Dilip Manik Kashid and Ors. Vs Pandurang Shankar Gaikwad and Ors.

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Digitally signed VIDYA by VIDYASURESH AMIN SURESHAMIN Date:2021.09.1615:25:52 +0530

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO. 3158 OF 2020

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Dilip Manik Kashid & Others
v/s.

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..Petitioners

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Pandurang Shankar Gaikwad & Others..Respondents.

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Mr. Hrishikesh S. Shinde, for the Petitioners.
Ms. Vaishali S. Nimbalkar, AGP for the Respondent-State.

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CORAM: G. S. KULKARNI,J. DATED : 14^th SEPTEMBER, 2021.

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P.C:-

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The Petitioners who are the original Respondents in
proceeding initiated by Respondent Nos. 1 to 5 before the Court of
Tahsildar, Malshiras (for short “the Mamlatdar’) under the provisions of
Section 5(2) of the Mamlatdar Court Act, 1906 (the ‘Act’), have filed this
Petition, challenging the order dated 23rd July, 2019 passed by the Dy.
Collector, Malshiras, Akluj, rejecting Revision Application No.20 of 2018
filed by them under Section 23(2) of the said Act, against an interim order
dated 25th June, 2018 passed by the Mamlatdar.

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2The learned Counsel for the Petitioners has argued that the
dispute between the Petitioners and the Respondent Nos.1 to 5 is with
regard to an irrigation canal and the road/path passing through Gat
No.646 (for short “the said land”). According to him, the case of

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1 of 5

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S.R.JOSHI

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Respondent Nos. 1 to 5 before the Mamlatdar was that the petitioners
were destroying and/or obstructing the said irrigation canal and the
pathway of Respondent Nos. 1 to 5, and accordingly had prayed for an
appropriate order to be passed by the Mamlatdar, removing such road,
obstruction created by the Petitioners. On such proceedings, Mamlatdar
passed an interim order dated 25th June, 2018, which reads thus:

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“ ORDER

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The claim filed by the Applicant to the effect the the
Respondent, by taking objection in respect of the land bearing
Gat No.646, had destroyed the earlier Canal-Strip used for to
and fro movement towards the applicant’s land bearing Gat
No.664/1A, 644/1B, 633/2B, 642/1 and 641/2 situated at
village Gursale, Tal. Malshiras is hereby allowed. The
perpetual warning is hereby given to the Defendant to the
effect that he himself or through his servants or any other
persons, should not cause any hindrance to the road under the
‘vahiwat’ (i.e. management) of the plaintiff. This order should
be implemented after the Appeal period is over.”

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3. The Mamlatdar has observed in the above order that the petitioners

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though were duly served though the Talathi and although were present at
the inspection undertaken on 21 March, 2018, they failed to remain
present on any of the dates when the proceedings were listed before him,
nor a say/reply was filed by the petitioners. The Mamlatdar accordingly
passed the order ex-parte to the petitioners.

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4. The Petitioners, being aggrieved by the order passed by the

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2 of 5

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S.R.JOSHI

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Mamlatdar, approached the Dy. Collector in Revision Application No.20 of
2018, who has passed the impugned order after hearing the parties,
rejecting the petitioners’ Revision Application and confirming the interim
order passed by the Mamlatdar.

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5.The learned Counsel for the Petitioners in assailing of impugned
order, at the outset, has submitted that grave prejudice is being caused to
the Petitioners by the impugned order, inasmuch as, the petitioners have
not obstructed the respondent’s user of land on Gat No.646, as alleged by
Respondent Nos. 1 to 5. According to him, it is the petitioners’ case that
respondent Nos. 1 to 5 could not have claimed any right either in respect
of the irrigation canal or for the right of way from such land. His primary
contention is that proceeding initiated by respondent Nos. 1 to 5 before
the Mamlatdar under section 5(2) of the Act, which were instituted on 5
February, 2018 were barred by limitation, inasmuch as according to him,
respondent Nos. 1 to 5 were well aware of the panchnama and the alleged
obstructions created by the Petitioners, way back in January, 2015. It is
submitted that the proceedings initiated by respondent nos. 1 to 5 before
the Mamlatdar were filed after a period of almost three years, when the
limitation to institute such proceedings as prescribed by Mamlatdar Court
Act, 1906 was six months from the accrual of the cause of action. Thus,
according to him, the proceedings before the Mamlatdar being barred by

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3 of 5

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S.R.JOSHI

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limitation, the Mamlatdar could not have passed the impugned order. It is
submitted that all these aspects of the matter have been completely
overlooked by the Dy. Collector while rejecting the Revision Application of
the petitioners.

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6.Having heard the learned Counsel for the parties and having
perused the order dated 25th June, 2018 passed by the Mamlatdar and the
impugned order dated 23rd July, 2019 passed by the Dy. Collector,
Malshiras as also the petitioners’ Advocate reply dated 7 February, 2015 to
the notice of the Branch Officer of the Irrigation Department, in my
opinion, prima facie it appears that the petitioners had caused obstruction
to the respondents’ user of the land, water and the pathway on Gat no.
646. The respondent nos. 1 to 5 accordingly had approached the
Mamlatdar’s Court seeking relief against such obstruction. It also appears
to be quite clear that the Mamlatdar passed the interim order dated 25
June, 2018, as the petitioners, despite notice of the proceedings, failed to

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appear before the Mamlatdar’s Court, against which the petitioners
preferred a Revision Application before the Deputy Collector. The learned
Counsel for the petitioners is correct in his contention that one of the
ground which was raised by the petitioners in the revision application was
with regard to the maintainability of the proceedings before the
Mamlatdar on the ground of limitation. However, it is not clear from the

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4 of 5

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S.R.JOSHI

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record as to whether the said issue was argued by the Petitioners before
the Dy. Collector. The petitioners have also not raised a specific ground in
the present petition to this effect that they had argued such ground before
the Deputy Collector in the Revision proceedings.

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7. Be that as it may, in my opinion, these proceedings have arisen from

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an ex-parte interim order passed by the Mamlatdar, hence it would be in
the interest of justice that the petitioners approach the Mamlatdar and
oppose the proceedings filed by respondent nos. 1 to 5 on all grounds
available to them in law including on the ground of limitation. Limitation
is admittedly a mixed question of law and fact which will have to be
decided on the basis of the pleadings and evidence as would be placed by
the parties before the Mamatdar. Ordered accordingly.

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8. All contentions of both the parties are kept open.

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9. Petition is, accordingly disposed of in the above terms. No order as to costs.

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10.Needless to observe that the interim order shall continue to operate

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and shall be subject to the further orders which may be passed by the
learned Mamlatdar.

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 (GIRISH S. KULKARNI, J.)

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5 of 5

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S.R.JOSHI

Dilip Manik Kashid and Ors. v. Pandurang Shankar Gaikwad and Ors.

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Dilip Manik Kashid and Ors. v. Pandurang Shankar Gaikwad and Ors.

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