Shri. Prakash Laxman Ghugare Through Power Of Attoney Holder Khandappa Laxman Ghugre And ORS. v. Vishwanath Kalappa Ghugare
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 442 OF 2020 ALONGWITH CIVIL APPLICATION NO. 886 OF 2019 WITH SECOND APPEAL NO. 441 OF 2020 ALONGWITH CIVIL APPLICATION NO. 885 OF 2019 Shri. Prakash Laxman Ghugare, through Power of Attorney Holder Khandappa Laxman Ghugre and Ors.
} ..Appellants (Orig.Respondents) V/S.
1.Vishwanath Kalappa Ghugare
2. Government of Maharashtra } ..Respondents Mr. Ojas Deolankar, for the Appellants.
Mrs. Geeta Mulekar, for the Respondents.
CORAM : SANDEEP V. MARNE, J.
Dated : 18 APRIL 2024.
P.C. :
1) The challenge in the Appeal is to the Decree dated 2 February 2019 passed by the Ad-hoc District Judge-3, Solapur in Regular Civil Appeal No. 172/2015. The frst Appellate Court has 1 of
allowed both the Appeals and has set aside the Decrees passed by the Trial Court by which Regular Civil Suit No. 333/2008 and Regular Civil Suit No. 37/2010 were dismissed. The frst Appellate Court has granted injunction in favour of Respondent-Plaintif by restraining Appellant/Defendant No.2 from causing any obstruction or interference in respect of Plaintiffs possession in land bearing Gat No.3 on the basis of Orders passed by the Tehsildar and Additional Collector in Rasta Case.
2) Defendant No.2 purchased land bearing Gat No.2/2 and fled application under Section 5 of the Mamlatdar Courtfs Act, 19069 (the Act) for removal of obstruction in respect of the alleged approach road to his land passing through Plaintiffs land bearing Gat No.3. The Tehsildar conducted site inspection and prepared panchanama, based on which Tehsildar proceeded to pass Order under Section 5(2) of the Act directing removal of obstruction from cart road in Plaintiffs land bearing Gat No.3 for accessing the land of Defendant No.2 bearing Gat No.2/2. By Order dated 23 December 2009, Tehsildarfs order came to be upheld by the Additional Collector in Revision fled under provisions of Order 23(2) the Act.
3) Plaintif thereafter fled Regular Civil Suit No.333/2008 seeking injunction against Defendant No.2 from interfering in 2 of
possession of his land. During pendency of Regular Civil Suit No.333/2008, Plaintif also fled Regular Civil Suit No.37/2010 seeking a declaration that the order passed by the Tehsildar on 30 May 2008, as well as order passed by the Revisional Authority on 23 December 2009, are void. In that suit as well, Plaintif sought injunction against Defendant No.2 from interfering in respect of possession of land bearing Gat No.3 on the basis of Order passed by the Tehsildar and Additional Collector.
4) The Trial Court proceeded to dismiss both the suits by common Decree dated 28 July 2015. The frst Appellate Court has reversed the decision of the Trial Court by its decree dated 2 February 2019 and has granted injunction in favour of Plaintif by restraining Defendant No.2 from causing obstruction or interference in Plaintiffs possession over land bearing Gat No.3 on the basis of order passed by the Tehsildar and Additional Collector.
5) I have heard Mr. Deolankar, the learned counsel appearing for the Appellant and Mrs. Mulekar, the learned counsel appearing for the Respondent/Original Plaintif.
69) Perusal of the fndings recorded by the frst Appellate Court would indicate that it has gone through the panchanama, as well as the 3 of
order passed by the Tehsildar in Rasta Case and has arrived at the conclusion that the panchanama was silent about the existence of cart road in Plaintiffs land bearing Gat No.3. I have also gone through the panchanama prepared by the Tehsildar during the course of his site visit on 15 February 2008. The panchanama does not refect existence of any road passing through Plaintiffs land. The panchanama vaguely records that there was some open space at the southern portion, where some obstruction was created by putting stones and thorns by Plaintif. On the basis of the panchanama dated 15 February 2008, Tehsildar proceeded to pass Order in favour of Defendant No.2 on 30 May 2008 for removal of said obstruction.
Perusal of the order passed by the Tehsildar of 30 May 2008 would again indicate that no specifc fnding is recorded that existence of cart road was noticed in any portion of the Plaintiffs property bearing Gat No.3. Mere noticing of obstruction was not sufcient and it was necessary for the Tehsildar to observe existence of cart road during the course of his site inspection. Neither the spot panchanama nor order of the Tehsildar indicates existence of any cart road on which obstruction was allegedly created by the Plaintif. Existence of road is a jurisdictional fact, in absence of which, the Tehsildar cannot exercise jurisdiction under Section 5(2) of the Act. In my view, therefore in absence of recording any fnding about existence of the road, the Tehsildar could not have directed removal of obstruction.
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7) Therefore, no serious error can be traced in the view taken by the frst Appellate Court about errors committed by the Tehsildar in allowing the application fled by Defendant No.2. 8) Mr. Deolankar, would seek to contend that the frst Appellate Court has not set aside the orders passed by the Tehsildar and Additional Collector and therefore an incongruous situation is created where the orders passed by the Tehsildar and Additional Collector continue to operate and at the same time, there is injunction granted in favour of Plaintif contrary to the orders of the Tehsildar and Additional Collector. I am unable to agree. What is done by the frst Appellate Court is that an injunction is granted in Plaintiffs favour by restraining Defendant No.2 from causing obstruction to Plaintiffs possession over the land bearing Gat No.
3 on the basis of orders passed by the Tehsildar & Additional Collector. The efect of the order passed by the frst Appellate Court is such that the orders passed by the Tehsildar and Additional Collector cannot be used for the purpose of claiming any rights in respect of the Plaintiffs land bearing Gat No.3. This has efectively rendered the orders passed by the Tehsildar and Additional Collector nugatory.
9) Mr. Deolankar, would further submit that the land of Defendant No.2/Appellant is land locked and that there is no other 5 of
access road for the same. Mrs. Mulekar is quick enough to invite my attention to the evidence of one of the witnesses before the Trial Court in which he has deposed that there is approach road from northern side for the land of Defendant No.2. She would submit that the said evidence has remained uncontroverted. Mr. Deolankar would submit that on the northern side of land of Defendant No.2, there is a stream and that there is no question of existence of any approach road from that side. If Defendant No.2 believes that there is no other access road to his land or that his land is landlocked, he can always fle proceedings under Section 143 of the Maharashtra Land Revenue Code, 196969 (Code) seeking creation of road on the boundary.
The jurisdictions under Section 5 of the Act for removal of obstruction and under Section 143 of the Code for creation of new road are entirely diferent. In the light of absence of any fnding in the panchanama or in the order of the Tehsildar about existence of cart road, jurisdiction under Section 5(2) could not have been exercised. Therefore, it would be open for Defendant No.2/Appellant to fle proceedings under Section 143 of the Code for seeking a right of way from Plaintiffs land. Nothing observed by the Trial Court, First Appellate Court, as well this Court would come in the way of Defendant No.2 exercising his remedy under Section 143 of the Code.
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10) I am therefore of the view that no substantial question of law is involved in the Appeal. The Second Appeals are accordingly rejected with liberty to the Appellants to initiate proceedings under Section 143 of the Code.
11) With rejection of the Appeals, Civil Applications No.885/2019 and 8869/2019 do not survive. The same also stand disposed of.
[SANDEEP V. MARNE, J.] Digitally signed by NEETA SHAILESH SAWANT Date:
2024.04.20 13:54:21 +0530 NEETA SHAILESH SAWANT 7 of