Laxman Rukhmaji Jambilwad vs Potanna Ganpati Jambilwad And ...
2021 Latest Caselaw 4239 Bom

                                                    Writ Petition No.8370/2020
                                      :: 1 ::



           IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                               BENCH AT AURANGABAD


                      WRIT PETITION NO.8370 OF 2020



 Laxman s/o Rukhmaji Jambilwad                       ...PETITIONER

                  VERSUS

 Potanna s/o Ganpati Jambilwad
 and others                                          ... RESPONDENTS

                                  .......
 Shri   P.R. Katneshwarkar, Advocate for petitioner
 Shri   A.B. Shinde, Advocate for respondent No.1.
 Shri   Y.G. Gujarathi, A.G.P. for respondents No.2 & 3
 Shri   S.V. Patil, Advocate for respondent No.4
                                  .......

                                  CORAM :       R. G. AVACHAT, J.

                  Date of reserving order : 4th March, 2021
                  Date of pronouncing order : 9th March, 2021


 ORDER :

This petition is directed against the order dated

8/3/2021, passed under Section 5(2) of the Mamlatdar's

Courts Act (the Act for short), by Mamlatdar, Ardhapur, and

the order dated 17/11/2020, passed by Sub-Divisional Officer

(S.D.O.), Nanded, confirming the Mamlatdar's order dated

8/6/2020.

2. The petitioner is owner of land Gut No.130. The

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land admeasures 3 Hectors 91 R. The respondent No.1 is

owner of 1.5 acres of land in Gut No.127. According to the

respondent, there existed a cartway through the land

belonging to the petitioner to approach his land Gut No.127.

In the recent past, the petitioner blocked the said way. The

respondent No.1, therefore, approached the Mamlatdar by

preferring an application dated 20/8/2014. The said

application was treated as one under Section 5(2) of the Act.

The Mamlatdar paid visit to the site and passed order dated

8/9/2014. The petitioner approached the Sub-Divisional

Officer, who confirmed the said order. The petitioner had,

therefore, to approach this Court in Writ Petition, being W.P.

No.919/2015. The said Writ Petition was allowed vide order

dated 15/12/2017. the orders impugned therein were set

aside on the ground that the said proceedings were held

without serving notice thereof to the petitioner. The

Mamlatdar, therefore, re-heard the application after giving the

petitioner opportunity of hearing. He paid visit to the land on

17/1/2020. A spot panchanama was drawn. On hearing the

parties, namely the petitioner and the respondent No.1, the

Mamlatdar passed the impugned order dated 8/6/2020,

directing the petitioner to clear the disputed way by removing

the obstruction created therein. The Sub-Divisional Officer

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affirmed the said decision. The petitioner is, therefore, before

this Court.

3. Shri P.R. Katneshwarkar, learned counsel for the

petitioner would submit that, there did not exist a way/ road

through the land Gut No.130. The Mamlatdar has granted an

altogether a new way. Passing an order granting a new way is

beyond Mamlatdar's jurisdiction under Section 5(2) of the Act.

According to him, the respondent No.1 has an alternative way.

The respondent No.1 wants to force his way through the

middle of the land Gut No.130. The same would affect the

petitioner's right to enjoy the land peacefully and without

obstruction of anyone. A map was shown to this Court with a

view to make out a case of existence of an alternate way. The

learned counsel, therefore, urged for setting aside the

impugned orders.

4. Mr. A.B. Shinde, learned counsel for respondent

No.1 would, on the other hand, submit that, both the

authorities below have given concurrent finding. In exercise

of writ jurisdiction, no interference is called with the impugned

orders. Learned counsel took me through some evidence and

the judgment in Civil Suit (Regular Civil Suit No.50/2014).

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5. The Mamlatdar entertained the application

preferred by respondent No.1 as one under Section 5(2) of

the Act. He paid visit to the site on 17/1/2020 and drew the

spot panchanama. Although there is no entry in the 7/12

extract of the land Gut No.130, to indicate existence of the

disputed way therein, the Mamlatdar, on spot inspection,

found existence of 10 ft. wide and 800 ft. long way from the

main Ardhapur - Tamsa Road towards land Gut No.127. He

also found the respondent No.1 to have been making use of

the said way. Ahead of the land Gut No.127 there is land of

respondent No.1 at about 800 ft. The Mamlatdar found the

respondent No.1's land to have been kept uncultivated for

want of a road/ way to negotiate the same. The Mamlatdar

found that the way he found in existence at the site must

have been leading further up to the land of the respondent

No.1. He further found that the said portion of the way was

brought under cultivation by the petitioner. The Mamlatdar

gave a finding of fact about existence of the disputed way.

The Sub-Divisional Officer, in exercise of revisional

jurisdiction, affirmed the finding recorded by the Mamlatdar.

6. Moreover, the petitioner filed a civil suit against

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the respondent No.1 for simplicitor injunction. It is R.C.S.

No.50/2014. The contention of the petitioner/ plaintiff in the

said suit is that, there exist no way through his land. The

respondent No.1/ defendant in the said suit was trying to

force his way through the said land. The Civil Court dismissed

the suit on merits. The learned Civil Judge came to the

conclusion as to existence of the way through the land Gut

No.130 belonging to the petitioner herein. An appeal is said

to have been pending against the judgment and decree

passed in R.C.S. No.50/2014. The rights of the parties would

be crystalised therein. Suffice it to say that in the aforesaid

factual backdrop, no interference is warranted with the orders

impugned in this Writ Petition.

7. The petition, therefore, fails. The same is

dismissed.

( R. G. AVACHAT ) JUDGE

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