Sau. Aruna W/O Arvind Naik And ... vs Kanaiyya S/O Maroti Kongre And ...
2017 Latest Caselaw 982 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH : NAGPUR
                Civil Revision Application No. 53 of 2015


 1.      Sau. Aruna wife of Arvind Naik,
         aged about 73 years,
         occupation - cultivation,
         resident of Vasant Nagar,
         Diksha Bhumi Chowk,
         Nagpur-22, Tq. & Distt.
         Nagpur.

 2.      Namod son of Namdeo Kongre,
         aged about 32 years,
         occupation - cultivation,

 3.      Mahadeo son of Arjun Mandavkar,
         aged about 40 years,
         occupation - cultivation,

 4.      Deorao son of Arjun Mandavkar,
         aged about 50 years,
         occupation - cultivation,

 5.      Sheshrao son of Arjun Mandavkar,
         aged about 37 years,
         occupation - cultivation,

         all 2 to 5 residents of Kawadshi
         [Borgaon],
         Post - Chargaon Budruk,
         Tq. Warora, Distt. Chandrapur. .....             Applicants
                                                  Org. Defts. 5 to 9.


                                 Versus




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 1.     Kanaiyya son of Maroti Kongre,
        aged about 35 years,
        occupation - cultivation,

 2.     Nandkishor son of Maroti Kongre,
        aged about 32 years,
        occupation - cultivation,

 3.     Maroti son of Jairam Kongre,
        aged about 75 years,
        occupation - cultivation,

        .....Org. Plaintiffs.


 4.     Dadaji son of Lahu Danao,
        aged 50 years,
        occupation cultivation,

        .....Org. Deft. No.10.

        All 1 to 4 residents of Kawadshi
        [Borgaon], Tq. Warora,
        Distt. Chandrapur.

 5.     State of Maharashtra,
        through District Collector,
        Chandrapur.

 6.     Additional Collector, Chandrapur.

 7.     Sub-Divisional Officer,
        Warora, Tq. Warora,
        Distt. Chandrapur.

 8.     Naib Tahsildar/Mamlatdar,
        Warora, Tq. Warora,
        Dist. Chandrapur.

        ....Org. Defts. 1 to 4.               .....        Respondents.




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                                                                 Org.Defts.


                                  *****
 Mr. V. G. Palshikar, Adv., for the Applicants.

 Mr. Bhupesh Patil, Adv., for respondent nos. 1 to 3.

 Mrs. R.S. Sirpurkar, Adv., for respondent no.4.

 Mr. M.A. Kadu, Asstt. Govt. Pleader for respondent nos. 5 to 8.

                                      *****

                                  CORAM :         A.S. CHANDURKAR, J.

                                  Date        :   23rd March, 2017


 ORAL JUDGMENT:

01. 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.

02. 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

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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.

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03. 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]. 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.

04. 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

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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] 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.

05. Smt. R.S. Sirpurkar, learned counsel appearing for non-

applicant 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.

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06. I have carefully considered the respective submissions and I

have gone through the documents filed on record.

07. 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

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under Section 21 (2) of the said Act.

08. 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 [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 [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

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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.

09. 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.

Judge

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