IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR

Second Appeal No.386 of 2003

Mohommad Khan s/o Rahim Khan,
V
Shri Shankar s/o Maroti Dhage,

Coram : R.K. Deshpande, J.

Dated : 8­-3-­2017
Citation: 2017(3) ALLMR380

1. The Trial Court dismissed Regular Civil Suit No.66 of 1998 for grant of declaration that the order dated 23­6­1998 passed by the Mamlatdar under Section 5 of the Mamlatdars’ Courts Act, 1906 granting right of way to the defendant No.1 is bad in law and, therefore, the defendant No.1 be restrained from approaching his field from the northern boundary of the plaintiff’s field Gat No.47/1 of Village Jalka Jagtap, as per the said order. The lower Appellate Court has allowed the appeal and set aside the decision of the Trial Court. The lower Appellate Court grants a declaration that the defendant No.1 has no right to go to his land by and from over the northern dhura of the field of the plaintiff and from inside the field. It restraints the defendant No.1 from approaching his field by or from near the northern dhura of the field of the plaintiff. The map at Exhibit 56 is treated to be the part and parcel of the decree. The original defendant No.1 is, therefore, before this Court in this second appeal.

2. On 26­8­2003, this Court passed an order as under :

“ Admit.Ground Nos.(a), (b) and (c) of the amendment
application shall be treated as substantial questions of law.
Ad­interim stay of the judgment of the lower appellate court.
Rule on stay. Returnable in four weeks.”

3. The substantial questions of law in Ground Nos.(a), (b) and (c) are reproduced below :

“a) Whether the learned lower appellate Court was
justified in not framing a specific issue with respect to
jurisdiction of the Civil Court to entertain civil suit,
inter alia, challenging me order passed under the
Mamlatdar Courts Act, 1906, especially in view of the
provision under section 23 of the said Act?”

“b) Whether civil suit lies against the order passed by
the Mamlatdar’s Court under the Mamlatdar Courts Act,1906?”

“c) Even if it is held that the civil suit lies, inter alia,
challenging the order passed under the Mamlatdar Courts
Act, 1906, whether the learned lower appellate Court was
justified in considering the entire controversy afresh?”

4. The undisputed factual position is that the Mamlatdar, in exercise of his jurisdiction conferred by Section 5 of the Mamlatdars’ Courts Act, passed an order on 23­6­1998 directing removal of obstruction and granting right of way to the plaintiff from the northern dhura of the defendant No.1 to approach his field. Two questions were involved before the Trial Court ­ (i) as to the jurisdiction of the Civil Court to entertain, try and decide the suit challenging the order passed by the Mamlatdar under Section 5 of the Mamlatdars’ Courts Act, and (ii) as to the correctness and validity of the order passed by the Mamlatdar on merits along with the adjudication on the question of right of way of the parties, as claimed. The Trial Court recorded the finding that the Civil Court has jurisdiction to entertain, try and decide the suit and it confirmed the validity of the order passed on 23­6­1998 by the Mamlatdar. The suit filed was dismissed.

5. In appeal, the lower Appellate Court concurs with the finding of the Trial Court that the Civil Court has jurisdiction to entertain, try and decide the suit challenging the validity of the order passed by the Mamlatdar after rejecting the contention that unless a remedy of revision provided under Section 23 of the Mamlatdars’ Courts Act is availed of, the suit would not be entertained. The lower Appellate Court holds that the plaintiff has established that the defendant No.1 has no right to pass through the northern boundary of the field of the plaintiff either from inside or from outside. It holds that the order of the Mamlatdar is not correct, legal and proper. It has passed a decree accordingly in appeal in favour of the plaintiff.

6. In fact, the question of jurisdiction of the Civil Court to entertain, try and decide the suit challenging the order passed under Section 5 of the Mamlatdars’ Courts Act is no longer res integra in view of the decision of the learned Single Judge of this Court in the case of Rajendra Sheshrao Shendge v. Smt. Shobhatai S. Ravate Anr., reported in AIR 2007 Bombay 90. Paras 11, 12 and 13 of the said decision being relevant, are reproduced below :

“Objections as to bar of suit due to Mamlatdars’ Courts Act :
11. Court has perused entire Mamlatdars’ Courts Act,
1906. It is seen that Mamlatdars’ Courts Act presupposes
and recognizes existence and continuation of powers and
jurisdiction of Civil Court. The scheme provides for a
summary jurisdiction and powers and a bar of suit to
make orders of Mamlatdar or Collector etc., to be immune
from scrutiny in a Civil Suit.”
“12. It is seen that there is no express bar of suit.
According to Mr. Bhattad, bar is implied. There is no
room left by virtue of totality of provisions and scheme as
to how implied bar should be inferred. Argument of
learned Advocate Mr. Bhattad that implied bar can be
read from the provision to Clause (b) of sub­section (1) of
Section 5 amounts to reading in a provision of legislation,
such words and such scheme which is totally non­existent.”
“13. The Courts cannot forget the wide compass of
Section 9 of Civil procedure Code. Exclusion and bar of
jurisdiction cannot be read or inferred just for the sake of
asking in the manner in which present petitioner wants.
Existence of jurisdiction has to be presumed and not the
bar.”

I fully endorse the aforesaid view and intend to reinforce it as under :

7. I have gone through the provision of Section 5 of the Mamlatdars’ Courts Act. The proviso below sub­section (1) of Section 5 of the said Act empowers the Mamlatdar to refuse to exercise the power under the said provision if it appears to him that such a case can be more suitably dealt with by the Civil Court. Though there is a revision provided under Section 23 of the said Act to challenge the order passed by the Mamlatdar under Section 5, the Act nowhere attaches finality either to the order passed under Section 5 by the Mamlatdar on merits or to the order passed in revision under Section 23 of the said Act. In the absence of such finality being attached to the order passed under the Act, the jurisdiction of the Civil Court cannot be held to be impliedly barred merely because the Act provides a separate machinery for getting the grievance redressed. The ouster of the plenary jurisdiction of Civil Court cannot be readily interfered and such jurisdiction remains intact and available to be exercised either against the order under Section 5 or against the order of revision under Section 23 of the said Act.

8. The learned counsels appearing for the parties could not bring to my notice any express provision creating bar of jurisdiction of the Civil Court to entertain, try and decide the suit challenging either the order passed under Section 5 or under Section 23 of the Mamlatdars’ Courts Act. In a given case, a Civil Court may refuse to grant relief on the ground that the remedy of revision under Section 23 of the said Act is not exhausted, but that is not the mandate which the Civil Court is required to observe. The lower Appellate Court has, in terms, recorded the finding that when the order passed by the Mamlatdar is without following the procedure, it cannot come in the way of the Civil Court to decide the substantive rights of the parties. The view taken cannot be faulted with. The substantial questions of law at serial Nos.(a) and (b) are, therefore, answered accordingly.

9. The Trial Court has considered the question of validity of the order passed by the Mamlatdar on its own merits after recording the finding that the Civil Court has jurisdiction to entertain, try and decide the suit challenging the order of the Mamlatdar. It holds that the order of the Mamlatdar is correct, legal and proper. The lower Appellate Court has reversed this finding on merits. It adjudicates the controversy on merits after taking into consideration the evidence brought on record in the civil suit filed by the parties. Thus, the findings of fact recorded by the lower Appellate Court are based upon from appreciation of evidence on record and do not give rise to any substantial question of law.

10. In the result, the second appeal is dismissed.
JUDGE.