Bombay High Court
Digambar Vitthal Kale And Others vs Vasant Kacharu Kale And Others on 11 January, 2022
Bench: Mangesh S. Patil
1 SA / 111 / 2017
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 111 OF 2017
1] Digambar S/o. Vitthal Kale,
Age - 45 years, Occupation - Agriculturist and Business,
R/o. At - Salukheda, Post - Khirdi,
Tal - Khultabad, District - Aurangabad
2] Manohar S/o. Namdeo Markad,
Age - 45 years, Occupation - Agriculturist,
R/o. At Post - Khultabad, Tal - Khultabad,
District - Aurangabad
3] Bhaginath S/o. Vishwanath Kale,
Age - 49 years, Occupation - Agriculturist,
R/o. At Salukheda, Post - Khirdi,
Tal - Khultabad, District - Aurangabad
4] Ramesh S/o. Bhaurao Kale,
Age - 55 years, Occupation - Agriculturist,
R/o. At Salukheda, Post - Khirdi,
Tal - Khultabad, District - Aurangabad
5] Abarao S/o. Waman Kale,
Age - 45 years, Occupation - Agriculturist,
R/o. At Salukheda, Post - Khirdi,
Tal - Khultabad, District - Aurangabad
6] Vilas S/o. Sarjerao Wagh,
Age - 50 years, Occupation - Agriculturist,
R/o. At Salukheda, Post - Khirdi,
Tal - Khultabad, District - Aurangabad
7] Kadubai Wd/o. Sainath Jadhav,
Age - 42 years, Occupation - Agriculturist,
R/o. At Salukheda, Post - Khirdi,
Tal - Khultabad, District - Aurangabad
8] Mithun S/o. Kailas Wagh,
Age - 30 years, Occupation - Agriculturist,
R/o. At Salukheda, Post - Khirdi,
Tal - Khultabad, District - Aurangabad .. Appellants
(Original Defendants)
Versus
1] Vasant S/o Kacharu Kale (Original Plaintiff),
Age - 48 years, Occupation - Service,
R/o. at post Salukheda, Tal - Khultabad,
District - Aurangabad
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2 SA / 111 / 2017
2] Walmik S/o. Jagannath Jadhav,
Age - 47 years, Occupation - Agriculturist,
R/o. At Salukheda, Post - Khirdi,
Tal - Khultabad, District - Aurangabad
(Defendant No. 11 in R.C.S., denied to be
a party in appeal therefore, arrayed as
Respondent in R.C.A. and Second Appeal)
3] Ramdas S/o. Sominath Jadhav,
Age - 40 years, Occupation - Agriculturist,
R/o. At - Salukheda, Post - Khirdi,
Tal. - Khultabad, District - Aurangabad
(Defendant No. 6 in R.C.S., and Appellant No. 6 in
R.C.A., but denied to be a party in Second appeal
therefore, arrayed as Respondent in Second Appeal )
4] Subhash S/o. Kisan Kale,
Age - 35 years, Occupation - Agriculturist,
R/o. At - Salukheda, Post - Khirdi,
Tal - Khultabad, District - Aurangabad
(Defendant No. 7 in R.C.S. and Appellant No. 7 in
R.C.A., but denied to be a party in Second appeal
therefore, arrayed as Respondent in Second Appeal )
5] Sheknath S/o. Tukaram Kale,
Age - 51 years, Occupation - Agriculturist,
R/o. At - Salukheda, Post - Khirdi,
Tal - Khultabada, District - Aurangabad
(Defendant No. 8 in R.C.S. and Appellant No. 8 in
R.C.A., but denied to be a party in Second appeal
therefore, arrayed as Respondent in Second Appeal )
6] The Tahsildar, (Original Respondent No. 13 in R.C.S.),
Khultabad, Tal - Khultabad, District - Aurangabad
(Formal Respondent - passed order in
favour of present Appellants) .. Respondents
(Original Respondents)
...
Mr. B.K. Patil, Advocate for the appellants
Mr. P.K. Nikam, Advocate for respondent no. 1
Respondents no. 2 to 5 served - absent
Respondent no. 6 - formal party.
...
CORAM : MANGESH S. PATIL, J.
RESERVED ON : 5 JANUARY 2022
PRONOUNCED ON : 11 JANUARY 2022
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3 SA / 111 / 2017
JUDGMENT :
Heard both sides at the admission stage.
2. Some of the defendants, who are aggrieved by the
concurrent findings of the Courts below, whereby the suit filed by the
respondent no. 1 declaring that the order passed by the respondent no.
3 - Tahsildar in a proceeding under section 5(2) of the Mamlatdar's
Courts Act, 1906 (for short "the Act") is null and void and granting
perpetual injunction restraining them from creating any way or cart track
through his property being a portion admeasuring 4 Acres situated in the
north-east corner of the land Gat no. 51, has been decreed.
3. The learned Advocate for the appellants would vehemently
submit that since the respondent no. 1 had appeared in the proceedings
under section 5(2) of the Act, he is not entitled to assail the judgment
and order passed therein by a separate suit when a separate remedy is
provided to challenge that order by way of revision under section 23(2)
of the Act. The learned advocate would further submit that both the
Courts below have grossly erred in appreciating the facts,
circumstances and evidence on the record. He would advert to the
topography demonstrated by a rough sketch in the memo of the second
appeal at page number 10, to precisely point out the matter in
controversy. He would submit that the fact regarding existence of the
two roads and a streamlet which divide and run east-west across the
entire land Gat no. 51 was specifically admitted by the respondent
4 SA / 111 / 2017
during his testimony. Right in the teeth of such admission, both the
Courts below ought to have held that the way, as was being claimed by
the appellants before the Tahsildar was, in fact, in existence. Being a
public road, no such declaration or injunction could have been granted
by the Courts below. Though the respondent no. 1 is banking upon the
judgment and decree passed in an earlier suit being R.C.S. 1349 of
2001 dated 27-3-2006, the appellants were not party to that suit. Noting
this fact, the Tahsildar had refused to give any importance to the
judgment even though it was in respect of the very same cart way that is
being claimed by the appellants in the present dispute. That was not a
judgment in rem and would not bind the appellants. The learned
Advocate, therefore, submits that substantial questions of law, as
mentioned in the appeal memo arise and even otherwise both the
Courts below having reached the conclusions perversely, the second
appeal be admitted.
4. The learned Advocate for the respondent no. 1 would
support both the judgments of the Courts below. He would submit that
the powers of the Mamlatdar to cause obstruction to the cart way to be
removed in exercise of the powers under section 5(2) of the Act are not
plenary powers and does not supersede the powers of a civil Court to
decide the dispute between the parties touching the selfsame dispute
regarding obstruction to the way.
5. The learned Advocate would further point out that the
revenue record demonstrates existence of the other two ways and even
5 SA / 111 / 2017
a streamlet across the entire land Get no. 51 running east to west.
The village map does not demonstrate existence of any way, as is being
claimed along the northern side of land Gat no. 51 or along its eastern
boundary.
6. The learned Advocate would then submit that The
appellants were not parties to the earlier suit between the respondent
no. 1 and one Namdev Kishan Markad. However, certified copy of
judgment was placed on Record of the trial court at Exhibit - 46. That
defendant - Namdev Kishan Markad was none other than the father of
present appellant no. 2. Even in that suit, it was the stand of the father
of the appellant no. 2 regarding the selfsame cart way, which the
appellants are now asserting along the northern and eastern boundaries
of Gat no. 51. The civil court had specifically refuted such a claim while
answering Issue no. 5 in that suit. Though, none of the appellants were
parties to the suit, since the matter in controversy was touching the
existence of the cart way being claimed by them, the respondent no. 3 -
Tahsildar ought to have examined and given due weight to such a
finding of the civil court. He would, therefore, submit that conveniently
by giving a complete go bye to that judgment and decree once again,
under the garb of existence of such a cart way, the appellants
approached the Tahsildar under section 5(2) of the Act and taking into
account aforementioned facts and circumstances, the Tahsildar had
exercised the jurisdiction by refusing to consider the judgment of the
civil court in the right perspective.
6 SA / 111 / 2017
7. Lastly, the learned Advocate Mr Nikam submitted that in any
way, there are concurrent findings of the courts below who have taken a
plausible decision by appreciating all the evidence that was available on
the record, no substantial question of law arises nor can it be said that
the judgments are based on no evidence or suffer from any perversity.
8. I have carefully considered the rival submissions. As can
be appreciated, the dispute is clearly in respect of existence or
otherwise of a cart way along the northern and eastern boundary
through the land Gat no. 51. There is no dispute about the fact that
originally the entire land was owned by a single person, who from time
to time disposed of various portions from that land including the father of
the appellant no. 2 and to the respondent no. 1. There is no dispute
about the fact that the respondent no. 1 is the owner in possession or 4
Acre portion of the north east corner from that land.
9. Village map does point out existence of a couple of roads
and a streamlet across the entire land Gat no. 51, all of which run east
west in direction. Conspicuously, this village map does not demonstrate
a similar state-of-affairs in respect of existence of the disputed cart way.
If really, such a cart way has been in existence since years together, as
is being claimed by the appellants, and found out by the respondent
no. 3 - Tahsildar, in the normal course, the village map also would have
displayed such way. It is indeed a vital aspect which conspicuously
does not find place in the reasoning of the courts below. The fact
7 SA / 111 / 2017
remains that the village map shows existence of couple of other ways
and a streamlet across the same property but there is no reason why if
at all the disputed way has been in existence, it should not depict its
existence.
10. Apart from the above state-of-affairs, again even if both the
courts below have missed the point, the appellant no. 2 has
conspicuously failed to grace the witness box. The reason is not far to
seek. Regular Civil Suit no. 1349 of 2001 was filed by the respondent
no. 1 against his father wherein, the latter had raised the selfsame issue
about existence of the selfsame cart way in the northern and eastern
side of the land Gat no. 51. That claim was refuted by the civil court and
in order, probably, to avoid being in an awkward position that he must
have been held back by the appellants and it is only the appellant no. 1,
who was examined as a witness on their behalf.
11. Apart from the above state-of-affairs, during his testimony,
the appellant no. 1 specifically admitted that to the east of the share of
respondent no. 1, the land owned by his father Vitthal Mhatarji situates.
He also admitted that along the eastern boundary, there is a bund
intervening land Gat no. 51 and the land to its east belonging to his
father. He then admitted about existence of trees along that bund,
meaning thereby that the circumstance is clearly indicative of the fact
that there are not even signs of existence of any cart way along the
eastern boundary of land Gat no. 51. All these facts and circumstances
and evidence clearly demonstrate that there is dearth of evidence to
8 SA / 111 / 2017
subscribe to the stand of the appellants regarding the existence of a cart
way as is being claimed by them.
12. Above all, though strictly speaking, the judgment and
decree passed in Regular Civil Suit no. 1349 of 2001 is not binding on
the appellants inasmuch as none of them was parties, as is mentioned
herein-above, the father of the appellant no. 2 was the sole defendant in
that suit and had raised the selfsame issue that is now been agitated in
the matter in hand, regarding existence of a cart way along the northern
and eastern boundary of land Gat no. 51. Even if such a judgment was
not binding on the appellants, once it was produced before the
respondent no. 3 during an enquiry under section 5(2) of the Act, he
ought to have given some weightage to it and to have persuaded
himself to investigate the matter in further detail. Instead, he has simply
brushed aside the decree of the civil court on the ex facie erroneous
grounds by observing that the suit was not in respect of any right of way
and the injunction was not being claimed in respect of any dispute
pertaining to it, when, as is mentioned herein-above a specific issue
regarding existence of the way was framed and answered in the
negative against the father of the appellant no. 2.
13. In the light above state-of-affairs, by no stretch of
imagination can it be said that the observations and conclusions drawn
by the courts below are perverse or based on no evidence.
9 SA / 111 / 2017
14. So far as the aspect regarding the jurisdiction of civil court
to grant a relief touching an order passed by the Tahsildar under section
5(2) of the Act, true it is that an order of the Mamlatdar in such a
proceeding is revisable under section 23(2) of that Act. However,
conspicuously, section 22 of the Act clearly declares that any decision or
order passed by the Mamlatdar would be subservient to the decision of
a competent civil court in a proceeding preferred before it. Section 22 of
the Act reads thus :-
"22. Subject to the provisions of section, 23 sub-section
(2), the party in favour of whom the Mamlatdar issues
an order for removal of an impediment of the party to
whom the Mamlatdar gives possession or restores a
use, or in whose favour an injunction is granted, shall
continue to have the surface water upon his land flow
unimpeded on to adjacent land or continue in
possession or use, as the case may be, until otherwise
decreed or ordered, or until ousted, by competent Civil
Court:
Provided, firstly, that nothing in this section shall
prevent the party against whom the Mamlatdar's
decision is passed from recovering by a suit in a
competent Civil Court mesne profits for the time he has
been kept out of possession of any property or out of
enjoyment of any use :
Provided, secondly, that in any subsequent suit or
other proceeding in any Civil Court between the same
parties, or other persons claiming under them, the
Mamlatdar's decision respecting the possession of any
property or the enjoyment of any use or respecting the
title to or valuation of any crop dealt with under the
proviso to sub-section (1) of section 21, shall not be
held to be conclusive."
A bare perusal of the provision would clearly indicate that irrespective of
the decision of the Mamlatdar under section 5(2), a party may approach
10 SA / 111 / 2017
a civil court and obtain any relief even contrary to the decision of the
Mamlatdar setting it at naught.
15. To conclude, no substantial question of law arises in this
appeal. The scope for causing interference by invoking powers under
section 100 of the Code of Civil Procedure being limited and the
concurrent observations and the conclusions of the courts below being
based on plausible appreciation of the evidence on record, this court
cannot cause any interference.
16. The Appeal is dismissed.
[ MANGESH S. PATIL, J. ]
arp/
