Girijabai & Ors. vs Chandrakant & Ors.

. Rule. Rule made returnable forthwith. By consent of the parties, the matter is heard for final disposal.

Feeling aggrieved by the decision and order dated 30.08.2022 passed by the Tahsildar @ learned Mamlatdar Ahmedpur u/s 5 of the Mamlatdar’s Court Act 1906 (‘the Act’ for brevity), which is confirmed by the learned Revisional Authority @ Sub-Divisional Officer Ahmedpur u/s 23 of the Act in Appeal No. A-205/2022 vide its decision and order dated 17.11.2023, the petitioners are before this Court by way of the present writ petition.

As per the contentions of the parties, it is an undisputed fact that the petitioners are the owners of agricultural land comprised in Gat No.211, admeasuring 02 Hectares 81 R, situated at village Shirur Tajband, Taluka Ahmedpur, District Latur.

The respondents are the owners and possessors of their respective agricultural lands bearing Gat Nos.209 and 210 of village Shirur Tajband. The lands owned by the petitioners and the respondents are adjacent to each other.

For certain period, there were cordial relations between these adjacent landowners and, on 21.11.2012 the parties even executed an agreement from the southern bandh of their land in order to facilitate the respondents to approach their lands situated at Gat Nos.209 and 210.

Subsequently, the respondents moved proceedings under Section 5 of Act before the learned Mamalatdar seeking relief to the extent of preventing the petitioners from obstructing their pathway which was described in the application/plaint. Pursuant to the application, learned Mamalatdar conducted a panchanama and heard the parties. Upon hearing the parties, the learned Mamalatdar vide his order dated 30.08.2022 partly allowed the application and thereby made available a pathway (Vahivat Rasta) through Gat Nos.209, 210 and 211 at Mauje Shirur Tajband.

Feeling aggrieved thereby, the petitioners filed a revision under Section 23 of the Act of 1906 before the learned Revisional Authority @ Sub Divisional Officer, Ahmedpur. After hearing the parties, the Revisional Authority concurred with the findings recorded by the learned Mamlatdar and rejected the revision petition. As against this the petitioners are before this Court.

Mr. Y. P. Deshmukh, learned advocate for the petitioners would submit that apparently both the impugned orders are faulty for the reason that what was not prayed for by the applicants/present respondents is granted by the authorities. He would point out to the pleadings in paragraph No.6 of the application and would submit that in fact the applicants have claimed pathway on the common bandh or the bandh which was on the southern side of the petitioners' land.

Mr. Deshmukh would further submit that there never existed any pathway through Gat Nos.209, 210 and 211 nor is there any such finding in the panchanama. He would submit that by making an application in respect of some other property, the respondents sought a pathway through the middle portion of their agricultural land and that has caused serious prejudice to them. He submits that the respondents even filed another application u/s 143 of the Maharashtra Land Revenue Code, and the first impugned order is passed as if it was an application u/s 143 of the Code.

During the course of arguments Mr. Deshmukh submitted that his clients are even ready to abide by the agreement that was executed among the parties in 2012. He also pointed out that before filing this writ petition, they had filed Regular Civil Suit No.739 of 2023 before the learned Civil Judge Junior Division Ahmedpur, District Latur. He submits that the civil suit was however withdrawn by his clients by filing pursis. Now Mr. Deshmukh submits that in view of the objection raised by them in the petition and considering the contents of the application filed by the respondents, the petition be allowed.

Mr. U. P. Giri, learned advocate for the original applicant/present respondent No.1 would vehemently oppose the petition. He would stand to support the findings recorded by both the authorities under the Act of 1906. He would submit that the petitioners are estopped from challenging the orders passed by both the authorities. Since the suit was expressly withdrawn by them unconditionally, he prays for dismissal of the petition.

learned advocate Mr. Giri further submits that nothing wrong is committed by the both authorities under the Act. He submits that the purpose of the Act itself is to give immediate relief to a party/an agriculturist like him who has no access to go to his own agricultural land. He submits that the authorities themselves visited the spot and thereafter only the findings are recorded. His last submission is that there are concurrent findings of the both authorities, and hence the scope of this Writ Petition is very narrow to entertain the Writ Petition. With this, it is prayed to dismiss the Writ Petition.

I have heard both the learned advocates for the parties at length. Even the parties were asked to verify whether an amicable settlement would be possible among them, for the reason that they are adjacent landowners, and sometime before they had entered into an agreement in 2012 as recorded above. However, this court is apprised that no settlement could be arrived at.

Be that as it may, I find that the applicant/original respondent No.1 has specifically mentioned the pathway as described in paragraph No.6 of his pleadings. Even when asked during the course of hearing, the petitioners affirmed that the said common bandh, which is located towards the southern side of the present petitioners' land, runs in the east-west direction. The pathway through which the original applicant used to go for cultivation of his lands bearing Gat Nos.209 and 210. Thus, the said pathway is the pathway specifically referred to in the pleadings. Certainly, the pleadings in the plaint does not claim any pathway through middle of Gat Nos.209, 210 and 211. for the sake of convenience, text of paragraph No.6 of application u/s 5 of the Act is reproduced below:

The said contention and the pleadings are also recorded by the learned Mamlatdar in the last six lines on the first page of his order dated 30.08.2022 (Exhibit D, Page No.24). For the sake of convenience, the said portion is reproduced herein-below:

Even the learned Mamlatdar has taken on record the text of the agreement that was executed between the parties on 21.11.2012. The operative order in the impugned decision dated 30.08.2022, thereby granting a pathway through middle of Gat Nos.209, 210 and 211 of village Shirur

Considering the prayers made by the petitioners in the suit, I am of the considered view that it cannot be said that the petitioners are estopped from challenging the orders passed by the authorities under the Mamlatdars' Courts Act. Resultantly, I find that the petitioners have made out a case for interference by this Court. The petition must succeed. Hence, I pass the following order: