1 sa858.08 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 858 OF 2008 Ashok s/o Vithalrao Bele, Age: 33 years, Occ: Agri., R/o. Ambetkalli, Tq. & District Parbhani. ...APPELLANT VERSUS Nagnath s/o Govindrao Joshi, Age: 53 years, Occ: Agri., R/o. Ambetkalli, Tq. & Dist. Parbhani & Anr. ...RESPONDENTS WITH CIVIL APPLICATION NO.12325 OF 2008 WITH SECOND APPEAL NO. 325 OF 2008 Vithalrao s/o Namdev Bele, Age: 56 years, Occ: Agri., R/o. Ambetkalli, Tq. & District Parbhani & Ors. ...APPELLANTS VERSUS Nagnath s/o Govindrao Joshi, Age: 53 years, Occ: Agri., R/o. Ambetkalli, Tq. & Dist. Parbhani. ...RESPONDENT WITH CIVIL APPLICATION NO.4497 OF 2008 2 sa858.08 ... Mr. J.M. Murkute, Advocate for appellants. Mr. R.V. Gore, Advocate for respondents. ... CORAM: S.S. SHINDE, J. DATE : 9TH NOVEMBER, 2011 PER COURT : . Heard learned Counsel appearing for the appellants and learned Counsel appearing for the respondent. Learned Counsel appearing for the appellants submits that, the evidence of Tahsildar has not been considered by the Courts below. It is submitted that, proceedings before the Tahsildar were initiated prior in time before filing the civil suit by the plaintiff. It is further submitted that, by order dated 23-11-2005 Tahsildar has given approach road to the appellants from Gat No. 53 and Gat No. 61 to approach Gat No. 54 which belongs to the appellants herein. The learned Counsel further submits that, the order of the Tahsildar was not challenged and same has attended finality. The said order has not been considered or quashed and 3 sa858.08 set aside by the Civil Court. The learned Counsel further submits that, the provisions in the Mamlatdars' Courts Act empowers the Tahsildar to adjudicate issue involved in the matter and jurisdiction of the Civil Court is specifically barred under Section 26 of the said Act. In addition to oral submissions, the learned Counsel invited my attention to the grounds taken in the Second Appeals and submitted that, second appeals may be allowed. In the alternate, he further submits that, in case this Court is not inclined to allow the second appeals, in that case, the appellants may be given liberty to approach the Tahsildar afresh for redressal of their grievances which are raised in the second appeals. 2. On the other hand, the learned Counsel appearing for the respondents submits that, the suit was filed before the Civil Court on 09-12-2004. The assertion of the appellants that, both the parties filed applications before the Tahsildar prior to filing of the suit is contrary 4 sa858.08 to record. The learned Counsel further submits that, the order of the Tahsildar is not required to be challenged in view of the pronouncement of this Court in the case of Jaglal Premlal Jayaswal and another vs. Waman Shyamraoji Dhabhade and another reported in 2008(6) Bom.C.R. 684. The learned Counsel for the respondents relying upon the judgment of the Courts below would submit that, the appeals are devoid of any merit and same may be dismissed. 3. This Court on 13-04-2011 has passed detailed order. From the perusal of the said order it appears that, rival contentions have been gone into by this Court in detail. The order dated 13-04-2011 is reproduced herein below : "The matter is heard. This is an appeal by the original plaintiff who had filed a suit for injunction in respect of way from the dhura of land gat No. 53 and 61. The Trial Court dismissed the suit. The lower 5 sa858.08 Appellate Court also dismissed the appeal confirming the judgment and decree passed by the Trial Court. The present respondents also instituted a suit for injunction restraining the present appellant from using the dhura in between gat No. 53 and 61 to approach his land. The Trial Court decreed the said suit. In appeal the Appellate Court also dismissed the appeal confirming the injunction granted by the Trial Court. Against that Second Appeal No. 323/2008 is filed. 2. I have heard the learned counsel for the respective parties at length. It is submitted by Shri Murkute, the learned counsel that except the suit way there is no other way available for the appellant to approach his field gat No. 54. According to the learned counsel the Courts below have misread the evidence of the witnesses. The learned counsel states that the Mamalatdar exercising its power under the Mamalatdar's Court Act has also 6 sa858.08 given right of way by its judgment and order dated 23.11.2005 who is competent authority under the said Act. 3. Shri Gore, the learned counsel states that, the Mamalatdar could not have exercised the powers when the present suit was pending. As such, the said order is ab-initio illegal. The said proceedings were pursuant to the application filed on Lokshahidin and same was not statutory application under the said Act. The said proceedings would not be binding for the said purpose. The learned counsel relies on the judgment of the learned Single Judge of this Court in a case of Jaglal Premlal Jayswal and another V. Waman Shyamraoji Dhabhade and another reported in 2008(6) B.C.R. 684 and another judgment of the learned Single Judge of this Court in case of Union of India Vs. Maruti Madhav Kerulkar and others reported in 2003(2) B.C.R. 177. 4. Both the Courts have 7 sa858.08 concurrently arrived at the findings of fact, however, Shri Murkute the learned counsel states that he may be granted some time to place on record the case laws regarding the power exercised by the authority under the special statute. Stand over for one week only for said purpose." 4. It appears that, on the said date this Court observed that, both the Courts have concurrently arrived at the findings of fact, however, the matter came to be adjourned on the request of the Counsel for the appellants to place on record the case laws regarding the power exercised by the authority under the special statute. 5. Today, the matter is heard extensively. As observed in the earlier order dated 13-04-2011 both the Courts have concurrently arrived at the findings of fact that cart way as asserted by the appellants between Gat No. 53 and 61 does not 8 sa858.08 exist. On perusal of Para-29 from the impugned judgment of the lower appellate Court, even Mr. Sopan Badad, the retired Tahsildar in his cross examination has admitted that, there is no mention in panchnama Exh. 76 drawn by him after spot inspection that there is any cart road existing on common boundary of lands block No. 53 and 61 for going to the land block No. 54. It is further come in his cross examination that, on 24-02-2005 he had informed the Tahsildar that the temporary injunction order has been passed and the present dispute is subjudice before the Civil Court and therefore, it would not be proper to proceed with the inquiry. . The lower appellate Court further in para-30 of the impugned judgment has referred to the cross examination of the Tahsildar Mr. Devendra Katke where he has admitted that, on the common boundary existing between land block NO. 53 and 61, there are bushes of Neem, Babul and Jujbe. There are other admissions given by the said 9 sa858.08 Tahsildar which are referred in para-30 by the lower appellate Court. In para-31, the lower appellate Court, upon comparative analysis of the oral and documentary evidence produced on record by both the sides has recorded the findings of fact that, the applicants i.e. appellants herein have failed to prove the existence of any cart road through the boundary in between lands block No. 53 and 61 for going to their field in block No. 54. 6. The argument of the learned Counsel for the appellants that, the Civil Court has no jurisdiction to entertain the dispute involved in the matter and only Tahsildar can exercise powers under Section 5 of the said Act can be considered only in case such cart road exist in the field in between Gat No. 53 and 61. From the concurrent findings of fact recorded by the Courts below, it is crystal clear that, the appellants have failed to prove existence of any cart way through the boundary in between Gat No. 53 and 61 for going to 10 sa858.08 their land Gat No. 54. 7. In that view of the matter, no substantial question of law arise for consideration in the second appeals. Both the second appeals are dismissed summarily. Consequently, Civil Applications are also rejected. [S.S. SHINDE, J.] sut/NOV11