[Cites 16, Cited by 0]
Bombay High Court
Giridhar Jagdevrao Suryawanshi And ... vs The State Of Maharashtra Through The ... on 17 December, 2025
2025:BHC-AUG:35726
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.5104 OF 2025
1. Giridhar Jagdevrao Suryawanshi
2. Sachin Giridhar Suryawanshi
3. Namdev Giridhar Suryawanshi
4. Laxmibai Giridhar Suryawanshi ... PETITIONERS
VERSUS
1. The State of Maharashtra
through The Secretary of Revenue
and forest Department,
Mantralaya, Mumbai.
2. The Tahsildar and Mamlatdar,
Himayatnagar, Dist. Nanded
3. Ramesh S/o. Sheshrao Suryawanshi,
4. Surekha Sheshrao Suryawanshi,
5. Kailash Nanarao Suryawanshi,
6. Anand Bhaurao Suryawanshi,
7. Kishan Shriram Suryawanshi,
8. Ashabai Sambhaji Suryawanshi
9. Rekhabai Mahesh Suryawanshi ... RESPONDENTS
...
Advocate for the Petitioners : Mr. Suraj R. Bagal
AGP for Respondents No.1 and 2 : Mr. P.K. Lakhotiya
Advocate for Respondents No.3 to 9 : Mr. S.N. Janakwade
...
CORAM : ABASAHEB D. SHINDE, J.
Reserved on : 25.11.2025
Pronounced on : 17.12.2025
JUDGMENT ( ABASAHEB D. SHINDE, J.) :
1. Heard. Rule. Rule is made returnable forthwith. With the
consent of the parties the matter is heard finally at the stage of
admission.
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2. By the present writ petition under Article 227 of the
Constitution of India, the petitioners are taking exception to the order
dated 25.11.2024 passed by learned Tahsildar, Himayatnagar, District
Nanded bearing Outward No.2024/JAMA-1/Rasta Case/CR, thereby,
directing the petitioners to remove an obstruction on the disputed road
under Section 5(2) of the Mamlatdar's Court Act, 1906 (herein after the
Act of 1906) as well as the order dated 01.04.2025 passed by the learned
Sub-Divisional Officer, Aadgaon in file No.2024 / Revision / Dudhad /
Himayatnagar/CR-66, by which the revision filed by the petitioners
against the order passed by the learned Tahsildar came to be dismissed.
3. Learned counsel for the petitioners has advanced the
following submissions :
i. The petitioners are the owners of land Gut No.136, 137, 138
and 238, whereas, the respondents No.3 to 9 are owners of Gut
Nos.239, 240, 244, 135 and some portion of Gat No.136
situated at village, Dudhad, Taluka Himayatnagar, District
Nanded.
ii. In the year 2019 when similar proceedings under the Act of
1906 were filed by the respondents No.3 to 9, in that
proceeding it was decided that 5 feet each from the lands of
petitioners and the respondents No.3 to 9 would be utilized for
the purpose of approach road making it total of 10 feets.
iii. Despite having agreed in the proceeding of 2019 that 5 feet
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each lands belonging to the petitioners and the respondents
were to be utilized for making total 10 feet road, the
respondents No.3 to 9 filed the present proceeding in 2024
which is not maintainable more so when the respondent no. 3
to 9 have an alternate road.
iv. Initially the respondents No.3 to 9 have filed a simple
application before the learned Tahsildar on 12.06.2024,
however, later on the Tahsildar entertained the subsequent
filing of plaint which was not initially filed and thus filing of
subsequent copy of plaint itself is contrary to the provisions of
Section 7 to 10 of the Act of 1906.
v. The proceeding in the nature of suit filed by the respondents
No.3 to 9 was barred by Section 26(2) of the Act of 1906.
vi. The learned Tahsildar decided the proceedings filed by
respondents No.3 to 9 on the basis of the so called Panchanama
which is impermissible as the proceeding under Section 5(2) of
the Act of 1906 needs to be decided like a suit filed in a civil
court.
vii. It is also contended that considering the scheme of the Act of
1906, the proceedings need to be decided like a suit filed in a
civil court by permitting the parties to lead the oral evidence by
allowing the parties to cross-examine the witnesses and this
exactly what is missing in the present proceeding and therefore
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the Tahsildar should not have decided the matter without
permitting the petitioners to cross-examine the witnesses. The
Sub-Divisional Officer committed an error in confirming the
order passed by the Tahsildar mechanically, without application
of mind.
viii. To buttress his submission the learned counsel for the petitioners
relied on the following judgments :
i. Sudhir Yashwant Dhangade Vs. Ankush Kashiram Bole and
Ors.; 2019 (1) ALL MR 825.
ii. Ajay Nandkishor Bhailume and Ors. Vs. The Sub-Divisional
Officer and Ors.; (WP No.7606/2020 passed on
08.02.2021).
iii. Sanjay Keshav Bhoite and Ors. Vs. The Collector,
Ahmednagar and Ors.; (WP No.6640/2022 passed on
29.06.2022).
iv. Tarabai Ravsaheb Chaudhari and Ors. Vs. The State of
Maharashtra and Ors.; (WP No.6074/2018 with connected
civil applications, passed on 05.07.2022).
v. Anusaya Shivaji Fattepure and Ors. Vs. Raosaheb
Anandrao Ingale and Ors.; (WP No.11136/2021 passed on
03.01.2024).
4. Per contra, the learned counsel for the respondents No.3 to 9
advanced his submission as follows :
i. Though in the proceeding initiated in the year 2019, a road of
10 feet was agreed to be used for approaching the agricultural
land of the respondents No.3 to 9, however, the petitioners
again created obstruction and therefore the respondents No.3
to 9 were constrained to file present proceedings in 2024.
ii. As far as the earlier application filed on 12.06.2024 by the
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respondents No.3 to 9 before the Tahsildar is concerned, the
Tahsildar after having found that the respondents No.3 to 9
have cause of action in filing the application, permitted the
respondents No.3 to 9 to file proper application in the nature of
plaint which is in accordance with law.
iii. The proceedings filed by the respondents No.3 to 9 cannot be
said to be barred by Section 26(2) as the said bar operates in
respect of filing of the suit and not the proceedings under
Section 5(2) of the Act of 1906.
iv. Regarding contention that the proceedings under Section 5(2)
of the Act of 1906 cannot be decided merely on the basis of
Panchanama is concerned, it is submitted that when the
Panchanama on the basis of which the learned Tahsildar has
arrived at a conclusion of obstruction created by the
petitioners, the petitioners were present and have signed on the
said Panchanama. The Panchanama also shows that the
respondents no. 3 to 9 do not have alternate road.
v. So far as the contention that the petitioners were not permitted
to cross-examine the witnesses is concerned, the proceedings
under Section 5(2) being summary in nature and the fact that
the petitioners have not availed opportunity of making an
application to cross-examine, precludes the petitioners from
raising the said ground. To substantiate the submissions, the
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learned counsel for the respondents relied on the following
judgments:
i. Vishwanath Rambhaji Bhalerao and Anr. Vs. Usha Pralhad
Kasbe ; 2011 (1) AIR Bom R 376.
ii. Shriram Abhiman Nafade and Ors. Vs. The State of
Maharashtra and Ors. (WP No.3923/2021 passed on
14.07.2021).
iii. Gangadhar Vs. Kiran Chandrakant Bhapkar and Ors.; 2022
DGLS (Bom.) 647
iv. Madan Shenphad Ghayvat and Ors. Vs. Sub-Divisional
Officer and Ors.; 2023 DGLS (Bom.) 4589.
v. Vikram Madhavrao Shinde and Anr. Vs. The Sub-Divisional
Officer, Hadgaon and Ors.; (WP No.13029/2025 passed on
03.11.2025).
vi. Rajeshwar Murlidhar Salgaonkar Vs. Bhaskar Babarao
Gadhave ; (WP No.9994/2025 passed on 16.09.2025).
5. Having considered the submissions advanced and the
judgments relied upon by the learned counsel for the petitioners as well
as the respondents No.3 to 9 and after going through the documents
annexed with the writ petition and the affidavit-in-reply, so also the order
impugned, following points arises for consideration :
I. Whether the orders impugned are legal and proper.
II. Whether any interference is called for in the impugned orders.
6. Before adverting to the submissions advanced by the learned
counsel for the petitioners as well as learned counsel for the respondents
it would be apt to consider the scheme of Section 7 to 10 of the Act of
1906 which reads as under :
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Section 7. Suits commenced by plaint. Contents of plaint :
All suits under this Act shall be commenced by a
plaint, which shall be presented to the Mamlatdar in open
Court by the plaintiff, and which shall contain the following
particulars : --
(a) the name, age, religion, caste, profession, and place of
abode of the plaintiff;
(b) the name, age, religion, caste, profession and place of
abode of the defendant;
(bb) the nature and situation of the impediment erected
and the situation of the lands which are adjacent to
each other and the nature of the relief sought;
(c) the nature and situation of the property of which
possession for use is sought, or the nature of the
injunction to be granted, as the case may be;
(d) the date on which the cause of action arose;
(e) the circumstances out of which the cause of action
arose; and
(f) a list of the plaintiff's documents, if any, and of his
witnesses, if any, showing what evidence is required from
each witness, and whether such witnesses are to be
summoned to attend, or whether the plaintiff will produce
them on the day and at the place to be fixed under
Section 14.
Section 8. Informal petitions to be treated as plaints :
Where a petition not in the form of a plaint is
presented to the Mamlatdar and the subject matter thereof
appears to fall within the scope of section 5, the Mamlatdar
shall explain to the person presenting the petition the
nature of the reliefs afforded by this Act and shall inquire
whether the petitioner desires to obtain relief thereby. If the
petitioner expresses a desire so to obtain relief, the
Mamlatdar shall endorse the desire on the petition which
shall thereupon be deemed to be a plaint presented under
section 7.
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Section 9. Examination of Plaintiff on oath :
Where the plaint does not contain the particulars
specified in section 7 or is unnecessarily prolix, the
Mamlatdar shall forthwith examine the plaintiff upon oath
and ascertain from him such of the particulars specified in
section 7 as are not clearly and correctly stated in the
plaint, and shall reduce the examination to writing in the
form of an endorsement on or annexure to the plaint which
shall thereupon be deemed to be part of the plaint. Where
the plaintiff requires time to obtain any of the particulars
specified in section 7, the Mamlatdar shall grant him such
time as may under all the circumstances appear reasonable.
Section 10. Plaint to be subscribed and verified :
When the plaint is presented, and has, if necessary,
been treated in the manner specified in section 9, the
Mamlatdar shall require the plaintiff to subscribe and verify
the plaint in his presence, in open Court, in the manner
following, or to the like effect: "I, A. B., the plaintiff, do
declare that what is stated in this plaint is true to the best of
my information and belief."
7. From the scheme of Sections 7 to 10 Act of the 1906,
it is clear that the Mamlatdar is supposed to treat an application
filed before it as a pleading and ascertain as to whether it is
necessary to decide the said application in accordance with
provisions of Act of 1906. In the present case, the learned
Tahsildar after finding that there is a cause of action for the
respondents No.3 to 9 in making an application under Section
5(2) of the Act of 1906 have allowed the respondents No.3 to 9
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to file an application as per Section 7 and 8 of the Act of 1906.
The applications and the plaint filed by the respondents No.3 to
9 shows cause of action to file the same as the petitioners have
caused obstruction on the disputed road.
8. I find that proceedings before the Tahsildar under
the Act of 1906 are summary in nature where the Tahsildar is
supposed to ascertain from the pleadings filed by both the
parties and also after carrying out the Panchanama, as to
whether there is any obstruction created on the disputed road.
In the present case when the Panchanama was carried out, both
the petitioners as well as the respondents No.3 to 9 were present
along with other persons and all of them have signed on the
Panchanama and, therefore, the petitioners cannot be allowed to
raise any grievance about the Panchanama.
9. As observed earlier, the proceedings under the Act of
1906 being summary in nature, any order passed is subject to
the order passed by the competent civil court and in the present
case admittedly, the petitioners themselves have filed Regular
Civil Suit No.111/2024 before Civil Judge, Junior Division,
Himayatnagar, against the respondents No.3 to 9 thereby
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seeking perpetual injunction that the respondents are not
entitled to use the disputed road and that the respondents No.3
to 9 shall not cause obstruction in respect of the disputed road.
Considering the fact that the petitioners have already filed
Regular Civil Suit No.111/2024 for perpetual injunction against
the respondents No.3 to 9, even if the orders passed by the
Tahsildar and the Sub-Divisional Officer, are allowed to sustain,
the same would be subject to outcome of the Regular Civil Suit
No.111/2024.
10. I have perused the impugned orders passed by the
learned Tahsildar as well as Sub-Divisinal Officer and after going
through the impugned orders, I hold that the findings arrived at
by both the authorities are based on the spot inspection, the
panchnama drawn as well as concurrent appreciation of
evidence and, therefore, I do not find any reason to interfere
with the orders passed by both the Tahsildar as well as the Sub-
Divisional Officer. As far as the judgments relied upon by the
petitioners are concerned as observed above, since the
proceeding under the Act of 1906 are summary in nature and
always subject to the orders passed by the competent civil court
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as contemplated under Section 22 of the Act of 1906 and more
particularly when the Regular Civil Suit No.111/2024 is already
pending between the same parties, the orders passed impugned
would be subject to the outcome of the decision of the said civil
suit.
11. In that view of the matter, I do not find any reason to
interfere with the impugned orders as those are based on the
evidence available on record and this Court under Article 227 of
the Constitution of India cannot interfere with the concurrent
finding of facts, therefore the writ petition deserves to be
dismissed. The writ petition stands dismissed. Rule is
discharged.
(ABASAHEB D. SHINDE, J.)
habeeb/
