1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR CIVIL REVISION APPLICATION NO. 36/2009 (Sau. Ashalata Tehare and another vs. Chaitanya Bahuuddeshiya Sanstha and another ) Office Notes, Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's order Coram : R.C. CHAVAN, J. Dated : 23rd June, 2009 Heard Mr M N Phadke, learned counsel for the applicants and Mr P N Mehta for Respondent No.1. 2. This Revision is directed against an order passed by the learned Civil Judge, Senior Division, below Exh.1 in Special Civil Suit No.19/2009 rejecting the applicants’ objection to the jurisdiction of the Court to entertain the suit. 3. The Respondents had filed a suit for an injunction to restrain the defendants from exercising the right to approach 2 field Survey No.11/1A and 11/1B through the plaintiffs’ property. This suit was preceded an application before the Tahsildar u/s 143 of the Maharashtra Land Revenue Code, 1966 ( in short “the Code”) in which, the Tahsildar had passed an order dated 27 th May,2008, granting right to way to the present applicants. It is the applicants’ case that against this order the plaintiffs preferred an appeal before the Revenue authority i.e. Sub- Divisional Officer, Amravati, on 13 th June 2009, which appeal is still pending. On 14.1.2009 the suit was filed. 4. The applicants raised preliminary objection by the written statement filed on 28.1.2009 stating that if an appeal is preferred, remedy by way of suit is impliedly barred. An application was also filed at Exh. 22 for the same purpose. 5. After hearing the parties, by his impugned order, the learned Judge held that he had jurisdiction to try the suit. Aggrieved thereby, the applicants are before this Court. 6. The learned counsel for the applicants submitted that since two remedies are provided u/s 143 of the Code, after the plaintiffs elected to proceed with the appeal before the SDO, the 3 remedy of filing a suit under sub-section (4) of Section 143 of the Code was impliedly barred. Learned counsel for the applicants placed for my perusal a judgment in Second Appeal No.286/1992 delivered on 17 th March 2008, in support of his contentions. 7. It may be useful to reproduce Section 143 of the Code, which reads as under : “ 143. Right of way over boundaries: (1) The Tahsildar may inquire into and decide claims by persons holding land in a survey number to a right of way over the boundaries of other survey numbers. (2) In deciding such claims, the Tahsildar shall have regard to the needs of cultivators for reasonable access to their field. (3) The Tahsildar’s decision under this Section shall, subject to the provisions of sub-sections (4) and (5), be subject to appeal and revision in accordance with the provisions of this Code. (4) Any person who is aggrieved by a decision of the Tahsildar under this Section may, within a 4 period of one year from the date of such decision, institute a civil suit to have it set aside or modified. (5) Where a civil suit has been instituted under sub-section (4) against the Tahsildar’s decision, such decision shall not be subject to appeal or revision.” 8. It would be seen that sub-section (5) of Sec.143 of the Code provides that when a suit has been instituted under sub-sec.(4) the decision of Tahsildar shall not be subject to appeal or revision. It has to be borne in mind that the remedy of a suit cannot be impliedly barred. Jurisdiction of a Civil Court to try a dispute of a civil nature always exists and party setting up bar of jurisdiction of Civil Court has to show statutory provision expressly or by necessary implication barring jurisdiction. In this case, what is barred is the remedy by way of an appeal or revision. It was open to the legislature to provide that when an appeal or revision is filed, a suit shall not be filed. But, it has not done so, obviously because the remedy of a suit must have a primacy, since the inquiry contemplated by section 143 of the Code is summary in nature and civil 5 rights of the parties cannot be fully adjudicated at such an inquiry. 9. The contention of the learned counsel for the applicants that when Tahsildar’s decision is made subject to appeal by sub-sec.(3) of Section 143 of the Code, as also amenable to a suit under sub-sec(4), upon election of one remedy the other remedy cannot be availed of, has to be rejected, because of the primacy accorded to remedy of suit. In fact, even the judgment in Second Appeal No.286/1992, on which the learned counsel places reliance, it is categorically observed that primacy is given to the civil remedy. It may be open for a party to say that when a suit is filed, the remedy availed of by way of an appeal or revision may become redundant, since adjudication before the Civil Court would be comprehensive and decide the rights of the parties finally. 10. In view of this, at the cost of repetition, it has to be pointed out that it was open to the Legislature to bar a civil suit, if party had recourse to remedy of appeal or 6 revision, but the Legislature, in its wisdom, has not done so. What has been done is remedy of an appeal or revision is barred when a civil suit is filed. Thus, when a suit is filed, appeal is barred. But the converse, that when an appeal is filed, a suit is barred, is not true. While sub- section (3) of Section 143 makes Tahsildar’s decision subject to appeal/ revision, subject to provisions of sub- sections (4) and (5), sub-section (4) does not make filing of suit subject to provisions of sub-section (3). The two remedies are not on equal footing. 11. The learned trial Judge cannot be said to have erred in refusing to hold that he had jurisdiction to entertain the suit. Civil Revision Application is, therefore, rejected. Since the learned counsel for the applicants states that he would like to take the matter before the Supreme Court, the learned trial Judge may proceed with the trial but not pronounce the judgment in the suit for a period of eight weeks from today. JUDGE sahare