I have gone through the provision of Section 5 of the
Mamlatdars' Courts Act. The proviso below subsection (1) of
Section 5 of the said Act empowers the Mamlatdar to refuse to
exercise the power under the said provision if it appears to him
that such a case can be more suitably dealt with by the Civil
Court. Though there is a revision provided under Section 23 of
the said Act to challenge the order passed by the Mamlatdar
under Section 5, the Act nowhere attaches finality either to the
order passed under Section 5 by the Mamlatdar on merits or to
the order passed in revision under Section 23 of the said Act. In
the absence of such finality being attached to the order passed
under the Act, the jurisdiction of the Civil Court cannot be held
to be impliedly barred merely because the Act provides a
separate machinery for getting the grievance redressed. The
ouster of the plenary jurisdiction of Civil Court cannot be readily
interfered and such jurisdiction remains intact and available to
be exercised either against the order under Section 5 or against
the order of revision under Section 23 of the said Act.
8. The learned counsels appearing for the parties could not
bring to my notice any express provision creating bar of
jurisdiction of the Civil Court to entertain, try and decide the suit
challenging either the order passed under Section 5 or under
Section 23 of the Mamlatdars' Courts Act. In a given case, a Civil
Court may refuse to grant relief on the ground that the remedy of
revision under Section 23 of the said Act is not exhausted, but
that is not the mandate which the Civil Court is required to
observe. The lower Appellate Court has, in terms, recorded the
finding that when the order passed by the Mamlatdar is without
following the procedure, it cannot come in the way of the Civil
Court to decide the substantive rights of the parties. The view
taken cannot be faulted with.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Second Appeal No.386 of 2003
Mohommad Khan s/o Rahim Khan,
V
Shri Shankar s/o Maroti Dhage,
Coram : R.K. Deshpande, J.
Dated : 8-3-2017
Citation: 2017(3) ALLMR380
1. The Trial Court dismissed Regular Civil Suit No.66 of
1998 for grant of declaration that the order dated 2361998
passed by the Mamlatdar under Section 5 of the Mamlatdars'
Courts Act, 1906 granting right of way to the defendant No.1 is
bad in law and, therefore, the defendant No.1 be restrained from
approaching his field from the northern boundary of the
plaintiff's field Gat No.47/1 of Village Jalka Jagtap, as per the
said order. The lower Appellate Court has allowed the appeal
and set aside the decision of the Trial Court. The lower Appellate
Court grants a declaration that the defendant No.1 has no right
to go to his land by and from over the northern dhura of the field
of the plaintiff and from inside the field. It restraints the
defendant No.1 from approaching his field by or from near the
northern dhura of the field of the plaintiff. The map at
Exhibit 56 is treated to be the part and parcel of the decree. The
original defendant No.1 is, therefore, before this Court in this
second appeal.
2. On 2682003, this Court passed an order as under :
“ Admit.
Ground Nos.(a), (b) and (c) of the amendment
application shall be treated as substantial questions of
law.
Adinterim stay of the judgment of the lower
appellate court.
Rule on stay. Returnable in four weeks.”
3. The substantial questions of law in Ground Nos.(a), (b)
and (c) are reproduced below :
“a) Whether the learned lower appellate Court was
justified in not framing a specific issue with respect to
jurisdiction of the Civil Court to entertain civil suit,
inter alia, challenging me order passed under the
Mamlatdar Courts Act, 1906, especially in view of the
provision under section 23 of the said Act?”
“b) Whether civil suit lies against the order passed by
the Mamlatdar's Court under the Mamlatdar Courts Act,
1906?”
“c) Even if it is held that the civil suit lies, inter alia,
challenging the order passed under the Mamlatdar Courts
Act, 1906, whether the learned lower appellate Court was
justified in considering the entire controversy afresh?”
4. The undisputed factual position is that the Mamlatdar,
in exercise of his jurisdiction conferred by Section 5 of the
Mamlatdars' Courts Act, passed an order on 2361998 directing
removal of obstruction and granting right of way to the plaintiff
from the northern dhura of the defendant No.1 to approach his
field. Two questions were involved before the Trial Court (i) as
to the jurisdiction of the Civil Court to entertain, try and decide
the suit challenging the order passed by the Mamlatdar under
Section 5 of the Mamlatdars' Courts Act, and (ii) as to the
correctness and validity of the order passed by the Mamlatdar on
merits along with the adjudication on the question of right of
way of the parties, as claimed. The Trial Court recorded the
finding that the Civil Court has jurisdiction to entertain, try and
decide the suit and it confirmed the validity of the order passed
on 2361998 by the Mamlatdar. The suit filed was dismissed.
5. In appeal, the lower Appellate Court concurs with the
finding of the Trial Court that the Civil Court has jurisdiction to
entertain, try and decide the suit challenging the validity of the
order passed by the Mamlatdar after rejecting the contention that
unless a remedy of revision provided under Section 23 of the
Mamlatdars' Courts Act is availed of, the suit would not be
entertained. The lower Appellate Court holds that the plaintiff
has established that the defendant No.1 has no right to pass
through the northern boundary of the field of the plaintiff either
from inside or from outside. It holds that the order of the
Mamlatdar is not correct, legal and proper. It has passed a
decree accordingly in appeal in favour of the plaintiff.
6. In fact, the question of jurisdiction of the Civil Court to
entertain, try and decide the suit challenging the order passed
under Section 5 of the Mamlatdars' Courts Act is no longer
res integra in view of the decision of the learned Single Judge of
this Court in the case of Rajendra Sheshrao Shendge v. Smt.
Shobhatai S. Ravate & Anr., reported in AIR 2007 Bombay 90.
Paras 11, 12 and 13 of the said decision being relevant, are
reproduced below :
“Objections as to bar of suit due to Mamlatdars' Courts
Act :
11. Court has perused entire Mamlatdars' Courts Act,
1906. It is seen that Mamlatdars' Courts Act presupposes
and recognizes existence and continuation of powers and
jurisdiction of Civil Court. The scheme provides for a
summary jurisdiction and powers and a bar of suit to
make orders of Mamlatdar or Collector etc., to be immune
from scrutiny in a Civil Suit.”
“12. It is seen that there is no express bar of suit.
According to Mr. Bhattad, bar is implied. There is no
room left by virtue of totality of provisions and scheme as
to how implied bar should be inferred. Argument of
learned Advocate Mr. Bhattad that implied bar can be
read from the provision to Clause (b) of subsection (1) of
Section 5 amounts to reading in a provision of legislation,
such words and such scheme which is totally nonexistent.”
“13. The Courts cannot forget the wide compass of
Section 9 of Civil procedure Code. Exclusion and bar of
jurisdiction cannot be read or inferred just for the sake of
asking in the manner in which present petitioner wants.
Existence of jurisdiction has to be presumed and not the
bar.”
I fully endorse the aforesaid view and intend to reinforce it as
under :
7. I have gone through the provision of Section 5 of the
Mamlatdars' Courts Act. The proviso below subsection (1) of
Section 5 of the said Act empowers the Mamlatdar to refuse to
exercise the power under the said provision if it appears to him
that such a case can be more suitably dealt with by the Civil
Court. Though there is a revision provided under Section 23 of
the said Act to challenge the order passed by the Mamlatdar
under Section 5, the Act nowhere attaches finality either to the
order passed under Section 5 by the Mamlatdar on merits or to
the order passed in revision under Section 23 of the said Act. In
the absence of such finality being attached to the order passed
under the Act, the jurisdiction of the Civil Court cannot be held
to be impliedly barred merely because the Act provides a
separate machinery for getting the grievance redressed. The
ouster of the plenary jurisdiction of Civil Court cannot be readily
interfered and such jurisdiction remains intact and available to
be exercised either against the order under Section 5 or against
the order of revision under Section 23 of the said Act.
8. The learned counsels appearing for the parties could not
bring to my notice any express provision creating bar of
jurisdiction of the Civil Court to entertain, try and decide the suit
challenging either the order passed under Section 5 or under
Section 23 of the Mamlatdars' Courts Act. In a given case, a Civil
Court may refuse to grant relief on the ground that the remedy of
revision under Section 23 of the said Act is not exhausted, but
that is not the mandate which the Civil Court is required to
observe. The lower Appellate Court has, in terms, recorded the
finding that when the order passed by the Mamlatdar is without
following the procedure, it cannot come in the way of the Civil
Court to decide the substantive rights of the parties. The view
taken cannot be faulted with. The substantial questions of law at
serial Nos.(a) and (b) are, therefore, answered accordingly.
9. The Trial Court has considered the question of validity of
the order passed by the Mamlatdar on its own merits after
recording the finding that the Civil Court has jurisdiction to
entertain, try and decide the suit challenging the order of the
Mamlatdar. It holds that the order of the Mamlatdar is correct,
legal and proper. The lower Appellate Court has reversed this
finding on merits. It adjudicates the controversy on merits after
taking into consideration the evidence brought on record in the
civil suit filed by the parties. Thus, the findings of fact recorded
by the lower Appellate Court are based upon from appreciation
of evidence on record and do not give rise to any substantial
question of law.
10. In the result, the second appeal is dismissed.
JUDGE.
Mamlatdars' Courts Act. The proviso below subsection (1) of
Section 5 of the said Act empowers the Mamlatdar to refuse to
exercise the power under the said provision if it appears to him
that such a case can be more suitably dealt with by the Civil
Court. Though there is a revision provided under Section 23 of
the said Act to challenge the order passed by the Mamlatdar
under Section 5, the Act nowhere attaches finality either to the
order passed under Section 5 by the Mamlatdar on merits or to
the order passed in revision under Section 23 of the said Act. In
the absence of such finality being attached to the order passed
under the Act, the jurisdiction of the Civil Court cannot be held
to be impliedly barred merely because the Act provides a
separate machinery for getting the grievance redressed. The
ouster of the plenary jurisdiction of Civil Court cannot be readily
interfered and such jurisdiction remains intact and available to
be exercised either against the order under Section 5 or against
the order of revision under Section 23 of the said Act.
8. The learned counsels appearing for the parties could not
bring to my notice any express provision creating bar of
jurisdiction of the Civil Court to entertain, try and decide the suit
challenging either the order passed under Section 5 or under
Section 23 of the Mamlatdars' Courts Act. In a given case, a Civil
Court may refuse to grant relief on the ground that the remedy of
revision under Section 23 of the said Act is not exhausted, but
that is not the mandate which the Civil Court is required to
observe. The lower Appellate Court has, in terms, recorded the
finding that when the order passed by the Mamlatdar is without
following the procedure, it cannot come in the way of the Civil
Court to decide the substantive rights of the parties. The view
taken cannot be faulted with.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Second Appeal No.386 of 2003
Mohommad Khan s/o Rahim Khan,
V
Shri Shankar s/o Maroti Dhage,
Coram : R.K. Deshpande, J.
Dated : 8-3-2017
Citation: 2017(3) ALLMR380
1. The Trial Court dismissed Regular Civil Suit No.66 of
1998 for grant of declaration that the order dated 2361998
passed by the Mamlatdar under Section 5 of the Mamlatdars'
Courts Act, 1906 granting right of way to the defendant No.1 is
bad in law and, therefore, the defendant No.1 be restrained from
approaching his field from the northern boundary of the
plaintiff's field Gat No.47/1 of Village Jalka Jagtap, as per the
said order. The lower Appellate Court has allowed the appeal
and set aside the decision of the Trial Court. The lower Appellate
Court grants a declaration that the defendant No.1 has no right
to go to his land by and from over the northern dhura of the field
of the plaintiff and from inside the field. It restraints the
defendant No.1 from approaching his field by or from near the
northern dhura of the field of the plaintiff. The map at
Exhibit 56 is treated to be the part and parcel of the decree. The
original defendant No.1 is, therefore, before this Court in this
second appeal.
2. On 2682003, this Court passed an order as under :
“ Admit.
Ground Nos.(a), (b) and (c) of the amendment
application shall be treated as substantial questions of
law.
Adinterim stay of the judgment of the lower
appellate court.
Rule on stay. Returnable in four weeks.”
3. The substantial questions of law in Ground Nos.(a), (b)
and (c) are reproduced below :
“a) Whether the learned lower appellate Court was
justified in not framing a specific issue with respect to
jurisdiction of the Civil Court to entertain civil suit,
inter alia, challenging me order passed under the
Mamlatdar Courts Act, 1906, especially in view of the
provision under section 23 of the said Act?”
“b) Whether civil suit lies against the order passed by
the Mamlatdar's Court under the Mamlatdar Courts Act,
1906?”
“c) Even if it is held that the civil suit lies, inter alia,
challenging the order passed under the Mamlatdar Courts
Act, 1906, whether the learned lower appellate Court was
justified in considering the entire controversy afresh?”
4. The undisputed factual position is that the Mamlatdar,
in exercise of his jurisdiction conferred by Section 5 of the
Mamlatdars' Courts Act, passed an order on 2361998 directing
removal of obstruction and granting right of way to the plaintiff
from the northern dhura of the defendant No.1 to approach his
field. Two questions were involved before the Trial Court (i) as
to the jurisdiction of the Civil Court to entertain, try and decide
the suit challenging the order passed by the Mamlatdar under
Section 5 of the Mamlatdars' Courts Act, and (ii) as to the
correctness and validity of the order passed by the Mamlatdar on
merits along with the adjudication on the question of right of
way of the parties, as claimed. The Trial Court recorded the
finding that the Civil Court has jurisdiction to entertain, try and
decide the suit and it confirmed the validity of the order passed
on 2361998 by the Mamlatdar. The suit filed was dismissed.
5. In appeal, the lower Appellate Court concurs with the
finding of the Trial Court that the Civil Court has jurisdiction to
entertain, try and decide the suit challenging the validity of the
order passed by the Mamlatdar after rejecting the contention that
unless a remedy of revision provided under Section 23 of the
Mamlatdars' Courts Act is availed of, the suit would not be
entertained. The lower Appellate Court holds that the plaintiff
has established that the defendant No.1 has no right to pass
through the northern boundary of the field of the plaintiff either
from inside or from outside. It holds that the order of the
Mamlatdar is not correct, legal and proper. It has passed a
decree accordingly in appeal in favour of the plaintiff.
6. In fact, the question of jurisdiction of the Civil Court to
entertain, try and decide the suit challenging the order passed
under Section 5 of the Mamlatdars' Courts Act is no longer
res integra in view of the decision of the learned Single Judge of
this Court in the case of Rajendra Sheshrao Shendge v. Smt.
Shobhatai S. Ravate & Anr., reported in AIR 2007 Bombay 90.
Paras 11, 12 and 13 of the said decision being relevant, are
reproduced below :
“Objections as to bar of suit due to Mamlatdars' Courts
Act :
11. Court has perused entire Mamlatdars' Courts Act,
1906. It is seen that Mamlatdars' Courts Act presupposes
and recognizes existence and continuation of powers and
jurisdiction of Civil Court. The scheme provides for a
summary jurisdiction and powers and a bar of suit to
make orders of Mamlatdar or Collector etc., to be immune
from scrutiny in a Civil Suit.”
“12. It is seen that there is no express bar of suit.
According to Mr. Bhattad, bar is implied. There is no
room left by virtue of totality of provisions and scheme as
to how implied bar should be inferred. Argument of
learned Advocate Mr. Bhattad that implied bar can be
read from the provision to Clause (b) of subsection (1) of
Section 5 amounts to reading in a provision of legislation,
such words and such scheme which is totally nonexistent.”
“13. The Courts cannot forget the wide compass of
Section 9 of Civil procedure Code. Exclusion and bar of
jurisdiction cannot be read or inferred just for the sake of
asking in the manner in which present petitioner wants.
Existence of jurisdiction has to be presumed and not the
bar.”
I fully endorse the aforesaid view and intend to reinforce it as
under :
7. I have gone through the provision of Section 5 of the
Mamlatdars' Courts Act. The proviso below subsection (1) of
Section 5 of the said Act empowers the Mamlatdar to refuse to
exercise the power under the said provision if it appears to him
that such a case can be more suitably dealt with by the Civil
Court. Though there is a revision provided under Section 23 of
the said Act to challenge the order passed by the Mamlatdar
under Section 5, the Act nowhere attaches finality either to the
order passed under Section 5 by the Mamlatdar on merits or to
the order passed in revision under Section 23 of the said Act. In
the absence of such finality being attached to the order passed
under the Act, the jurisdiction of the Civil Court cannot be held
to be impliedly barred merely because the Act provides a
separate machinery for getting the grievance redressed. The
ouster of the plenary jurisdiction of Civil Court cannot be readily
interfered and such jurisdiction remains intact and available to
be exercised either against the order under Section 5 or against
the order of revision under Section 23 of the said Act.
8. The learned counsels appearing for the parties could not
bring to my notice any express provision creating bar of
jurisdiction of the Civil Court to entertain, try and decide the suit
challenging either the order passed under Section 5 or under
Section 23 of the Mamlatdars' Courts Act. In a given case, a Civil
Court may refuse to grant relief on the ground that the remedy of
revision under Section 23 of the said Act is not exhausted, but
that is not the mandate which the Civil Court is required to
observe. The lower Appellate Court has, in terms, recorded the
finding that when the order passed by the Mamlatdar is without
following the procedure, it cannot come in the way of the Civil
Court to decide the substantive rights of the parties. The view
taken cannot be faulted with. The substantial questions of law at
serial Nos.(a) and (b) are, therefore, answered accordingly.
9. The Trial Court has considered the question of validity of
the order passed by the Mamlatdar on its own merits after
recording the finding that the Civil Court has jurisdiction to
entertain, try and decide the suit challenging the order of the
Mamlatdar. It holds that the order of the Mamlatdar is correct,
legal and proper. The lower Appellate Court has reversed this
finding on merits. It adjudicates the controversy on merits after
taking into consideration the evidence brought on record in the
civil suit filed by the parties. Thus, the findings of fact recorded
by the lower Appellate Court are based upon from appreciation
of evidence on record and do not give rise to any substantial
question of law.
10. In the result, the second appeal is dismissed.
JUDGE.
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