Mohammad Khan Rahim Khan vs Shri Shankar Maroti Dhage & ...
2017 Latest Caselaw 577 Bom

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                                                               sa386.03.odt

   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
             NAGPUR BENCH, NAGPUR

                  Second Appeal No.386 of 2003

  Mohommad Khan s/o Rahim Khan,
  Aged about 57 years,
  Occupation : Service and Agriculturist,
  Resident of Jalka Jagtap,
  Taluka Chandur Railway,
  District Amravati.                              ... Appellant/
                                                  Ori. Deft. No.1.

       Versus

  1. Shri Shankar s/o Maroti Dhage,
     Aged about 48 years,
     Occupation : Agriculturist,
     Resident of Jalka Jagtap, 
     Taluka Chandur Railway,
     District Amravati.

  2. Shri Narayuan s/o Maroti Dhage,
     Aged Major,
     Occupation : Agriculturist,
     Resident of Jalka Jagtap,
     Taluka Chandur Railway,
     District : Amravati.                         ... Respondents

  Smt. R.D. Raskar, Advocate for Appellant.
  Shri Amit Kukday, Advocate for Respondents.


               Coram : R.K. Deshpande, J.

Date of Reserving the Judgment : 3-3-2017

Date of Pronouncing the Judgment : 8-3-2017

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Judgment :

1. The Trial Court dismissed Regular Civil Suit No.66 of

1998 for grant of declaration that the order dated 23-6-1998

passed by the Mamlatdar under Section 5 of the Mamlatdars'

Courts Act, 1906 granting right of way to the defendant No.1 is

bad in law and, therefore, the defendant No.1 be restrained from

approaching his field from the northern boundary of the

plaintiff's field Gat No.47/1 of Village Jalka Jagtap, as per the

said order. The lower Appellate Court has allowed the appeal

and set aside the decision of the Trial Court. The lower Appellate

Court grants a declaration that the defendant No.1 has no right

to go to his land by and from over the northern dhura of the field

of the plaintiff and from inside the field. It restraints the

defendant No.1 from approaching his field by or from near the

northern dhura of the field of the plaintiff. The map at

Exhibit 56 is treated to be the part and parcel of the decree. The

original defendant No.1 is, therefore, before this Court in this

second appeal.

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2. On 26-8-2003, this Court passed an order as under :

" Admit.

Ground Nos.(a), (b) and (c) of the amendment application shall be treated as substantial questions of law.

Ad-interim stay of the judgment of the lower appellate court.

Rule on stay. Returnable in four weeks."

3. The substantial questions of law in Ground Nos.(a), (b)

and (c) are reproduced below :

"a) Whether the learned lower appellate Court was justified in not framing a specific issue with respect to jurisdiction of the Civil Court to entertain civil suit, inter alia, challenging me order passed under the Mamlatdar Courts Act, 1906, especially in view of the provision under section 23 of the said Act?"

"b) Whether civil suit lies against the order passed by

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the Mamlatdar's Court under the Mamlatdar Courts Act, 1906?"

"c) Even if it is held that the civil suit lies, inter alia, challenging the order passed under the Mamlatdar Courts Act, 1906, whether the learned lower appellate Court was justified in considering the entire controversy afresh?"

4. The undisputed factual position is that the Mamlatdar,

in exercise of his jurisdiction conferred by Section 5 of the

Mamlatdars' Courts Act, passed an order on 23-6-1998 directing

removal of obstruction and granting right of way to the plaintiff

from the northern dhura of the defendant No.1 to approach his

field. Two questions were involved before the Trial Court - (i) as

to the jurisdiction of the Civil Court to entertain, try and decide

the suit challenging the order passed by the Mamlatdar under

Section 5 of the Mamlatdars' Courts Act, and (ii) as to the

correctness and validity of the order passed by the Mamlatdar on

merits along with the adjudication on the question of right of

way of the parties, as claimed. The Trial Court recorded the

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finding that the Civil Court has jurisdiction to entertain, try and

decide the suit and it confirmed the validity of the order passed

on 23-6-1998 by the Mamlatdar. The suit filed was dismissed.

5. In appeal, the lower Appellate Court concurs with the

finding of the Trial Court that the Civil Court has jurisdiction to

entertain, try and decide the suit challenging the validity of the

order passed by the Mamlatdar after rejecting the contention that

unless a remedy of revision provided under Section 23 of the

Mamlatdars' Courts Act is availed of, the suit would not be

entertained. The lower Appellate Court holds that the plaintiff

has established that the defendant No.1 has no right to pass

through the northern boundary of the field of the plaintiff either

from inside or from outside. It holds that the order of the

Mamlatdar is not correct, legal and proper. It has passed a

decree accordingly in appeal in favour of the plaintiff.

6. In fact, the question of jurisdiction of the Civil Court to

entertain, try and decide the suit challenging the order passed

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under Section 5 of the Mamlatdars' Courts Act is no longer

res integra in view of the decision of the learned Single Judge of

this Court in the case of Rajendra Sheshrao Shendge v. Smt.

Shobhatai S. Ravate & Anr., reported in AIR 2007 Bombay 90.

Paras 11, 12 and 13 of the said decision being relevant, are

reproduced below :

"Objections as to bar of suit due to Mamlatdars' Courts Act :

11. Court has perused entire Mamlatdars' Courts Act, 1906. It is seen that Mamlatdars' Courts Act presupposes and recognizes existence and continuation of powers and jurisdiction of Civil Court. The scheme provides for a summary jurisdiction and powers and a bar of suit to make orders of Mamlatdar or Collector etc., to be immune from scrutiny in a Civil Suit."

"12. It is seen that there is no express bar of suit. According to Mr. Bhattad, bar is implied. There is no room left by virtue of totality of provisions and scheme as to how implied bar should be inferred. Argument of learned Advocate Mr. Bhattad that implied bar can be

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read from the provision to Clause (b) of sub-section (1) of Section 5 amounts to reading in a provision of legislation, such words and such scheme which is totally non-existent."

"13. The Courts cannot forget the wide compass of Section 9 of Civil procedure Code. Exclusion and bar of jurisdiction cannot be read or inferred just for the sake of asking in the manner in which present petitioner wants. Existence of jurisdiction has to be presumed and not the bar."

I fully endorse the aforesaid view and intend to reinforce it as

under :

7. I have gone through the provision of Section 5 of the

Mamlatdars' Courts Act. The proviso below sub-section (1) of

Section 5 of the said Act empowers the Mamlatdar to refuse to

exercise the power under the said provision if it appears to him

that such a case can be more suitably dealt with by the Civil

Court. Though there is a revision provided under Section 23 of

the said Act to challenge the order passed by the Mamlatdar

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under Section 5, the Act nowhere attaches finality either to the

order passed under Section 5 by the Mamlatdar on merits or to

the order passed in revision under Section 23 of the said Act. In

the absence of such finality being attached to the order passed

under the Act, the jurisdiction of the Civil Court cannot be held

to be impliedly barred merely because the Act provides a

separate machinery for getting the grievance redressed. The

ouster of the plenary jurisdiction of Civil Court cannot be readily

interfered and such jurisdiction remains intact and available to

be exercised either against the order under Section 5 or against

the order of revision under Section 23 of the said Act.

8. The learned counsels appearing for the parties could not

bring to my notice any express provision creating bar of

jurisdiction of the Civil Court to entertain, try and decide the suit

challenging either the order passed under Section 5 or under

Section 23 of the Mamlatdars' Courts Act. In a given case, a Civil

Court may refuse to grant relief on the ground that the remedy of

revision under Section 23 of the said Act is not exhausted, but

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that is not the mandate which the Civil Court is required to

observe. The lower Appellate Court has, in terms, recorded the

finding that when the order passed by the Mamlatdar is without

following the procedure, it cannot come in the way of the Civil

Court to decide the substantive rights of the parties. The view

taken cannot be faulted with. The substantial questions of law at

serial Nos.(a) and (b) are, therefore, answered accordingly.

9. The Trial Court has considered the question of validity of

the order passed by the Mamlatdar on its own merits after

recording the finding that the Civil Court has jurisdiction to

entertain, try and decide the suit challenging the order of the

Mamlatdar. It holds that the order of the Mamlatdar is correct,

legal and proper. The lower Appellate Court has reversed this

finding on merits. It adjudicates the controversy on merits after

taking into consideration the evidence brought on record in the

civil suit filed by the parties. Thus, the findings of fact recorded

by the lower Appellate Court are based upon from appreciation

of evidence on record and do not give rise to any substantial

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question of law.

10. In the result, the second appeal is dismissed.

JUDGE.

Lanjewar