High Court
Legal Reasoning
{1} WP-1450-2020 IN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 1450 OF 2020 WITHCIVIL APPLICATION NO. 817 OF 2025INWRIT PETITION NO. 1450 OF 2020 1]Subhedarkha S/o Dulhekha PathanAge-61 years, Occ-Agril,R/o. Balanagar, Tq. Paithan, Dist. Aurangabad2]Sayarabee W/o Subhedarkha PathanAge- 56 years, Occu- Agril,R/o. As Above....PETITIONERSVERSUS1]Pravin S/o Laxman GordeAge- 30 years, Occ- Agril,R/o. Balanagar, Tq. Paithan, Dist. Aurangabad2]Neharu S/o Shamrao GordeAge- 57 years, Occ- AgrilR/o. As above.3]The Additional Collector,Collector Office, Aurangabad.4]The TahsildarTahsil Office PaithanTq. Paithan, Dist. Aurangabad....RESPONDENTS Mr. Shaikh Faruk V. Patel, Advocate for petitionersMr. Deelip Patil Bankar, Senior Advocate i/b. Mr. S.M. Kshirsagar, Advocate for respondents No. 1 and 2Mrs. A.S. Mantri, AGP for respondent No. 3 and 4-State ....... CORAM : MANJUSHA DESHPANDE, J. RESERVED ON : 20th JANUARY, 2025 PRONOUNCED ON: 4th FEBRUARY, 2025Bhagyawant Punde {2} WP-1450-2020JUDGMENT :1.Rule. Rule made returnable forthwith. Heard finallywith the consent of the parties.2.Petitioners are challenging the judgment and orderpassed 11.09.2019 passed by Additional Collector, Aurangabad inCase No. 2017/Revision/Mamlatdar/CR-20(204), wherebyrevision petition filed by petitioners has been rejected and orderdated 10.11.2017 passed by Tahsildar, Paithan has beenconfirmed.3.It is the case of petitioners that respondents No. 1and 2 had filed application before Respondent No. 4, underSection 5 of Mamlatdars’ Courts Act, 1906 (for short ‘Act of1906’), seeking direction to open vahivat road and passnecessary order in favour of respondent No. 1 and 2.Respondent No. 1 and 2 are the owners and possessors of landGut No. 226 while petitioners are owners and possessors of landGut No. 225 situated at village Balanagar, Taluka- Paithan, Dist.Aurangabad. Pursuant to the application of respondents No. 1and 2, Circle Officer submitted his report dated 13.11.2014 toRespondent No. 4-Tahsildar, reporting that petitioners haveobstructed the internal way which falls within the boundary ofBhagyawant Punde {3} WP-1450-2020lands of petitioners and respondents No. 1 and 2, by using sticksand twigs. In the report it was further stated that the road is notcapable of being open until the demarcation of boundary ofpetitioners land is made. It was stated by him that Tahsildar mayvisit the spot by issuing notices to the concerned parties. On23.02.2025, Talathi and Circle Officer visited the spot andsubmitted a report to Tahsildar, Paithan. In that report, Talathihad stated that petitioner No. 1 had informed them that there isshiv rasta from the boundary of land Gut No. 225 and 226 whichbelongs to respondent No. 1 and 2 to approach land Gut No.226. The shiv rasta has been constructed from the publiccontribution. It is further stated in the report that respondentsNo. 1 and 2 have refused to use the shiv rasta.4.According to learned advocate for the petitioners inthis report also Talathi had recommended that Tahsildar shouldvisit the spot personally. The second report was prepared by theCircle Officer and Talathi on 23.02.2015. According topetitioners, in spite of recommendation of Circle Officer andTalathi once again Talathi, Balanagar visited the spot andprepared panchnama in which it is stated that there is Tanda(Bk) Balanagar shiv rasta, which is in existence from Gut No.Bhagyawant Punde {4} WP-1450-2020224, 225 till the boundary of Gut No. 226. It is also stated thatcart track is found between Gut No. 225 and 226 which exists upto the centre of land Gut No. 225 and that road has beenblocked by sticks and twigs. The learned advocate for thepetitioners has laid emphasis on the part of report wherein theconcerned officer has stated that there is no encroachment onthe shiv rasta by petitioners. Learned advocate for thepetitioners further contended that on 10.11.2017, respondentNo. 4 Tahsildar passed order on the basis of report andpanchnama dated 13.11.2014, 23.02.2015 and 11.12.2015.According to learned advocate for the petitioners, order passedby Tahsildar is erroneous since it was passed without taking intoconsideration the existence of shiv rasta which is mentioned inall the three reports. Therefore, he had challenged the judgmentand order passed by respondent No. 4- Tahsildar before theAdditional Collector, Aurangabad. The Additional Collector,Aurangabad after hearing the parties has been pleased to rejectthe revision filed by petitioners by judgment and order dated11.09.2019, confirming the judgment and order passed byTahsildar. According to him, though the observations made inpara 3 of the order of Additional Collector, Aurangabad favourshim, however, while passing the final order, the AdditionalBhagyawant Punde {5} WP-1450-2020Collector, Aurangabad has passed the order which is contrary tohis observations in para 3. Hence, this reflects non application ofmind by the Additional Collector, Aurangabad.5.Learned advocate for the petitioners submits that infact from the panchnama and the report submitted by CircleOfficer and Talathi dated 13.11.2014, 23.02.2015 and11.12.2015 clearly record that there is shiv rasta adjoining thelands of petitioners as well as respondents No. 1 and 2 in GutNo. 225 and 226. Therefore, though, the approach road isavailable to respondents No. 1 and 2, which is very much inexistence as has been recorded in all the three reports,Respondents No. 1 and 2 are adamant and have refused to usethe alternate road. According to learned advocate for petitionersin fact the prayer of respondents No. 1 and 2 itself was forremoval of obstructions from shiv rasta/vahivat rasta, therefore,considering that all the three reports did not disclose that thereis any obstruction on the shiv rasta as can be seen from the mapand report, which is placed on record, both the authorities havecommitted an error in passing the order, thereby directing him toremove the encroachment from the bandh, which is in existencebetween Gut No. 225 and 226 belonging to petitioners andBhagyawant Punde {6} WP-1450-2020respondent No. 1 and 2 respectively.6.The respondents No. 1 and 2 who are represented bySenior Advocate Shri. Deelip Patil Bankar opposes the prayermade in the writ petition. According to him, there exists vahivatrasta, which is in existence since their forefathers and it is beingused by respondents No. 1 and 2 for approaching their lands.However, petitioners have closed the customary way with sticksand twigs. Since their approach was obstructed, they have filedapplication under Section 5 of Act of 1906, seeking direction toremove the obstruction created by petitioners in their vahivatrasta.7.According to him, there is specific mention in all thepanchnama that there exists a cart track between Gut No. 225and 226 and it has been obstructed with sticks and twigs. Thisitself indicates existence of vahivat rasta. Only after taking intoconsideration the reports of Circle Officer and Talathi, whereinexistence of vahivat rasta has been mentioned, the order hasbeen passed by the Mamlatdar.8.Respective parties are relying on the report of CourtCommissioner, which is submitted and placed on record pursuantto the order dated 21.11.2022 passed by this Court. LearnedBhagyawant Punde {7} WP-1450-2020Senior Advocate has drawn my attention to the order dated23.08.2023, wherein this Court has observed that “the learnedcounsel appearing for the petitioners submits that there isalternate access to the respondents land from the shivrasta andthe respondents are using the same.” and petitioners werepermitted to place on record photographs of the alternate road.9.According to learned Senior Advocate this order itselfmakes it clear that customary road which was being used is theroad which is between two gut numbers and petitioners areclaiming that respondents should use the alternate accessinstead of customary road, which is obstructed by them.10.He further relies on the part of report of CourtCommissioner, wherein it is stated that when they proceededfrom the side of Gut No. 226 from its boundary a Nala exists andit was brought to the notice of Court Commissioner that land GutNo. 226 is shared by respondents in between brotherhood interse. It was demonstrated to him that it is shared by Amol Gorde,Shrikant Gorde, Neharu Gorde, Machindra Gorde, Pravin Gordeand Sachin Gorde. The respective holders of the land havestated that there is mutual understanding, accordingly, they areusing the temporary arranged boundary way. It is the contentionBhagyawant Punde {8} WP-1450-2020of respondents No. 1 and 2 that Gut No. 226 is held by variouspersons and on the boundary between Gut No. 225 and 226,petitioners have created obstruction. Therefore, their approachto their field through vahivat rasta is blocked. The field ofrespondents No. 1 and 2 is situated in Gut No. 226 in such away, that they cannot approach shiv rasta, which is recentlyconstructed. The shiv rasta runs from east to west. Even shivrasta is existing up to starting point of Gut No. 226 only and nofurther. It is further observed in the Court Commissioner’s reportthat from the beginning point of Gut No. 225, Tanda shiv rastawas not seen to be in use. 11.In order to facilitate this Court the CourtCommissioner has drawn certain pointwise conclusions aboutabout the location of shiv rasta and vahivat rasta. It iscategorically noted in point no. 1 i.e. there is Nala between GutNo. 225 and 226 and from boundary line of Gut No. 225,petitioners have closed the portion of Nala with stones, straws,thorny bushes etc. There is no problem for the petitioners toreach their field in Gut No. 225 from Tanda shiv road. Oldvahivat i.e. customary way exists up to starting point of Gut No.225. The respondents No. 1 and 2 are using the way from theBhagyawant Punde {9} WP-1450-2020boundary line abutting to Nala in Gut No. 226 as a temporaryarrangement. He has further recommended that the naturalcourse of Nala, which appears between the two Guts, is likely tobe closed at the instance of petitioners and respondents No. 1and 2, should be kept open and clear, for easy flow of naturalrain water and that can be conveniently used for approachingholders of Gut No. 226 and 225. The Court Commissioner hasalso placed on record photographs of shiv rasta. The map whichis annexed along with Court Commissioner’s report shows thatthere is old road of village Balanagar, which is a tar roadapproximately 500 mtrs and Gut No. 225 is abutting to thatroad. So far as Gut No. 226 is concerned, according to map Shivrasta has been closed at the point where it reaches the Gut No.226.12.I have heard the parties and perused the recordalong with original record of Tahsildar. Both the parties haverelied on inspection conducted by Circle Officer and Talathi onthree occasions. It is categorically stated by the petitioners thatthere is alternate road and respondents No. 1 and 2 should usethe same, thereby opposing the use of existing road which wasused by forefathers of respondents No. 1 and 2. It also reflectsBhagyawant Punde {10} WP-1450-2020that shiv rasta has been recently constructed from thecontribution of villagers. Therefore, based on said reports,Tahsildar has passed a order observing that petitioners haveobstructed the customary road between Gut No. 225 and 226which is a approach road for the respondents No. 1 and 2. TheAdditional Collector has also refused to interfere with the saidorder on the ground that there exists three reports whichcategorically state that petitioners have caused obstruction tothe passage of respondents No. 1 and 2.13.Other objection which is raised by learned advocatefor the petitioners is that Mamlatdar has not followed dueprocedure of law while conducting proceeding filed under Section5(2) of Act of 1906. According to him, Tahsildar has failed tofollow procedure as provided under Section 9 of Act of 1906.Section 9 of Act of 1906 reads thus:“9. Examination of plaintiff on oath.- Where theplaint does not contain the particulars specified insection 7 or is unnecessarily prolix, the Mamlatdarshall forthwith examine the plaintiff upon oath andascertain from him such of the particulars specifiedin section 7 as are not clearly and correctly stated inthe plaint and shall reduce the examination towriting in the form of an endorsement on orannexure to the plaint which shall thereupon bedeemed to be part of the plaint. Where the plaintiffrequires time to obtain any of the particularsBhagyawant Punde {11} WP-1450-2020specified in section 7, the Mamlatdar shall grant himsuch time as may under all the circumstances appearreasonable.”14.Section 7 of Act of 1906 reads thus;“7. Suits commenced by plaint: Contents of plaint:All suits under this Act shall be commenced by a plaint,which shall be presented to the Mamlatdar in openCourt by the plaintiff and which shall contain thefollowing particulars:- (a)the name, age, religion, caste, profession and placeof abode of the plaintiff;(b)the name, age, religion, caste, profession and placeof abode of the defendant;(bb) the nature and situation of the impediment erectedand the situation of the lands which are adjacent toeach other and the nature of the relief sought;(c)the nature and situation of the property of whichpossession for use is sought, or the nature of theinjunction to be granted, as the case may be;(d)the date on which the cause of action arose;(e)the circumstances out of which the cause of actionarose; and(f)a list of the plaintiff's documents, if any, and of hiswitnesses, if any, showing what evidence is requiredfrom each witness, and whether such witnesses are tobe summoned to attend, or whether the plaintiff willproduce them on the day and at the place to be fixedunder section 14.”15.According to him, there is no affidavit filed byplaintiff in support of the issues which have been raised. TheBhagyawant Punde {12} WP-1450-2020issues were not framed by the Mamlatdar as provided underSection 19 of Act of 1906, which reads thus;“19. Points to be decided by Mamlatdar at hearing:(1) On the day fixed, or on any day to which theproceedings may have been adjourned, the Mamlatdarshall, subject to the provisions of Section 16, proceedto hear all the evidence that is then and three beforehim, and to try the following issues, namely:(aa) If the plaintiff avers that the natural flow ofsurface water from his land has been impeded by anyerection raised by the defendant causing damage orlikelihood of damage to plaintiff’s land or to anygrazing, trees or crops thereon-(1) whether surface water flowed in a defined channelor otherwise, naturally from plaintiff's land on todefendant's land;(2) Whether the defendant erected any impediment tosuch flow, otherwise than under due authority of law;(3) whether such erection impeded such natural flow ofwater within six months before the suit was filed;(4) whether such impediment has caused or is likely tocause damage to plaintiff's land or to any grazing,trees or crops thereon;](a) If the plaintiff avers that he has been unlawfullydispossessed of any property or deprived of any use,(1) whether the plaintiff or any person on his behalf orthrough whom he claims was in possession orenjoyoment of the property or use claimed up to anytime within six months before the suit was filed;(2) whether the defendant is in possession at the timeof the suit, and, if so, whether he obtained possessionotherwise than by due course of law;(b) if the plaintiff avers that he is entitled to possessionof any property or restoration of any use by reason ofthe determination of any tenure or other right of theBhagyawant Punde {13} WP-1450-2020defendant in respect thereof -(1) whether the defendant is in possession of theproperty or in the enjoyment of the use by a rightderived from the plaintiff or from any person throughwhom he claims;(2) whether such right has determined at any timewithin six months before the suit was filed;(3) whether the defendant is other than a person whohas been a former owner or part-owner within a periodof twelve years before the institution of the suit of theproperty or use claimed, and other than the legalrepresentative of such former owner or part-owner;(c) if the plaintiff avers that he is still in possession ofthe property or in the enjoyment of the use, but thatthe defendant disturbs or obstructs or has attempted todisturb or obstruct him in his possession or use,(1) whether the plaintiff or any person in his behalf isactually in possession or enjoyment of the property oruse claimed;(2) whether the defendant is disturbing or obstructing,or has attempted to disturb or obstruct him, in suchpossession or enjoyment;(3) whether such disturbance or obstruction, or suchattempted disturbance or obstruction, first commencedwithin six months before the suit was filed.(2) Power of Mamlatdar to examine other witnessesand inspect property in dispute: The Mamlatdar may,after due notice to, and in the presence of, the partiessummon and examine as a witness any person who hasnot been summoned or produced, and may call for andcause to be proved any document which has not beenapplied for or produced, by either of the parties, wherehe considers it expedient in the interests of justice soto do, and may, if he thinks fit, make a personalinspection of the property in dispute in the presence of,or after due notice to, the parties.Bhagyawant Punde {14} WP-1450-2020He shall without unnecessary delay record amemorandum after hearing the parties on the spot, ifpresent, of any relevant facts observed at suchinspection. The memorandum shall form part of therecord of the case.(3) Record of proceedings by Mamlatdar: TheMamlatdar shall with his own hand make or sign amemorandum of the substance of the evidence of eachwitness as the examination of the witness proceeds,and briefly record his reasons for his finding.(4) Orders to be passed by Mamlatdar upon decisionsin favour of plaintiff and defendant: Where theMamlatdars' finding upon the issues is in favour of theplaintiff, he shall make such order, not being in excessof the powers vested in him by Section 5, as thecircumstances of the case appear to him to require;and where his finding is in favour of the defendant, heshall dismiss the suit. In either case the costs of thesuit, including the costs of execution, shall follow thedecision.”16.In support of contentions, learned advocate for thepetitioners places reliance on following judgments;i)Popat Mohan Koli vs. Patel Jasraj Dharamshi, 1995(1)GuJLH 449ii)Sudhir Yashwant Dhangade vs. Asnkush Kashiram Bole andothers, 2019(1) ALL MR 825(iii)Gaurakshan Sansthan, Murtizapur Through ArvindMarotiramji Mohod vs. State of Maharashtra and Others, 2019(3) ALL MR 849.17.In Popat Koli (supra), the order of Mamlatdar wasBhagyawant Punde {15} WP-1450-2020quashed on the ground that procedure prescribed under Section14 and 5 was not followed.18.In Sudhir Dhangade (supra), on failure to examinewitnesses, the order of Mamalatdar has been set aside.19.Learned advocate for the petitioners has placedreliance on Gaurakshan Sansthan (supra) in support of hiscontention that application is not supported by affidavit asrequired under Section 7 of the Act of 1906.So far as decision in Gaurakshan Sansthan (supra) isconcerned, relying on Section 7, the judgment has been passedby this Court. 20.In response to the submission of learned advocatefor the petitioners, learned Senior Advocate for respondents No.1 and 2 has drawn my attention to the copy of amendmentapplication which is filed by respondents No. 1 and 2 incompliance of Section 5 and 7 of Act of 1906. All the necessarydetails as contemplated under Section 7 of Act of 1906 havebeen stated in the plaint which is filed by way of amendmentapplication and same is also sworn by the parties on 01.09.2015.Hence, objections raised by petitioners as regards noncompliance of Section 5 do not survive.Bhagyawant Punde {16} WP-1450-202021.As regards non compliance of Section 19 isconcerned, it pertains to points to be decided by Mamlatdar athearing which contemplates fixing the date of hearing and issuesto be decided. According to him, Mamlatdar has not visited thedisputed property in person, which is contemplated underSection 19(2) of the Act of 1906. Therefore, he could not havepassed the order impugned. Section 19(2) of the Act of 1906reads thus;“19.Points to be decided by Mamlatdar at hearing:(1)-----(2) Power of Mamlatdar to examine other witnesses andinspect property in dispute: The Mamlatdar may, afterdue notice to, and in the presence of, the partiessummon and examine as a witness any person who hasnot been summoned or produced, and may call for andcause to be proved any document which has not beenapplied for or produced, by either of the parties, wherehe considers it expedient in the interests of justice so todo, and may, if he thinks fit, make a personal inspectionof the property in dispute in the presence of, or afterdue notice to, the parties.He shall without necessary delay record amemorandum after hearing the parties on the spot, ifpresent, of any relevant facts observed at suchinspection. The memorandum shall form part of therecord of the case.”22.The terminology used in Section 19(2) of the Act of1906 grants discretionary powers to the Mamlatdar and theprocedure prescribed is not mandatory. The powers are to beBhagyawant Punde {17} WP-1450-2020exercised only in certain contingencies. Therefore, the orderpassed by Mamlatdar does not suffer from any infirmity, since hehas passed order on the basis of report of the revenue officerwho were deputed by him to conduct the panchnama. 23.Learned Senior Advocate for respondents has alsorelied on the judgment of Hon’ble Supreme Court in Ajay Singhvs. Khacheru & Others, (Special Leave Petition (Civil) Nos.34407-34408 of 2013). He places reliance on the observation ofSupreme Court wherein it is stated that, “it is a well-establishedprinciple that the High Court, while exercising its jurisdictionunder Article 226 of the Constitution of India, cannotreappreciate the evidence and arrive at a finding of facts unlessthe authorities below had either exceeded its jurisdiction oracted perversely.”It is further observed that “the High Court hascommitted an error of law and facts in setting aside theconcurrent findings in both the impugned judgment and order.There was no basis for the High Court to ignore the findings ofthe authorities and come to its own conclusion by appreciatingthe evidence on record.”24.Therefore, in the present case it would not be properBhagyawant Punde {18} WP-1450-2020for this Court to reappreciate the evidence and interfere with theconcurrent findings recorded by both the authorities. Thepetitioners as well as respondents No. 1 and 2 have made theirsubmissions based on fact finding reports on which theauthorities have decided the proceedings.25.The orders passed by the Tahsildar and the AdditionalCollector are based on the three panchnamas conducted on13.11.2014, 23.02.2015 and 11.12.2015 respectively. All thethree panchnamas disclose that, the customary way ‘VahivatRasta’ between the Gut No. 225 and 226 has been obstructedwith thorny bushes and twigs. The statement of petitionerrecorded during the panchnama discloses that, the petitioner isinsisting the respondent to use the alternate shiv road, which isconstructed a year before and even that road is not fullyconstructed, it ends in the midst of boundary of Gut No. 226. Inpanchnama dated 11.12.2015, conducted by Naib Tahsildar, it isobserved by him that, there appears a cart track between GutNo. 225 and 226, however it is obstructed in the midst withthorny bushes and twigs, however, the road further leads fromGut No. 225 and 226, Gut No. 222 and 237 is open and in use,which further leads from bandh of Gut No. 220, 221 and 219 andBhagyawant Punde
Decision
{19} WP-1450-2020join the Balanagar Khargaon road.26.Both the subordinate Authorities have rightly heldthat, there is a customary road, in existence, between the landsof the petitioners and respondents, obstructed by petitioners.The petitioners are insisting the respondents to use the alternateroad, which is not fully developed upto the land of respondents.Hence, there is no error committed by the authorities inrecording the findings. The order passed by both the authoritiesis just, legal and proper and in accordance with law.27. The power of this Court under Article 227 of theConstitution of India is restricted only to the extent of decidinglegality and correctness of the orders of subordinate RevenueAuthorities. Upon going through both the orders which are wellreasoned and based on fact finding reports and applying relevantprovisions of law, I do not find that there is any case forinterference made out by petitioners. Hence, the writ petitiondeserves to be dismissed and is accordingly dismissed. In viewof disposal of writ petition, pending civil application standsdisposed of.Rule stands discharged. (MANJUSHA DESHPANDE, J.)Bhagyawant Punde