Bombay High Court

Gopalrao Baliramji Deshmukh And ... vs Sopan Gulabrao Deshmukh And ... on 30 July, 2021

Bench: M. G. Sewlikar

                                    {1}                        WP 4806 OF 2020


       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  BENCH AT AURANGABAD
                       WRIT PETITION NO.4806 OF 2020

 1.       Gopalrao S/o. Baliramji Deshmukh
          Age: 49 years, Occu.: Agriculture,
          R/o. At Post Shapur,
          Tq. and Dist.Parbhani.

 2.       Prabhakar S/o. Devidasrao Deshmukh
          Age: 65 years, Occu.: Agriculture,
          R/o. As above.                                ..Petitioners

                                   VERSUS

 1.       Sopan S/o. Gulabrao Deshmukh
          Age: 65 years, Occu.: Agriculture,
          R/o. At Post.Shapur,
          Tq. and Dist.Parbhani.

 2.       Vithal S/o. Ramkishan Deshmukh
          Age: 30 years, Occu.: Agriculture,
          R/o. As above.

 3.       Babarao S/o. Gulabrao Deshmukh
          Age: 55 years, Occu.: Agriculture,
          R/o. As above.

 4.       Bhagwan S/o. Dattrao Deshmukh
          Age: 45 years, Occu.: Agriculture,
          R/o. As above.

 5.       Manik S/o. Digambarrao Deshmukh
          Age: 45 years, Occu.: Agriculture,
          R/o. As above.

 6.       Tahasildar Parbhani,
          Tq. and Dist.Parbhani.

 7.       Sub Division Ofcer, Parbhani,
          Tq. and Dist.Parbhani.                    ..Respondents
                                    ...
             Advocate for Petitioners : Shri Vishant P.Kadam
           Advocate for Respondent Nos.1 to 5 : Shri R.V. Gore
              AGP for Respondent No.6 & 7 : Shri A.B.Chate
                                    ...




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                                        {2}                     WP 4806 OF 2020



                                CORAM :      M.G.SEWLIKAR, J.

RESERVED ON : 17th July, 2021 PRONOUNCED ON : 30th July, 2021

JUDGMENT:-

1. This petition is preferred by the original defendants in

proceeding No.izdj.k [email protected]&[email protected]@dkoh&10 initiated by

respondent No.1 before Mamlatdar's Court against petitioners for

injunction restraining the petitioners from obstructing the

enjoyment of way.

2. Facts leading to this petition can be stated in short as

under:

Respondent No.1 is the owner and in possession of land

Gut No.290 admeasuring 95R. Petitioners - original respondents

Nos.3 and 1 respectively own Gut Nos.289 and 287 to the east of

land of respondent No.1.

3. It is further alleged that there is a cart road between land

Gut Nos.298, 289 and 287 which is used by respondent No.1

to access respondent No.1's land Gut No.290. This way is

being used since long. Respondent No.1 does not have

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any other alternative road to access his land. Petitioners have

been obstructing respondent No.1 from accessing this road

owing to which respondent No.1 is unable to access his land. On

25-08-2013 at about 10:00 a.m. to 10:30 a.m. petitioners

obstructed bullock cart of respondent No.1 from proceeding to

his feld from this cart road. Therefore, respondent No.1 was

constrained to fle suit before the Mamlatdar's Court.

4. Petitioners did not appear before the Mamlatdar's Court.

Talathi Sajja Arvi drew panchanama. Tahsildar, Parbhani decided

this matter by his order dated 21-05-2015 by which he held that

the road as alleged by respondent No.1 is in existence and

respondent No.1 was obstructed by the petitioners. He,

therefore, restrained the petitioners from obstructing respondent

No.1 from accessing the disputed road by respondent No.1. This

order was challenged before the Additional Collector, Parbhani,

who by his order dated 01-07-2015, remanded the matter to the

Tahsildar directing him to personally inspect the spot and hold

denovo enquiry. Thereafter, Naib Tahsildar, Parbhani again

passed the same order. This order was also challenged before

the Sub-Divisional Ofcer. This time also he remanded the

matter. Thereafter, the Tahsildar visited the spot and drew spot

panchnama and thereafter he allowed case No. izdj.k dz-

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[email protected]@[email protected] and restrained the petitioners from

enjoying the disputed road. This order was challenged before

the Sub-Divisional Ofcer, Parbhani, who confrmed the order of

Tahsildar by his order dated 30-11-2019. This order is impugned

in this writ petition.

5. Heard Shri V.P.Kadam, learned counsel for the petitioners,

Shri R.V.Gore, learned counsel for respondent Nos.1 to 5 and Shri

A.B.Chate, learned AGP for respondent Nos.6 and 7.

6. Shri Kadam, learned counsel for the petitioners submitted

that the Mamlatdar's Court has no jurisdiction to issue injunction

as is contended by the petitioners. He submitted that Section 5

of Mamlatdar's Courts Act does not authorize the Mamlatdar to

issue injunction. He further submitted that testimonies of

witnesses who acted as Panch are not believable. He submitted

that the Tahsildar again drew panchanama on 28-05-2018 for no

reason and at that time he had not given notice of panchanama

to the petitioners and behind their back panchanama was drawn.

He submitted that no road exists in land Gut Nos.287, 289 and

298 as alleged by respondent No.1. He submitted that without

application of mind, the learned Tahsildar issued injunction and

without applying mind Sub-Divisional Ofcer confrmed the said

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order. He submitted that both the Courts below placed reliance

on Section 143 of the Maharashtra Land Revenue Code, 1966

(hereinafter referred to as 'the M.L.R. Code'). He submitted that

the powers under Section 143 of the M.L.R. Code could be used

for giving of road. He submitted that proceedings under Section

143 of the M.L.R. Code and under Section 5 of the Mamlatdar's

Courts Act, 1906 are distinct. Therefore, he prayed for dismissal

of the impugned orders.

7. Shri Gore, learned counsel for respondent Nos.1 to 5

argued that second panchanama was prepared as law mandates

that Mamlatdar should frst visit the spot of the incident and

drew panchanama. That was the reason why Mamlatdar had

paid visit and drawn panchanama of the disputed road. He

submitted that no illegality is pointed out to cause interference in

the orders passed by both the Courts below.

8. On perusal of the papers annexed with the petition and the

Judgments of both the Courts below, it is evident that both the

Courts have given cogent reasons for arriving at the conclusion

that there exists road in Gut Nos.287, 289 and 298 by which

respondent No.1 can have access to his land Gut No.290.

 Petitioners        have       produced    copies    of    panchanama dated





                                       {6}                     WP 4806 OF 2020

28-05-2018. Shri Kadam, learned counsel for the petitioners

fairly concedes that petitioners were present at the time of

drawing of panchanama on 28-05-2018. Therefore, reliance

placed on the case of Sudhir Yashwant Dhangade Vs. Ankush

Kashiram Bole and Others [2019 SCC OnLine Bom.18] to the

effect that, "no evidence affecting a party is admissible against

that party unless the latter has had an opportunity of testing its

truthfulness by cross-examination " cannot be accepted. This is

not the fact situation in instant case. Petitioners were present at

the time of drawing of panchanama.

9. Panchanama dated 19-05-2017 shows existence of road

between Gut Nos.287, 289 and 298. Tahsildar has also prepared

a sketch map which indicates that there is a road between Gut

Nos.287, 289 and 298 in east-west direction, which goes to Gut

No.290. Learned Tahsildar has observed in his order that

existence of road is also evident from 7/12 extract, which shows

that the total area of Gut No.290 is excluding the road. This

clearly indicates the existence of road. Witnesses have also

stated that road is in existence and was being used by

respondent no.1. Panchanama dated 28-05-2018 also shows the

same position.

                                             {7}                          WP 4806 OF 2020


 10.      For     issuing      injunction     what       Mamlatdar          under        the

Mamlatdar's Courts Act has to see is whether there exists any

road by which a landholder can have access to his land and

whether obstruction was caused to the enjoyment of this road.

Both these aspects have been proved by respondent No.1.

Panchanama drawn by the Tahsildar on 28-05-2018 also

shows that there is no road from Gut Nos. 281, 284 and 291, 253

and 284, 252.

11. The argument that, it was not necessary for the Mamlatdar

to again visit the spot and draw panchanama was totally

uncalled for, cannot be accepted. Mamlatdar is required to pay

visit to the spot and draw panchanama by virtue of Section 19(2)

of the Mamlatdar's Courts Act. In terms of these provisions, he