1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4066 OF 2010 Baswant Bhimrao Patil and anr. ..Petitioners Vs. Rajendra Jaywant Patil and ors. ..Respondents ......... Mr.Suresh M.Sabrad, for Petitioners. Mr.Surel Shah, for respondent Nos.1 and 2. Mr.R.M.Patne, AGP for respondent Nos.3 and 4. ......... CORAM: R.G.KETKAR, J. (VACATION COURT) DATE : 1 st JUNE, 2010. P.C. : Rule. By consent, Rule is made returnable forthwith. The respondents through their respective counsel waive service. By consent, taken up for final hearing. 2] This petition challenges the order dated 22 nd April, 2010 passed by the Additional Collector, Solapur in Revision Application No.1 of 2010. By the impugned order, the Addl. Collector, Solapur has allowed the Revision preferred 4066­10.sxw 2 by the respondent Nos.1 and 2 and directed the petitioners to remove the impediment caused by the petitioners in respect of the cart way on the bandh in Gat Nos.44 and 45 belonging to the petitioners herein. 3] The respondents No.1 and 2 filed a suit before the Mamlatdar under the provisions of the Mamlatdar’s Court Act, 1906 (for short “the Act”) on 27 th April, 2009 being suit No.4 of 2009. They also took out an application on 27 th April, 2009 praying for removal of the impediment erected by the petitioners in the cart way on the bandh in gat Nos.44 and 45 and restore the same as cart way. 4] The petitioners herein had instituted R.C.S.No.399 of 2009 against the respondent nos.1 and 2 for declaration that no cart way exists on the bandh in the gat nos.44 and 45 and for perpetual injunction restraining respondent nos.1 and 2 from using the cart way. Pending that suit, the petitioners took out an application for injunction. After hearing both the sides, the Court allowed the application on 14 th August, 2009. The operative part of the order reads :­ “1. The application for temporary injunction is allowed, and the defendants are hereby restrained from disturbing the possession of plaintiffs over the suit properties either personally or through any of his agent, till further orders, except according to due process of law. 2. This order will not come in the way of proceeding 4066­10.sxw 3 pending before he Tahasildar South, Solapur, 3. The costs shall follow cause. “ 5] Pursuant to the application made by the respondent nos.1 and 2, the Tahsildar South, Solapur visited the site and carried out the panchnama on 29 th August, 2009. The petitioners resisted the application by filing reply on 31 st August, 2009. After considering the material on record, the Tahsildar South, Solapur rejected the application of Respondent Nos.1 and 2 by order dated 4 th September, 2009. Against this order, the respondents Nos.1 and 2 preferred the Revision under Section 23(2) of the Act on 7 th January, 2010. This Revision was opposed by the petitioners by filing written arguments on 23 rd April, 2010. After considering the material on record, the Additional Collector, Solapur, allowed the revision application on 29 th April, 2010. It is against this order, the present petition is preferred. 6] I have heard Mr.Suresh M.Sabrad, learned counsel for the petitioners, Mr.Surel Shah, learned counsel for respondent Nos.1 and 2 and Mr.R.M.Patne, learned AGP for respondent Nos.3 and 4 at length. 4066­10.sxw 4 7] Learned counsel for the petitioners submitted that the respondent nos.1 and 2 did not institute the suit as contemplated under Section 7 of the Act. They merely filed the application on 27 th April, 2009 which is at exhibit “A”. The said application does not conform to the requirements laid down under Section 7 of the Act. He further submitted that the Tahsildar visited the disputed site and carried out the panchnama on 29 th August, 2009 wherein there is recital that the cart way does not exist on the bandh of gat nos.44 and 45. Considering this panchnama, the Tahsildar has rightly rejected the application filed by the respondent nos.1 and 2. As against this, the Addl. Collector did not consider the panchnama and the findings recorded by the Addl. Collector, Solapur are contrary to the recitals in the panchnama. He further submitted that if at all the respondent nos.1 and 2 are aggrieved by the action of the petitioners the only recourse available for them is to approach the Civil Court. In fact, the petitioners have instituted the suit for declaration and for perpetual injunction and the trial Court allowed the application for injunction, which is not challenged by the respondent nos.1 and 2. It is therefore submitted that the Addl. Collector was not justified in allowing the revision application. 8] On the other hand, Mr.Shah submitted that the Addl. Collector is fully justified in allowing the revision application and the findings recorded by the 4066­10.sxw 5 Addl. Collector are supported by the material on record. He further submitted that in fact the Tahsildar has not recorded the statements of the adjoining land owners. He also did not consider the affidavits filed by the owners of gat nos. 40/8, 22/1, 17/1, 22/3/A which clearly support the case of the respondent nos.1 and 2 that the cart way exists on the bandh in gat Nos.44 and 45. He also invited my attention to the map which is on record. It shows the existence of cart way on the bandh of gat Nos.44 and 45 for approaching the main road. Mr.Shah also submits that the plaint instituted by the respondent Nos.1 and 2 conforms to the requirement of Section 7. He placed on record a copy of plaint which is taken on record and marked as “X” for identification. 9] Perusal of the copy of the plaint indicates that it satisfies the requirements laid down under Section 7 of the Act. In fact, the petitioners have filed their detailed reply on 31 st August, 2009 which also clearly mentions title of the suit and number of the suit i.e.Suit No.4 of 2009. I, therefore, do not find substance in the contentions raised by the learned counsel for the petitioners that the suit is not instituted as per the requirements laid down under Section 7 of the Act. Even assuming that the suit does not satisfy the requirement of Section 7, it was obligatory on the part of the Mamlatdar to follow the procedure laid down in Section 8 which provides that where a petition not in the form of a plaint is 4066­10.sxw 6 presented to the Mamlatdar and the subject matter thereof appears to fall within the scope of section 5, the Mamlatdar shall explain to the person presenting the petition the nature of the reliefs afforded by this Act and shall inquire whether the petitioner desires to obtain relief thereby. If the petitioner expresses a desire so to obtain relief, the Mamlatdar shall endorse the desire on the petition which shall thereupon be deemed to be a plaint presented under Section 7. Even otherwise, as per Section 9 of the Act, where the plaint does not contain the particulars specified in section 7 or is unnecessarily prolix, the Mamlatdar shall forthwith examine the plaintiff upon oath and ascertain from him such of the particulars specified in section 7 as are not clearly and correctly stated in the plaint and shall reduce the examination to writing in the form of an endorsement on or annexure to the plaint which shall thereupon be deemed to be part of the plaint. Where the plaintiff required time to obtain any of the particulars specified in section 7, the Mamlatdar shall grant him such time as may under all the circumstances appear reasonable. In the instant case, there is nothing on record to indicate that the Mamlatdar has followed the procedure laid down under Sections 8 and 9 of the Act. The corollary is that the plaint filed by the respondent No.1 and 2 satisfied the requirements of Section 7 of the Act. In view of above, I do not find substance in the contentions advanced on this aspect. 4066­10.sxw 7 10] Learned counsel for the petitioners further submitted that the findings recorded by the Addl. Collector in the impugned order are contrary to the panchnama. Perusal of the panchnama indicates that there are markings of a cart way on the South­East corner of gat Nos.38 and 44. It also recites that no markings of road were found on the bandh of Gat No.44 and 45. It also records that there is cart way on the eastern bandh of gat Nos.44 and 45 which is of Sough­North direction. However, shrubs are grown on the bandh by which the road is closed. 11] In the impugned order, the Addl. Collector has observed that the Tahsildar South, Solapur has not recorded the statements of the agriculturists who are holding the lands adjacent to the disputed site. He has also observed that the map indicates the existence of a convenient road on the bandh of Gat Nos.44 and 45 to Khata holder of Gat No.38 for going to Balgi Gaothan. In fact the Tahsildar in his order noted existence of road to the respondent Nos.1 and 2 for approaching their lands and also the road is shown in the map. In view of above, I do not find substance in the contentions raised by the learned counsel for petitioner that the findings recorded by the Addl. Collector are contrary to the recitals in the panchnama. 4066­10.sxw 8 12] Lastly, learned counsel for the petitioners has relied upon the judgment of this Court in the case of Union of India and others Vs. Maruti Madhav Kerulkar and others, 20002(4)Mh.L.J. and contended that if at all the respondent Nos.1 and 2 are aggrieved by the actions of the petitioners, the only recourse open to them is to approach the Civil Court. In that case, the material facts were that the Courts below have placed reliance on a certificate issued by the Tahsildar on 30 th June, 1992 inspite of the fact that the said certificate was cancelled by the Sub Divisional Officer in exercise of power under Section 23(2) of the Act by order dated 27 th March, 1999. The certificate was issued in exercise of powers conferred by Section 5(2) of the Act. This Court observed that the said certificate was not issued after due enquiry on the basis of plaint presented to the Mamlatdar by any of the parties. Moreover, Section 5(2) empowers the Mamlatdar to issue order of injunction and not declaration regarding customary rights. This Court, therefore, found that the action of the Mamlatdar in issuing certificate was ex­facie, illegal and beyond the powers conferred by the relevant provisions to this Court. It was further observed that the proviso to Section 5(1) empowers the Mamlatdar to direct the parties to approach the Civil Court in respect of injunction or directing removal of impediment or obstruction. 13] In the instant case, as observed earlier, the petitioners have already 4066­10.sxw 9 availed of the remedy of approaching the Civil Court and the operative part of the order dated 14 th August, 2009 passed by the 8 th Joint Civil Judge, Junior Division, Solapur clearly recorded that the said order will not come in the way of the proceeding pending before the Tahasildar South, Solapur. That part of the said order has not been challenged by the present petitioners. In the circumstances, in my opinion, reliance placed by the learned counsel for the petitioners on the decision of Union of India (supra), is misconceived. Even otherwise, on perusal of the impugned order, I do not find that the Addl. Collector has committed any error apparent on the face of record and that it can be said that the impugned order is perverse. 14] In view of above, I do not find any substance in the petition. Rule is discharged with no order as to the costs. It is made clear that as per the prayer made by the respondent nos.1 and 2, the petitioners shall remove the impediment in the cart way on the bandh of gat Nos.44 and 45. It is further made clear that the parties shall abide by the outcome of R.C.S. No.399 of 2009. [R.G. KETKAR, J.] 4066­10.sxw