Full Judgment Text
2020:BHC-AS:6872
Amberkar (PS)
WP-9825-2019.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.9825 OF 2019
Shri. Ashok Devman Gangurde ) ...Petitioner
Versus
Shri. Dagu Chiman Gangurde and others ) ...Respondents
…….
Mr. R.N. Gite, Advocate for Petitioner.
Mr. Pandit Kasar, Advocate for Respondent No.1.
Mr. S.D. Rayrikar, A.G.P. for Respondent Nos.8 to 11.
…….
CORAM : MILIND N. JADHAV, J.
th
RESERVED ON : 26 February, 2020.
PRONOUNCED ON : 2nd JULY, 2020
JUDGMENT :-
1. Rule.
2. Rule is made returnable forthwith. Heard finally
with consent of the parties.
3. This petition has been filed by the petitioner under
the provisions of Article 227 of the Constitution of India
challenging the judgment and order dated 19.7.2019 passed
by Deputy Collector, Sub-Division, Chandwad, Dist. Nashik
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(respondent No. 10 ) in RTS Revision No. 91 of 2018.
4. Brief facts, necessary for appreciation of the
controversy between the parties are as under:-
4.1 In the year 1974, under the consolidation scheme,
there was exchange of land amongst various members of the
Gangurde family and the petitioner and respondent No. 1
became entitled to Gat Nos. 36 & 37 and 34 & 74
respectively.
4.2 It is contended by respondent No. 1 that since then
a road has been in existence as approach road to Gat No. 74
through the aforesaid Gat Nos. which belong to the petitioner
and respondent No. 1. It is further contended that by virtue
of sale deed dated 16.12.1988, respondent No. 1 has
purchased Gat No. 37 from one Chimma Shivram Gangurde
and by another sale deed of even date, the father of the
petitioner has sold certain land. It is the contention of
respondent No. 1 that in both the aforesaid sale deeds, there
is a mention of the aforesaid approach road to the western
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side bandh which runs from north to south (hereinafter for
brevity sake, referred to as the ' north south road '.
According to respondent No. 1, to the western side of Gat
Nos. 36 and 37, the above north south road still exists. The
petitioner obstructed this north south road sometime in 1998
and respondent No. 1 was constrained to file vahivat
application dated 1.12.1998 before respondent No. 8 -
Tahsildar, Chandwad, Dist. Nashik for seeking removal of
obstruction under the provisions of Section 5 of the
Mamlatdars' Courts Act, 1906 (hereinafter referred to as "the
said Act ".
4.3 Respondent No. 1 filed Vahivat Case No. 3/98 on
1.12.1998 and impleaded several family members of
Gangurde family who were the owners of various adjacent
and neighboring plots of land near the north-south road
stated above.
4.4 On 2.4.1998, Tahsildar, Chandwad issued notice to
the concerned parties and carried out panchnama i.e.
personal inspection on the spot and recorded the statement
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of panchas (witnesses) that no road existed at the said spot.
Based on the above inspection report, respondent No. 8 -
Tahsildar, Chandwad dismissed Vahivat Case No. 3/98 filed by
respondent No. 1.
4.5 Being aggrieved, respondent No. 1 filed Revision
Application bearing No. 4/98 before respondent No. 9 - Sub-
Divisional Officer, Malegaon, District Nashik under Section 23
of the said Act. The Sub-Divisional Officer Malegaon
dismissed the Revision Application on 29.4.1999. Against this
dismissal, respondent No. 1 did not file any appeal / revision
or writ petition.
4.6 Respondent No. 1 filed Vahivat Case No. 19/2018
before respondent No. 8 - Tahsildar, Chandwad, Dist. Nashik
seeking right of way to Gat No. 34 through Gat Nos. 36, 37,
38, 74 and 75 of Mouje Kalamdare, Taluka Chandwad.
Respondent No. 1 is the owner of Gat Nos. 34 and 74.
Petitioner is the owner of Gat Nos. 36 and 37. Gat No. 38 is
commonly owned and cultivated by respondent No. 1 and
some other members of the Gangurde family.
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4.7 In the above background after a lapse of 20 years,
respondent No. 1 once again filed Vahivat case bearing No.
19/18 in respect of the same cause of action which was
subject matter of Vahivat Case No. 3/98.
4.8 Respondent No. 8 Tahsildar, Chandwad after
perusing the documentary evidence pertaining to Vahivat
Case No. 3/98, the panchnama recorded therein and other
relevant papers, came to the conclusion that Vahivat Case No.
19/2018 was barred by the principles of res judicata.
Therefore, by order dated 24.7.2018, respondent No. 8
dismissed Vahivat Case No. 19/2018.
4.9 Being aggrieved, respondent No. 1 filed RTS
Revision Application No. 91/2018 before respondent No. 10 i.e
Dy. Collector, Sub Division Chandwad, District Nashik under
the provisions of Section 23 of the said Act.
4.10 By judgment and order dated 19.7.2019,
respondent No. 10 allowed the above revision application filed
by respondent No. 1 and remanded the case back to
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respondent No. 8 Tahsildar, Chandwad for fresh
consideration.
5. In the above factual background, it will be apposite
to lay down the rival submissions.
6. Mr. Gite, learned counsel appearing on behalf of
the petitioner submitted that the impugned order dated
19.7.2019 suffers from gross and grave non-application of
mind to the relevant facts and material evidence placed on
record by the petitioner, inter alia, pertaining to Vahivat Case
No. 3/98 which was in respect of the same subject property,
same cause of action and involving the same parties. He
submitted that the cause of action involved in the present
case was directly and substantially the same in Vahivat Case
No. 3/98 and was therefore, barred by the principles of res
judicata and constructive res judicata. He submitted that in
the earlier round of litigation between the same parties,
respondent No. 8 Tahsildar had himself under his
endorsement carried out spot inspection and recorded the
statement of panchas, inter alia, recording that there was no
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road in existence at the spot. He submitted that Revision
Application No. 4/98 against the Tahsildar's order dismising
Vahivat Case No. 3/98 was dismissed by the Appellate
Authority 29.4.1999. He submitted that respondent No. 1 did
not challenge the Revision Order dated 29.4.1999 before this
Court. Therefore, according to him, the order of Tahsildar
had attained finality. He submitted that the impugned order
dated 19.7.2019 holds that Vahivat Case No. 19/2018 was
maintainable and this finding is not based on correct
appreciation of the material evidence on record. He
submitted that respondent Nos. 1 to 7 and the petitioner
belong to Gangurde family and partition had taken place
between various branches of the family in respect of several
holdings. He submitted that pursuant to this partition, there
was no road in existence on the said spot as claimed by
respondent No. 1. He submitted that in view of the earlier
Vahivat Case No. 3/98 having been decided against
respondent Nos. 1 to 7, there was no valid and legal reason
for respondent No. 10 to ignore the provisions of Section 11 of
the Code of Civil Procedure, 1908 and the applicability of the
bar of res judicata to the case of respondent No. 1 and
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remand the case back to the Tahsildar for a fresh decision.
6.1 Mr. Gite has referred to and relied upon the
judgment of the Apex Court in the case of Lal Chand (dead)
1
by L.Rs. & Ors. Vs. Radha Kishan . He submitted that
once the earlier proceedings before the same competent
authority had been decided, then applying the principles of
res judicata and considering that the issues involved in both
the proceedings were identical, it was not open to the parties
to agitate the same issues once again before the same
competent authority. He referred to and drew the court's
attention to paragraph No. 19 of the above decision which
reads thus:-
19. Only one more aspect of the matter needs is to be
adverted to. The respondent after obtaining a decree for eviction
against Lal Chand and his alleged sub tenants applied for
permission of the competent authority to execute that degree.
Permission was granted to him to execute the decree in respect
only of the two rooms on the second floor and in pursuance of
that permission he obtained possession of those two rooms. We
are unable to ,understand how after working out his remedy
under the 'Delhi Rent Control Act as modified by the Slum
Clearance Act, it is competent to the respondent to bring a fresh
suit for evicting the appellants from the premises on the ground
floor. The authorities under the Slum Clearance Act who are
exclusively invested with the power to determine whether a
decree for eviction should be permitted to be executed and, if so,
to what extent, had finally decided that question, refusing to allow
the respondent to execute the decree in respect of the ground
1 AIR 1977 SC 789
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floor premises. By the present suit, the respondent is once again
asking for the relief which was included in the larger relief sought
by him in the application filed under the Slum Clearance Act and
which was expressly denied to him. In the circumstances, the
present suit is also barred by the principle of res judicata. The
fact that section 11 of the Code of Civil Procedure cannot apply
on its terms, the earlier proceeding before the competent
authority not being a suit, is no answer to the extension of the
principle underlying that section to the instant case. Section 11, it
is long since settled, is not exhaustive and the principle which
motivates that section can be extended to cases which do not fall
strictly within the letter of the law. The issues involved in the two
proceedings are identical, those issues arise as between the
same parties and thirdly, the issue now sought to be raised was
decided finally by a competent quasi-judicial tribunal. The
principle of res judicata is conceived in the larger public interest
which requires that all litigation must, sooner than later, come to
an end. The principle is also founded on equity, justice and good
conscience which require that a party which has once succeeded
on an issue should not be permitted to be harassed by a
multiplicity of proceedings involving determination of the same
issue. Were it permissible to bring suits of the present nature, the
beneficial jurisdiction conferred on the competent authority by the
Slum Clearance Act would become illusory and meaningless for,
whether the competent authority grants or refuses permission to
execute a decree for eviction, it would always be open to the
landlord to enforce the ejectment decree by filing a substantive
suit for possession. Verily, the respondent is executing the
eviction decree by installments, now under the garb of a suit.
Apart from the fact that the suit is barred on account of principles
analogous to res judicata, it is plainly in violation of the injunction
contained in section 19(1)(b) of the Slum Clearance Act, if regard
is to be had to the substance and not for the form of the
proceedings"
6.2 Mr. Gite, thereafter, referred to a decision in the
case of State of W.B. Vs. Hemant Kumar Bhattacharjee
2
& Ors. . He referred to and drew the court's attention to
paragraph No. 14 which reads thus:-
2 AIR 1966 SC 1061
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"14. Before proceedings with these arguments in detail, we can
dispose of second contention very shortly. This argument
proceeds on a fundamental misconception, as it seeks to equate
an incorrect decision with a decision rendered without
jurisdiction. A wrong decision by a court having jurisdiction is as
much binding between the parties as a right one and may be
superseded only by appeals to higher tribunals or other
procedure like review which the law provides. The learned judges
of the High Court who rendered the decision on 4-4-1952 had
ample jurisdiction to decide the case and the fact that their
decision was on the merits erroneous as seen from the later
judgment of this Court, does not render it any the less final and
binding between the parties before the Court. There is, thus, no
substance in this contention. The decision of the High Court
dated 4-4-1952 bound the parties and its legal effect remained
the same whether the reasons for the decision be sound or not."
7. PER CONTRA, Mr. Pandit Kasar, learned counsel for
respondent No. 1 submitted that though partition of
properties between various members of Gangurde family i.e
the petitioner and respondent Nos. 1 to 7 had taken place in
the year 1972, the petitioner had never objected to the use of
the north-south road by respondent No. 1. He submitted that
all along, the north-south road was used by respondent No. 1
as a "vahivat road" without the petitioner raising any
objection. He submitted that the north south road was in
existence and it was used by respondent No. 1 as access road
to approach his field / Gat Number. He fairly submitted that
though in the year 1998, Vahivat Case No. 3/98 came to be
dismissed and further Revision proceedings were also
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dismissed against respondent No. 1, but even then there was
no restriction / obstruction by the petitioner to the use of the
north-south road thereafter in so far as respondent No. 1 was
concerned. He submitted that because of obstruction,
respondent No. 1 was forced to take a longer and circuitous
rout to access / approach his Gat numbers / fields. He
submitted that the obstruction by the petitioner was contrary
to the understanding between the family members of the
Gangurde family regarding the use of the north-south road.
8. Mr. S.D. Rayrikar, learned AGP appearing on behalf
of respondent Nos. 8 to 11 supported the impugned order in
as much as stating that the impugned order was not fatal to
both the parties and that both the parties would get an equal
opportunity to place their respective evidence before
respondent No. 8, Tahsildar, Chandwad. Incidentally, on a
question being put by the Court as to why the affidavit in
reply dated 3.1.2020 filed by Mr. Kailash Balkrushna Jangam,
Nayab Tahsildar, Chandwad, Dist. Nashik on behalf of
respondent Nos. 8 to 11 did not deal with the submissions
made by the petitioner in respect of Vahivat Case No. 3/98
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and subsequent Revision Application No. 4/98, the learned
AGP had no answer to the same.
9. I have considered the arguments and pleadings
filed by the respective parties and have perused the
impugned order dated 19.7.2019. At the outset, the
provisions of Section 5 and Section 23 of the Mamlatdars'
Courts Act, 1906 which are relevant to the present lis
between the parties need to be referred to. Section 5 and
Section 23 of the said Act read thus:-
" SECTION 5: POWERS OF MAMLATDARS' COURTS
(1) Every Mamalatdar shall preside over a Court, which shall be
called a Mamlatdars' Court, and which shall, subject to the
provisions of Sections 6 and 26, have power, within such
territorial limits as may from time to time be fixed by the State
Government-
(a) to remove or cause to be removed any impediment,
erected otherwise than under due authority of law, to the
natural flow in a defined channel or otherwise of any
surface water naturally rising in or falling on any land used
for agriculture, grazing, trees or crops, on to any adjacent
land, where such impediment causes or is likely to cause
damage to the land used for such purpose or to any such
grazing, trees or crops thereon;
(b) to give immediate possession of any lands or premises
used for agriculture or grazing, or trees, or crops or
fisheries, or to restore the use of water from any well, tank,
canal or water course, whether natural or artificial used for
agricultural purposes to any person who has been
dispossessed or deprived thereof otherwise than by due
course of law, or who has become entitled to the
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possession or restoration thereof by occasion of the
determination of any tenancy or other right of any other
person, not being a person who has been a former owner
or part-owner, within a period of twelve years before the
institution of the suit of the property or use claimed, or who
is the legal representative of such former owner or part-
owner
Provided that, if in any case the Mamlatdar considers it
inequitable or unduly harsh to remove or cause to be removed
any such impediment or, to give possession of a such property or
to restore any such use to a person who has become entitled
thereto merely by person of the determination of any such
tenancy or other right, or if it appears to him that such case can
be more suitably dealt with by a Civil Court, he may in his
discretion refuse to exercise the power aforesaid, but shall record
in writing his reasons for such refusal.
(2) The said Court shall also, subject to the same provisions,
have power within the said limits where any impediment referred
to in sub-section (1) is erected, or an attempt has been made to
erect it, or, when any person is otherwise than by due course of
law disturbed or obstructed, or when an attempt has been made
so to disturb or obstruct any person, in the possession of any
lands or premises used lot agriculture or grazing, or trees, or
crops, or fisheries, or in the use of water from any well, tank,
canal or watercourse, whether natural or article used for
agricultural purposes, or in the use of roads or customary ways
thereto, to issue an injunction to the person erecting or who has
attempted to erect such impediment, or causing, or who has
attempted to cause, such disturbance or obstruction, requiring
him to refrain from erecting or attempting to erect any such
impediment or from causing or attempting to cause any further
such disturbance or obstruction.
(3) No suit shall be entertained by a Mamtatdar's court unless it
is brought within six months from the date on which the cause of
action arose.
(4) The cause of action shall be deemed to have arisen on the
date on which the impediment to the natural flow of surface water
or the dispossession, deprivation or determination, of tenancy or
other right occurred, or on which the disturbance or obstruction,
or the attempted impediment or disturbance or obstruction, first
commenced.
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Explanation :"The exercise by a joint owner of any right which he
has over the joint property is not a dispossession, or disturbance
of possession of the other joint owner or owners within the
meaning of this section.
SECTION 23: BAR OF APPEAL
(1) There shall be no appeal from any order passed by a
Mamlatdar under this Act.
(2) But the Collector may call for and examine record of any suit
under this Act, and if he considers that any proceeding, finding or
order in such suit is illegal or improper may, after due notice to
the parties, pass such order thereon, not inconsistent with this
Act, as he thinks fit.
(2A) The Collector may delegate the powers conferred on him by
this section to any Assistant Collector Deputy Collector, or
assistant Commissioner] subordinate to him],
(3) Where the Collector, Assistant Collector, Deputy Collector or
Assistant Commissioner takes any proceedings under this Act he
shall be deemed to be a Court, under this Act."
10. Under Section 5 of the said Act, every Mamlatdar
has been described as a Court within the State territorial
limits having power to remove or cause to be removed any
obstruction made otherwise than or under due authority of
law and to restore possession thereof by removing such
impediment. Section 23 of the Act provides for revision
against the above order as there is no appeal provided from
any order passed by the Mamlatdar under the said Act.
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11. In the present case, respondent No. 1 has filed
original Vahivat Case No. 3/98. This application dated
28.11.1997 is annexed at Exh. A to the Petition. At Exh. B to
the Petition, the Petitioner has annexed his affidavit-in-reply in
Vahivat Case No. 19/2018. Annexed to this affidavit-in-reply,
is the panchnama dated 2.4.1998 which was carried out in
Vahivat Case No. 3/98. A perusal of the panchnama placed on
record at page No. 22 of the petition reveals that in the entire
property pertaining to various Gat numbers, there does not
exist any vahivat road or motorable road at all. This
panchnama / inspection report has been prepared by the
Tahsildar and has been signed by four witnesses namely
Karbhari Bhimrao Gangurde, Laxman Chingu Gangurde,
Ashok Vitthal Gangurde and Bhausaheb Devman Gangurde in
presence of Tahsildar Chandwad on 2.4.1998. This
panchnama is also endorsed and signed by the Tahsildar,
Chandwad. Further, the order dated 24.4.1998 passed by
Tahsildar Chandwad in Vahivat Case No. 3/98 is also placed on
record at page 23 of the petition. By this order, the
application of respondent No. 1 has been dismissed by a
reasoned order on the ground that there is no material
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evidence whatsoever placed on record by respondent No. 1 to
show that vahivat road ever existed on the said property. The
order dated 29.4.1999 passed by respondent No. 10 in
revision application No. 4/98 has also been placed on record
by the petitioner at page 25 of the petition. The order in
revision clearly records that there is no mention of vahivat
road in the 7/12 extract pertaining to the said property. By
reasoned order, Revision Application No. 4/98 under Section
23 of the said Act filed by respondent No. 1 has also been
dismissed in the year 1999.
12. The affidavit filed on behalf of respondent Nos. 8 to
11 ought to have categorically dealt with the earlier
proceedings namely Vahivat Case No. 3/98 and Revision
Application No. 4/98 which was in respect of the same cause
of action and between the same set of parties. The entire
affidavit filed on behalf of respondent Nos. 8 to 11 does not
deal with this aspect. Respondent Nos. 8 to 11 being
statutory officers of the government under the provisions of
the said Act, ought to have first hand knowledge of such
proceedings from their record between the parties. On a
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plain reading of the affidavit filed on behalf of respondent
Nos. 8 to 11, it prima facie appears that an attempt has been
made by the said respondents to suppress material facts
pertaining to Vahivat Case No. 3/98 and Revision Application
No. 4/98 from this Court. On the contrary, in paragraph No. 5
of the affidavit, an attempt has been made to suggest to the
Court that the impugned order passed by respondent No. 10
is not fatal to either party as both the parties would get an
equal opportunity to place their evidence before the Tahsildar,
Chandwad. This conduct and stand on behalf of respondent
Nos. 8 to 11, being statutory officers of the government and
possessing statutory powers under the said Act is not
appreciated and is deprecated. There is no whisper in the
affidavit filed on behalf of respondent Nos. 8 to 11 on the
legal issue of res judicata.
13. In view of the aforesaid two concurrent orders
passed in the earlier Vahivat Case No. 3/98 and Revision
Application No. 4/98, respondent No. 8 by his order dated
24.7.2018 has correctly dismissed the fresh Vahivat Case No.
19/2018 filed by respondent No.1 on the ground of res
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judicata and constructive res judicata. There is a categorical
finding given in this order which states that the cause of
action and the subject property in the original Vahivat Case
No. 3/98 is the same as that of Vahivat Case No. 19/2018.
However, in revision proceedings against the above order
dated 24.7.2018, the final impugned order gives a direction
to conduct fresh inspection under the provisions of Section 5
of the said Act to the Tahsildar. Once the Mamlatdar's court
decides the lis between the same parties under the provisions
of Section 5 read with Section 23 of the said Act, then after a
lapse of time, there cannot be a fresh round of litigation
permissible under the same provisions, between the same
parties and for the same cause of action. The impugned
order dated 19.7.2019 is clearly hit by the bar of Section 11 of
the Code of Civil Procedure, 1908 and thus, it was not within
the jurisdiction of respondent No. 10 to direct reconsideration
of the lis between the parties afresh and remand the same
back to respondent No. 8 considering that the same cause of
action was the subject matter of lis between the same parties
in original Vahivat Case No. 3/98.
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14. In view of the reasons recorded above, the
impugned order dated 19.7.2019 passed by respondent No.
10 - Deputy Collector, Chandwad Sub Division, Chandwad,
Dist. Nashik in RTS Revision No. 91/2018 is quashed and set
aside and the order dated 24.7.2018 passed by respondent
No.8, Tahsildar, Chandwad, District Nashik in Vahivat Case No.
19/18 is confirmed.
15. Interim relief granted earlier stands vacated.
16. Parties to bear their own costs.
17. Liberty to respondent Nos. 1.1 to 1.3 to pursue
remedy available to them in law.
18. Rule is made absolute in the above terms. Petition
is disposed off.
(MILIND N. JADHAV, J.)
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.9825 OF 2019
Shri. Ashok Devman Gangurde ) ...Petitioner
Versus
Shri. Dagu Chiman Gangurde and others ) ...Respondents
…….
Mr. R.N. Gite, Advocate for Petitioner.
Mr. Pandit Kasar, Advocate for Respondent No.1.
Mr. S.D. Rayrikar, A.G.P. for Respondent Nos.8 to 11.
…….
CORAM : MILIND N. JADHAV, J.
th
RESERVED ON : 26 February, 2020.
PRONOUNCED ON : 2nd JULY, 2020
JUDGMENT :-
1. Rule.
2. Rule is made returnable forthwith. Heard finally
with consent of the parties.
3. This petition has been filed by the petitioner under
the provisions of Article 227 of the Constitution of India
challenging the judgment and order dated 19.7.2019 passed
by Deputy Collector, Sub-Division, Chandwad, Dist. Nashik
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(respondent No. 10 ) in RTS Revision No. 91 of 2018.
4. Brief facts, necessary for appreciation of the
controversy between the parties are as under:-
4.1 In the year 1974, under the consolidation scheme,
there was exchange of land amongst various members of the
Gangurde family and the petitioner and respondent No. 1
became entitled to Gat Nos. 36 & 37 and 34 & 74
respectively.
4.2 It is contended by respondent No. 1 that since then
a road has been in existence as approach road to Gat No. 74
through the aforesaid Gat Nos. which belong to the petitioner
and respondent No. 1. It is further contended that by virtue
of sale deed dated 16.12.1988, respondent No. 1 has
purchased Gat No. 37 from one Chimma Shivram Gangurde
and by another sale deed of even date, the father of the
petitioner has sold certain land. It is the contention of
respondent No. 1 that in both the aforesaid sale deeds, there
is a mention of the aforesaid approach road to the western
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side bandh which runs from north to south (hereinafter for
brevity sake, referred to as the ' north south road '.
According to respondent No. 1, to the western side of Gat
Nos. 36 and 37, the above north south road still exists. The
petitioner obstructed this north south road sometime in 1998
and respondent No. 1 was constrained to file vahivat
application dated 1.12.1998 before respondent No. 8 -
Tahsildar, Chandwad, Dist. Nashik for seeking removal of
obstruction under the provisions of Section 5 of the
Mamlatdars' Courts Act, 1906 (hereinafter referred to as "the
said Act ".
4.3 Respondent No. 1 filed Vahivat Case No. 3/98 on
1.12.1998 and impleaded several family members of
Gangurde family who were the owners of various adjacent
and neighboring plots of land near the north-south road
stated above.
4.4 On 2.4.1998, Tahsildar, Chandwad issued notice to
the concerned parties and carried out panchnama i.e.
personal inspection on the spot and recorded the statement
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of panchas (witnesses) that no road existed at the said spot.
Based on the above inspection report, respondent No. 8 -
Tahsildar, Chandwad dismissed Vahivat Case No. 3/98 filed by
respondent No. 1.
4.5 Being aggrieved, respondent No. 1 filed Revision
Application bearing No. 4/98 before respondent No. 9 - Sub-
Divisional Officer, Malegaon, District Nashik under Section 23
of the said Act. The Sub-Divisional Officer Malegaon
dismissed the Revision Application on 29.4.1999. Against this
dismissal, respondent No. 1 did not file any appeal / revision
or writ petition.
4.6 Respondent No. 1 filed Vahivat Case No. 19/2018
before respondent No. 8 - Tahsildar, Chandwad, Dist. Nashik
seeking right of way to Gat No. 34 through Gat Nos. 36, 37,
38, 74 and 75 of Mouje Kalamdare, Taluka Chandwad.
Respondent No. 1 is the owner of Gat Nos. 34 and 74.
Petitioner is the owner of Gat Nos. 36 and 37. Gat No. 38 is
commonly owned and cultivated by respondent No. 1 and
some other members of the Gangurde family.
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4.7 In the above background after a lapse of 20 years,
respondent No. 1 once again filed Vahivat case bearing No.
19/18 in respect of the same cause of action which was
subject matter of Vahivat Case No. 3/98.
4.8 Respondent No. 8 Tahsildar, Chandwad after
perusing the documentary evidence pertaining to Vahivat
Case No. 3/98, the panchnama recorded therein and other
relevant papers, came to the conclusion that Vahivat Case No.
19/2018 was barred by the principles of res judicata.
Therefore, by order dated 24.7.2018, respondent No. 8
dismissed Vahivat Case No. 19/2018.
4.9 Being aggrieved, respondent No. 1 filed RTS
Revision Application No. 91/2018 before respondent No. 10 i.e
Dy. Collector, Sub Division Chandwad, District Nashik under
the provisions of Section 23 of the said Act.
4.10 By judgment and order dated 19.7.2019,
respondent No. 10 allowed the above revision application filed
by respondent No. 1 and remanded the case back to
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respondent No. 8 Tahsildar, Chandwad for fresh
consideration.
5. In the above factual background, it will be apposite
to lay down the rival submissions.
6. Mr. Gite, learned counsel appearing on behalf of
the petitioner submitted that the impugned order dated
19.7.2019 suffers from gross and grave non-application of
mind to the relevant facts and material evidence placed on
record by the petitioner, inter alia, pertaining to Vahivat Case
No. 3/98 which was in respect of the same subject property,
same cause of action and involving the same parties. He
submitted that the cause of action involved in the present
case was directly and substantially the same in Vahivat Case
No. 3/98 and was therefore, barred by the principles of res
judicata and constructive res judicata. He submitted that in
the earlier round of litigation between the same parties,
respondent No. 8 Tahsildar had himself under his
endorsement carried out spot inspection and recorded the
statement of panchas, inter alia, recording that there was no
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road in existence at the spot. He submitted that Revision
Application No. 4/98 against the Tahsildar's order dismising
Vahivat Case No. 3/98 was dismissed by the Appellate
Authority 29.4.1999. He submitted that respondent No. 1 did
not challenge the Revision Order dated 29.4.1999 before this
Court. Therefore, according to him, the order of Tahsildar
had attained finality. He submitted that the impugned order
dated 19.7.2019 holds that Vahivat Case No. 19/2018 was
maintainable and this finding is not based on correct
appreciation of the material evidence on record. He
submitted that respondent Nos. 1 to 7 and the petitioner
belong to Gangurde family and partition had taken place
between various branches of the family in respect of several
holdings. He submitted that pursuant to this partition, there
was no road in existence on the said spot as claimed by
respondent No. 1. He submitted that in view of the earlier
Vahivat Case No. 3/98 having been decided against
respondent Nos. 1 to 7, there was no valid and legal reason
for respondent No. 10 to ignore the provisions of Section 11 of
the Code of Civil Procedure, 1908 and the applicability of the
bar of res judicata to the case of respondent No. 1 and
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remand the case back to the Tahsildar for a fresh decision.
6.1 Mr. Gite has referred to and relied upon the
judgment of the Apex Court in the case of Lal Chand (dead)
1
by L.Rs. & Ors. Vs. Radha Kishan . He submitted that
once the earlier proceedings before the same competent
authority had been decided, then applying the principles of
res judicata and considering that the issues involved in both
the proceedings were identical, it was not open to the parties
to agitate the same issues once again before the same
competent authority. He referred to and drew the court's
attention to paragraph No. 19 of the above decision which
reads thus:-
19. Only one more aspect of the matter needs is to be
adverted to. The respondent after obtaining a decree for eviction
against Lal Chand and his alleged sub tenants applied for
permission of the competent authority to execute that degree.
Permission was granted to him to execute the decree in respect
only of the two rooms on the second floor and in pursuance of
that permission he obtained possession of those two rooms. We
are unable to ,understand how after working out his remedy
under the 'Delhi Rent Control Act as modified by the Slum
Clearance Act, it is competent to the respondent to bring a fresh
suit for evicting the appellants from the premises on the ground
floor. The authorities under the Slum Clearance Act who are
exclusively invested with the power to determine whether a
decree for eviction should be permitted to be executed and, if so,
to what extent, had finally decided that question, refusing to allow
the respondent to execute the decree in respect of the ground
1 AIR 1977 SC 789
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floor premises. By the present suit, the respondent is once again
asking for the relief which was included in the larger relief sought
by him in the application filed under the Slum Clearance Act and
which was expressly denied to him. In the circumstances, the
present suit is also barred by the principle of res judicata. The
fact that section 11 of the Code of Civil Procedure cannot apply
on its terms, the earlier proceeding before the competent
authority not being a suit, is no answer to the extension of the
principle underlying that section to the instant case. Section 11, it
is long since settled, is not exhaustive and the principle which
motivates that section can be extended to cases which do not fall
strictly within the letter of the law. The issues involved in the two
proceedings are identical, those issues arise as between the
same parties and thirdly, the issue now sought to be raised was
decided finally by a competent quasi-judicial tribunal. The
principle of res judicata is conceived in the larger public interest
which requires that all litigation must, sooner than later, come to
an end. The principle is also founded on equity, justice and good
conscience which require that a party which has once succeeded
on an issue should not be permitted to be harassed by a
multiplicity of proceedings involving determination of the same
issue. Were it permissible to bring suits of the present nature, the
beneficial jurisdiction conferred on the competent authority by the
Slum Clearance Act would become illusory and meaningless for,
whether the competent authority grants or refuses permission to
execute a decree for eviction, it would always be open to the
landlord to enforce the ejectment decree by filing a substantive
suit for possession. Verily, the respondent is executing the
eviction decree by installments, now under the garb of a suit.
Apart from the fact that the suit is barred on account of principles
analogous to res judicata, it is plainly in violation of the injunction
contained in section 19(1)(b) of the Slum Clearance Act, if regard
is to be had to the substance and not for the form of the
proceedings"
6.2 Mr. Gite, thereafter, referred to a decision in the
case of State of W.B. Vs. Hemant Kumar Bhattacharjee
2
& Ors. . He referred to and drew the court's attention to
paragraph No. 14 which reads thus:-
2 AIR 1966 SC 1061
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"14. Before proceedings with these arguments in detail, we can
dispose of second contention very shortly. This argument
proceeds on a fundamental misconception, as it seeks to equate
an incorrect decision with a decision rendered without
jurisdiction. A wrong decision by a court having jurisdiction is as
much binding between the parties as a right one and may be
superseded only by appeals to higher tribunals or other
procedure like review which the law provides. The learned judges
of the High Court who rendered the decision on 4-4-1952 had
ample jurisdiction to decide the case and the fact that their
decision was on the merits erroneous as seen from the later
judgment of this Court, does not render it any the less final and
binding between the parties before the Court. There is, thus, no
substance in this contention. The decision of the High Court
dated 4-4-1952 bound the parties and its legal effect remained
the same whether the reasons for the decision be sound or not."
7. PER CONTRA, Mr. Pandit Kasar, learned counsel for
respondent No. 1 submitted that though partition of
properties between various members of Gangurde family i.e
the petitioner and respondent Nos. 1 to 7 had taken place in
the year 1972, the petitioner had never objected to the use of
the north-south road by respondent No. 1. He submitted that
all along, the north-south road was used by respondent No. 1
as a "vahivat road" without the petitioner raising any
objection. He submitted that the north south road was in
existence and it was used by respondent No. 1 as access road
to approach his field / Gat Number. He fairly submitted that
though in the year 1998, Vahivat Case No. 3/98 came to be
dismissed and further Revision proceedings were also
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dismissed against respondent No. 1, but even then there was
no restriction / obstruction by the petitioner to the use of the
north-south road thereafter in so far as respondent No. 1 was
concerned. He submitted that because of obstruction,
respondent No. 1 was forced to take a longer and circuitous
rout to access / approach his Gat numbers / fields. He
submitted that the obstruction by the petitioner was contrary
to the understanding between the family members of the
Gangurde family regarding the use of the north-south road.
8. Mr. S.D. Rayrikar, learned AGP appearing on behalf
of respondent Nos. 8 to 11 supported the impugned order in
as much as stating that the impugned order was not fatal to
both the parties and that both the parties would get an equal
opportunity to place their respective evidence before
respondent No. 8, Tahsildar, Chandwad. Incidentally, on a
question being put by the Court as to why the affidavit in
reply dated 3.1.2020 filed by Mr. Kailash Balkrushna Jangam,
Nayab Tahsildar, Chandwad, Dist. Nashik on behalf of
respondent Nos. 8 to 11 did not deal with the submissions
made by the petitioner in respect of Vahivat Case No. 3/98
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and subsequent Revision Application No. 4/98, the learned
AGP had no answer to the same.
9. I have considered the arguments and pleadings
filed by the respective parties and have perused the
impugned order dated 19.7.2019. At the outset, the
provisions of Section 5 and Section 23 of the Mamlatdars'
Courts Act, 1906 which are relevant to the present lis
between the parties need to be referred to. Section 5 and
Section 23 of the said Act read thus:-
" SECTION 5: POWERS OF MAMLATDARS' COURTS
(1) Every Mamalatdar shall preside over a Court, which shall be
called a Mamlatdars' Court, and which shall, subject to the
provisions of Sections 6 and 26, have power, within such
territorial limits as may from time to time be fixed by the State
Government-
(a) to remove or cause to be removed any impediment,
erected otherwise than under due authority of law, to the
natural flow in a defined channel or otherwise of any
surface water naturally rising in or falling on any land used
for agriculture, grazing, trees or crops, on to any adjacent
land, where such impediment causes or is likely to cause
damage to the land used for such purpose or to any such
grazing, trees or crops thereon;
(b) to give immediate possession of any lands or premises
used for agriculture or grazing, or trees, or crops or
fisheries, or to restore the use of water from any well, tank,
canal or water course, whether natural or artificial used for
agricultural purposes to any person who has been
dispossessed or deprived thereof otherwise than by due
course of law, or who has become entitled to the
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possession or restoration thereof by occasion of the
determination of any tenancy or other right of any other
person, not being a person who has been a former owner
or part-owner, within a period of twelve years before the
institution of the suit of the property or use claimed, or who
is the legal representative of such former owner or part-
owner
Provided that, if in any case the Mamlatdar considers it
inequitable or unduly harsh to remove or cause to be removed
any such impediment or, to give possession of a such property or
to restore any such use to a person who has become entitled
thereto merely by person of the determination of any such
tenancy or other right, or if it appears to him that such case can
be more suitably dealt with by a Civil Court, he may in his
discretion refuse to exercise the power aforesaid, but shall record
in writing his reasons for such refusal.
(2) The said Court shall also, subject to the same provisions,
have power within the said limits where any impediment referred
to in sub-section (1) is erected, or an attempt has been made to
erect it, or, when any person is otherwise than by due course of
law disturbed or obstructed, or when an attempt has been made
so to disturb or obstruct any person, in the possession of any
lands or premises used lot agriculture or grazing, or trees, or
crops, or fisheries, or in the use of water from any well, tank,
canal or watercourse, whether natural or article used for
agricultural purposes, or in the use of roads or customary ways
thereto, to issue an injunction to the person erecting or who has
attempted to erect such impediment, or causing, or who has
attempted to cause, such disturbance or obstruction, requiring
him to refrain from erecting or attempting to erect any such
impediment or from causing or attempting to cause any further
such disturbance or obstruction.
(3) No suit shall be entertained by a Mamtatdar's court unless it
is brought within six months from the date on which the cause of
action arose.
(4) The cause of action shall be deemed to have arisen on the
date on which the impediment to the natural flow of surface water
or the dispossession, deprivation or determination, of tenancy or
other right occurred, or on which the disturbance or obstruction,
or the attempted impediment or disturbance or obstruction, first
commenced.
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Explanation :"The exercise by a joint owner of any right which he
has over the joint property is not a dispossession, or disturbance
of possession of the other joint owner or owners within the
meaning of this section.
SECTION 23: BAR OF APPEAL
(1) There shall be no appeal from any order passed by a
Mamlatdar under this Act.
(2) But the Collector may call for and examine record of any suit
under this Act, and if he considers that any proceeding, finding or
order in such suit is illegal or improper may, after due notice to
the parties, pass such order thereon, not inconsistent with this
Act, as he thinks fit.
(2A) The Collector may delegate the powers conferred on him by
this section to any Assistant Collector Deputy Collector, or
assistant Commissioner] subordinate to him],
(3) Where the Collector, Assistant Collector, Deputy Collector or
Assistant Commissioner takes any proceedings under this Act he
shall be deemed to be a Court, under this Act."
10. Under Section 5 of the said Act, every Mamlatdar
has been described as a Court within the State territorial
limits having power to remove or cause to be removed any
obstruction made otherwise than or under due authority of
law and to restore possession thereof by removing such
impediment. Section 23 of the Act provides for revision
against the above order as there is no appeal provided from
any order passed by the Mamlatdar under the said Act.
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11. In the present case, respondent No. 1 has filed
original Vahivat Case No. 3/98. This application dated
28.11.1997 is annexed at Exh. A to the Petition. At Exh. B to
the Petition, the Petitioner has annexed his affidavit-in-reply in
Vahivat Case No. 19/2018. Annexed to this affidavit-in-reply,
is the panchnama dated 2.4.1998 which was carried out in
Vahivat Case No. 3/98. A perusal of the panchnama placed on
record at page No. 22 of the petition reveals that in the entire
property pertaining to various Gat numbers, there does not
exist any vahivat road or motorable road at all. This
panchnama / inspection report has been prepared by the
Tahsildar and has been signed by four witnesses namely
Karbhari Bhimrao Gangurde, Laxman Chingu Gangurde,
Ashok Vitthal Gangurde and Bhausaheb Devman Gangurde in
presence of Tahsildar Chandwad on 2.4.1998. This
panchnama is also endorsed and signed by the Tahsildar,
Chandwad. Further, the order dated 24.4.1998 passed by
Tahsildar Chandwad in Vahivat Case No. 3/98 is also placed on
record at page 23 of the petition. By this order, the
application of respondent No. 1 has been dismissed by a
reasoned order on the ground that there is no material
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evidence whatsoever placed on record by respondent No. 1 to
show that vahivat road ever existed on the said property. The
order dated 29.4.1999 passed by respondent No. 10 in
revision application No. 4/98 has also been placed on record
by the petitioner at page 25 of the petition. The order in
revision clearly records that there is no mention of vahivat
road in the 7/12 extract pertaining to the said property. By
reasoned order, Revision Application No. 4/98 under Section
23 of the said Act filed by respondent No. 1 has also been
dismissed in the year 1999.
12. The affidavit filed on behalf of respondent Nos. 8 to
11 ought to have categorically dealt with the earlier
proceedings namely Vahivat Case No. 3/98 and Revision
Application No. 4/98 which was in respect of the same cause
of action and between the same set of parties. The entire
affidavit filed on behalf of respondent Nos. 8 to 11 does not
deal with this aspect. Respondent Nos. 8 to 11 being
statutory officers of the government under the provisions of
the said Act, ought to have first hand knowledge of such
proceedings from their record between the parties. On a
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plain reading of the affidavit filed on behalf of respondent
Nos. 8 to 11, it prima facie appears that an attempt has been
made by the said respondents to suppress material facts
pertaining to Vahivat Case No. 3/98 and Revision Application
No. 4/98 from this Court. On the contrary, in paragraph No. 5
of the affidavit, an attempt has been made to suggest to the
Court that the impugned order passed by respondent No. 10
is not fatal to either party as both the parties would get an
equal opportunity to place their evidence before the Tahsildar,
Chandwad. This conduct and stand on behalf of respondent
Nos. 8 to 11, being statutory officers of the government and
possessing statutory powers under the said Act is not
appreciated and is deprecated. There is no whisper in the
affidavit filed on behalf of respondent Nos. 8 to 11 on the
legal issue of res judicata.
13. In view of the aforesaid two concurrent orders
passed in the earlier Vahivat Case No. 3/98 and Revision
Application No. 4/98, respondent No. 8 by his order dated
24.7.2018 has correctly dismissed the fresh Vahivat Case No.
19/2018 filed by respondent No.1 on the ground of res
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judicata and constructive res judicata. There is a categorical
finding given in this order which states that the cause of
action and the subject property in the original Vahivat Case
No. 3/98 is the same as that of Vahivat Case No. 19/2018.
However, in revision proceedings against the above order
dated 24.7.2018, the final impugned order gives a direction
to conduct fresh inspection under the provisions of Section 5
of the said Act to the Tahsildar. Once the Mamlatdar's court
decides the lis between the same parties under the provisions
of Section 5 read with Section 23 of the said Act, then after a
lapse of time, there cannot be a fresh round of litigation
permissible under the same provisions, between the same
parties and for the same cause of action. The impugned
order dated 19.7.2019 is clearly hit by the bar of Section 11 of
the Code of Civil Procedure, 1908 and thus, it was not within
the jurisdiction of respondent No. 10 to direct reconsideration
of the lis between the parties afresh and remand the same
back to respondent No. 8 considering that the same cause of
action was the subject matter of lis between the same parties
in original Vahivat Case No. 3/98.
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14. In view of the reasons recorded above, the
impugned order dated 19.7.2019 passed by respondent No.
10 - Deputy Collector, Chandwad Sub Division, Chandwad,
Dist. Nashik in RTS Revision No. 91/2018 is quashed and set
aside and the order dated 24.7.2018 passed by respondent
No.8, Tahsildar, Chandwad, District Nashik in Vahivat Case No.
19/18 is confirmed.
15. Interim relief granted earlier stands vacated.
16. Parties to bear their own costs.
17. Liberty to respondent Nos. 1.1 to 1.3 to pursue
remedy available to them in law.
18. Rule is made absolute in the above terms. Petition
is disposed off.
(MILIND N. JADHAV, J.)
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