Bombay High Court
Nilkanth S/O. Khushalrao Ghuge, ... vs The Deputy Collector (Revenue) ... on 13 December, 2016
Bench: S.B. Shukre
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
CIVIL REVISION APPLICATION NO.45 OF 2016
APPLICANT: Nilkanth S/o Khushalrao Ghuge,
Aged 25 years, Occ. Agriculturist,
(Ori. Plaintiff)
Through his Power of Attorney
On R A Holder - Khushalrao Rustamrao
Ghuge, Aged about 68 years,
Occupation : Agriculturist, R/o
Bramhanwada, Tah. Malegaon,
District - Washim.
ig -VERSUS-
RESPONDENTS: 1. The Deputy Collector (Revenue)
Collector Office Washim, Tq. And
On R. A.
District Washim.
2. The Naib Tahsildar (Revenue)
Tahsil Malegaon, District Washim.
(Org. Defts) 3. Bhagwan Vithoba Ghuge, Aged
about 60 years, Occupation:
Agriculturist,
4. Anusayabai W/o Bhagwan Ghuge,
Aged about 55 years, Occupation:
Agriculturist,
Nos 3 & 4 R/o Bramhanwada, Tah.
Malegaon, District - Washim.
Shri Rahul G. Ghuge, Advocate for the applicant.
Shri Kaustubh Lule, Asstt. Government Pleader for respondent Nos.1 &
2.
Shri C. A. Joshi, Advocate for the respondent Nos.3 & 4.
CORAM: S. B. SHUKRE, J.
DATED
: 13
DECEMBER, 2016.
th
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ORAL JUDGMENT :
1. Heard finally by consent.
2. By this revision application, the legality and correctness of
the order dated 20-2-2016 passed by the Dy. Collector (Revenue)
District Washim thereby confirming the order of the Mamalatddar
passed on 27-2-2013 in Revenue Case No.3/2012-12 has been
questioned.
3. After perusing the impugned orders as well as the
documents filed on record, I find that both the orders do not take into
consideration the material aspect of rival parties not being present when
the Talathi as well as the learned Mamalatddar visited the spot and
carried out spot inspection. It is well settled law that the spot inspection
report drawn out in the absence of rival parties to whom no notices were
issued, will not bind the rival parties and, therefore, no reliance could
have been placed on the spot inspection report by both the Courts
below.
4. Apart from what is stated above, I find that the learned
Mamaltddar has also not taken into consideration the mandate of
Section 19 of Mamalatddar Courts Act, 1906 which requires the Court of
Mamalatddar to try the issue specifically mentioned in this section. On
perusal of the contentions raised in the application filed under Section 5
of the Mamalatddar Courts Act, 1906, I find that this application raises
an issue regarding obstruction allegedly caused by the respondents in
enjoying the use of the property of the applicant i.e. agricultural land
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bearing Gat No.340, but on this issue, no finding in a specific manner
has been recorded which was required to be given, if one considers the
scope of Section 19(C) of the said Act.
5. Thus, the impugned orders being based upon the evidence
which could not have been considered and being against the mandate of
Section 19(C) of the Mamalatddar Courts Act, 1906 deserve to be
quashed and set aside. This matter would require a fresh hearing in
accordance with law.
6. Hence, the following order:
ig The revision application is allowed.
8. The impugned orders are quashed and set aside.
9. The matter is remanded back to the Court of Mamalatddar
for deciding the application filed under Section 5 afresh in accordance
with law.
10. The trial Court is directed to frame issue in terms of Section
19(C) of the said Act by taking into consideration the contentions raised
by the rival par;ties and decide the same as per law within three months
from the date of appearance of the parties before that Court.
11. The parties to appear before the Court of Mamalatddar on
16-1-2017.
JUDGE
//MULEY//
