1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 3426 OF 2010 (Bhimrao N. Bhagwat vs. Ramakant Wamanrao Taide) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. SEPTEMBER 14, 2010. Heard Shri Gupta, learned counsel for the petitioner, Shri Khan, learned counsel for respondent No. 1 and Shri Mujumdar, learned AGP for respondent No. 2. The Mamalatdar in proceedings under Section 5 of Mamalatdar Courts Act, 1906, noted that Respondent No. 1 did not appear and participate in proceedings though several chances were given. Hence, said authority accepted the evidence as adduced by the petitioner, recognized his right of way and directed removal of obstruction. Respondent No. 1 then filed revision and in that revision, the revisional Court has found that the evidence on record before the Mamalatdar was not sufficient as the person who prepared the map was not examined and certified copy of his evidence recorded in Civil Suit between the parties was not produced. It is also noticed that there was nothing on record to show that while preparing said map, the plaintiff in that suit 2 was present on spot. The pendency of Regular Civil Suit No. 427 of 1996 before the Civil Judge, Senior Division, Achalpur, was not looked into and necessary parties i.e. field owners were not joined as parties. The learned counsel for the petitioner states that suit was filed by present Respondent No. 1 and in that suit, Respondent No. 1 accepted that the petitioner has right of way. According to him, in view of this admission, the application of mind by the revisional authority is misconceived. Shri Khan, learned counsel has urged that the revisional authority has considered the material filed before the Mamalatdar and has found that that material was insufficient and did not prove any right of way. The learned AGP has also supported the impugned order. The pendency of Civil Suit has come on record. The map produced therein was filed by the petitioner before the Mamalatdar. That map was accepted by that authority and right of way has been granted. However, it appears that present Respondent No. 1 did not appear before that authority and did not point out any defect in the material noticed or then did not examine any person to substantiate his defence in the matter. In this situation, I find that interest of justice demands that the proceedings should be restored back to the file of Mamalatdar. The Sub-Divisional Officer could not have only allowed the revision but also should have 3 attempted to record finding on merits either way. If that was not possible, SDO could have remanded the matter back. Thus, there is refusal to exercise jurisdiction. Here remand of revision back to SDO will not solve the dispute. Accordingly, the proceedings in Case No.3/MCA-5/2008-09 (Kolha) are restored back to the file of Mamalatdar and Naib Tahsildar, Achalpur, for taking fresh decision in accordance with law after giving parties due opportunity of hearing. Liberty to Respondent No. 1 to cross examine the petitioner and his witness, if they are not already cross examined. He is also at liberty to adduce evidence in support of his defence. The Mamalatdar shall attempt to decide the case afresh as early as possible and in any case by 28th February 2011. The parties to appear before the Mamalatdar on 30th September 2010 and to abide by his further instructions in the matter. Subject to this, orders by SDO on 19.04.2010 in Revision No. 2/MCA-5/2008-09 (Kolha) and orders dated 28th February 2008 passed by the Mamalatdar are quashed and set aside. Writ Petition is partly allowed. Rule is made absolute in above terms. However, there shall be no order as to costs. Certified copy expedited. JUDGE *GS.