wp5703.11.odt 1/3 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. WRIT PETN. NO.5703/2011 Subhash R. Magar and others -vs- Avdhut G. Chikte and another ------------------------------------------------------------------------------------------------------------------------------------ Office notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's Orders. or directions and Registrar's orders. ------------------------------------------------------------------------------------------------------------------------------------ Shri A. S. Mardikar, counsel for the petitioners. Shri R.L.Khapre, counsel for the respondents. CORAM : SMT. VASANTI A. NAIK, J. DATE : 24.11.2011. By this petition, the petitioners impugn the order passed by the First Appellate Court on 25/08/2011 reversing the order passed by the trial Court rejecting an application filed by the respondents for grant of temporary injunction and remanding the matter to the trial Court for deciding the application filed by the respondents under Order 39 Rules 1 and 2 of the Code of Civil Procedure afresh on merits. It is not in dispute that the petitioners had filed an application before the Mamlatdar under the Mamlatdar's Court Act seeking a right of way through the field of the respondents- plaintiffs and the Mamlatdar-Tahsildar had declared that the petitioners had a right of way and restrained the respondents- plaintiffs from obstructing the way. The appeal filed by the respondents against the said order was dismissed by the Sub-Divisional Officer. The suit was filed by the respondents- wp5703.11.odt 2/3 plaintiffs for declaration and permanent injunction. The respondents-plaintiffs sought a declaration that the petitioners were not entitled to pass through the field of the plaintiffs unless they establish the existence of ‘Shivdand’. A permanent injunction was also sought against the petitioners. The plaintiffs filed an application for grant of temporary injunction. The trial Court by an order dated 27/09/2010 rejected the application filed by the plaintiffs mainly on the ground that the trial Court was not competent to sit in appeal over the order passed by the Mamlatdar and adjudicate the issue in regard to the right of way. Only because the Tahsildar had recognized the right of way in favour of the petitioners, the trial Court did not consider the other material placed by the plaintiffs on record. The order passed by the trial Court on 27/09/2010 was challenged by the respondents-plaintiffs in an appeal. The Appellate Court by the impugned order dated 25/08/2011 set aside the order of the trial Court and remanded the matter to the trial Court for a fresh decision on merits. In the aforesaid background, it appears that there is no error whatsoever in the impugned order dated 25/08/2011 remanding the matter to the trial Court for deciding Exhibit-5 afresh. The First Appellate Court rightly held that the trial Court could not have observed that it had no jurisdiction to consider the pleadings and evidence of the parties. In view of the order passed by the Tahsildar in favour of the petitioners under the Mamlatdar's Court Act, it was wp5703.11.odt 3/3 observed by the First Appellate Court that the Trial Court was duty bound to consider the material on record as it is clear from the provisions of Mamlatdar's Court Act that the order passed by the Mamlatdar would continue to be in force till it is upset by a competent Civil Court. Since the trial Court committed an error in observing that it had no jurisdiction to decide the matter on merits, the First Appellate Court rightly set aside the order passed by the trial Court and remanded the matter to the trial Court for exercising the jurisdiction in accordance with law. In the result, the writ petition fails and is dismissed with no order as to costs. JUDGE KHUNTE