[Cites 14, Cited by 0]
Bombay High Court
Santosh Punjahari Khire And Others vs Rajendra Vithal Pawar And Others on 16 December, 2025
2025:BHC-AUG:35425
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14966.25WP
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.14966 OF 2025
1] Shri Santosh Punjahari Khire,
Age : 37 years, Occ. Agri,
R/o. Chendufal, Tq. Vaijapur,
Dist : Chhatrapati Sambhajinagar.
2] Shri Sanjay Punjahari Khire,
Age : 42 years, Occ. Agri,
R/o. Chendufal, Tq. Vaijapur,
Dist : Chhatrapati Sambhajinagar.
3] Shri Dnyaneshwar Mahadu Pawar,
Age : 52 years, Occ. Agri,
R/o. Chendufal, Tq. Vaijapur,
Dist : Chhatrapati Sambhajinagar. .. PETITIONERS
VERSUS
1] Shri Rajendra Vithal Pawar
Age : 52 years, Occ. Agri,
R/o. Shrirampur, Tq. Shrirampur,
Dist. Ahilyanagar.
2] Shri Babasaheb Ashok Gahire,
Age : 52 years, Occ. Agri,
R/o. Chendufal, Tq. Vaijapur,
Dist : Chhatrapati Sambhajinagar.
3] Shri Babasaheb Jagannath Lakare,
Age : 57 years, Occ. Agri,
R/o. Chendufal, Tq. Vaijapur,
Dist : Chhatrapati Sambhajinagar.
4] Shri Annasaheb Lakshman Lakare,
Age : 52 years, Occ. Agri,
R/o. Chendufal, Tq. Vaijapur,
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Dist : Chhatrapati Sambhajinagar.
5] Shri Pratap Jagannath Lakare,
Age : 57 years, Occ. Agri,
R/o. Chendufal, Tq. Vaijapur,
Dist : Chhatrapati Sambhajinagar.
6] Shri Tatyasaheb Parsram Kale,
Age : 67 years, Occ. Agri,
R/o. Chendufal, Tq. Vaijapur,
Dist : Chhatrapati Sambhajinagar.
7] Shri Devidas Tarachand Jagdale,
Age : 52 years, Occ. Agri,
R/o. Chendufal, Tq. Vaijapur,
Dist : Chhatrapati Sambhajinagar.
8] Shri Mukund Bhaskar Pathe,
Age : 39 years, Occ. Agri,
R/o. Near Ganpati Temple, Tq. Gangapur,
Dist : Chhatrapati Sambhajinagar.
9] Shri Balasaheb Khaserao Shete,
Age: 72 years, Occ. Agri,
R/o. Newargaon, Tq. Gangapur,
Dist. Chhatrapati Sambhajinagar.
10] Shri Lahu Sitaram Barde,
Age : 52 years, Occ. Agri,
R/o. Chendufal, Tq. Vaijapur,
Dist : Chhatrapati Sambhajinagar.
11] Shri Subhash Sitaram Barde,
Age : 52 years, Occ. Agri,
R/o. Chendufal, Tq. Vaijapur,
Dist : Chhatrapati Sambhajinagar.
12] Shri Sunil Fakirchand Mundhare,
Age : 57 years, Occ. Agri,
R/o. Near Army Camp, Bhagur,
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Tq. Dist. Nashik
[Respondent no. 1 to 12 are the Appellant
in M.C.A.No.54/2025]
13] Shri Abhijeet Ashok Galande,
Age : 45 years, Occ. Agri.
R/o. Chandufal, Tq. Vaijapur,
Dist : Chh. Sambhajinagar.
14] Shri Sanjay Vitthal Pawar,
Age : 55 years, Occ. Agri,
R/o. Rahuri, Tq. Rahuri,
Dist : Ahilyanagar.
15] Shri Suresh Sambhaji Dimbar,
Age: 50 years, Occ. Agri,
R/o. Chendufal, Tq. Vaijapur,
Dist. Chh. Sambhajinagar.
16] Shri Kadu Eknath Kadam,
Age: 60 years, Occ. Agri,
R/o. Newargaon, Tq. Vaijapur,
Dist. Chh. Sambhajinagar.
17] Shri Vidhatai Kisan Mule,
Age: 50 years, Occ. Agri,
R/o. Chendufal, Tq. Vaijapur,
Dist : Chh. Sambhajinagar.
18] Shri Rajendra Machhindra Kanghare,
Age: 50 years, Occ. Agri,
R/o. Near Vaijapur Market Committee,
Zopadpatti, Tq. Vaijapur
Dist. Chh. Sambhajinagar.
19] Shri Ramesh Fakirchand Mundhare,
Age: 60 years, Occ. Agri,
R/o. Near Army Camp, Tq. Bhagur,
Dist. Nashik.
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14966.25WP
20] Shri Vilas Punjaram Parve,
Age :52 years, Occ. Agri,
R/o. Bhatgaon, Tq. Yeola,
Dist : Nashik.
21] Talathi, Saja Newaragaon
Tq. Gangapur,
Dist : Chh. Sambhajinagar.
22] Mandal Officer,
Revenue Mandal Manjri, Gangapur,
Dist : Chh. Sambhajinagar.
23] Tehsildar, Gangapur
Dist : Chh. Sambhajinagar.
[Respondent no.13 to 23 are original
Respondent in M.C.A.No. 54/2025 and all the
respondents are original Respondent in R.C.A.
No.369/2023]
[Notices to were only issued to petitioners and
not to other respondents in M.C.A.No.54/2025]
...RESPONDENTS
...
Mr.V.D.Sapkal, Senior Advocate i/b.Mr.A.D.Khedkar,
Advocate for the petitioners.
Mr.K.B.Jadhavar, AGP for the respondent-State.
Mr.V.D.Salunke, Advocate for the respondent Nos. 1 to 3
and 7.
...
CORAM : ARUN R. PEDNEKER, J.
DATE : 16.12.2025
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14966.25WP
ORDER :
1] By the present writ petition, the petitioners
challenge the impugned order dated 01.12.2025 passed by
the appellate Court in M.C.A.No. 54/2025 whereby the
Appellate Court has set aside the order of trial Court,
granting injunction in favour of the petitioners and further
directing the authorities not to implement order dated
21.04.2023 of the Mamlatdar passed under Section 5 of the
Mamlatdars' Courts Act. The Appellate Court has dismissed
the injunction application and directed the plaintiffs not to
obstruct the pathway of the respondents.
Facts leading to filing of the present writ
petition in brief are summarized as under :
2] The respondents are the owners in possession of
the agricultural lands Gat Nos.44, 45, 46, 47, 48 and 53. All
the lands are Bagayat, irrigated on Godavari river. The
petitioners are the owners of the land Gat Nos.52 and 55
respectively. The respondent nos. 1 to 20 filed an
application before the Mamlatdar under Section 5 of the
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Mamlatdars' Courts Act contending therein that the
petitioners have obstructed the road - cart way leading to
their agricultural lands and that the directions be issued to
the petitioners to remove obstructions and open the road.
The said application was contested and the orders were
passed by the Mamlatdar directing opening of the road after
conducting spot inspection and panchanama. The order of
the Mamlatdar is challenged in the civil suit by contending
that the Mamlatdar has not followed the provisions of the
Mamlatdars' Courts Act, as such, prayed for setting aside
the order of the Mamlatdar. True translation of the prayers
made in Regular Civil Suit No.369/2023 are as under:
b) The panchanama dated 07/01/2023 prepared by the
Tahsildar and Circle Officer in respect of the private road
belonging to and in possession of the plaintiffs as mentioned
in paragraph No.2 of the plaint, the Report dated
11/01/2023 forwarded to the Tahsil Office, and the Order
dated 21/04/2023 passed by the Tahsildar, Gangapur
(defendant No.23) be declared illegal and the same be
permanently quashed.
c) Defendant nos. 1 to 20, their relatives, well-wishers,
labourers or any other persons, in collusion with defendant
Nos. 21 to 23, be permanently restrained by a perpetual
injunction from coming to Gat No. 52 and 55 and the
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disputed road and from forcibly encroaching upon or creating
any obstruction on the private road belonging to and in
possession of the plaintiffs, pursuant to the order dated
21/04/2023.
3] In the said suit, the interim application for
injunction was also filed. True translation of the above
prayers made in the application for injunction are as under:
b) That pursuant to the order dated 21/04/2023,
defendant Nos.1 to 20, their relatives, well-wishers, labourers
or any other persons, in collusion with defendant Nos. 21 to
23, be restrained by a temporary injunction from forcibly
encroaching upon or creating any obstruction on the private
road belonging to and in the possession of the plaintiffs
situated at Gat No. 52 and 55 and the disputed road, till the
final disposal of the original suit.
c) That defendant nos. 21 to 23 be restrained by a
temporary injunction from implementing / enforcing the said
order dated 21/04/2023 till the final disposal of the original
suit, thereby protecting the rights of the plaintiffs.
4] Considering the material placed on record and
particularly non following of the proper procedure by the
Mamlatdar while passing the order under Section 5 of the
Mamlatdars' Courts Act, the trial Court, by order dated
29.07.2025, allowed the injunction application (Exh.5)
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against the respondent nos.1 to 20 by directing that the
order dated 21.04.2023 passed by the Mamlatdar,
Gangapur should not be implemented till the final disposal
of the suit.
5] The said order dated 29.07.2025 passed in
Exh.5 application of the Civil Judge was challenged by the
respondents before the Appellate Court and the Appellate
Court, by order dated 01.12.2025 set aside the order dated
29.07.2025 passed by the Civil Judge and further gave
certain directions against the petitioners-plaintiffs not to
obstruct road used by the respondents and also restrained
the Mamlatdar/authorities not to expand the road to 10 ft.
by removing obstruction as directed by the Mamlatdar,
during the pendency of the suit.
6] Challenging the above order dated 01.12.2025
of the District Court, the learned counsel for the petitioners
submits that the order of the Mamlatdar under the
Mamlatdars Courts Act granting road is prima facie illegal
as he had not followed the provisions of Section 7 and 8 of
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the Mamlatdars' Courts Act, as such, the petitioners have
challenged the order of Mamlatdar passed under Section 5
of the Mamlatdars' Courts Act in the civil suit. The
petitioners have also filed application for injunction and the
said application was allowed by the trial Court. He further
submits that the Appellate Court while setting aside the
order of injunction deviated well settled principle of grant
of injunction and further erred in issuing direction against
the petitioners without any counter claim by the
respondents. He submits that at best the Appellate Court
could have dismissed the injunction application and not
grant any direction against the petitioners. The learned
counsel for the petitioner relies upon the judgments in the
case of Manohar Lal (Dead) by LRS. Vs. Ugrasen (Dead) By
LRS. And others reported in [2010] 11 SCC 557, in the case
of Mohommad Rahim Khan Vs. Shankar Maroti Dhage and
another reported in 2017 DGLS (Bom.) 235, in the case of
Vasudev Pandharinath Raikar and others Vs. Manoj Mohan
Dalvi and others reported in 2018 DGLS (Bom.) 801, in the
case of Rajendra Sheshrao Shendge Vs. Shobhatai Shrirao
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Ravate and anr. reported in 2007 (Supp.) Bom.C.R. 547, in
the case of Dinkar Kisan Khedkar Vs. State of Maharashtra
and others reported in 2025 DGLS (Bom.) 2506, so also, in
the case of Vimal Bhausaheb Nabde Vs. The Sub Divisional
Officer, Ahmednagar & others in Writ Petition No.5074 of
2022 along with connected writ petitions, decided on 4 th
August, 2025.
7] Per contra, the learned counsel for the
respondents submits that the Mamlatdar has exercised its
authority in accordance with law under Section 5 of the
Mamlatdars' Courts Act and has directed removal of
obstruction and there can be no appeal against the order of
the Mamlatdar before the Civil Court as no statutory right of
appeal is provided under the Mamlatdars' Courts Act before
the Civil Court. However, Section 22 of the Mamlatdars'
Courts Act provide that any order passed by the Civil Court
in exercise of its ordinary civil jurisdiction qua the same
subject matter would oust the order passed by the
authorities constituted under the Mamlatdars' Courts Act
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and the order of the Mamlatdar cannot be challenged as an
appellate remedy before the civil court. He further submits
that notwithstanding above legal position, if it is assumed
that such order of Mamlatdar under Section 5 can be
challenged before the Civil Court, in the facts of the instant
case, the findings of the Mamlatdar, so also, the trial Court
and also the Appellate Court are that the petitioners have
obstructed the government road and the road is not a
private road owned and possessed by the plaintiffs-
petitioners. He further submits that the petitioners -
plaintiffs have absolutely no right over the property on
which right of road is claimed as the same is government
road and is supported by the documentary evidence and
similar is the findings of all the authorities. In absence of
any right vested in favour of the petitioners-plaintiffs qua
road, injunction not to use the road cannot be granted
against the respondents at the instance of the petitioners.
8] Having considered the rial submissions, this
Court while dealing with the issue of challenge to the order
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of Mamlatdar under Section 5 of the Mamlatdars' Courts
Act before the Civil Court, in the case of Mohommad Rahim
Khan Vs. Shankar Maroti Dhage and another reported in
2017 DGLS (Bom.) 235 this Court dealt with question of
law in Second Appeal at para no.3 (b) as under :
b) Whether civil suit lies against the order passed by the
Mamlatdar's Court under the Mamlatdar Courts Act, 1906?
9] In the aforesaid judgment of Mohommad Rahim
Khan [supra], this Court has observed that in the absence of
such finality being attached to the order passed under the
Act, the jurisdiction of the Civil Court cannot be held to be
impliedly barred merely because the Act provides a separate
machinery for getting the grievance redressed. The ouster of
the plenary jurisdiction of Civil Court cannot be readily
interfered and such jurisdiction remains intact and available
to be exercised either against the order under section 5 or
against the order of revision under section 23 of the said
Act.
10] It is further observed in the said judgment that
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the Mamlatdars' Courts Act presupposes and recognizes
existence and continuation of powers and jurisdiction of
Civil Court. The scheme provides for a summary jurisdiction
and powers.
11] The facts in the case of Mohommad Rahim
Khan [supra] indicate that injunction was granted in favour
of the plaintiff as the plaintiff therein had claimed that the
defendant had no right of way from his land. Similar view is
taken by the Bombay High court in the case of Vasudev
Pandharinath Raikar and others Vs. Manoj Mohan Dalvi and
others reported in 2018 DGLS (Bom.) 801 wherein it is
observed that the Civil Court has jurisdiction to entertain,
try and decide the suit challenging the order passed under
Section 5 of the Mamlatdar's Courts Act. This Court in the
case of Vimal Bahusaheb Nabde Vs. the Sub Divisional
Officer in Writ Petition No.5074 of 2022 along with
connected writ petitions, decided on 04.08.2025 has
observed that remedy of civil suit is available in order to
challenge orders passed by the authorities under the
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Mamlatdars' Courts Act and that the said remedy is more
meaningful and effective remedy.
12] This Court in the case of Mangalabai Vitthal
Jadhav and another Vs. Manisha Gokul Jadhav and others
in Second Appeal St. No.25760/2018, decided on
10.12.2018 and in the case of Baban @ Nainsukh Dagadu
Kurandale and another Vs. Dattu Sadashiv Kurandale and
others in Writ Petition No.4425/2021, decided on
05.07.2022 has held that whenever a civil suit is filed with
respect to a matter which is decided by a Mamlatdar or the
Collector in exercise of revisional powers under the Act, the
Civil Court should decide the suit on its own merits in the
light of evidence brought before it and that it cannot decide
the suit as if it is deciding an appeal against order passed by
the Mamlatdar or the Collector.
13] In the case of Dinkar Kisan Khedkar Vs. State of
Maharashtra and others reported in 2025 DGLS (Bom.)
2506, this Court has discussed the view taken in the case
of Vimal Bhausaheb Nabde [supra] and referred the
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following question for determination to the Larger Bench, as
under :
"Whether filing of civil suit is a remedy available for
challenge to the merit of orders passed by the authorities
under the Mamlatdars' Courts Act, in case where the
orders passed are not sought to be declared as nullity?"
14] In view of the various conflicting judgments on
this aspect, the issue is now referred to the Larger Bench i.e.
whether the Civil Court can examine the order passed by
the Mamlatdar under Section 5 of the Mamlatdars' Courts
Act on merits in a civil suit. In the present case also the Civil
Suit is filed challenging the order of the Mamlatdar.
15] However, since there is disputed legal position
on the aspect of remedy of civil suit to challenge the order
of the Mamlatdar on merits, for the purpose of deciding this
petition, I have proceeded to examine the issues on merits.
16] Coming to the issue i.e. whether injunction was
rightly refused by the Appellate Court, the findings recorded
by both the Courts below including the trial Court is that
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there exist a shivrasta (road) from the boundary of field of
the petitioners-plaintiffs going to the field of the
respondents and the shivrasta (road) is owned by the
government. The finding of ownership of shivrasta (road) is
based on documentary evidence. Considering the prima-
facie finding of fact that the road is a public road owned by
the Government, the petitioners have no independent right
over the property i.e. the Government road on which the
petitioners are seeking injunction. The petitioners cannot
claim any injunction qua respondents-defendants to use
government road and that the petitioners have no right over
the land. Thus, the order of the Appellate Court refusing
injunction cannot be faulted with.
17] As regards second submission of the petitioners,
no directions ought to have been made against the plaintiffs
by the Appellate Court while rejecting the application below
Exh. 5. It is to be noted that the observations / directions
made by the Appellate Court are partly in favour of the
petitioners and the direction is only to keep road as it is in
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existence and not to open the road to the extent of 10 feet
as directed by the Mamlatdar. Further direction is issued to
the plaintiffs not to obstruct respondents from using the
road. If the injunction application is simplicitor dismissed,
the order of the Mamlatdar would remain in force with
direction to open 10 feet road. Thus, the directions of the
Appellate Court are partly in favour of the petitioners and
are thus not interfered with.
18] Thus, no case is made out on merits and the
Writ Petition is accordingly dismissed.
[ARUN R. PEDNEKER]
JUDGE
DDC
