Dist. Parbhani v. Lavte, AGP for
Legal Reasoning
(1) wp-356-2023.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.356 OF 2023Dagdoba s/o Raosaheb Kale, Age: 59 years, Occu: Agriculture, R/o. Mardasgaon, Tq. Pathari, Dist. Parbhani...PetitionerVersus1.Haribhau s/o Bhagwan Shinde,Age: Major, Occu: Agriculture,2.Sudam s/o Shivram Kadam,Age: Major, Occu: Agriculture,3.Satish s/o Durgadas Pedge,Age: Major, Accu: Agriculture 3A. Smt. Shobha wd/o Satish Pedge,Age: 52 years, Occu: Agriculture;3B.Balabhau s/o Satish PedgeAge: 32 years, Occu: Agriculture;BC.Uddhav s/o Satish Pedge,Age: 30 years, Occu: Agriculture;3D.Yogita d/o Satish Pedge,Age: 27 years, Occu: Agriculture;All R/o: Mardasgaon, Tq.Pathari,Dist. Parbhani.4.Parmeshwar s/o Tatyarao Shelke,Age: Major, Occu: Agriculture,5.Dipak s/o Sandipan Shelke KaleAge: Major, Occu: Agriculture,All R/o: Mardasgaon, Tq. Pathari,Dist. Parbhani.6.The Tahsildar, Pathri,A/p & Tq. Pathri, Dist. Parbhani.
Legal Reasoning
(2) wp-356-2023.odt7.The Sub Divisional Officer,A/p & Tq. Pathri, Dist. Parbhani...Respondents....Mr. S. T. Shelke, Advocate for Petitioner.Mr. A. V. Lavte, AGP for Respondents-State.Mr. M. S. Bhosale, Advocate for Respondent No.1.… CORAM : S. G. CHAPALGAONKAR, J. DATED : 22nd JULY 2024.JUDGMENT:- 1.Rule. Rule made returnable forthwith. By the consent of theparties, matter is taken up for final hearing at the stage ofadmission.2.The petitioner impugns order dated 31.03.2022 passed by theTahsildar, Pathri-respondent no.6 as well as order dated23.11.2022 passed by the Sub Divisional Officer, Pathri-respondentno.7.3.The petitioner contends that he is owner and possessor ofland bearing Gut No.164 within the limits of GrampanchayatMardasgaon, Tq. Pathri, District Parbhani. The land bearing GutNo.160 originally owned by Smt. Shantabai Kale. She hadinstituted proceeding under Section 143 of the Maharashtra LandRevenue Code (for short ‘MLR Code’) against the petitioner seekingapproach road to her field. The said application was allowed bylearned Tahsildar vide order dated 12.06.2017 and she was grantedway from common Bandh between Gut Nos.161 and 164 andthereafter, from common Bandh of Gut Nos.164 and 159. Thepetitioner had assailed the said order before the Sub DivisionalOfficer, Pathri. The said Appeal was allowed and order ofTahsildar was quashed and set aside. Thereafter, Smt. ShantabaiKale filed Regular Civil Suit No.3/2018 before the Civil Judge,Junior Division at Pathri claiming relief of perpetual injunction (3) wp-356-2023.odtthat cart way to approach Gut No.160 shall not be obstructed bythe petitioner and others. She had also filed application seekingtemporary injunction. In pursuance of the said suit andapplication, the Court Commissioner’s report was called by theCivil Court and after considering such report, application fortemporary injunction was rejected vide order dated 03.07.2018.4.Thereafter, Smt. Shantabai Kale sold out her land from GutNo.160 to sons of respondent no.1-Haribhau, who owned the landfrom Gut No.159. The respondent no.1-Haribhau filed applicationinvoking Section 5 of the Mamlatdar’s Courts Act alleging that hisapproach road from Gut No.159 has been obstructed by thepetitioner. The learned Tahsildar acceded the prayer andrestrained the petitioner and others from obstructing respondentno.1-Haribhau Shinde from using cart way from boundaries of GutNos.164 and 171, 158 and 159. The petitioner filed Appeal underSection 23(2) of the Mamlatdar’s Courts Act before the SubDivisional Officer, Pathri. However, the said Appeal came to bedismissed.5.Mr. Shelke further submits that respondent no.1-Haribhauowns land from Gut No.159 and recently he has purchased landfrom Gut No.160 from Smt. Shantabai. He would submit thatpreviously Smt. Shantabai had instituted proceedings underSection 143 of the MLR Code against the petitioner asking for roadfrom common Bandh of Gut No.164. Her prayer was rejected.Even, she had instituted Suit alongwith Application for temporaryinjunction. The Civil Court observing that Smt. Shantabai hasalternate road, rejected her prayer. The respondent no.1-Haribhauhas stepped into the shoes of Smt. Shantabai in view of sale deeddated 08.04.2019 and asked for similar prayer and sought for (4) wp-356-2023.odtremoval of obstruction. Mr. Shelke would submit that there isnothing on record to show that customary access road as claimedwas available. In that view of the matter, the impugned orders areliable to be quashed and set aside.6.Per contra, Mr. Bhosale, learned Advocate appearing for therespondents submits that the petitioner had obstructed theexisting cart way. On application of the petitioner, the learnedTahsildar caused spot inspection and after examining the reportsubmitted by the Circle Officer, the Tahsildar has granted prayerof the petitioner directing respondents to remove obstruction. Thesaid order is confirmed by the Sub Divisional Officer. The learnedSub Divisional Officer has observed that tonch map, prima facie,shows existence of such customary way. The concurrent findings ofthe facts recorded by the Authorities need not be disturbed.7.Having considered submissions advanced on behalf of thelearned Advocates appearing for the respective parties, it isapparent that respondent no.1 owns agriculture land from gutNo.159 and recently he has purchased land from Smt. ShantabaiKale from Gut No.160. Previously Smt. Shantabai had initiatedproceedings under Section 143 of the MLR Code seeking grant ofcart way from boundary of Gut No.164. Although such prayer wasinitially granted, the order was set aside by the Sub DivisionalOfficer. Smt. Shantabai Kale then instituted Suit bearing RegularCivil Suit No.3/2018, wherein prayer was made for grant oftemporary injunction against the petitioner and others fromobstructing her way from the boundaries of Gut Nos.164 and 159 toapproach Gut No.160. The report of Court Commissioner wassolicited in the Suit, which records presence of bushes, stem ofjujube tree and babool tree on common Bandh of Gut Nos.164 and (5) wp-356-2023.odt159. Further the presence of drainage was noted on commonBandh of Gut Nos.164 and 171. It is, therefore, evident that cartway never existed as claimed by the respondents.8.Perusal of the order passed by the Mamlatdar shows that thespot inspection was carried. However, details of such spotinspection are not recorded in the order. It appears that, onlybecause other respondents accepted contentions of respondent no.1,the order is passed directing removal of obstruction. The said orderis confirmed by the Appellate Authority. The conclusion drawn bythe Mamlatdar appears to be without in depth enquiry. Further asrightly pointed out by Mr. Shelke, Smt. Shantabai had also claimedfor similar way invoking provisions of Section 143 of the MLR Codeand Suit. In both the proceedings, conclusion is drawn that nosuch way can be granted. In that scenario, there is nothing toestablish foundational facts for exercising jurisdiction underSection 5 of the Mamlatdar’s Courts Act or to uphold thecontentions of the respondents about use of customary cart way.However, common Bandh can always be used as pathway andthere cannot be obstructions to such use. Consequently, WritPetition deserves to be allowed with aforesaid clarification. Hence,the following order:ORDERa.Writ Petition is partly allowed.b.The impugned order dated 31.03.2022 passed by theTahsildar-respondent no.6 as well as order dated 23.11.2022passed by the Sub Divisional Officer-respondent no.7 are herebyquashed and set aside. However, the respondents shall be atliberty to use common Bandh as pathway and the petitioner shallnot obstruct them for such use. (6) wp-356-2023.odtc.Writ Petition stands disposed of in aforesaid terms.d.Rule is made absolute in above terms.(S. G. CHAPALGAONKAR) JUDGE Devendra/July-2024