Civil Revision Application No.53 of 2015

23rd March, 2017.

Petitioner Counsel: Mr. V.G. PALSHIKAR
Respondent Counsel: Mr. BHUPESH PATIL, Mrs. R.S. SIRPURKAR, Mr. M.A. KADU

Cases Cited:
Krushna Damaji Choudhari & another Vs. Addl. Commissioner, Nagpur Division & others, 2012(2) ALL MR 337=2012 (1) Mh. L.J. 795 [Para 3,8]
Shankar Govindrao Sarnaik Vs. Sub/Divisional Officer, Washim, 2012(3) ALL MR 669=2012 CJ (Bom) 980 [Para 4,8]

JUDGMENT

JUDGMENT :- The Applicants who are the original defendants in Regular Civil Suit No. 102 of 2014 have challenged the order passed by the trial Court whereby it has been held that the Civil Court has jurisdiction to entertain the suit.

2. The facts relevant for adjudicating the challenge as raised in the Civil Revision Application are that Applicant No.1 was initially the owner of field Survey Nos. 82 to 92 of village Kawadshi. Out of these survey numbers, the Applicant No.1 retained Survey No. 92 and sold the other survey numbers to the applicant nos. 2 to 5. There was some dispute with regard to right of way and hence the applicants herein filed proceedings before Naib Tahsildar for removing the obstruction caused by the non-applicant no.3. The Naib Tahsildar after calling the report of the Talathi passed an order on 7th January, 2013 and by invoking jurisdiction under Section 21 (2) of the Mamlatdars' Courts Act, 1906 [for short, "the said Act"] directed the non-applicant no.3 to remove the obstruction. Being aggrieved, the Non-applicant nos. 1 to 3 filed an appeal before the Sub-Divisional Officer who dismissed the same on 24th September, 2013. The further appeal filed by them before the Additional Collector was also dismissed on 29th May, 2014. Thereafter, the non-applicant nos. 1 to 3 filed a Civil Suit praying that the order passed by the Naib Tahsildar on 7th January, 2013 be declared as void and without jurisdiction. Further prayer for grant of injunction was also made. In this suit, the applicants moved an application under Section 9A of the Code of Civil Procedure, 1908, stating therein that in view of the provisions of Section 143 of the Maharashtra Land Revenue Code, 1966 [for short, "the Code"], the jurisdiction of the Civil Court was barred. This application was opposed by the non-applicant nos. 1 to 3 and by the impugned order this objection has been overruled. Being aggrieved, this Civil Revision Application has been filed.

3. Shri V.G. Palshikar, learned counsel for the applicants, submitted that in view of provisions of Section 143 of the Code, two remedies were available to the aggrieved party. After an order is passed by the Tahsildar under Section 143 (1) of the Code, the same can be subjected to appeal and revision under the Code or within a period of one year from the order of the Tahsildar, a Civil Suit can be filed. The said remedies are exclusive to each other. He submitted that in the present case, the non-applicant nos. 1 to 3 having availed the remedy of appeal and revision, the Civil Suit as filed by them was barred under provisions of Section 143 (5) of the Code. In that regard, he placed reliance upon judgment of learned Single Judge in Krushna Damaji Choudhari & another Vs. Addl. Commissioner, Nagpur Division & others, 2012 (1) Mh. L.J. 795 : [2012(2) ALL MR 337]. It was thus submitted that though the remedy of appeal and revision came to be invoked by the said non-applicants and having failed therein, the suit came to be filed subsequently which course was not permissible. He, therefore, submitted that the trial Court ought to have upheld the objection as raised to the jurisdiction of the Civil Court.

4. Shri B.W. Patil, learned counsel for the non-applicant nos. 1 to 3, supported the impugned order. According to him, the Tahsildar had exercised jurisdiction under Section 21 (1) of the said Act and had directed the non-applicant no.3 to remove the obstruction caused by him. He submitted that under Section 143 (1) of the Code, there is no jurisdiction with the Tahsildar to direct removal of encroachment and the only jurisdiction given is to decide boundary disputes. He, therefore, submitted that the order passed by the Tahsildar was challenged by availing the remedy prescribed under the said Act. Though an appeal was not maintainable, the same had been filed due to incorrect advice and subsequently, the revision application came to be filed before the Additional Collector. He further submitted that no objection was raised by the applicants while executing the order passed by the Tahsildar that it was passed under the provisions of the said Act. He placed reliance on the judgment dated 17th January, 2012 in Shankar Govindrao Sarnaik Vs. Sub-Divisional Officer, Washim [2012 CJ (Bom) 980] : [2012(3) ALL MR 669] and submitted that the aggrieved party can file Civil Suit for setting aside the order passed by the Tahsildar under the said Act. He, therefore, submitted that there was no merit in the challenge as raised.

5. Smt. R.S. Sirpurkar, learned counsel appearing for nonapplicant no.4, supported the submissions made on behalf of the applicants. Shri M.A. Kadu, learned Asstt. Govt. Pleader appeared for non-applicant nos. 5 to 8.

6. I have carefully considered the respective submissions and I have gone through the documents filed on record.

7. The applicants had approached the Tahsildar with a prayer that the obstruction caused by the non-applicant no. 3 be removed so as to enable them to approach their fields. The Tahsildar initially called for report of the Talathi and thereafter recorded a finding that the non-applicant no. 3 had caused obstruction, due to which access to field Survey No. 87 was not possible. Thereafter, by invoking jurisdiction under Section 21 (2) of the said Act, the non-applicant no.3 was directed to remove the obstruction and was also restrained from causing any further obstruction. It is to be noted that proceedings under Section 143 (1) of the Code as well as proceedings for removal of encroachment under the said Act have to be initiated before the Tahsildar. While the scope of proceedings under Section 143 (1) of the Code is only with regard to deciding claims with regard to right of way over boundaries, under Section 21 (2) of the said Act the Tahsidlar is empowered to pass an order of mandatory injunction for removal of encroachment. Thus, the scope of powers is distinct under both the provisions. The order passed by the Tahsildar on 7th January, 2013 clearly indicates that the same has been done in exercise of powers under Section 21 (2) of the said Act.

8. Though it is true that there is no appeal maintainable against the order passed by the Tahsildar under the said Act, the remedy of revision has been prescribed under Section 23 of the said Act. It is the case of the non-applicant nos. 1 to 3 that the appeal was filed by them on the basis of advice received from their counsel. In any event, the non-applicant nos. 1 to 3 exhausted the remedy of preferring Revision Application before the Additional Collector. It is thereafter that the aforesaid suit came to be filed. In this backdrop, it can be seen that the bar prescribed under Section 143 (5) of the Code would not come in the way of the non-applicant nos. 1 to 3. It is only if the Tahsildar exercises jurisdiction under Section 143 (1) of the Code and such decision is subjected to appeal and revision under the Code, that the remedy of challenging the order passed by the Tahsildar in a civil suit is barred. The ratio of the decision in Krushna Damaji Choudhari [2012(2) ALL MR 337] [supra] would not be applicable, as in said case, the Tahsildar had exercised jurisdiction under Section 143 (1) of the Code. On the other hand, the ratio of the decision in Shankar Govindrao Sarnaik [2012(3) ALL MR 669] [supra] would assist the stand of the non-applicant nos. 1 to 3 of filing the Civil Suit and challenging the order of the Tahsildar. The further stand of the applicants that the Tahsildar passed the order dated 7th January, 2013 not on the basis of a plaint as required under the provisions of the said Act would not make much difference at this stage when the power exercised by the Tahsildar is traceable to the provisions of Section 21 (2) of the said Act.

9. The trial Court while considering the objection raised by the applicants has rightly held that the Civil Court had jurisdiction to entertain the suit. It noticed that the order of the Tahsildar was one which granted injunction against the plaintiffs and hence it was not one passed in exercise of powers under Section 143 of the Code. The trial Court was, therefore, justified in passing the impugned order.

10. In the light of aforesaid discussion, I do not find any merit in the challenge as raised to the impugned order. The Civil Revision Application is, therefore, dismissed with no order as to costs.

Revision dismissed.