Dismissed

Savitrabai Govinda Chavan Thr Power of Att Govind Pela (Pelat) Chavan v. Jijabai Popat Chavan and Ors.

Bombay HC3 Jul 2021WP/1352/2012

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging an order denying a right of way. The court noted the petitioner pursued both Mamlatdar's Court proceedings and a civil suit for the same relief impermissibly. It held the authorities acted correctly in relying on their own findings.

What did the court decide?

Writ petition dismissed; no order as to costs; pending Civil Applications disposed of.

Savitrabai Govinda Chavan Thr Power of Att… — Civil Procedure and Limitation | Bombay HC (2021)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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905 WRIT PETITION NO.1352 OF 2012 WITH CIVIL APPLICATION NO. 1930 OF 2015

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Sau. Savitrabai w/o Govinda Chavan Age: 58 years, Occu: Agriculture, R/o. At post Tarwade (Tanda), Tal. Chalisgaon, Dist. Jalgaon Through it Power of Attorney Petitioners Shri. Govind Pela (Pelat) Chavan (Orig. Plaintiff Age: 62 yrs, Occupation: Agriculture, R/o: At Post Tarwade (Tanda) Tal. Chalisgaon, Dist. Jalgaon.

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Versus

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Sau. Jijabai w/o Popat Chavan Age: 48 years, Occu: Agriculture,

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Popat s/o Shriram Chavan Age: 51 years, Occu: Agriculture & Service

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Ashok s/o Shriram Chavan Age: 33 years, Occu: Agriculture, All R/o.: At Post Tarwade, Tal. Chalisgaon, Dist. Jalgaon.

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Ashok s/o Namdeo More Respondents Age: 43 years, Occu: Agriculture, (Orig. Defendantsf

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Mangu s/o Chindu Endait Age: 73 years, Occu: Agriculture,

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Sau. Zingubai w/o Mangu Endait Age: 53 years, Occu: Agriculture, Resp. No.4 to 6 R/o: Wadgaon Lambe, Tal. Chalisgaon, Dist. Jalgaon

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The Tahsildar, Chalisgaon, Dist. Chalisgaon,

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The Sub Divisional Ofcer, (Revenue) Pachora Sub-Division, Dist. Jalgaon.

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Mr. Devidas Shelke h/f Mr. P.A. Pisal, Advocate for Petitioner Mr. P.S. Shendurnikar, Advocate for Respondent No.1 Mr. Kishore Hoke Patil, AGP for Respondent Nos.7 & 8

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CORAM : AVINASH G. GHAROTE, J. DATE : 3^rd July, 2021

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ORAL JUDGMENT :

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. Heard Mr. Devidas Shelke, learned counsel for the

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petitioner and Mr. Shendurnikar, learned counsel for the

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respondent No.1.

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The present petition challenges the order dated 29.10.2011 passed by Sub Divisional Ofcer ( in short ‘SDO’) Pachora, in Revision No. 12/2010, which came to be dismissed. The above revision laid challenge to the order passed by the Tahsildar Chalisgaon, dated 29.12.2009 in Case No. 20/2009, which was in respect of a right of way claimed by the present petitioner, to approach the land of Gat No.177 from the lands of the respondent Nos.1 to 3 bearing Gut Nos. 179/2K, 179/2B and 179/2A. It is worthwhile to note, that the order dated 29.12.2009, was passed by the Tahsildar, on remand of the matter, in Letters Patent Appeal No. 194/2008, whereby the earlier orders passed by the Tahsildar, Sub Divisional Ofcer and the learned Single Judge, holding, that the present petition had a right of way, were set aside. On remand, the learned Tahsildar as indicated above

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by the order dated 29.12.2009 had dismissed the application, which was confrmed by the SDO which is impugned. Both the Authorities below, have categorically held, that the claim by the present petitioner, of having a right of way over the above said lands of the respondent Nos. 1 to 3, was found to be incorrect and therefore, had directed her not to traverse over the western boundary of Gut No.179/2A .

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It is worthwhile to note, that the petitioner, had also approached the Civil Court by virtue of RCS No.149/2007 in respect of the same subject matter, where the relief of a right of way, as claimed in the proceedings before the Tahsildar under the Mamlatdar's Court Act, was also claimed. It is thus evident that the petitioner, was pursuing the proceedings under the Mamlatdar's Court Act as well as the suit before the Civil Court in respect of the same grievance of a right of way, which in law was not permissible. The Civil Court had dismissed the application for temporary injunction as fled by the petitioner on 19.11.2009, which came to be confrmed in Miscellaneous Civil Appeal No. 163 of 2009 decided on 08.02.2010. In Writ Petition No.3004/2010, decided on 13.08.2010, as an ad-hoc arrangement, the respondents by consent, permitted the use of their land as a path way for access on foot, during the pendency of the suit, which was purely an ad-hoc arrangement,

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without any prejudice to the rights of the parties. The suit came to be dismissed on 11.12.2012, on merits, in which the issues were farmed as to whether the petitioner/plaintif, had a right of way over the land belonging to the respondent Nos.1 to 3/defendants therein

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and the issue was categorically answered, that the petitioner/plaintif, never had any right of way from the western boundary of Gut No.179/2A, rather on the contrary, she was using the north west common boundary of Gut Nos.179/2K and 179/1. It is thus apparent, that the Civil Court, to whose jurisdiction, the petitioner subjected himself, had rendered a categorical fndings on merits regarding the absence of right of way by the petitioner, over the western boundary of land of Gut No.179/2A. The judgment dated 11.12.2012, is presently the subject matter of Appeal No. 15/2013, which is presently pending and is being prosecuted by the petitioner.

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The Tahsildar, in his order dated, 29.12.2009, has also rendered a similar fnding based upon the spot inspection report, which indicates, that the western boundary of the land of Gut No.179/2A was not being used as a road by the petitioner, which has been confrmed by the SDO.

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The basic crux of the grounds raised in the petition, which has been fled on 23.12.2011, which is obviously before the Civil Suit

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No.149/2007 was decided, is that the Tahsildar as well as the SDO, ought to have waited for the decision of the Civil Court before passing the impugned orders. The sole ground which is material, is that the spot inspection reports were not considered, which does not appear to be so for the reason that the order of the Tahsildar dated 29.12.2009 and of the SDO dated 29.10.2011 specifcally refer to the spot inspection report.

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It is axiomatic to state, that the petitioner, could not have availed both the remedies at the same time, one of fling proceedings under the provisions of the Mamlatdar's Court Act, 1906 and the other of fling a civil suit in respect of the same subject matter and for the same relief. The petitioner, not only has done so, but is diligently prosecuting both, which is impermissible in law. The petitioner has to make an election as to which remedy the petitioner will prosecute. It would have been a diferent issue altogether, if the reliefs sought in the two separate proceedings were diferent, but that is not the case here. Thus the petitioner, is in law, required to be relegated to one of the proceedings, which the petitioner has to choose. Upon such a query being put, Mr. Devidas Shelke learned counsel for the petitioner, is unable to give any reply.

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Be that as it may, on the merits of the present petition, I do not see any infrmity in the impugned orders, nor any such infrmity

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has been pointed out by Mr. Devidas Shelke learned counsel for the petitioner. The fnding, that there is no road as claimed by the petitioner, has been concurrently held by the authorities below and also stands independently confrmed in the Civil Court by the judgment. Mr. Shelke learned counsel relies upon Ram Swaroop Vs Shikar Chand , AIR 965 SC 1942 to contend, that unless expressly excluded by the special statute, the Civil Court has always jurisdiction to deal with civil causes. He also relies upon Union Of India & Ors. Vs Maruti Madhav Kerulkar and Ors., 2002 (4f Mh.LJ 73 to contend, that Mamlatdar's Court has powers to issue an order of injunction but does not have any powers to issue a declaration regarding the customary rights. He also relies upon Legal Heirs of Jashbhai Motibhai Patel Vs State of Gujrata & Ors., 2006 (3f GLR 2031 to contend, that Mamlatdar's Court has no right to adjudicate upon the easementary rights.

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It is worthwhile to note, that the petitioner herself, had approached the Tahsildar, under the provisions of Section 5 of Mamlatdar's Court Act, by virtue of Case No. 3/2007 claiming obstruction to the way being used by her to approach her feld by the respondents and once she had subjected herself to the jurisdiction of the Tahsildar under the Mamlatdar's Court Act, it was not permissible for her to again approach the Civil Court for the same purpose and

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the same relief. A perusal of the relief claimed in RCS No.149/2007, would indicate, that what was claimed, was a permanent injunction regarding the right of way and not any declaration. Thus, the judgments relied upon by the petitioner, (Supra) are of no assistance to her case. There is, therefore, no merit in the petition and the same is dismissed. In these circumstance, there shall be no order as to costs. All pending Civil Applications stand disposed of accordingly.

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(AVINASH G. GHAROTE, J.f

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Sameer

Savitrabai Govinda Chavan Thr Power of Att Govind Pela (Pelat) Chavan v. Jijabai Popat Chavan and Ors.

Case brief

What is this about?

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Savitrabai Govinda Chavan Thr Power of Att Govind Pela (Pelat) Chavan v. Jijabai Popat Chavan and Ors.

Case brief

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What did the court decide?

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