Equivalent Citation: 2008(4)ALLMR335, 2008(6)BomCR684, 2008(4)MhLj467
S.A. No. 286 of 1992
Civil Challenge Orders - Sections 143 of the Maharashtra Land Revenue Code, 1966 - Whether the order of Tahasildar under Section 143(1) of Code could have been challenged in the pending suit? -Held, invocation of jurisdiction of Tahasildar subsequent to filing of civil suit not permissible - Division Bench expressly permitted parties to raise necessary issues in pending civil suit Not permissible to switch over between forum Thus, order of Tahasildar could not be challenged in pending civil suit- Appeal dismissed
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IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)
Decided On: 17.03.2008
Appellants: Jaglal S/o Premlal Jayaswal and Anr.
Vs.
Respondent: Waman S/o Shyamraoji Dhobale and Anr.
Vs.
Respondent: Waman S/o Shyamraoji Dhobale and Anr.
Hon'ble Judges: B.P. Dharmadhikari, J.
Ratio Decidendi:
Once an option is exercised, the other party cannot switch over to other forum so as to seek any inconsistent order or to make an attempt for any different order
JUDGMENT
1. The original defendants have challenged the concurrent judgments and decrees whereby the suit of the respondents plaintiffs to restrain the appellants from entering the Field Survey No. 35/2 or 35/1-A, from going over the Dhura to reach their Field Survey No. 35/1 of village Temburkheda, came to be decreed with a declaration that the defendants have no such rights.
2. The appeal has been admitted for final hearing on 14-3-1992 by raising a question as to whether the Civil Court, in a already instituted suit, can go into the correctness of the decision of Tahasildar under Section 143(3) of Maharashtra Land Revenue Code, which was based on the needs of the cultivators, and whether a fresh suit under Section 143(4) of the said Code was necessary, after the decision of the Tahasildar?
3. The respondents - plaintiffs filed Regular Civil Suit No. 1 of 1982 on 28-12-1981 for declaration and injunction as mentioned above. The said suit, upon its transfer to the Court of Joint Civil Judge, Junior Division Warud, was renumbered as R.C.S. No. 33 of 1989. The plaintiffs are admittedly the owners of Field Survey No. 35/2 and 35/1-A situated diagonally opposite to each other. The Field Survey No. 35/1 belongs to the original respondents/present appellants. The plaintiffs approached with a grievance that the respondents were not entitled to use their fields or Dhura shown by them as Shiv of village Bembadi on eastern side of Field Survey No. 35/2, and then on its northern side to reach his Field Survey No. 35/1. They contended that there was a regular cart way (Pandhan) from Temburkheda village to Bembadi village, which began from Survey No. 38 of Temburkheda, and passed on western side of Field Survey No. 35/1 and 35/1-A. Between these two fields and said cart way, there is Survey No. 32. Cart way proceeds by western boundary of Survey No. 32, and it was the case of the plaintiffs that the defendants used this way to reach the boundary between the Survey Nos. 31 and 32, and from there, they took a turn towards east (right hand turn) and reached north west corner of their Field Survey No. 35/1. The trial Court after adjudication, decreed the suit of the plaintiffs, and held that the defendants had no such right, and it also held that the plaintiffs proved that the defendants had usual way by Pandhan between Temburkheda and Bembadi. The defendant then filed the Regular Civil Suit No. 112 of 1998, and 2nd Additional District Judge, on 22-6-1992, dismissed the appeal.
4. Advocate Shri A.M. Gordey appearing for the appellant/original defendants had contended that from very scheme of Section 143 of Maharashtra Land Revenue Code, it is apparent that the suit to question order of Tahasildar passed in pursuance thereof must be instituted after the said order. He contends that hearing of the suit was already instituted, and the Tahasildar has passed the order under Section 143 of Maharashtra Land Revenue Code in favour of the present appellants on 23-9-1985. He states that no suit has been filed after 23-9-1985, and there is no amendment made in the Civil Suit already filed questioning the said order. According to him, the Order of Tahasildar dated 23-9-1985, therefore, attained the finality. He points out that the said order was challenged before the appellate Forum and the revisional Forum prescribed under the Maharashtra Land Revenue Code, and thereafter, in Writ Petition before the Division Bench of this Court by the present respondents, and the order of Tahasildar was maintained by all authorities and this Court. Accordingly, in view of this development, Civil Suit itself became redundant, and ought to have been dismissed. He further contends that even on facts, the findings reached by the trial Court or the Lower Appellate Court cannot be sustained because according to him existence of Shiv Dhura between village Temburkheda and village Bembadi is an admitted position. He therefore, contends that the perversity of findings is the substantial question of law, which arises for consideration in this second appeal. He has invited attention to the discussion in this respect by the trial Court as also the Lower Appellate Court, and also the provisions of the Section 143 of Maharashtra Land Revenue Code.
5. As against this, Advocate Shri Chandurkar contents that the Civil Suit was already filed by the present respondent on 28-12-1981, and temporary injunction under Order 39, Rules 1 and 2 of the Code of Civil Procedure was allowed in it on 12-3-1982. The proceedings before the Tahasildar were initiated by the present appellants on 24-3-1982 i.e. during the pendency of the suit. He points out that the said appellants had filed the Written Statement in the Civil Suit on 5-2-1982 and thus, was very much aware of the pendency of the Civil Suit. In reply to the fact of dismissal of the suit in default, which was pointed out by other side learned Advocate Mr. Chandurkar states that the suit came to be dismissed in default on 5-5-1984, and immediately MJC No. 30 of 1984 came to be filed for its restoration. The M.J.C. was allowed, and the suit came to be restored on 10-10-1985. In this background, he contends that the proceedings before the Tahasildar were itself misconceived. He invites the attention to the order passed by this Court on 26-4-1989 in Writ Petition No. 1021 of 1989 (Exh.122) to contend that this Court had already noticed the pendency of the Civil Suit, and had left the issues to be decided in the Civil Suit unaffected. According to him, therefore, the substantial question of law as framed does not arise for consideration at all. He further states that the scrutiny to find out the perversity of the findings, which requires re-appreciation of entire evidence, cannot be undertaken in the present facts at this stage because the findings reached are concurrent. He further invites the attention to the Judgment of the trial Court in order to point out that even the order of Tahasildar is considered by the trial Court, and the trial Court found the order to be unsustainable. He states that the order has been in fact, set aside by the trial Court and hence, all arguments of the appellants before this Court are misconceived. He, therefore, prays for dismissal of the second appeal.
6. Perusal of order of this Court Exh.122 in W.P. No. 1021 of 1989 shows that this Court has taken into account the pendency of the Civil Suit between the parties, and also the facts that the Civil Court had granted the temporary injunction restraining the present appellant from passing through Survey No. 35/2. The Division Bench thereafter observed that consideration on which the revenue authorities granted the way would be different, and it is open to the parties to raise the issue before the Civil Court in respect of the right of present appellants to proceed through the appellant's land. These observations therefore, clearly show that in the face of orders passed by the lower authorities, and in view of the pendency of the Civil Suit, the Division Bench left the controversy to be considered by the Civil Court unaffected by said adjudication. It is not in dispute that this order at Exh. 122 has attained the finality.
7. The trial Court has in paras 14 and 15 of its judgment considered the order of Tahasildar, and it noticed that if really any shiv road was in existence, Tahasildar would have certainly referred to village map. It found that the Tahasildar merely acted upon the oral evidence of the parties, and did not look into the survey records and the revenue records. It thereafter, considered the order of the Hon'ble High Court at Exh.122 and further found that the Revenue Authorities did not discharge their obligation properly. It found that during pendency of the suit, the plaintiff got his land measured through Government Agency, and as per the said map Exh. 112, the road given by the Revenue authorities formed the part and parcel of the plaintiff's land. It therefore, found that the revenue authorities granted the road to the defendants - appellants through the land i.e. through the field of the plaintiff and not over the Dhura or boundary. It also relied upon the evidence of the Government Measurers who stated that the plaintiff has not made any encroachment over the Shiv, and the land of the plaintiff was intact as per the record. It found that the Tahasildar in fact, could not have granted such road, and therefore, it set aside the said order of Tahasildar. It found that by using the force, the agricultural plants standing in the field of the plaintiffs were removed by the revenue authorities. It is thus, clear that the trial Court has considered the order of Tahasildar i.e. of revenue authorities and has set it aside after noticing that it was unwarranted.
8. Perusal of Section 143 of the Maharashtra Land Revenue Code shows that Tahasildar has been given a power to decide claims by persons holding the land in a survey numbers to right of way over the boundaries of other survey numbers. Thus, the right of way claimed before the Tahasildar has to be over the boundaries of other survey numbers. Sub-section (2) thereof obliges Tahasildar to consider the needs of the cultivators for reasonable access to their field and Sub-section (3) makes such order of Tahasildar final subject to the provisions of Sub-sections (4) and (5). The order of Tahasildar is subject to appeal and revision in accordance with the provisions of Maharashtra Land Revenue Code. Subsection (4) permits persons who are aggrieved by the decision of the Tahasildar to institute the civil suit within one year from the date of such decision to have it set aside or modified. Sub-section (5) further states that where a civil suit has been instituted under Sub-section (4) challenging the decision of Tahasildar, such decision of Tahasildar shall not be subject to appeal or revision. There are some arguments before me about the availability of Section 143(1) to present appellants. According to Advocate Mr. Chandurkar the way claimed was not over the boundary of survey number in which, all persons were holding the land, and it was on alleged Shiv between two villages. He further contends that the appellants pointed out to Tahasildar the alleged obstruction made by the present respondents, and therefore, prayer was not to grant the way, but to remove the obstruction. He contends that such a prayer has to be made before the Mamlatdar Court under Section 5 of Mamlatdar Court's Act. Advocate Shri Grodey has contended that very word "boundaries" used in Section 143(1) of Mamlatdar Court Act, does not exclude the Shiv Dhura or shiv way if such shiv way or dhura constitutes the boundaries of survey numbers. He further contends that in any case the boundaries are required to be settled under Chapter 9 of Maharashtra Land Revenue Code, and he invites the attention to Section 138 to point out the effect of settlement of boundary. He states that even if Shiv Dhura is treated as a boundary settled under Chapter 9, the same procedure is required to be followed by approaching the Tahasildar. He further pointed out that Section 138 and Section 143 are more or less identical. According to him, as the right of way over the Shiv between two villages was not recognized under the Land Revenue Code, recourse to Section 143(1) was the only appropriate remedy. However, in absence of the proper factual matrix on record, I find myself unable to consider this controversy.
9. In view of substantial question of law framed, it is apparent that the only question to be decided is whether in the pending suit, the order of Tahasildar under Section 143(1) could have been assailed. As already stated above from the facts, it is clear that the appellant defendant approached the Tahasildar when the Civil Suit was already filed on the very same subject-matter. The provisions of Section 143, Sub-section (5) clearly show that the legislature has taken precaution to see that no inconsistent orders come into force and once a decision of Tahasildar is challenged in the Civil Suit, further challenge to such order before the revenue authorities is expressly prohibited. It is not the case of any of the parties that in case of grievance of present nature, Civil suit cannot be filed directly. It is, therefore, apparent that the party who has grievance has an option either to approach the Tahasildar under Section 143(1) and then to file a Civil Suit. In these circumstances, after the Civil suit is filed, if it is held that the approach to Tahasildar in very same matter under Section 143(1) is legal and permissible, the possibility of inconsistent orders being passed again emerges. In fact, in view of the precaution taken vide Section 143, Sub-section (5), and primacy given to Civil remedy, it is clear that after an option is exercised, the other party cannot switch over to other forum so as to seek any inconsistent order or to make an attempt for any different order at least till Tahasildar passes an order. In the circumstances, it is clear that as the civil suit was already filed on 28-12-1981, invocation of jurisdiction of the Tahasildar by present appellants on 24-3-1982 was itself legally not permissible.
10. As pointed out by the learned Advocate Shri Gordey from the date on which the Tahasildar passed the order i.e. on 23-9-1985, the civil suit was not pending. The Civil suit was dismissed on 5-5-1984, and has been restored on 10-10-1985. That by itself will not make valid the approach before the Tahasildar. In case as already stated above, though there is no express challenge to the decision of Tahasildar in the civil suit, the grievance in relation to that order was made before the Civil Court, and said grievance was considered by the Civil Court after giving due opportunities to both sides. The Civil Court has in the present facts set aside the impugned order of Tahasildar dated 2-2-1985.
11. The contention that the order of Tahasildar could not have been challenged in the pending Civil Suit, therefore, really does not arise for consideration in the present matter, as the very approach to Tahasildar during the pendency of the Civil suit is not contemplated under the Scheme of Section 143 of Maharashtra Land Revenue Code. Not only this, the Division Bench of this Court vide its order on Exh.122 expressly permitted the parties to raise necessary issues in the pending Civil Suit, and the grievance against the order of Tahasildar has been looked into by the Civil Court accordingly.
12. In these circumstances, I find that the substantial question of law as formulated really does not arise for consideration in the present matter. In any case, in the present appeal, it cannot be held that the order of Tahasildar dated 23-9-1985 could not have been challenged in the pending Civil suit. The contention that the findings recorded by the trial Court and accepted by the Lower Appellate Court are perverse is not borne out from the record. No fault can be found with concurrent acceptance of evidence of Government surveyor. In the circumstances, second appeal is dismissed, however, there shall be no order as to costs. Interim order if any stands vacated.
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