Bombay High Court
Vijay S/O Digambar Bhirad And ... vs Naib Tahsildar ... on 14 January, 2021
Bench: V.M. Deshpande
Judgment 1 WP1377.20.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 1377 OF 2020
PETITIONERS : 1] Vijay S/o Digambar Bhirad,
Aged about 50 years, Occu. Agriculturist,
R/o Shivaji Nagar, Akola,
Tq. and Dist. Akola.
2] Ramdas S/o Shriram Rupnare,
Aged about 48 years, Occu. Agriculturist,
R/o Dabki Road, Akola, Tq. & Dist. Akola.
3] Pandurang S/o Haribhau Amale,
Aged about 47 years, Occu. Agriculturist,
R/o Dabki Road, Akola, Tq. & Dist. Akola.
// VERSUS //
RESPONDENTS : 1] Naib Tahsildar (Revenue), Balapur,
Dist. Akola.
2] Ajay S/o Sambajirao Ruikar,
Aged about 45 years, Occu. Agriculturist,
3] Anil S/o Rameshwar Kutafale,
Aged about 40 years, Occu. Agriculturist,
4] Sanjay S/o Divakrrao Kutafale,
Aged about 42 years, Occu. Agriculturist,
5] Shriram S/o Laxmanrao Kutafale,
Aged 63 years, Adult, Occu. Agriculturist,
6] Vijay S/o Ganeshrao Kutafale,
Aged about 50 years, Occu. Agriculturist,
7] Ganesh S/o Laxmanrao Kutafale,
(Dead on 26/5/18 but shown in application)
2 to 6 All R/o Shivaji Nagar, Near Shivcharan
Mandir, Akola, Tq. and Dist. Akola.
Judgment 2 WP1377.20.odt
___________________________________________________________________
Shri S. A. Mohta, Advocate for the petitioners
Shri I. J. Damle, A. G. P. for respondent no.1
Shri G. C. Khond, Advocate for respondent nos.2 to 7
___________________________________________________________________
CORAM : V. M. DESHPANDE, J.
DATED : JANUARY 14, 2021
ORAL JUDGMENT
1. RULE. Rule is made returnable forthwith. Heard finally by
consent of the learned counsel for the parties.
2. Heard Shri Shyamsundar A. Mohta, learned counsel for the
petitioners, Shri Indranil Damle, learned Assistant Government Pleader
for respondent no.1 and Shri Gaurav Khond, learned counsel for
respondent nos.2 to 7.
3. The present writ petition is filed challenging the order
dated 05.02.2020 passed by respondent no.1 in the proceedings
bearing case No. MCA-5/Gaygaon/03/2019-20, whereby the
preliminary objection raised by the petitioners is rejected. The
objection was pertaining to limitation.
Judgment 3 WP1377.20.odt
4. Respondent nos.2 to 7 had filed an application before
respondent no.1 - Naib Tahsildar/Mamlatdar pointing out that the
present petitioners have obstructed their way to approach their own
field and due to such obstruction, they are unable to cultivate their
land. They also prayed for removal of obstruction. The said
application filed by respondent nos.2 to 7 was allowed by respondent
no.1 vide order dated 06.01.2018 and the petitioners herein were
directed to remove the obstruction.
Being aggrieved by the same, the present petitioners filed
revision application under Section 23 of the Mamlatdar's Court Act,
1906, however the same was also dismissed by the learned Additional
Collector, Akola by order dated 30.03.2019.
Being aggrieved by the said, the present petitioners
approached this Court by filing Writ Petition No. 2913 of 2019 and this
Court (Coram : Z. A. Haq, J.) on 19.06.2019 set aside the orders and
liberty was granted to the present respondent nos.2 to 7 to avail the
remedy by filing appropriate proceedings according to law.
5. Accordingly, respondent nos.2 to 7 filed an application in
the Court of learned Tahsildar, Balapur on 09.07.2019. The said
proceedings were registered as case No. MCA-5/Gaygaon/03/2019-20.
Judgment 4 WP1377.20.odt
In the said proceeding, present petitioners filed an objection on the
ground that the subsequent proceeding is barred by principle of res
judicata and also barred by limitation. After hearing the present
petitioners, who objected the subsequent proceeding filed on behalf of
respondent nos. 2 to 7, the respondent no.1/Mamlatdar by the
impugned order, dismissed the objection.
6. The subsequent proceedings, in which the impugned order
is passed, are filed by the present respondent nos.2 to 7 in view of the
liberty and directions given to them by this Court in Writ Petition No.
2913/2019. Further, as per the petitioners, the application filed by
respondent nos.2 to 7 is barred by limitation. Even in the first round of
litigation, the question of limitation was there inasmuch as though the
said point was not agitated before the Mamlatdar, the said issue was
raised by the present petitioners before learned Additional Collector in
the revision proceedings. However, it was found by this Court that the
learned Additional Collector did not adverted to the said issue and
dismissed the application filed on behalf of the present petitioners
considering merits of the matter.
7. After the remand, as on today, written statement to the
Judgment 5 WP1377.20.odt
application filed by respondent nos.2 to 7 is not filed. Without filing
the written statement, the petitioners have raised preliminary objection
principally on the ground of limitation, which is turned down by the
learned Mamlatdar.
8. The issue of limitation is always a mixed question of facts
and law. It would be always open for the parties to adduced evidence
on the said issue. Merely by raising an objection, such an important
issue cannot be decided.
9. In the case at hand, the main proceedings are still pending
before the learned Mamlatdar, in which even the written statement is
not filed by the present petitioners. Thus, the petitioners are
approaching this Court against the interlocutory order. It shall be
always open for the petitioners to raise the question of limitation in the
written statement and it will be open for the parties to lead evidence.
Though the proceedings before the learned Mamlatdar are summary in
nature, the issue of limitation may go to the route of the matter. Such
permission will have to be given to the parties to prove the said issue.
Hence, I pass the following order :
Judgment 6 WP1377.20.odt
ORDER.
1. The Writ Petition is dismissed.
2. The interim order passed by this Court (Coram :
Manish Pitale, J.) on 11.03.2020 stands vacated.
3. Looking to the fact that respondent nos.2 to 7
have also filed an application i.e. CAW No. 1446/2020 for
grant of road to access to their agricultural field, the
respondent no.1 is directed to decide the main application as
early as possible preferably within a period of three months
from the date of receipt of this order. It shall be open for the
petitioners to file their written statement in the meanwhile.
4. It will also be open for respondent nos.2 to 7,
during pendency of the proceedings before the said Court, to
file an application for grant of road to access to their field
and if such an application is filed, the same will be decided
by the learned Mamlatdar/ respondent no.1 on its own
merit.
5. The parties i.e. petitioners and respondent nos.2
to 7 are directed to appear before the learned Mamlatdar,
Balapur/respondent no.1 on 22.01.2021.
6. Rule stands discharged. No order as to costs.
Judgment 7 WP1377.20.odt
7. Since, main proceeding i.e. Writ Petition No.
1377/2020 is dismissed, nothing survives in Civil Application
(CAW) No. 1446/2020. The same is disposed of.
JUDGE
Diwale
Digitally signed
by Parag
Parag Diwale
Diwale Date:
2021.01.16
10:42:16 +0530
