Bombay High Court
Bhimraj Bansi Bhusal And Another vs Shivaji Namdev Bhusal And Others on 17 May, 2022
Bench: S. G. Mehare
WP-5436-2022.odt
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 5436 OF 2022
Bhimraj Bansi Bhusal and another ... Petitioners
Versus
Shivaji Namdev Bhusal and others ... Respondents
....
Mr. Satyajeet S. Dixit, Advocate for petitioners
....
CORAM : S. G. MEHARE, J.
(VACATION COURT)
DATED : 17th MAY, 2022
PER COURT :-
. Heard the learned Counsel for the petitioners.
2. Issue notice to the respondents, returnable on 24 th June
2022.
3. The petitioners have challenged the order dated
11.05.2022 passed by the learned District Judge-3, Sangamner,
District Ahmednagar below Exh.5 in Regular Civil Appeal No.21 of
2022.
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4. The present respondents have preferred R.C.A. No.21 of
2022 against the judgment and decree dated 02.03.2022 passed by
the Joint Civil Judge, Junior Division, Sangamner in Regular Civil
Suit No.348 of 2013. The suit was decreed, and the injunction was
issued against the present respondents, and it was declared that the
road is not in existence in the suit property.
5. The respondents have filed an application under Order
41 Rule 5 of the Code of Civil Procedure to stay execution,
implementation and operation of the impugned judgment and
decree dated 02.03.2022.
6. The learned Counsel for the petitioners would submit
that in the meantime, one new proceeding under the provisions of
the Mamlatdar Court Act was opened by one Sulaji Parbat Bhusal
and Shrikisan Vishwanath Bhusal under Section 5 of the Mamlatdar
Court Act, 1906, claiming the existence of the same road, which the
Civil Court has declared that it is not in existence. The Tahsildar
allowed the application filed by Sulaji Parbat Bhusal and Shrikisan
Vishwanath Bhusal on 15.06.2018. The present petitioners had
challenged the said order before the Deputy Collector, Ahmednagar.
The Deputy Collector, Ahmednagar, has disposed of the appeal,
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observing that as per Section 26(B) of the Mamlatdar Court Act, the
suit is filed in Civil Court, no application or suit can be made under
Section 5 of the Mamlatdar Court Act. The present petitioners have
also filed one more suit bearing R.C.S. No.1250 of 2018 against
Sulaji Parbat Bhusal and Shrikisan Vishwanath Bhusal and the same
is pending.
7. The learned Counsel for the petitioners vehemently
argued that the second proceeding before the Mamlatdar Court filed
by Sulaji Parbat Bhusal and Shrikisan Vishwanath Bhusal as no
concern with the suit filed against the present respondents. However,
the learned District Judge has committed an error of law in
considering two separate proceedings and recorded an illegal finding
that the road is in existence and since the date of the suit, no
temporary injunction was passed in favour of the plaintiffs during
the pendency of the suit. He also argued that the learned District
Judge-3, Sangamner, has exceeded jurisdiction by passing the
impugned order directing the petitioners to remove the obstruction
created by them in a disputed way after passing the decree within
seven days from the date of passing of the said order. The Court has
also given liberty to the present respondents to remove the
obstruction on their own after seven days. The learned District Judge
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in the meantime, has also passed the order directing the parties to
keep the situation as it is immediately before passing the decree in
R.C.S. No.348 of 2013 dated 02.03.2022 till the decision of the said
appeal.
8. It appears that the learned District Judge-3, Sangamner,
has got some confusion about the proceeding under the Mamlatdar
Court Act. It is really strange to note observations of the learned
District Judge-3 that since the filing of the suit, there was no
injunction in favour of the present petitioners during the pendency
of the suit, and the Mamlatdar has observed that the road is in
existence and has been blocked by the respondents. Apparently, the
learned District Judge-3, Sangamnerhas not considered the law as
regards the decree, which is passed on merit. However, surprisingly
District Judge-3 appears to have erroneously observed that the
situation immediately before passing the decree in the impugned
judgment should be restored.
9. Upon going through the impugned order, there appears
no application of mind. The decree of the Court must be respected.
The impugned order is nothing but the exceeding the jurisdiction,
hence is liable to be stayed. Hence, I pass the following order:
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10. The order dated 11.05.2022 passed by the learned
District Judge-3, Sangamner, below Exh.5 in R.C.A. No.21 of 2022 is
hereby stayed until further orders.
11. Parties to act upon an authenticated copy of this order.
[ S. G. MEHARE, J. ]
SMS
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