Radhu Narayan Dukre and Others v. Gorakshnath Mahadeo Nalkar and Others

JUDGMENT :

¶1Rule. Rule made returnable forthwith. By consent of the parties, heard finally.

¶2By the present writ petition, the petitioners are challenging the orders passed by the Mamlatdar under Section 5 of the Mamlatdar's Courts Act, 1906 in Rasta Case No.13 of 2018, and the order dated 28/06/2022 passed by the respondent No.4-The Sub-Divisional Officer, Shrirampur Division, Shrirampur, Dist.Ahmednagar, in Revision No.176 of 2021 allowing the Rasta Case filed by the respondent Nos.1 and 2 herein.

¶3Brief facts giving rise to the petition can be summarized as under :- The petitioners and the respondent Nos.1 and 2 are adjacent land holders. The respondent Nos.1 and 2 had filed a Regular Civil Suit No.23 of 2016 on 07/01/2016 against the said respondents for the following reliefs :- "oknhps nkok feGdr x-ua-203 e/;s 'ksrtfeuhph esgur e'kkxr dj.ksps dkeh] fidysyk 'ksreky ckgsj dk<.;klkBh x-ua-204 P;k mRrj nf{k.ksps cka/kkus dkgh {ks=kP;k iV~Vhrqu vlysY;k jLR;kus tk.ks ;s.ksl gjdr vMFkGs izfroknh ua-1 rs 5 ;kauh oknhauk d# u;s vlk fujarj rkdhn eukbZ gqdwe iz-oknhafo#/n nsookok-" English translation reads as under :- "Order of permanent injunction be passed against the defendant Nos.1 to 5 for not obstructing the Plaintiffs from cultivating the agricultural land in the Gut No.203, the suit property and using the way situated in the strip made of some of the area alongside of the North to South bandh of the Gut No.204 for to and for bringing the agricultural produce from the said land." The plaintiff/ respondent Nos.1 and 2 filed the Regular Civil Suit No.23 of 2016, before the Civil Judge, Junior Division, Rahuri against the petitioners for claiming injunction from obstructing use of access road over land Gut No.204 belonging to the petitioners. In the said suit, the respondent Nos.1 and 2 prayed for appointment of Court Commissioner which was allowed and the Court Commissioner carried out spot inspection of the road access on Gut No.204 on 03/09/2017 and submitted his report on 15/09/2017. The report given by the Court commissioner was adverse to the respondent Nos.1 and 2. The Court Commissioner had given a report along with a map indicating that there is a separate access to the respondents and there was no access to the respondents No.1 and 2 land from the petitioners land.

¶4Meanwhile, the respondents No.1 and 2 on 09/12/2018 filed an application before the Mamlatdar's Court under the Mamlatdar's Courts Act for removal of obstruction on the above land Gut No.204 and restoring the access of the said respondents to the said gut number being Rasta Case No.13 of 2018. There was an inquiry initiated under the Mamlatdar's Courts Act.

¶5The respondents withdrew the Regular Civil Suit No.23 of 2016 on 20/02/2020. Thereafter, the Rasta Case was allowed by the Mamlatdar after conducting inquiry and the same was upheld by the Revisional Authority respondent No.4-the Sub-Divisional Officer, Shrirampur Division, Shrirampur Dist.Ahmednagar.

¶6It is the contention of the petitioner that once a suit is filed for injunction from obstruction of the respondents access, the jurisdiction of the Mamlatdar Court under the Mamlatdar's Courts Act is excluded under Section 26 (2) of the Mamlatdars' Courts Act, and no proceeding under the Mamlatdars' Courts Act can be initiated for removal of obstruction on the same pathway/road.

¶7Per contra, it is the contention of the respondent Nos.1 and 2 that the cause of action for filing of the suit and the application under Section 5 of the Mamlatdar's Courts Act, are different. He relies upon the cause of action stipulated in the plaint as well as the application under Section 5 of the Mamlatdar's Courts Act. The cause of action is at paragraph No.7 of the Rasta Case No.13 of 2018, it is as under :- "7-15 tqyS 2018 e/;s vtZnkjkauh R;kaps feGdrhr lsk;kfcu o eD;kps fid dsysuarj lqekjs 20 vkWxLV 2018 jksth lnjP;k fidkl dksGi.kh dkeh vkmrQkVk us.;kl lkeusokysauh eTtko dsyk o frFks vkLrhRokr vlysyk jLrk eksMqu tukojkaps pk&;kps ?kklkps fid o fxUuh xor dsys o vtZnkjkaph tk ;s iq.kZi.ks can dsyh- vtZnkjkus lkeusokys ;kauk letkoqu lkax.kspk iz;Ru dsyk ijarq lkeusokysauh vtZnkjkaps dkgh ,d ,sdys ukgh R;kosGh o rn~uarj fuR; vtkZl dkj.k ?kMr vkgs-" English translation reads as under :- "7. After sowing the crops of Soyabean and Maze by the applicants on July 15, 2018, the defendants obstructed the applicants in taking the plough and other equipment for the weeding the field on August 20, 2018 and by removing the way that was existing there, the defendants sown the fodder and the Guinea grass and stopped the easement of the applicants completely. The applicant tried to convince the defendants but in-vain and the cause of action arose and continued to arise since." And the cause of action in Regular Civil Suit No.23 of 2016 at paragraph No.5 is as under :- "5-nkO;kl dkj.k & oknhauh izfroknhauk nkok feGdr eksyetwjhus ¼okV~;kus½ dl.kslkBh fnyh ukgh] nkok feGdrhrhy fofgjhps ik.kh fnys ukgh ;kpk jkx vkY;kus izfroknhauh oknhauk nkok feGdrhps okxofgokVhl] nkok feGdrhr tk.ks;s.kslkBh x-ua-204 ps nf{k.ksps cka/kkus vlysY;k jLR;kps okij miHkksxkl fu"dkj.k gjdr vMFkGs dj.ksl lq#okr dsyh] iksyhl LVs'kuyk rdzkj d#ugh tqekuys ukgh] letkmqugh ,sdys ukgh] fn-29@11@2015 jksth oknh ua-1 ;kauk nkok feGdrhr e'kkxrhlkBh lnj jLR;kus xsys vlrk iz-oknhauh tk.ks;s.ksl gjdr dsyh o jLR;kus iqUgk vkykr rj ftos ek# vlh nenkVh dsyh R;kosGh nkO;kl dkj.k ?kMys o rnuarj fuR; dkj.k pkyqp vkgs-" English translation reads as under :- "5. CAUSE OF ACTION : The Defendants, by holding the grudge that the plaintiffs did not give the defendants the suit property for cultivating the land said land on share basis and did not allow to use the water from the well situated in the suit property, started obstructing the plaintiff to approach the suit property by using the way alongside of the southern bandh in the Gut No.204 without any reason, paid no heed to the police complaint also and when the plaintiff No.1 had gone to the suit property for the cultivation on 29-11-2015, the defendants obstructed the plaintiff and threatened him of life if he came again by that way. Therefore, the cause of action arose and continued to arise since then." The learned Advocate for respondent Nos.1 and 2 submits that both these cause of actions being different, the suit as well as the application under Section 5 of the Mamlatdar's Courts Act are maintainable and there is no bar to file the proceeding under the Mamlatdars' Courts Act merely because the plaintiffs/respondent Nos.1 and 2 has filed an earlier suit for injunction from obstruction of the road/access.

¶8Having considered the rival submissions, it is to be noted that the cause of action for the suit is an obstruction created over land Gut No.204 for the access of the respondents through the petitioners land. The is cause of action as mentioned in the application under Section 5 of the Mamlatdar's Courts Act is that, there is complete obstruction and the same access is completely stopped. The jurisdiction of the Mamlatdar under the Mamlatdar's Courts Act can be invoked if there is an obstruction to the road and the same has to be filed within a period of six months from the date of first obstruction. The proceedings under the Mamlatdars' Courts Act are never final and are subject to the orders passed by the Civil Court.

¶9The first obstruction of the road was as noticed in the plaint is in the year 2015. The subsequent complete blockage of the road does not make the obstruction different. The jurisdiction to invoke the application under Section 5 of the Mamlatdar's Courts Act first arose before filing of the plaint and it continued for a period of six months from the date of first obstruction. The nature of obstruction hardly matters. Once there is an obstruction of road/access, the application under the Mamlatdars' Courts Act has to be filed within six months. The respondents instead of preferring an application under Section 5 of the Mamlatdar's Courts Act, had preferred a civil suit and once a civil suit is filed for injunction from obstruction on the same access, the proceedings under Section 5 of the Mamlatdars' Courts Act is barred under Section 26 (b) of the said Act.

¶10Section 5 of the Mamlatdar's Courts Act, is reproduced as under :-"5. (1) Every Mamlatdar shall preside over a Court, which shall be called a Mamlatdar's Court, and which shall, subject to the provisions of sections 6 and 26, have power, within such territorial limits as may from time to time be [fixed by the State Government,--

(a) to remove or cause to be removed any impediment, erected otherwise than under due authority of law, to the natural flow in a defined channel or otherwise of any surface water naturally rising in or falling on any land used for agriculture, grazing, trees or crops, on to any adjacent land, where such impediment causes or is likely to cause damage to the land used for such purpose or to any such grazing, trees or crops thereon;

(b) …….

(2) …….

(3) No suit shall be entertained by a Mamlatdar's Court unless it is brought within six months from the date on which the cause of action arose.

(4) The cause of action shall be deemed to have arisen on the date on which the [impediment to the natural flow of surface water or the] dispossession deprivation or determination, of tenancy or other right occurred, or on which the [impediment,] disturbance or obstruction, or the attempted [impediment or] disturbance or obstruction, first commenced. So also Section 26 of the Mamlatdar's Courts Act, is reproduced as under :-"Section 26 :-No suit shall lie under this Act,--

(b) in respect of [any removal of any impediment or of] any dispossession, recovery of possession or disturbance of possession, that has been the subject of previous proceedings, to which the plaintiff or his predecessor in interest was a party, under this Act, or in a Civil Court or under chapter XII of the Code of Criminal Procedure, 1898." In view of the bar under Section 26 (b) of the Mamlatdars Courts Act, the jurisdiction of the Mamlatdar's Court to entertain the application under Section 5 of the Mamlatdar's Courts Act is barred once a Civil Suit for injunction is filed for removal of obstruction.

¶11In case of Vishwanath Rambhaji Bhalerao and anr. vs. Usha Pralhad Kasbe, reported in 2011 (1) Mh.L.J.603, this Court it has held as under :- "On the contrary, if it shown that a Civil Suit is flee in respect of matter coveree by Section 26 (b) of the saie Act, prior to initiation of proceeeings uneer Section 5 of the Mamlatear's Courts Act, then there is a bar to entertain the suit uneer the provisions of Mamlatear's Courts Act. It is then urgee, that Section 26 (b) woule be attractee only in case where there is alreaey a eecision of a Civil Court, as the phraseology usee therein is "that has been the subject of previous proceeeings" in a Civil Court. However, this is also not acceptable for the reason that the legislature woule have usee the wore "eecieee" or "conclueee" in respect of the proceeeings or Civil Suit coveree by Section 26 (b) of the saie Act. The contention is, therefore, rejectee." "8. Shri. Chapalgaonkar, on the other hane, urgee that once it was pointee out to the Mamlatear's Court that the Regular Civil Suit was flee by petitioners, it coule not have proceeeee with the matter ane shoule have eirectee the parties to get their rights eecieee in Civil Court. This contention also cannot be acceptee for the reason that bar of juriseiction of Mamlatear's Court uneer Section 26 (b), operates only when it is pointee out that Civil Suit was flee prior to institution of proceeeings uneer Section 5 of the saie Act. In the present case, Regular Civil Suit No.108/2008 was flee after institution of proceeeings uneer Section 5 of the Mamlatear's Courts Act. Hence, it cannot be saie that Mamlatear's Court proceeeee without juriseiction or that it coule not have proceeeee with the matter, as urgee."

¶12Thus I hold the cause of action to file proceedings under the Mamlatdar's Courts Act arose on 29/11/2015, as stated in the Regular Civil Suit No.23 of 2016 and the limitation to file the proceedings under Section 5 (3) is six months of cause of action. As per Sub-section (4) of Section 5 of the Mamlatdar's Act the limitation is to be counted from the date of first obstruction and thus the proceedings initiated under the Mamlatdar's Courts Act is clearly barred by limitation.

¶13Further, in view of the bar contained in Section 26 (b) of the Act and the law laid down in the case of Vishwanath Rambhaji Bhalerao (Supra), the previous suit filed by the respondent Nos.1 and 2 for injunction from obstruction of the access from Gut No.204 clearly bars the proceedings under Section 5 of the Mamlatdar's Courts Act for removal of obstruction from the same access from Gut No.204.

¶14In view of the above, the writ petition is allowed. The impugned orders dated 24/06/2021 and 28/06/2022, passed by both the authorities under the Mamlatdar's Courts Act are set aside. Rule is made absolute with above directions. ( ARUN R. PEDNEKER, J. ) vj gawade/-.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.9637 OF 2022 1. Raghu s/o Narayan Dukre, Age 68 years, Occupation Agri., 2. Shri. Karbhari s/o Narayan Dukre, (Died Through LRs.) 2-1. Manda w/o Karbhari Dukre, Age 65 years, Occ.Household, 2-2. Sayaji Karbhari Dukre, Age 40 years, Occ.Agril., 2-3. Sangita Dnyaneshwar Pawar, Age 35 years, Occ.Household, 3. Baban s/o Narayan Dukre, Age 55 years, Occ.Service., 4. Sampat s/o narayan Dukre, Age 45 years, Occ.Agril., 5. Navnath s/o Narayan Dukre, Age 33 years, Occ.Agril., All R/o. Malewadi-Dukrewadi, Tq.Rahuri, Dist. Ahmednagar. ...Petitioners VERSUS 1. Gorakshnath s/o mahadeo Nalkar, Age 60 years, Occ.Agril., 2. Sow. Alka w/o Gorakshnath Nalkar, Age 54 years, Occ.Household, Both R/o Gajanan Wasahat, Tq.Shrirampur, Dist.Ahmednagar. 3. The Tahsildar, Rahuri, Tq. Rahuri Dist. Ahmednagar, 4. The Sub-Divisional Officer, Shrirampur Division, Shrirampur, Tq. Shrirampur Dist.Ahmednagar. ..Respondents … Advocate for Petitioners : Mr. Arora Shyam C. AGP for Respondent Nos.3 and 4 : Mr. K. B. Jadhavar Advocate for Respondent Nos.1 and 2 : Mr. D. R. Markad ... CORAM : ARUN R. PEDNEKER, J. Date of Reserving the Judgment : 11/01/2023 Date of Pronouncing the Judgment : 18/01/2023