act. The contention is, therefore, rejected.

8. Shri. Chapalgaonkar, on the other hand, urged that once it was pointed out to the Mamlatdar's Court that the Regular Civil Suit was filed by petitioners, it could not have proceeded with the matter and should have directed the parties to get their rights decided in Civil Court. This contention also cannot be accepted for the reason that bar of jurisdiction of Mamlatdar's Court under Section 26(b), operates only when it is pointed out that Civil Suit was filed prior to institution of proceedings under Section 5 of the said Act. In the present case, Regular Civil Suit No.108/2008 was filed after institution of proceedings under Section 5 of the Mamlatdars' Courts Act. Hence, it cannot be said that Mamlatdar's Court proceeded without jurisdiction or that it could not have proceeded with the matter, as urged.

9. In view of aforesaid position of law, the only possible view, in my opinion is that the orders passed under the Mamlatdars' Courts Act would be subject to the decision of Regular Civil Suit No.108/2008. The authorities under the Mamlatdars' Courts Act have recorded concurrent findings of facts, which may be treated as the findings recorded on prima facie assessment of evidence and hence, the orders passed by the authorities, on appreciation of material available on record, cannot be interfered with. However, all such orders shall be subject to the result of Regular Civil Suit No.108/2008.

10. Shri. Chapalgaonkar, the learned counsel for the petitioner, however, submits that an application has been filed for injunction in Regular Civil Suit No. 108/2008 and it is yet to be decided. The learned Civil Judge, Junior Division shall decide the application for temporary injunction in accordance with law after taking into consideration the orders passed by the revenue authorities, which are impugned in the present petition and the record available before him. The parties before this Court are at liberty to move for modification, alteration of the order before the Civil Court. If such application is made, it shall be considered on its own merits in accordance with law. Rule is made absolute in these terms. No order as to costs. Interim relief, if any, shall stand vacated.

Ordered accordingly.