Sunil S/O Madhukar Paraskar And ... vs Dinkar S/O Rambhau Thakre And 2 ...
2016 Latest Caselaw 5930 Bom

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                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                         
                                       NAGPUR BENCH : NAGPUR




                                                                 
                              WRIT PETITION NO.3488  OF  2015


    1)      Sunil s/o Madhukar Paraskar,




                                                                
            age 46 years, occupation : agriculturist, 

    2)      Dnyaneshwar s/o Madhukar Paraskar,
            age 41 years, occupation : 




                                                          
            agriculturist, 


            District Buldana. 
                                   
            Both r/o Bhota, Taluq Nandura, 
                                                               ...            Petitioners 

                      - Versus -
                                  
    1)      Dinkar s/o Rambhau Thakre,
            age : adult, occupation : cultivation,
      

    2)      Balu s/o Dinkar Thakre, age : adult,
            occupation : cultivation, 
   



            Both r/o Bhota, Taluq Nandura, 
            District Buldana. 

    3)      Sub-Divisional Officer, Malkapur,





            Taluq : Malkapur, District Buldana.                ...            Respondents


                                       -----------------
    Shri A.J. Thakkar, Advocate for the petitioners. 





    Shri Anjan De, Advocate for the respondent nos.1 and 2. 
    Ms. T. Khan, Assistant Government Pleader for the respondent no.3. 
                                       ----------------

                                          CORAM :   SMT. VASANTI A  NAIK, J.

DATED : OCTOBER 10, 2016

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ORAL JUDGMENT :

Rule. The rule is made returnable forthwith. The writ

petition is heard finally at the stage of admission with the consent of the

learned Counsel for the parties.

By this writ petition, the petitioners challenge the order of the

Sub-Divisional Officer, dated 19/5/2015 in a revision under Section 23 of

the Mamlatdars' Courts Act, 1906.

The petitioners had filed an application before the Mamlatdar,

Nandura under the provisions of Section 5 of the Act against the

respondent nos.1 and 2 seeking removal of obstruction/impediment.

When the matter was transferred to the Mamlatdar, Khamgaon on the

application made by the respondent nos.1 and 2, the Mamlatdar,

Khamgaon granted an interim injunction in favour of the petitioners,

thereby directing the respondent nos.1 and 2 to remove the impediment.

The interim order passed by the Mamlatdar was challenged by the

respondent nos.1 and 2 before the Sub-Divisional officer in a revision.

The Sub-Divisional Officer allowed the revision filed by the respondent

nos.1 and 2 under Section 23 of the Act and set aside the order of the

Mamlatdar. While allowing the revision, the Sub-Divisional Officer also

held that the application made by the petitioners before the Mamlatdar

was not tenable and was barred by limitation. Since the application filed

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by the petitioners was dismissed on merits by the Sub-Divisional Officer in

the revision challenging the order granting interim injunction, the said

order is challenged by the petitioners in this writ petition.

Shri Thakkar, the learned Counsel for the petitioners, submits

that the Sub-Divisional Officer exceeded his jurisdiction in allowing the

revision filed by the respondent nos.1 and 2 and dismissing the

application filed by the petitioners under Section 5 of the Act. It is stated

that the Sub-Divisional Officer was required to consider whether the order

of the Mamlatdar granting interim injunction in favour of the petitioners

was correct or not. It is submitted that instead of deciding the matter

arising out of the interlocutory order, the Sub-Divisional Officer decided

the revision in favour of the respondent nos.1 and 2 and dismissed the

application filed by the petitioners under Section 5 of the Act on merits.

Ms. Khan, the learned Assistant Government Pleader

appearing on behalf of the respondent no.3 and Shri De, the learned

Counsel for the respondent nos.1 and 2, have supported the order of the

Sub-Divisional Officer, so far as it sets aside the order granting interim

injunction in favour of the petitioners. It is stated that cogent reasons are

recorded by the Sub-Divisional Officer for setting aside the order of

interim injunction. It is, however, fairly stated on behalf of the

respondent nos.1 and 2 that while considering the correctness or

otherwise of the order of Mamlatdar granting interim injunction, the

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application filed by the petitioners under Section 5 of the Act could not

have been dismissed on merits.

On hearing the learned Counsel for the parties and on a

perusal of the impugned order, it appears that the Sub-Divisional Officer

was not justified in holding that the application filed by the petitioners

under Section 5 of the Act was barred by limitation and the same was

liable to be dismissed as there was a dispute between the parties in respect

of the title. The Sub-Divisional Officer was only required to consider

whether the order of the Mamlatdar granting interim injunction was

correct or not and the Sub-Divisional Officer did not have the jurisdiction

to decide whether the application filed by the petitioners under Section 5

of the Act was liable to be dismissed on merits. While holding that the

petitioners were not entitled to interim injunction, the Sub-Divisional

Officer considered the material on record. Since the Sub-Divisional

Officer has recorded cogent reasons for setting aside the order granting

interim injunction in favour of the petitioners, the impugned order is not

liable to be set aside to the aforesaid extent. However, since the Sub-

Divisional Officer has exceeded his jurisdiction in considering the merits of

the matter while deciding the revision against an order granting interim

injunction in favour of the petitioners, the part of the order dismissing the

application filed by the petitioners under Section 5 of the Act is liable to

be quashed and set aside. Since a prima facie finding is recorded by the

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Sub-Divisional Officer that the way as claimed by the petitioners was not

in existence, the same cannot be interfered with in exercise of the writ

jurisdiction.

Hence, for the aforesaid reasons, the writ petition is partly

allowed. The part of the impugned order dated 19/5/2015 that sets aside

the order of the interim injunction passed by the Mamlatdar stands

confirmed. The part of the impugned order dated 19/5/2015 dismissing

the application filed by the petitioners under Section 5 of the Mamlatdars'

Courts Act, 1906 is hereby set aside. The Mamlatdar is free to decide the

application filed by the petitioners in accordance with law.

Rule is made absolute in the aforesaid terms with no order as

to costs.

JUDGE

khj