[Cites 19, Cited by 0]
Bombay High Court
Dipak Chandrabhan Gadhade/Gavande vs The State Of Maharashtra Thr Its ... on 12 February, 2026
2026:BHC-AUG:6216
(1) CRA 196 2025
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CIVIL REVISION APPLICATION NO. 196 OF 2025
Dipak Chandrabhan Gadhade/Gavande,
Age : 42 years, Occu :Agri.,
R/o : Kaudgaon Athre,
Tq. Pathardi, Dist.: Ahmednagar. ...APPLICANT
VERSUS
1. The State of Maharashtra
Through its Collector, Ahmednagar,
Collector office, Ahmednagar.
2. The Tahsildar,
Tahsil Office, Pathardi,
Dist- Ahmednagar.
3. The Circle officer,
Karanji, Tal- Pathardi,
Dist- Ahmednagar.
4. Bhimraj Nana Barde,
Age : 60 years, Occu : Agri.
5. Adinath Bhanudas Gadhade/Gavande.
Age : 40 years, Occu : Agri.
6. Balasaheb Bhika Shinde,
Age_ 52 years, Occu- Agril,
Res. No.4 to 6 R/o : Kaudgaon Athre,
Tq. Pathardi, Dist.: Ahmednagar. RESPONDENTS
(Res. No. 4 to 6
Original Plaintiffs)
7. Bhanudas Dhondiba Gadhade/Gawande,
Age- 64 years, Occu- Agril,
8. Lilabai Ramdas Umbare,
Age- 64 years, Occu- Agril,
(2) CRA 196 2025
9. Zumbarbai Suryabhan Thorat,
Age- 65 years, Occu- Agril,
R/o Kasar Pimpalgaon, Tal- Pathardi,
Dist. Ahmednagar.
10. Macchindra Nana Barde,
Age- 65 years, Occu- Agril,
11. Rangubai Shripati Mali,
Age- 66 yrs, Occu- Agril,
12. Gahininath Rama Shirsath,
Age- 60 years, Occu- Agril,
13. Mirabai Karbhari Shirsath,
Age- 65 years, Occu- Agril,
14. Sonaji Nana Barde,
Age- 65 years, Occu- Agril,
Res. No.6 to 7 & 9 to 14 R/o : Kaudgaon Athre,
Tq. Pathardi, Dist.: Ahmednagar. ....RESPONDENTS
(Original Defendants)
Shri. Jiwan J. Patil, Advocate h/f. Shri. R. S. Kasar, Advocate for
Applicant
Shri. S. V. Hange, AGP for Respondent Nos.1 to 3
Mrs. Suvarna M. Zaware, Advocate for Respondent Nos.4 to 6
CORAM : SHAILESH P. BRAHME, J.
RESERVED DATE : 03.02.2026
PRONOUNCED DATE: 12.02.2026
JUDGMENT :
-
1. Heard both sides finally.
(3) CRA 196 2025
2. Applicants are challenging order below Exhibit-19 passed
on 30.07.2025 refusing to reject the plaint in Regular Civil Suit No.525
of 2024. The suit was filed by respondent nos.4 to 6 for declaration
that the order dated 15.02.2023 passed in Rasta Case No.24 of 2020
by the Tahsildar is bad in law.
3. Applicants - defendants sought rejection of plaint vide
application Exhibit-19 on the ground of maintainability of the suit
under Section 143 of the Maharashtra Land Revenue Code, 1966
(hereinafter referred to as 'the Code') and that the suit is barred by
limitation in view of Section 143(4) of the Code. It was contested by
respondent nos.4 to 6. The application is rejected by the impugned
order.
4. Mr. Jiwan J. Patil, learned counsel appearing for the
applicants submits that the suit for challenging order dated
15.02.2023 in Rasta Case No.24 of 2020 is not tenable as recourse to
remedy of RTS Appeal no.79 of 2023 was being taken. It is submitted
that the remedies provided by the Code under Section 143 of the Code
are mutually exclusive. It is further submitted that the suit has not
been filed within one year from the date of the order of Tahsildar
(4) CRA 196 2025
which is barred by Section 143(4) of the Code. It is submitted that the
judgment of the Coordinate Bench in Jarasand s/o Suryabhan Borkar
vs. Bhagwat s/o Suryakant Kale and Others in Civil Revision
Application No.146 of 2022 is distinguishable on facts and will not
help the respondent.
5. Per contra, Ms. Suvarna Zaware, learned counsel for
respondent nos.4 to 6 would submit that it is not the limitation
provided under Section 143(4) that would apply, but the suit is
governed by Article 58 and 113 of the Limitation Act, 1963. She would
submit that the limitation would start from the date of the order of the
Appellate Authority and it is recurring. It is further submitted that it is
the choice of the party either to prefer the appeal under the Code or to
file the suit. It cannot be said that there is no cause of action and the
suit is not tenable. It is further submitted that respondent nos.2 to 4
have no any other remedy available and they are bonafide prosecuting
their suit. It is further submitted that in view of Section 14 of the
Limitation Act, 1963, the period during which RTS Appeal No.79 of
2023 remained pending needs to be excluded.
(5) CRA 196 2025
6. The controversy between the litigating sides pertains to
the easement to approach their respective lands. The applicant is the
owner of land bearing Gat No.106 and the respondents - plaintiffs are
the occupants of Gat Nos.120, 121 and 122 situated at Kaudgaon
Athare. The applicant had filed Rasta Case No.24 of 2020 under
Section 143 of the Code before the Tahsildar. His application was
allowed on merits, vide judgment dated 15.02.2023 holding that he
was having easement and the same shall not be obstructed by the
respondent - plaintiff. Being aggrieved, RTS Appeal No.79 of 2023 was
preferred before the Sub-Divisional Officer. Application Exhibit-5 was
rejected by the Appellate Authority on 10.06.2024. Later on, the
respondents withdrew the appeal on 20.08.2024.
7. In this backdrop, respondent nos.4 to 6 have filed Regular
Civil Suit No.525 of 2024 on 28.06.2024, challenging the order dated
15.02.2023 passed by the Tahsildar in Rasta Case No.24 of 2020. The
suit was not immediately filed after the adjudication by the Tahsildar.
8. It is relevant to refer to Section 143 of the Code which is
as follows :
"143. Right of way over boundaries.
(1) The Tahsildar may inquire into and decide claims by
(6) CRA 196 2025
persons holding land in a survey number to a right of way
over the boundaries of other survey numbers.
(2) In deciding such claims, the Tahsildar shall have regard
to the needs of cultivators for reasonable access to their
field.
(3) The Tahsildar's decision under this Section shall, subject
to the provisions of sub-sections (4) and (5), be subject to
appeal and revision in accordance with the provisions of this
Code.
(4) Any person who is aggrieved by a decision of the
Tahsildar under this Section may, within a period of one year
from the date of such decision, institute a civil suit to have it
set aside or modified.
(5) Where a civil suit has been instituted under sub-section
(4) against the Tahsildar's decision, such decision shall not
be subject to appeal or revision."
9. The remedy of the appeal under the Code is provided by
Section 247, as per Schedule E of the Code. The orders passed by the
Tahsildar under sub-section (3) are susceptible to the appeal and
revision. A plain reading of Section 143 of the Code indicates that the
order of the Tahsildar can simultaneously be challenged by filing civil
suit. Once recourse is taken to the civil suit, it is impermissible to
fallback to the provisions of sub-section (3) to have recourse to remedy
of appeal under Section 247 of the Code.
10. In the present matter, the crucial question is as to whether
the plaintiffs, having taken recourse to the remedy of appeal under
(7) CRA 196 2025
Section 247, can take recourse to filing of the suit against the order of
the Tahsildar. The wording of sub-section (4) shows that the decision
of the Tahsildar is susceptible to the remedy of the civil suit. Had it
been the intention of the legislature to permit the aggrieved person to
file a suit even after the decision rendered by the Appellate and
Revisional Authority, the wordings "decision of the Tahsildar" would
not have appeared in sub-section (4). Sub-section (5) prohibits
recourse to appeal and revision, once a party approaches the Civil
Court against the Tahsildar's decision. The emphasis remains on the
Tahsildar's decision.
11. My attention is adverted by Mr. Jiwan Patil, learned
counsel for the applicant to the judgment of State of Rajasthan vs.
Union of India and Ors. reported in 2018(12) SCC 83 to buttress the
doctrine of election when two remedies are provided for litigant. It's
paragraph no.3 is as follows :
"3. After hearing the arguments of the learned counsel
for the parties, we find substance in the aforesaid
submission of the defendants. Even if we presume that the
suit was maintainable, at the same time the plaintiff also
had remedy of filing the statutory appeals etc. by agitating
the matter under the Finance Act. It chose to avail the
remedy under the Finance Act. The Doctrine of Election
would, therefore, become applicable in a case like this. After
(8) CRA 196 2025
choosing one particular remedy the plaintiff cannot avail
the other remedy as well, in respect of the same relief
founded on same cause of action."
12. Further reliance is placed on the matter of Jagannath
Ramu Mane & Ors vs. Shree Ram Bharma Bandgar & Ors. in Writ
Petition No.6340 of 2022 dated 30.11.2023. The facts are more akin to
the present case. The remedies provided under Section 143 of the
Code for the aggrieved party against the order of Tahsildar are
mutually exclusive. Following paragraphs are relevant :
"16. On perusal of Chapter IV of M.L.R.C., it appears that
the authority under the said Code is conferred the power of
fixation and demarcation of boundaries. Section 143 of
M.L.R.C. confers power to Tahsildar to decide claims by
persons holding land in a survey number to a right of way
over the boundaries of other survey numbers. Sub-section
(2) of Section 143 of the Code confers the power of
Tahsildar to decide the rationale claims having regard to the
needs of cultivators for reasonable access to their fields. Sub-
Section (3) of Section 143 of the Code states that such
adjudication by the Tahsildar shall, subject to the provisions
of sub-Sections (4) and (5), be subject to appeal and
revision in accordance with the provisions of this Code. Sub-
Section (4) confers the right of the aggrieved person to
institute a suit against the decision of Tahsildar within one
year from the date of such decision. Sub-Section (5) takes
away the right of the aggrieved person to institute the
appeal once the suit is decided as per sub-Section (4).
17. On a conjoint reading of the entire Section 143 of
M.L.R.C., it appears that the provision, in express words,
lays down one remedy to the exclusion of the other,
(9) CRA 196 2025
therefore, the party could resort to one of them at his
option. Concurrent remedies are available before different
authorities for the same purpose.
18. Where a person has a right to choose between two
remedies that are not co-existent but alternative and he
adopts one of those remedies, his Act immediately operates
as a bar as regards the other and the bar is final and
absolute. When two remedies are offered by a statute for the
challenging validity of the order, they may be held to the
alternatives if the two remedies are inconsistent with each
other or if the cause of action is exhausted by resorting to
one of them and obtaining satisfaction so that nothing
remains to be enforced by the other remedy.
21. The person aggrieved by the decision of the Tahsildar
has two remedies: first, to challenge the decision of the
Tahsildar by way of appeal under Section 247 of M.L.R.C., or
second, to file a civil suit against the decision of the
Tahsildar under Sub-Section (4) is explicit in its language
which makes the decision of Tahsildar subject to the civil
suit. The two options available to the aggrieved person are
mutually exclusive. Once the person exercises one option, he
is not entitled to exercise the remaining option. The
aggrieved person can challenge in the civil suit Tahsildar's
order or can file an appeal against the decision of Tahsildar.
Once such a person files an appeal and the Appellate
Authority decides such appeal on merits, the decision of
Tahsildar merges with the decision of the Sub Divisional
Officer (Appellate Authority). Once such a merger occurs,
Tahsildar's decision is no longer available for challenge in a
civil suit. The rights conferred under sub-Section (4) of
Section 143 of M.L.R.C. are restricted to challenge the
decision of Tahsildar. Therefore, the civil suit challenging the
decision of the Sub Divisional Officer is not maintainable as
the aggrieved person has a remedy provided under the
statute to ventilate his grievance."
( 10 ) CRA 196 2025
13. It can be said from the ratio laid down above that once
the Tahsildar's decision merges into the order of Sub Divisional Officer,
the remedy of the suit is not available. There is a room to argue that in
the present case, the appeal before the Sub Divisional Officer was
withdrawn and therefore the suit can be said to be maintainable. But
the next judgment clarifies the position. The applicant has relied on
Sanjay Kerba Kadam and Anr. vs. Manchak Kondiba Kadam and Ors in
Civil Revision Application No.126 of 2022 dated 08.03.2023.
Following are the relevant extracts :
"6. Perusal of Section 143(5) of the Code states that
where a civil suit has been instituted under sub-section (4)
against the Tahsildar's decision, such decision shall not be
subject to appeal or revision. Sub-section (4) provides that
any person, who is aggrieved by a decision of the Tahsildar
under this section may, within a period of one year from the
date of such decision, institute a civil suit to have it set aside
or modified. Section 247 of the Code provides for another
remedy i.e., an appeal may be preferred before the
competent Revenue Authority. It is thus, clear that
whichever remedy is availed that can only be taken to its
logical end by following further permissible remedies.
7. As admitted in the present case the order passed by
the Tahsildar has been taken exception by filing Appeal
under Section 247 of the Code. Thus, suit filed for challenge
to the order of Tahsildar may not be maintainable. The
question however arises in this case as to the application of
Order VII, Rule 11 when the entire plaint cannot be rejected,
on that ground."
( 11 ) CRA 196 2025
In the present case, the respondent - plaintiff once chosen a
remedy under the Code should have been taken to its logical end
instead of withdrawing appeal from the Sub Divisional Officer. In the
present case also, the plaint is liable to be rejected as the suit is not
maintainable.
14. Mrs. Zaware, learned counsel for respondent nos.4 to 6
seeks to rely on the judgment of Jarasand (supra) passed by the
coordinate bench. Interestingly, the learned Single Judge did not
consider earlier judgment of learned Single Judge in case of Jagannath
(supra). Section 29 of the Limitation Act, 1963 has also not been taken
into account. The facts are distinguishable from the present case. In
the present case, only relief of declaration is sought. Another relief is
in the form of interim relief of temporary injunction. The observations
rendered by learned Single Judge in the matter of Sanjay Kadam
(supra) have not been considered albeit it was cited before the Court.
Hence, the decision will not help the respondent.
15. Once it is held that the limitation provided under the
general law of limitation is not applicable in view of the limitation
provided in the special statute, Section 14 of the Limitation Act, 1963
( 12 ) CRA 196 2025
also cannot be pressed into service. Otherwise also, any delay in
preferring the suit cannot be condoned by invoking Sections 5 to 14 of
the Limitation Act.
16. Learned counsel for respondent nos.4 to 6 has referred to
the judgment of Adani Power Ltd. And Another vs. Union of India and
Others reported in 2026 SCC Online SC 11. No arguments were
advanced as to how the said judgment would enure to the benefit of
the respondents. I find that facts are totally different. This judgment
does not support the respondents. Further reliance is placed on the
judgment of Kirpal Singh vs. Government of India, New Delhi and Ors
reported in 2025(2)ALD 165. The issue before the Supreme Court was
in respect of exclusion of the time under Section 14 of the Limitation
Act, 1963 while filing objections under Arbitration and Conciliation
Act, 1996. The said judgment is distinguishable on facts. It will not
help the respondents.
17. A useful reference can be made to the decision of the
Supreme Court in the matter of Prof. Sumer Chand vs. Union of India
and Others reported in (1994) 1 Supreme Court Cases 64. The
relevant extracts are as follows :
( 13 ) CRA 196 2025
"6. The first contention that has been urged by Shri Wad is
that Section 140 of the Act is in the nature of a general
provision governing all suits in respect of offences or wrongs
alleged to have been done by a police officer, and Article 74
of the Schedule to the Limitation Act, which prescribes the
period of limitation for suits for compensation for a
malicious prosecution, is in the nature of special provision
and since a special provision prevails over the general
provision, the limitation for the suit filed by the appellant
against the respondent will have to be governed by Article
74 of the Limitation Act and if the limitation is computed in
accordance with Article 74 of the Limitation Act, the suit
was not barred by limitation. We do not find any substance
in this contention. As indicated in the Preamble, the
Limitation Act is an enactment which consolidates and
amends the law for the limitation of suits and other
proceedings connected therewith. It is a law which applies
generally to all suits and proceedings. It is, therefore, in the
nature of a general enactment governing the law of
limitation. The Delhi Police Act has been enacted for the
purpose of amending and consolidating the law relating to
regulation of police in the Union Territory of Delhi. The Act
is a special enactment in respect of matters referred to
therein. Section 140 of the Act imposes certain restrictions
and limitations in the matter of institution of suits and
prosecutions against police officers in respect of acts done by
a police officer under colour of duty or authority or in excess
of such duty or authority. One such restriction is that such
suit or prosecution shall not be entertained and if
entertained shall be dismissed, if it is instituted more than
three months after the date of the act complained of.
7. Section 29(2) of the Limitation Act provides as under:
"(2) Where any special or local law prescribes for any suit,
appeal or application a period of limitation different from
the period prescribed by the Schedule, the provisions of
Section 3 shall apply as if such period were the period
( 14 ) CRA 196 2025
prescribed by the Schedule and for the purpose of
determining any period of limitation prescribed for any suit,
appeal or application by any special or local law, the
provisions contained in Sections 4 to 24 (inclusive) shall
apply only insofar as, and to the extent to which, they are
not expressly excluded by such special or local law."
8. Since the Act is a special law which prescribes a period of
limitation different from the period prescribed in the
Schedule to the Limitation Act for suits against persons
governed by the Act in relation to matters covered by
Section 140, by virtue of Section 29(2) of the Limitation Act,
the period of limitation prescribed by Section 140 of the Act
would be the period of limitation prescribed for such suits
and not the period prescribed in the Schedule to the
Limitation Act. This means that if the suit filed by the
appellant falls within the ambit of Section 140 then the
period of limitation for institution of the suit would be that
prescribed in Section 140 and not the period prescribed in
Article 74 of the Limitation Act."
The above aspect is not dealt with in case of Jagannath (supra).
18. The decision of Tahsildar was passed on 15.02.2023 and
the suit is filed on 28.06.2024 which is clearly barred by limitation
provided under Section 143 (4) of the Code. In this regard, it has to be
mentioned that the limitation prescribed under the Code would prevail
over the Limitation Act, 1963. The Trial Court did not take into
consideration Section 29 of the Limitation Act, 1963, and its purport.
Impugned order is unsustainable.
( 15 ) CRA 196 2025
19. I, therefore, pass following order :
ORDER
a. Civil Revision Application is allowed.
b. Impugned order is quashed and set aside.
c. Plaint in RCS No.525 of 2024 shall stand rejected.
( SHAILESH P. BRAHME, J. )
PRW
