IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD 908 WRIT PETITION NO. 4170 OF 2024 DINESHCHANDRA WAMANRAO LOKHANDE AND OTHERS VERSUS THE SUB DIVISIONAL OFFICER AND OTHERS Mr. S. S. Kulkarni, Advocate for the petitioners Mr. S. N. Kendre, AGP for the respondent/State Mr. M. D. Narwadkar, Advocate for respondent No.3. CORAM : R. M. JOSHI, J. DATE : 23rd APRIL, 2025 PER COURT :- 1. By consent of both sides, petition is heard finally at the stage of admission. 2. This petition takes exception to the orders passed by Tahasildar dated 21/03/2023 on an application filed by contesting respondent under section 5(2) of the Mamlatdar’s Courts Act (for short ‘the Act’) and confirmation of the said order by the Revisional Authority. 3. The facts which led to the filing of this petition can be narrated in brief as under:- (i) The contesting respondent filed an application before the Tahasildar on 17/06/2022 contending that he is the owner of Gut No. 412 situated at Sheri/Sutari. It is claimed in this application that there 908.wp4170.24.odt 1 of 7 2025:BHC-AUG:11862 are two ways available for him to approach his agricultural land, however, on account of destruction of the said roads by the adjoining, agriculturist, he is unable to cultivate his land. This application made to the Tahasildar was responded with reply dated 07/07/2022 informing that since the applicant is seeking a new way, he was advised to file an application under Section 143 of Maharashtra Land Revenue Code. The contesting respondent has not taken exception to this communication dated 01/07/2022 but preferred application on 11/07/2022 under Section 5 of the Act by contending that there is existing way to Gut No. 411 and he was using the same, however, the said road has been closed by the owner of Gut No. 411 by erecting a gate and thereby obstruction has been caused to ingress and ingress of applicant. Pursuant to the said application panchanamas were drawn on 17/08/2022, 18/08/2022 and 03/03/2023. Tahasildar after hearing both sides passed order dated 21/03/2023 allowing application. It was directed to remove obstruction caused by the owner of Gut No. 411. This order was taken exception in Revision Application No. 97/2023 before the Sub Divisional Officer, Bhokardan, District Jalna. Sub Divisional Officer confirmed the order passed by Tahasildar. Hence, this petition. 4. Learned counsel for the petitioner has drawn attention of the Court to the application dated 17/06/2022 which was made for seeking 908.wp4170.24.odt 2 of 7 creation of a new road. It is his submission that the said application has been rejected by the Tahasildar by communication dated 01/07/2022 and since there was no exception taken to the communication, the contesting respondent is precluded from filing fresh application before Tahasildar. In any case it is his contention that application filed before the Tahasildar does not meet the requirement of the act. By drawing attention of the Court to the application in question it is contended that there is no specific averment as to when the obstruction has been caused by the petitioner and also the date/ approximate time of erection of gate. He drew attention of the Court to the written statement filed by the Tahasildar raising issue about limitation and other issues on merit of the application. It is his contention that though in the panchanama nothing is indicated about existence of customary way by obstruction caused by the petitioner, the Tahasildar passed impugned order granting relief to respondent. It is his submission that the order passed by the Tahasildar is unreasoned one and since all the issues raised were not dealt with by the Tahasildar, the said order ought to have been set aside by the Revisional Authority. He, therefore, seeks interference in the orders impugned. 5. Learned counsel for the contesting respondent supports the impugned orders. According to him the first application was not filed 908.wp4170.24.odt 3 of 7 under Section 5 of the Act and hence there was no prohibition for the respondent to file appropriate application. It is his submission that there is finding recoded by the Tahasildar with regard to the obstruction caused by the petitioner by erecting the gate and as such there is no reason or justification for causing interference in the impugned order. 6. During the course of the hearing this Court is apprised of the fact that the petitioner has already filed R.C.S. No. 119/2023 before Civil Judge Junior Division, Bhokardan seeking following relief:- ^^v& oknhpk nkok [kpkZlg eatqj dj.;kr ;kok- ekSts ikj/k cq- rk- Hkksdjnu ;sFkhy tehu xV ua- 411 {sk 4 gsDVj 59 vkj iksV[kjkc 7 vkj ,dq.k {ks 4 gsDVj 66 vkj oknhaP;k dk;ns’khj rkck o ekydhp laiq.kZ xV T;kph prq%flek iqosZl& ikj/k rs ookylkaoxh jksM] if’pesl& izfroknhaps 'ksr] nf{k.ksl & xV uacj 409 e/khy /kkjdkaP;k tehuh o mRrjsl & ukyk v’kh vkgs] ;k tehuhr izfroknhauh dks.kR;kgh izdkjpk Lor% vxj ukSdj pkdj gLrd ,taV eqysckGs ;kaP;kekQZr gLr{ksi vkMFkG d: u;s- rlsp xVke/kqu uohu jLrk ikMq u;s Eg.kqu dk;e Lo:ih eukbZgqdqe ns.;kr ;kok& & bZrj ;ksX; o U;k; vkns’k oknhps gDdkr dj.;kr ;kos T;kl oknh ik= vkgsr-** 7. In the proceeding under Section 5(2) of the Act, petitioner has raised specific objection with regard to the non disclosure of cause of action so also the objection to the limitation. Tahasildar while passing impugned order has failed to deal with the said objection. Without considering the said objection order came to be passed. Any such order which is passed ignoring the objection raised by the other side and which 908.wp4170.24.odt 4 of 7 are relevant for the decision of the application can not sustain. 8. It is sought to be argued on behalf of the petitioner that previously an application was moved before the Tahasildar on 17/06/2022 and the same has been rejected. In this regard perusal of the said application indicates that it was addressed to the Collector, Jalna and not to Tahasildar. A copy thereof was endorsed to Tahasildar. Thus, on the face of it it cannot be said that this was an application filed under Section 5 of the Act to the Tahasildar for seeking relief under the provisions of the said Act. In the light of this fact, communication addressed by Tahasildar dated 01/07/2022, may not become an impediment in entertaining application. In any case this Court does not wish to make any further observation thereon and this issue is specifically kept open for consideration of Tahasildar at the time of re- hearing and decision of the application. 9. As far as the issue of limitation is concerned, once specific pleadings are there in the written statement about the application being not maintainable so also the objection to the application for non disclosure of cause of action, Tahasildar is directed to decide the said objection while disposing the application under Section 5(2) of the Act. 10. At this stage it would be relevant to take note fo the 908.wp4170.24.odt 5 of 7 submission made by the learned counsel for the petitioner that the contesting responded has suppressed the material fact before the Tahasildar by not disclosing the earlier application and order passed therein. By taking support of the judgment of the Hon’ble Supreme Court in Case of S. P. Chengalvaraya Naidu (Dead) by Lrs., Vs. Jagannath (Dead) by Lrs. And ors., Supreme Court Reports (1993) Supp. 3 S.C.R., it is contended that the order passed by the party with suppression of fact deserves to be set aside. In this regard it is pertinent to note that this Court has recorded the finding that Tahasildar has not dealt with the relevant issues involved in the application and for this reason the order passed by the Tahasildar is set aside and the matter is sought to be relegated back to Tahasildar for decision afresh. In such circumstances it would not be appropriate on the part of this Court to record any finding about suppression of fact and the said issue is kept open for agitation by petitioner before Tahasildar. 11. It is also sought to be contended that in view of the filing of R.C.S. No. 119/2023 by the petitioner in respect of Gut No. 411, the Mamlatdar is precluded from entertaining any such issue. In this regard perusal of the prayers made in the said suit indicate that injunction is sought to be respect of causing obstruction to the peaceful possession and cultivation of the Gut No. 411, so also from creating any new road 908.wp4170.24.odt 6 of 7 therein. As far as proceedings under Section 5(2) of the Act are concerned, question of directing any creation of new road does not arise. Thus, the issue involved before the Civil Court is altogether different than the one involved in the proceedings before Tahasildar. Merely because suit is filed which has no nexus to the issue before the Mamlatdar, the proceeding before Mamlatdar cannot be prohibited. 12. As a result of above discussion, petition stands allowed. Impugned orders are set aside. The proceedings are relegated back to Tahasildar for decision afresh. It is expected that Tahasildar be considered all objection raised by the petitioner while deciding the application. Application be decided within a period of three weeks from today. (R. M. JOSHI, J.) ssp 908.wp4170.24.odt 7 of 7