A prior civil suit over the same property bars subsequent Section 5 proceedings under Section 26.

Respondent No. 1 instituted proceedings under Section 5 of the Mamlatdars’ Courts Act before the Mamlatdar, alleging that the petitioner and other respondents had erected fencing over a pathway leading to his field, obstructing his ingress and egress.

Respondent No. 1 claimed rights and possession pursuant to an agreement to sell with Respondent No. 9 and had already instituted a civil suit seeking specific performance, execution of a sale deed and consequential injunctions in respect of the disputed property.

The civil suit was instituted before the proceedings under Section 5 of the Act, and the application for interim relief therein had been rejected, with related proceedings remaining pending.

The Mamlatdar declined to entertain the Section 5 proceedings on the ground that the subject matter was already pending before the competent Civil Court.

The Deputy Collector, however, allowed Respondent No. 1’s revision application by order dated 29 April 2023, after considering the existence of the pathway and interfering with the Mamlatdar’s order.

The petitioner challenged that order under Articles 226 and 227 of the Constitution.

Whether subsequent proceedings under Section 5 of the Mamlatdars’ Courts Act could be entertained when a prior civil suit concerning the rights, title and possession of the subject property was pending before the competent Civil Court.

Whether the Deputy Collector erred in entertaining the revision application and interfering with the Mamlatdar’s order despite the statutory bar under Section 26 of the Mamlatdars’ Courts Act.

The Court applied Section 26(b) of the Mamlatdars’ Courts Act, which bars a suit under the Act concerning removal of an impediment, dispossession, recovery of possession or disturbance of possession where the same subject matter has previously been the subject of proceedings in a Civil Court or under the Act.

The Court held that where disputes concerning title, ownership and possession of the same property are already pending before a competent Civil Court, parallel proceedings under Section 5 of the Act cannot be entertained.

The decisions in Jay Atul Shah & 2 Applicants v. Arvindbhai Amrutbhai Patel & 11 Opponents, Civil Revision Application No. 386 of 2015, and Bhemdas Dharmabhai Harijan (Sadhu) v. Satuben Kajabhai Harijan, Special Civil Application No. 9542 of 2020, were considered but held factually distinguishable and inapplicable.

The Court found that Respondent No. 1’s claim to possession and access arose from an agreement to sell whose enforceability and consequential rights were already directly in issue in the prior civil suit.

Since the civil proceedings preceded the Mamlatdar proceedings and concerned the same property and substantially connected rights of possession, Section 26(b) operated as an express statutory bar.

The pending Land Grabbing Act proceedings further demonstrated that title and possession were seriously disputed, although the Court expressly declined to make any final determination on those issues.

The Mamlatdar had therefore correctly declined to entertain the Section 5 suit.

The Deputy Collector, despite acknowledging the pendency of the civil proceedings, improperly proceeded to examine the merits and set aside the Mamlatdar’s order, contrary to the mandatory statutory bar.

The Deputy Collector’s order dated 29 April 2023 in Revision Application No. 1 of 2023 was quashed and set aside, and all consequential proceedings arising from it were also quashed.

The petition was allowed and the Rule was made absolute to that extent.