Jinappa Kallappa Magdum and Ors. Vs Satish Narasu Magdum and Anr.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO.3726 OF 2007

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Jinappa Kallappa Magdum and ors...Petitioners.
Vs.
Shri. Satish Narasu Magdum and anr...Respondents.
Mr.P.D.Dalvi for the Petitioners.
Mr.N.J.Patil for the Respondent No.1.

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CORAM : A.M.KHANWILKAR,J.
DATED : July 12, 2007.

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P.C.

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1. Heard counsel for the parties.

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2. Rule. Rule made returnable forthwith, by consent.
Mr.Patil waives notice for the contesting respondent
No.1 who is plaintiff in the original suit. The
respondent No.2 is the wife of the respondent No.1. Mr.
Patil appearing for the respondent No.1 fairly states
that he will advise the respondent No.1 to impress upon
the respondent No.2 that the order that will be passed
in this petition be accepted as it is. On the above
assurance, matter is heard forthwith for final disposal.

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3. This writ petition takes exception to the Judgment
and order passed by the District Judge-I, Ichalkaranji
dated 12.12.2006 in Misc.Civil Appeal No.34 of 2006.
The background in which the present petition has been

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filed before this court is that the respondents have
instituted civil suit for injunction against the
petitioners. In the said suit, the petitioners asserted
that they have right of way from the portion of the land
owned and occupied by the respondents. The petitioners
have relied upon the decision of the Mamlatdar dated
20.7.2006 which supports the claim of the petitioners.
The Trial Court as well as the Appellate Court,
notwithstanding the said order of the Mamlatdar,
proceeded to grant injunction as prayed for, in favour
of the respondents. In other words, the effect of that
order of injunction passed by the Civil Court is to
restrain the petitioners from enjoying the right of way,
which claim has been accepted by the Mamlatdar in favour
of the petitioners under its order dated 20.7.2006. The
Appellate Court has also observed that the order passed
by the Mamlatdar was ultra vires because the civil court
can decide such issue and the Mamlatdar has no
jurisdiction to decide such type of civil right of the
parties. This statement of law expressed by the
Appellate Court is clearly in ignorance of the statutory
provisions contained in Section 143 of the Maharashtra
Land Revenue Code, 1966 read with powers of the
Mamlatdar to grant injunction in exercise of powers
under Section-5(2) of the Mamlatdar Courts’ Act,1906.
The said section-143 reads as under :

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Section-143 (1)- The Tahsildar may inquire into
and decide claims by persons holding land in a
survey number to a right of way over the
boundaries of other survey numbers.

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(2) In deciding such claims, the Tahsildar shall
have regard to the needs of cultivators for
reasonable access to their field.

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(3) The Tahsildar’s decision under this section
shall, subject to the provisions of sub section
(4) and (5), be subject to appeal and revision
in accordance with the provisions of this Code.

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(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.

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(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.

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Section 5(2) of the Mamlatdars’ Courts Act,1906
reads as under:

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(2) The said Court shall also, subject to the
same provisions, have power within the said
limits, (where any impediment referred to in
sub-section(1) is erected or an attempt has been
made to erect it, or), when any person is
otherwise than by due course of law disturbed or
obstructed, or when an attempt has been made so
to disturb or obstruct any person, in the
possession of any land or premises used for
agriculture or grazing, or trees, or crops, or
fisheries, or in the use of water from any well,
tank, canal or water course, whether natural or
artificial used for agricultural purposes, or in
the use of roads or customary ways thereto, to
issue an injunction to the person (erecting or
who has attempted to erect such impediment, or
causing, or who has attempted to cause, such
disturbance or obstruction, requiring him to
refrain ( from erecting or attempting to erect
any such impediment or), from causing or
attempting to cause any further such disturbance
or obstruction."

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4. There is one development which has taken place after
the institution of the present petition. The respondent
has placed on record the order passed by the Revisional
authority setting aside the order of the Mamlatdar dated
20.7.2006. This has been done by the Revisional
authority under its order dated 20.3.2007. Indeed, the
Revisional authority had no option but to abide by the
opinion of the civil court (District Judge-I),
Ichalkaranji.

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5. In my opinion, in the fact situation of the present
case, appropriate order that needs to be passed to do
the substantial justice between the parties, is to
clarify the position that the question regarding right
of way will have to be answered only by the statutory
authority in exercise of powers under Section-143 of the
Maharashtra Land Revenue Code, 1966. If the said
authority accepts the plea of the petitioners that there
is right of way from the suit land, by virtue of Section
5(2) of the Mamlatdar Court’s Act, it is empowered to
issue an order of injunction against the respondents
forbidding the respondents from interfering with the
right of way of the petitioners. Accordingly, it is
clarified that the injunction which has been granted by
the civil court would operate only till such time the
competent authority decides the issue of right of way at

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the instance of the petitioners. If the said authority
accepts the claim of the petitioners in regard to the
the land held and possessed by the respondents, would be
free to pass an order of injunction against the
respondents to effectuate the right of the petitioners
which has been so determined. In that case, the order
of injunction passed by the civil court will stand
effaced and dissolved.

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6. It is clarified that all questions in relation to
the issue of right of way claimed by the petitioners are
kept open to be decided on its own merits uninfluenced
by any finding or observation of the civil court in the
impugned decision, if any.

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7. In the mean time, the counsel for the respondents
submits, on instructions, that the respondents will
permit the petitioners to use the passage only as a foot
way and not to ply carts and trucks or such heavy
vehicles. That assurance is accepted.

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8. Petition is disposed of on the above terms. No
order as to costs.

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(A.M. KHANWILKAR, J.)

Jinappa Kallappa Magdum and Ors. v. Satish Narasu Magdum and Anr.

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Jinappa Kallappa Magdum and Ors. v. Satish Narasu Magdum and Anr.

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