Subhash vs State Of Maharashtra & Ors.

Rule. Rule made returnable forthwith. Heard finally with the consent of learned counsel appearing for the parties.

The present petition challenges concurrent findings of the authorities below i.e. the respondent No.3 and as confirmed by the respondent No.2 in an application filed by the respondent No.4 and respondent No.4A.

As can be seen from the averments made in the petition and the factual aspect which is more or less not disputed the respondent No.4 initially filed a civil suit bearing Regular Civil Suit No.56/2013 before the Civil Judge, Senior Division, Warud praying for a declaration and a permanent injunction. The said suit was filed on 7.8.2013. Admittedly, the said suit was dismissed in default on 21.4.2018. After the dismissal of the said civil suit the respondent No.4 on 19.9.2018 filed an application under Section 5 of of the Mamlatdar’s Courts Act, 1906 before the respondent No.3/Tahsildar, Warud alleging that there is an obstruction at the behest of the petitioners. The matter proceeded further and the Tahsildar, Warud was pleased to allow the said application on 16.4.2021 thereby directing the petitioner herein to grant way to the respondent No.4.

The matter was carried in a Revision as contemplated under Section 23 of the Mamlatdar’s Courts Act, 1906 and the Revisional Authority i.e. Sub-Divisional Officer, Morshi/Respondent No.2 has also concurred with the order of the Tahsildar, Warud. Both these orders are subject matter of challenge in the present petition.

I have heard Mr. Sarang S. Malode, learned counsel for the petitioner, Mrs. M.A. Barabde, learned Assistant Government Pleader for Respondent Nos.1 to 3 and Mr. G.N. Khanzode, learned counsel for respondent No.4A.

Mr. Sarang Malode, learned counsel submits that the Tahsildar ought not to have entertained the application filed by the respondent No.4 since for the identical relief he has already filed a civil suit. But the same was dismissed in default due to non-prosecution. According to him, the proper course for the respondent No.4 was to get the said civil suit restored if he wanted to and, therefore, after exhausting the said remedy it was not open for the respondent No.4 to prosecute the remedy under the Mamlatdar’s Courts Act, 1906. He relies on Section 26(2) of the Mamlatdar’s Courts Act, 1906 and the judgment of this Court, in the case of Vishwanath s/o. Rambhaji Bhalerao and another Vs. Usha w/o. Pralhad Kasbe, reported in 2011(1) Mh.L.J. 603 to buttress his submission. On merits he submits that the Tahsildar as well as the Sub-Divisional Officer has not appreciated this aspect in its proper perspective and have allowed the application mechanically.

Per contra, Mr. G.N. Khanzode, learned counsel for the respondent No.4A submits that since there was no formal adjudication in the trial Court as admittedly the civil suit was dismissed in default, there cannot be any res judicata in the said proceedings before the Tahsildar. As far as merits of the order are concerned, the learned counsel for the respondent No.4A by taking me through the order of the Authorities below submits that the said orders are based on material on record and on the basis of spot inspection report.

The rival contentions fall for my consideration. Filing of the civil suit on 7.8.2013 and its dismissal in default on 21.4.2018 is not in dispute. Since the said suit was dismissed in default and there was no formal adjudication there is no question of any res judicata being operating in favour of any of the parties before the proceedings before the Tahsildar in proceedings under the Mamlatdar’s Courts Act, 1906. Reliance placed on Section 26(2) of the Mamlatdar’s Courts Act, 1906 is misconceived inasmuch as the said sub-section provides for bar of certain suits and sub-Section (b) thereof provides that 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, there would be a bar. If the said sub-section is read in a fashion that even if a suit which is dismissed in default would attract the rigors of this sub-section, the consequences would be hazardous. Section (3) presupposes a formal and an effective adjudication by the competent civil Court. Admittedly, this is not in the present case. Therefore, the contention in this regard as made by the learned counsel for the petitioner is rejected.

As far as judgment of this Court reported in 2011(1) Mh.L.J. 603 (Vishwanath s/o. Rambhaji Bhalerao and another Vs. Usha w/o. Pralhad Kasbe) is concerned the facts were entirely different as can be seen from Para Nos. 4 to 7 of the said reported judgment. The reliance on the said judgment is also, therefore, totally uncalled for.

Coming to the merits of the matter and as can be seen from the impugned order, the first Authority i.e. the Tahsildar has recorded a categorical finding on the basis of the spot inspection report obtained from the Talathi that there is no alternate way. On the basis of said findings it has directed that the present petitioner should give a right of way between said survey numbers.

The Revisional Authority after taking into consideration the entire facts on record in para 2 of the conclusions recorded a finding that the petitioner owns land Survey bearing No. 28/4, while the respondent No.4 owns land Survey bearing No. 28/3. It has, therefore, recorded a finding that before sub-division the land belongs to one person and it has been sub-divided and there is a revenue entry in that regard that there is existing of a way. On the basis of this material it has proceeded to reject the revision. The current findings of the Authorities are based on material on record and there is nothing which can be termed perverse.

The petition being meritless is liable to be rejected. The petition is rejected. Rule is discharged.