Bombay High Court
Gunwant Vishwanath Thorat And Ors vs Makbul Rashul Shaikh And Ors on 26 August, 2021
Bench: V. V. Kankanwadi
sa-93-2013.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.93 OF 2013
GUNWANT S/O VISHWANATH THORAT AND ORS
VERSUS
MAKBUL RASHUL SHAIKH AND ORS
...
Mr. D. B. Pokale h/f Mr. S. S. Choudhary, Advocate for appellants.
Mr. D. P. Deshpande, Advocate for respondent No.1.
...
CORAM : SMT. VIBHA KANKANWADI, J.
DATE : 26.08.2021
ORDER :-
. Present appeal has been filed by original defendant Nos.3 to 4D to
challenge the judgment and decree passed in Regular Civil Appeal
No.148 of 2011 by learned Adhoc District Judge-1, Osmanabad dated
02.08.2012, whereby the appeal filed by present respondent No.1-
original plaintiff came to be allowed and his suit came to be decreed.
2. Present respondent - original plaintiff filed Regular Civil Suit
No.19 of 2008 before the learned 3rd Joint Civil Judge Senior Division,
Osmanabad for perpetual injunction. The said suit came to be dismissed
on 01.07.2011. Original plaintiff challenged the said judgment and
decree in the abovesaid appeal and the first Appellate Court reversed the
decree by allowing the appeal and decreed the suit. Hence, this second
appeal.
sa-93-2013.odt
3. Heard learned Advocate Mr. D. B. Pokale holding for learned
Advocate Mr. S. S. Choudhary for the appellants and learned Advocate
Mr. D. P. Deshpande for respondent No.1. In order to cut short it can be
said that both of them have made submissions in support of their
respective contentions.
4. At the outset, it is to be noted that unless present appellants show
substantial questions of law, the second appeal need not be admitted at
all. Merely because there is contradictory findings and decree by the
learned Lower Court, that does not ipso facto rise to framing of
substantial questions of law. Here, the plaintiff had come with the case
that he is the owner and possessor of 1 H 82 R land out of Gut No.50 at
Ghatangri, Tq. and Dist. Osmanabad. He had purchased it from one
Mashabee Shaikh on 30.10.2000. Defendant Nos.3 to 6 had made
application to defendant No.2 - Tahsildar on 01.01.2004 to allow them
to use 21 feet wide cart road through the suit land. According to the
plaintiff, defendant No.2 - Tahsildar without visiting the spot passed
order on 03.02.2004 allowing defendant Nos.3 to 6 to use the cart way
through the suit land. That order was challenged by the plaintiff before
the Sub-Divisional Officer, Osmanabad. The Sub-Divisional Officer partly
allowed the appeal and remanded the matter to defendant No.2 asking
him to make inquiry once again. But again, defendant No.2, without
sa-93-2013.odt
making inquiry, passed similar order and, therefore, the suit was filed for
perpetual injunction.
5. It is to be noted that present appellants - original defendant Nos.3
to 4D and defendant Nos.4E, 4F, 5 and 6 had not even filed the written
statement and, therefore, the matter had proceeded without their written
statement. Only the Tahsildar i.e. defendant No.2 had filed the written
statement explaining that how his order is correct. According to him,
defendant No.2 had never ordered the new way to be carved out from
the suit land and his order is not challenged by the plaintiff before the
Superior Authority and, therefore, the suit is not tenable. As regards the
tenability of the suit is concerned, Section 143(4) of the Maharashtra
Land Revenue Code gives right to the person aggrieved by the decision of
the Tahsildar to file a Civil Suit to have it set aside or modified within a
period of one year from the date of such decision. However, in this case,
in fact, the suit is only for perpetual injunction. No doubt, it was stated in
the suit that the order passed by the Tahsildar is illegal. The learned
Trial Judge dismissed the suit on the ground that the plaintiff has not
asked for any relief in respect of the order passed by the Tahsildar.
Interesting point to be noted is that the Trial Court had held that the
plaintiff had proved that the orders passed by defendant No.2 on
03.02.2004 and 20.12.2007 granting approach way to defendant Nos.3
sa-93-2013.odt
to 6 from the suit land is illegal. It was also held that the plaintiff has
failed to prove that the defendants are trying to create new way through
the suit land. Yet, it appears that the learned Trial Judge had not
exercised his jurisdiction properly. Merely because, no specific relief was
asked in respect of that order passed by defendant No.2, it appears that
the suit came to be dismissed and it was also held that equally efficacious
relief is available to challenge the order passed by Tahsildar. It appears
that, that finding is in ignorance of Section 143(5) of Maharashtra Land
Revenue Code. The first Appellate Court has also, after considering the
evidence on record, held that defendant No.2 without taking evidence,
had passed the said order and the defendants are trying to create new
way. In fact, the plaintiff had purchased the said land in the year 2000. It
ought to have been endeavor for defendant Nos.3 to 6 to prove that they
were using that road since prior to 2000 and it was only because of
plaintiff, that way was obstructed. They did not contest the suit and,
therefore, now the second appeal, when there is absolutely no legal point
involved, cannot be considered at all. As no substantial question of law as
contemplated under Section 100 of the Code of Civil Procedure is arising,
the second appeal deserves to be dismissed. Accordingly, it is dismissed.
[SMT. VIBHA KANKANWADI, J.]
scm
