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2011 DIGILAW 843 (BOM)

Jayant Namdeorao Gohad v. Prakash Manikrao Vighe

2011-07-15

R.M.SAVANT

body2011
Judgment : 1. Rule, with the consent of the parties, made returnable forthwith and heard. 2. The above petition filed under Articles 226 and 227 of the Constitution of India takes exception to the order dated 12/10/2010 passed by the Tahsildar/Mamlatdar, Morshi in exercise of the power under Section 5 of the Mamlatdars’ Courts Act, 1906, by which order the right of way through the field of the petitioner has been granted to the respondent no.1. The second order under challenge is the order dated 6/9/2008 by which the Sub Divisional Officer, Morshi has dismissed the revision filed by the petitioner under Section 23 of the said Act. 3. Thedispute in the above petition is as regards the claim of the respondent no.1 of right of way to his field being Survey Nos.242/2 and 242/2A, situated at mauza Pala through the field of the petitioner being survey No.240/3. 4. It appears that the respondent no.1 along with his brother had filed an application before the Tahsildar, Morshi on 10/1/1991 stating that the petitioner has obstructed the right of way leading to their fields. The said application was filed with the Naib Tahsildar, Morshi. It is an undisputed fact that the said application came to be dismissed for default on 27/3/1991 by an order passed by the Naib Tahsildar. 5. Despite the said application for removal of the obstruction filed by him being dismissed, the respondent no.1 again filed a second application for grant of way on 18/6/2002 to the Tahsildar, Morshi. As can be seen, the said application was filed after almost eleven years of the first application having been dismissed in default. The said application was opposed by the petitioner by filing his reply. The Naib Tahsildar rejected the said application by the order dated 18/6/2002, inter alia holding that a 22 ft. road is available to the respondent no.1 and that there was no alternate way. The respondent no.1 thereafter filed an Appeal before the Sub-Divisional Officer which came to be allowed by the Sub-Divisional Officer by his order dated 31/7/2003 and the matter was remanded back to the Tahsildar for a de novo consideration under the provisions of the Mamlatdars’ Courts Act, 1906. 6. In accord with the said order passed by the Sub-Divisional Officer, the respondent no.1 filed a fresh application for initiating proceedings under the said Act. 6. In accord with the said order passed by the Sub-Divisional Officer, the respondent no.1 filed a fresh application for initiating proceedings under the said Act. The said application was opposed by the petitioner by filing an application wherein the petitioner had sought the dismissal of the application filed by the respondent no.1 under the said Act. The relief claimed by the petitioner in the said application was principally on the ground that the cause of action had arisen to the respondent no.1 on 10/1/1991 and therefore, the proceedings filed after eleven years were hopelessly time barred, considering Section 5 of the said Act. On the said application being rejected, the petitioner filed Writ Petition No.906 of 2004 inter alia assailing the order of the Sub-Divisional Officer dated 31/3/2003 and the order of the Mamlatdar rejecting the application of the petitioner. It is pertinent to note that the said Writ Petition No.3302 of 2004 was disposed of by a learned Single Judge of this court with a direction that in view of the case of the petitioner that the cause of action arose on 10/5/1991, the question of limitation was to be considered by the Mamlatdar when he decides the matter on merits. The Tahsildar by his order dated 31/5/2008 allowed the application filed by the respondent no.1 and granted him way through the field owned by the petitioner. 7. Aggrieved by the said order dated 31/5/2008, the petitioner filed a revision under Section 23 of the said Act, which revision came to be dismissed by the Sub-Divisional Officer by his order dated 6/9/2008 resulting in Writ Petition No.3267 of 2009 being filed by the petitioner. The said Writ Petition came to be allowed and the orders impugned therein i.e. the order passed by the Tahsildar, Morshi and order dated 6/9/2008 passed by the Sub-Divisional Officer were set aside and the matter was once again remanded back to Tahsildar, Morshi to be decided in terms of the parameters of the said orders namely; to consider the point of limitation either by examining the petitioner or by the attendant facts. 8. After this court had set aside the orders, the matter was once again dealt with by the Tahsildar and by the first impugned order dated 12/10/2010 has allowed the application filed by the respondent no.1 holding that the respondent no.1 has a easementary way through the field of the petitioner. 8. After this court had set aside the orders, the matter was once again dealt with by the Tahsildar and by the first impugned order dated 12/10/2010 has allowed the application filed by the respondent no.1 holding that the respondent no.1 has a easementary way through the field of the petitioner. A further direction was issued that the petitioner to remove the fencing and iron gate and he should not obstruct the respondent no.1 from using the 10 ft. road of survey No.242/2. The Tahsildar has gone to the extent of ordering the said way to be a public way. The petitioner thereafter preferred a Revision being No.MCA5/ Pala/5/20102011 under Section 23 of the said Act, which came to be dismissed by the second impugned order dated 31/12/2010. 9. Heard the learned counsel for the parties. 10. The principal contention of the learned counsel for the petitioner Shri Deshpande is that the mandate of the orders passed by this court i.e. the order dated 21/12/2006 passed in Writ Petition No.3302 of 2004 and the order dated 6/10/2009 in Writ Petition No.3267 of 2009 has not been followed by the authorities below whilst considering the application filed under Section 5 of the said Act by the respondent no.1. The learned counsel contended that the authorities, in total disregard of the said orders and on the specious ground that the proceedings filed earlier by the Respondent in the year 1991 were under a different statute and therefore the question of limitation would not arise, have avoided to record a finding in respect of the issue of limitation that was raised by the petitioner. The learned counsel drew my attention to the directions as contained in the said two orders of this court, and as also with reference to the orders passed by the authorities and sought to demonstrate as to how the matter has been dealt with by the two authorities below. 11. Per contra, it is submitted on behalf of the respondent no.1 that the proceedings filed in the year 1991 being filed under a different statute, the filing of the said proceedings would not come in the way of the respondent no.1 in filing the fresh proceedings in the year 2002. 12. I have heard the learned counsel for the parties and have given my anxious consideration to the rival contentions. 13. 12. I have heard the learned counsel for the parties and have given my anxious consideration to the rival contentions. 13. As mentioned herein above, it is an undisputed fact that on 10/5/1991 the respondent no.1 had filed an application for removal of the obstruction allegedly created by the petitioner in the right of way of the respondent no.1 to his field bearing Survey Nos.242/2 and 242/2A. Thereafter, the subsequent application was filed by the respondent no.1 on 18/6/2002 i.e. after a lapse of about eleven years from the dismissal of the first application. This court in the earlier round of litigation between the parties had specifically directed the authorities to examine the facts involved, more especially in the light of the petitioner’s application for dismissal of the proceedings on the ground that the same being time barred. In fact, by the subsequent order dated 6th October, 2009 this court had directed that when the petition was bereft of particulars, it was incumbent upon the Mamlatdar to examine the plaintiff on oath as required under Section 7 which would also include ascertainment of the date as to when the cause of action had accrued, since such date would be material for deciding whether the petition is within limitation as prescribed under subsection (3) of Section 5 of the said Act. This court in the earlier round was constrained to observe that informality should not have gone to such an extent that the essential requirements of Section 7 are forgotten. It was, therefore, incumbent on the part of the authorities to have addressed the issue which was brought before them in that context but it is regrettable to note that the first authority i.e. the Mamlatdar has very conveniently avoided to address the said issue by recording that the earlier application filed on 10/5/1991 was not under the Mamlatdars’ Courts Act and therefore, the said fact cannot come in the way of the respondent no.1 from prosecuting the subsequent application. The issue was further compounded by the Sub-Divisional Officer by merely adopting the finding of the Mamlatdar in Revision and in a fact reading of the order of the Sub-Divisional Officer ex facia demonstrates that he has merely lifted paragraphs from the Mamlatdar’s order without applying his mind. The issue was further compounded by the Sub-Divisional Officer by merely adopting the finding of the Mamlatdar in Revision and in a fact reading of the order of the Sub-Divisional Officer ex facia demonstrates that he has merely lifted paragraphs from the Mamlatdar’s order without applying his mind. The least that is expected of the statutory authorities is to deal with the contentions of the parties and more so in the instant case when the mandate has been issued to the authorities by this court in two separate orders on two different occasions. However, the authorities for reasons best known to them have virtually avoided to address the said issue. The question was not whether the proceedings filed by the respondent no.1 were referable to any other statute, the question was as to when the cause of action had arisen for respondent no.1 to file the said application under Section 5 of the said Act, which in the instant case is unmistakably on 10/5/1991. The authorities having failed to address the said issue in terms of the directions issued by this court in the two said orders, in my view, the impugned orders are unsustainable and are required to be set aside and are accordingly set aside and the following directions are issued. (i) The impugned orders dated 6/9/2008 and 12/10/2010 are set aside and the application filed by the respondent no.1 is remanded back to the Mamlatdar, Morshi for a de novo consideration, to be decided in terms of the orders dated 6/10/2009 and 21/12/2006 of this court. (ii) The Mamlatdar and even the Sub-Divisional Officer if the matter ultimately goes to him under Section 23 of the Act would be well advised to deal with the contentions that would be raised by the parties before them including the issue of limitation which has been specifically raised by the petitioner. (iii) On such remand, the application filed by the respondent no.1 to be decided within a period of three months of the receipt of the order of this court. The conduct of the Tahsildar and the Sub-Divisional Officer is such which would befit the imposition of costs. (iii) On such remand, the application filed by the respondent no.1 to be decided within a period of three months of the receipt of the order of this court. The conduct of the Tahsildar and the Sub-Divisional Officer is such which would befit the imposition of costs. However, this court restrains itself from doing so with a hope that they would make amends by deciding the matter strictly in terms of the directions of this court, as contained in the order dated 21/12/2006 passed in W.P.No.3302 of 2004 and the order dated 6/10/2009 in W.P.No.3267 of 2009 as also the instant order. Rule is accordingly made absolute with parties to bear their respective costs.