Bombay High Court
Dhankorbai Kisan Patil And ... vs Latabai Walmik Marathe And Others on 6 April, 2021
Bench: R. G. Avachat
Writ Petition No.7310/2020 with
Writ Petition No.7342/2020
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.7310 OF 2020
Sanjay Pandit Patil ...PETITIONER
VERSUS
Smt. Latabai Walmik Marathe & ors. ... RESPONDENTS
.......
Shri S.V. Suryawanshi, Advocate for petitioner
Smt. A.N. Ansari, Advocate for respondent No.1.
Shri A.B. Chate, A.G.P. for respondents No.2 & 3
.......
WITH
WRIT PETITION NO.7342 OF 2020
Dhankorbai Kisan Patil & anr. ...PETITIONERS
VERSUS
Smt. Latabai Walmik Marathe & ors. ... RESPONDENTS
.......
Shri S.V. Suryawanshi, Advocate for petitioner
Smt. A.N. Ansari, Advocate for respondent No.1.
Shri A.B. Chate, A.G.P. for respondents No.2 & 3
.......
CORAM : R. G. AVACHAT, J.
Date of reserving order : 3rd February, 2021
Date of pronouncing order : 6th April, 2021
ORDER:
Both these writ petitions are being decided by this
common order since the challenge therein is to the one and
Writ Petition No.7310/2020 with
Writ Petition No.7342/2020
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the same order passed by the Mamlatrdar, Pachora on
30/4/2020 in a suit, No.183/2019 under Section 5 of the
Mamlatdar's Courts Act, 1906 (for short the Act). By the
impugned order, the Mamlatdar allowed the application dated
24/6/2019 filed by the respondent No.1 and directed to
remove the obstruction/ impediment created on the suit way.
2. Heard learned counsel for the parties. Perused
the impugned order and the relevant documents relied on.
Shri S.V. Suryawanshi, learned counsel appearing
for the petitioners in both the petitions would submit that the
petitioners were not parties to the proceedings wherein the
impugned order has been passed. The respondent No.1 had
preferred the application dated 24/6/2019 seeking permission
for self immolation. The Mamlatdar appears to have treated
the said application as a plaint in a suit under Section 5 of the
Act. The Mamlatdar did not follow the procedure contemplated
under the Act. In fact, no proceeding did take place pursuant
to the application dated 24/6/2019. The Mamlatdar simply
passed the impugned order even without issuing notice to the
petitioners herein. Learned counsel, therefore, urged for
setting aside the impugned order.
3. Smt. A.N. Ansari, learned counsel for respondent
Writ Petition No.7310/2020 with
Writ Petition No.7342/2020
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No.1 in both the petitions would, on the other hand, submit
that the impugned order has already been executed. The
petitions have, thus, become infructuous. According to the
learned counsel, there is a decree of the Civil Court passed in
Regular Civil Suit No.11/1995 on 30/6/1995, whereby the
owners of the land Gut Nos.116, 117 and 118 have been
restrained from obstructing the husband of the respondent
No.1 from making use of the suit way. The petitioners herein
claim through the owners of these lands. The decree in
Regular Civil Suit No.11/1995 is, therefore, binding on the
petitioners.
4. The petitioner in Writ Petition No.7310/2020 is
owner, in possession of land Gut No.118. While the
petitioners in Writ Petition No.7342/2020 are the owners, in
possession of land Gut No.116. The husband of respondent
No.1 was the owner, in possession of land Gut No.114/1. It
appears that, for approaching the land Gut No.114/1, the
husband of the respondent No.1 claimed to have a right of
way through the lands Gut Nos.116, 117 and 118.
5. A copy of the application dated 24/6/2019
preferred by the respondent No.1 to the Mamlatdar, Pachora is
on record. The application was made against six persons.
Writ Petition No.7310/2020 with
Writ Petition No.7342/2020
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None of the petitioners had been named in the said
application. The title of the said application indicates that the
respondent No.1 had urged for permission for self immolation
since the respondents in the said application were not
allowing her to use the suit way for approaching her land Gut
No.114/1. It appears that, the Mamlatdar converted the said
application as one under Section 5 of the Act. Perusal of the
impugned order would indicate that the petitioners herein had
neither been parties to the said proceedings nor were served
with the notice thereof before the Mamlatdar passed the
impugned order. Thus, it appears that, the Mamlatdar has not
followed the provisions of Sections 8 to 15 of the Act. It is
reiterated that, the impugned order has been passed against
the petitioners herein without giving them an opportunity of
hearing and, therefore, the impugned order is non est in law.
The same is, therefore, liable to be set aside even if it is
assumed the same to have been executed.
6. There is, however, another aspect of the matter.
The petitioners have produced on record a copy of the
judgment dated 30/6/1995 passed by Civil Judge, Junior
Division, Pachora in Regular Civil Suit No.11/1995. It was a
suit filed by the husband of respondent No.1 against Baliram
Devsing Patil, Gayabai w/o Pandit Patil and Dhankorbai w/o
Writ Petition No.7310/2020 with
Writ Petition No.7342/2020
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Kisan Patil. Gayabai is mother of the petitioner in Writ
Petition No.7310/2020. While Dhankorbai is petitioner No.1 in
Writ Petition No.7342/2020. The petitioner No.2 therein
claims to have purchased some of the portion of land Gut
No.116 from Dhankorbai. The suit (Regular Civil Suit
No.11/1995) was decreed with the following order :
"The suit is decreed with costs.
Accordingly it is hereby declared that plaintiff has
right to go to his land by using the suit path which
passes between the gat no.116 and 118 on its
western side while gat no.117 on eastern side in
village Pardhade, Taluka Pachora, Distt. Jalgaon.
The defendant no.1 to 3 or any person claiming
under them are hereby perpetually restrained from
obstructing plaintiff from using the above said suit
path from going to his land in any manner."
7. In the year 1995, the petitioner Sanjay must have
been minor. His mother Gayabai was a party to the suit. The
subject matter of the said suit was the right of way through
the land presently belonging to the petitioners. Since the
predecessor-in-title of the present petitioners and the
petitioner Dhankorbai herself was a party to the said suit, the
decree passed therein binds the petitioners herein so long as
it holds the field. The decree would run with the lands.
Writ Petition No.7310/2020 with
Writ Petition No.7342/2020
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8. The impugned order passed by the Mamlatdar is
hereby set aside. However, it is observed that the petitioners
are bound by the decree passed in Regular Civil Suit
No.11/1995 and, therefore, there is an injunction restraining
them from obstructing the respondent No.1 from making use
of the suit way, the subject matter of Regular Civil Suit
No.11/1995.
The Writ Petitions are disposed of.
( R. G. AVACHAT )
JUDGE
fmp/-
