Madhukar S/O. Amruta Ekade And ... vs The Deputy Collector And The ...
2022 Latest Caselaw 4221 Bom

13-WP1322.21-J                                                1/15




         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  NAGPUR BENCH, NAGPUR.


              WRIT PETITION NO. 5062      OF 2021


PETITIONERS :-      1. Madhukar S/o Amruta Ekade, aged about
                       66 years, Occupation : Agriculturist,

                    2. Amruta S/o Dagadu Ekade, aged about
                       93 years, Occupation : Agriculturist,

                       Both the petitioners are R/o at Village
                       Pokhri, Post Sav, Tah.and Dist. Buldhana.


                         ...VERSUS...


RESPONDENTS :-      1. The Deputy Collector and the Sub-
                       Divisional Officer, Buldhana.

                    2. The Naib-Tahsildar (Revenue), Buldhana,
                       Tah. and Dist. Buldhana/Court of
                       Mamlatdar.

                    3. The Circle Officer, Mouza Sakhli (Bk.),
                       Tah. and Dist. Buldhana.

                    4. Vijay S/o Tulshiram Ekade, aged about
                       39 years, Occupation : Agriculturist, R/o
                       at Village Pokhri, Post Sav, Tah. and Dist.
                       Buldhana.

                    5. Sahebrao S/o Pandurang Aadve, aged
                       about   59   years,  Occupation   :


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 13-WP1322.21-J                                                                         2/15


                                   Agriculturist, R/o at village Malvihir, Tah.
                                   and District Buldhana.

                              6. Nikhilesh S/o Sampatrao Jadhav, aged
                                 about    51    years,  Occupation    :
                                 Agriculturist,    R/o.     Mallikarjun
                                 Apartment, Kyawal Complex, Circular
                                 Road, Buldhana, Tah. and District
                                 Buldhana.

                              7. Jyoti Devendra Kayastha, aged about 41
                                 years, Occupation : Agriculturist/
                                 Household, R/o. Janta Chowk, Police
                                 Ground Road, Buldhana, Tah. and Dist.
                                 Buldhana.

-------------------------------------------------------------------------------------------
               Mr. N.B.Kalwaghe, counsel for the petitioners.
         Mr.K.L.Dharmadhikari, AGP for respondent Nos.1 to 3.
         Ms Deepali Sapkal, counsel for respondent Nos.4 to 6.
                           None for respondent No.7.
 -------------------------------------------------------------------------------------------



                                   CORAM : MANISH PITALE, J.

                                   DATE :        21.04.2022.


ORAL          JUDGMENT


                 Heard.


2.               Rule. Rule made returnable forthwith.                            Though

respondent No.7 is served and none appears on his behalf, the writ

KHUNTE 13-WP1322.21-J 3/15

petition is heard finally with the consent of the learned counsel

appearing for the rival parties.

3. By this writ petition, the petitioners have challenged

order dated 15/02/2021, passed by respondent No.1-Deputy

Collector and the Sub-Divisional Officer, whereby revision

application filed by respondent Nos.4 to 6 was allowed and an

order passed by respondent No.2 under the provisions of the

Mamlatdar's Courts Act, 1906 (hereinafter referred to as "Act of

1906"), was set aside. As a consequence, the petitioners were

directed to remove alleged obstruction from the way available

from their fields for access to the agricultural fields of respondent

Nos.4 to 6.

4. Mr. Kalwaghe, learned counsel appearing for the

petitioners, submitted that the impugned order passed by

respondent No.1-Revisional Authority was unsustainable for more

reasons than one. According to him, the aforesaid respondent

failed to take into account the fact that on the same cause of

action, an earlier proceeding in respect of the same alleged access

KHUNTE 13-WP1322.21-J 4/15

way under the provisions of the Act of 1906 was initiated and it

had terminated in favour of the petitioners. This aspect was

specifically brought to the notice of respondent No.1, but in the

impugned order, despite taking note of the said contention, there

was no discussion on the same and respondent No.1 proceeded to

allow the revision application of respondent Nos.4 to 6.

5. It was then submitted that even on merits, there was

no substance in the contentions raised on behalf of respondent

Nos.4 to 6 as the material that came on record in the earlier round

of litigation as well as the present round, did not support the

assertions made on behalf of respondent Nos.4 to 6. Reliance was

placed on section 26(b) of the Act of 1906, to contend that the

order passed by the Mamlatdar i.e. respondent No.2 even in the

second round in favour of the petitioners could not have been

interfered with by respondent No.1 in exercise of the revisional

jurisdiction. It was submitted that, in any case, respondent Nos.4

to 6 could approach the Civil Court despite findings rendered

against them by the Authorities under the provisions of the Act of

1906 and that therefore, the said respondents were not remediless.

KHUNTE
 13-WP1322.21-J                                                   5/15

Reliance was placed on the judgment of this Court in the case of

Sunil Biharilal Agrawal v. State of Maharashtra and others,

reported in 2021 (2) Mh.L.J. 166.

6. On the other hand, Ms Deepali Sapkal, learned

counsel appearing for the contesting respondent Nos.4 to 6,

submitted that the earlier round concerning the said access way

was initiated by different persons, who had nothing to do with the

present round of litigation, except one individual i.e. Kashinath. It

was submitted that even if the earlier round of litigation was taken

into consideration, the order passed in the said round by the

Mamlatdar having attained finality would not create any

impediment for respondent Nos.4 to 6 to seek redressal of their

grievance on merits. In any case, the said respondents were not

party to the earlier round.

7. Insofar as the merits of the matter were concerned, it

was submitted that the inspection report available before the

Mamlatdar in the second round, read with the map that was

placed on record would show that a way indeed existed from the

KHUNTE 13-WP1322.21-J 6/15

agricultural fields of the petitioners, up to the field of respondent

No.7, who was original non-applicant No.3 before the Mamlatdar.

The said respondent No.7 had specifically conceded to existence of

access way to the agricultural fields of respondent Nos.4 to 6

through the fields of the petitioners and the said respondent No.7.

This aspect was properly appreciated by respondent No.1, while

allowing the revision application and therefore, even on merits, no

interference is warranted in the impugned order. The learned

counsel appearing for respondent Nos.4 to 6 relied upon judgment

of this Court in the case of Shrikrishna Sheshrao Dane and anr. v.

Vasant Ramrao Tayade and anr., reported in 2018 (1) ALL MR

397.

8. Mr. K.L.Dharmadhikari, learned Assistant Government

Pleader appeared on behalf of respondent Nos.1 to 3.

9. In this case, respondent No.1 as the Revisional

Authority has reversed the order of respondent No.2, who was

exercising powers of the Mamlatdar under the Act of 1906. It

needs to be examined whether there was sufficient material on

KHUNTE 13-WP1322.21-J 7/15

record to justify interference with the order of respondent No.2, to

hold that the application filed by respondent Nos.4 to 6 asserting

existence of a cart way could have been granted. It is significant

that the application filed on behalf of the said respondents, along

with Kashinath, specifically prayed for a direction to the

petitioners to remove obstruction from the access way, which

existed for transport of bullock cart, thereby indicating that

according to the said respondents and Kashinath there indeed

existed a cart way for access to the agricultural fields of the said

respondents, through the fields belonging to the petitioners.

10. Perusal of the material placed on record shows that in

the year 2013, the said Kashinath along with other persons had

raised an identical grievance with regard to the said alleged cart

way available through the fields of the petitioners in Gat Nos.150

and 153. In the said proceedings initiated in the year 2013, access

through the field of the petitioners was sought for fields located in

Gat Nos.11 to 23. In the said first round of litigation, wherein the

said Kashinath was a common applicant, as compared to the

second round initiated in the year 2020, the Naib Tahsildar as the

KHUNTE 13-WP1322.21-J 8/15

Mamlatdar had taken into consideration the spot inspection as

well as the material on record to give a finding that no case of

existence of such cart way for access through the fields of the

petitioners was made out and accordingly, the said application was

dismissed by an order dated 03/02/2014. It appears that for a

long period of time, the said order was not challenged, but

ultimately in the years 2020-21, a revision application was filed

before the Sub-Divisional Officer, which admittedly stood

dismissed by order dated 15/09/2021. In other words, the order

dated 03/02/2014, attained finality.

11. When the present round of litigation was initiated in

the year 2020, the petitioners did bring this aspect to the notice of

respondent No.2 i.e. the Mamlatdar. Perusal of the order passed

by the Mamlatdar in the second round of litigation initiated in the

year 2020 shows that by order dated 06/11/2020, respondent

No.2-Naib Tahsildar rejected the application filed by respondent

Nos.4 to 6 and the said Kashinath, inter alia, on the ground in the

earlier round of litigation initiated in the year 2013, similar

contentions had been rejected. Nonetheless, respondent No.2-

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 13-WP1322.21-J                                                  9/15

Naib Tahsildar did consider the contentions of respondent Nos.4

to 6 and the said Kashinath on merits. It was found that the

material that had come on record in the form of spot inspection

and the map indeed support the claims made on behalf of

respondent Nos.4 to 6 and the said Kashinath. As noted above,

respondent No.1 while exercising revisional jurisdiction interfered

with the said order and set aside the order of respondent No.2-

Naib Tahsildar, holding in favour of respondent Nos.4 to 6. It

appears that the said Kashinath in the meanwhile expired, but his

legal representatives were not brought on record.

12. Be that as it may, this Court has considered the

material on record. It is found that the said Kashinath was a party

in both the rounds of litigation. The order passed by the Naib

Tahsildar in the first round on 03/02/2014, concerned claim of

the applicants therein for access to fields in Gat Nos.11 to 23 from

the fields of the petitioners. The said claim was rejected, which

admittedly, attained finality. In the second round initiated in the

year 2020, wherein the same Kashinath was a common applicant,

it was claimed that access way/cart way was available to the fields

KHUNTE 13-WP1322.21-J 10/15

of the petitioners in Gat Nos.19, 21 and 23.

13. It is significant that respondent Nos.4 to 6 in their

statements given in the second round of litigation before

respondent No.2, stated that either they had purchased the land

belonging to them from the said Kashinath or his father and in

respect of one of the said respondents, admittedly he happened to

be the brother of Kashinath. This indicates that respondent Nos.4

to 6 claimed rights in the concerned agricultural fields through

Kashinath and his father as their predecessor. In this context,

when section 26(b) of the Act of 1906 is perused, it indicates that

no suit under the provisions of the said Act would lie where the

question of removal of impediment or disturbance of possession

has been subject matter of previous proceedings to which the

plaintiff or his predecessor in interest has been a party. In the

present case, there is no dispute about the fact that the said

Kashinath was indeed a party to the first round of litigation

undertaken in the year 2013 and that the said Kashinath could be

said to be a predecessor in interest of respondent Nos.4 to 6. It is

an admitted position that the same Kashinath was party in the

KHUNTE 13-WP1322.21-J 11/15

second round initiated in the year 2020. In the face of these

admitted facts, the bar under section 26(b) of the Act of 1906

would apply.

14. The respondent No.2 in the present round initiated in

the year 2020 did take into of the said factor and held against

respondent Nos.4 to 6. This aspect was brought to the notice of

respondent No.1 as the Revisional Authority. The impugned order

shows that the said contention was noted, but there is no

discussion on the same and if the reasoning of respondent No.1 is

perused, while the said Authority has held in favour of respondent

Nos.4 to 6, the aforesaid aspect is not even referred to or dealt

with. This Court is of the opinion that in view of the admitted

position that the order passed by the Naib Tahsildar in the first

round of litigation has attained finality, the impugned order

deserves to be set aside only on that ground.

15. Yet, this Court has considered it proper to consider

the merits of the matter because the reasoning of the Revisional

Authority i.e. respondent No.1 is based on certain spot inspection

KHUNTE 13-WP1322.21-J 12/15

reports that had come on record. Perusal of the spot inspection

reports that came on record in both rounds of litigation initiated

under the Act of 1906 would show the existence of a foot way

through the fields belonging to the petitioners up to the field in

Gat No.22 belonging to respondent No.7. In any case, there is no

reference to an existing cart way, which was being used by

respondent Nos.4 to 6 or the said Kashinath for a long period of

time, which was allegedly obstructed by the petitioners. It is the

case of the petitioners that the foot way in question is for their

own private use in their fields located in Gat No.150 and 153. It

is submitted that even though respondent No.7 in her written

statement in the second round of litigation before respondent

No.2 did claim that the said foot way led to access to fields of

respondent Nos.4 to 6 in Gat Nos.19, 21 and 23, the map that

came on record even in the second round demonstrated existence

of the foot way from the fields of the petitioners in Gat No.150

and 153, only up to the field of respondent No.7 in Gat No.22.

Thus, the material on record indicates the existence of foot way

from the fields in Gat Nos.150 and 153 belonging to the

KHUNTE 13-WP1322.21-J 13/15

petitioners to the field belonging to respondent No.7 in Gat

No.22.

16. By no stretch of interpretation of the material

available on record can it be said that respondent Nos.4 to 6 could

successfully demonstrate the existence of cart way through the

fields of the petitioners and that of respondent No.7 to their fields

in Gat Nos.19, 21 and 23. Thus, the alleged admission on the part

of respondent No.7 before respondent No.2-Naib Tahsildar in the

second round of litigation was inconsequential. Yet, in the

impugned order, respondent No.1 relied upon such alleged

admission to hold in favour of respondent Nos.4 to 6. This Court

is of the opinion that even on merits, the findings rendered by

respondent No.1 are unsustainable, quite apart from the fact that

when findings regarding the said access way had attained finality

in the first round, the said factor ought to have been taken into

consideration by respondent No.1 while considering the revision

application filed by respondent Nos.4 to 6. On both counts, the

impugned order is found to be unsustainable.

KHUNTE
 13-WP1322.21-J                                                  14/15

17. The learned counsel for the petitioners is justified in

relying upon judgment of this Court in the case of Sunil Biharilal

Agrawal v. State of Maharashtra and others (supra), wherein it has

been indicated that despite the culmination of proceedings under

the provisions of the Act of 1906, a party which feels aggrieve can

certainly knock the door of the Civil Court as per the scheme

contemplated under the said Act.

18. Insofar as the reliance placed on behalf of respondent

Nos.4 to 6 on the judgment of this Court in the case of Shrikrishna

Sheshrao Dane and anr. V Vasant Ramrao Tayade and anr. (supra),

it is found that in the said case, on facts, a conclusion was reached

that there indeed existed a cart way and therefore, relief was

granted to the applicants, who had approached the Mamlatdar. In

the present case, as noted above, even on merits, it is found that

with the available material on record, respondent Nos.4 to 6 and

the common applicant Kashinath failed to demonstrate existence

of a cart way, which was being regularly used through the fields of

the petitioners to access the fields in Gat Nos.19, 21 and 23. Thus,

reliance placed on the said judgment on behalf of respondent

KHUNTE 13-WP1322.21-J 15/15

Nos.4 to 6 can be of no avail.

19. In view of the above, it is found that the present writ

petition deserves to be allowed. Accordingly, the writ petition is

allowed. The impugned order passed by respondent No.1 is

quashed and set aside and the order passed by respondent No.2-

Naib Tahsildar, as the Mamlatdar, is restored.

20. Rule is made absolute in above terms. No costs.

JUDGE

Signed By:GHANSHYAM S KHUNTE KHUNTE

Signing Date:22.04.2022 18:39