Case Note & Summary
The petitioner, Jayant Namdeorao Gohad, filed a writ petition under Articles 226 and 227 of the Constitution of India challenging two orders: (1) the order dated 12/10/2010 passed by the Tahsildar/Mamlatdar, Morshi under Section 5 of the Mamlatdars' Courts Act, 1906 granting a right of way through the petitioner's field (Survey No.240/3) to respondent no.1, Prakash Manikrao Vighe, for access to his fields (Survey Nos.242/2 and 242/2A); and (2) the order dated 6/9/2008 by which the Sub Divisional Officer, Morshi dismissed the petitioner's revision under Section 23 of the Act. The dispute originated when respondent no.1 and his brother filed an application before the Tahsildar on 10/1/1991 alleging obstruction of their right of way. That application was dismissed for default on 27/3/1991 by the Naib Tahsildar. Despite this dismissal, respondent no.1 filed a second application on 18/6/2002, nearly eleven years later, seeking the same right of way. The Naib Tahsildar rejected this second application on 18/6/2002, holding that a 22 ft. road was available and there was no alternate way. Respondent no.1 appealed to the Sub Divisional Officer, who allowed the appeal on 31/7/2003 and remanded the matter to the Tahsildar for a fresh decision. On remand, the Tahsildar passed the impugned order on 12/10/2010 granting the right of way. The petitioner's revision against this order was dismissed by the Sub Divisional Officer on 6/9/2008. The High Court held that the dismissal of the first application for default operated as a final order and barred the second application under the principle of res judicata. The court found that the Tahsildar had no jurisdiction to entertain the second application, and consequently, the order granting right of way was without jurisdiction. The court allowed the writ petition, quashed both the impugned orders, and set aside the right of way granted to respondent no.1.
Headnote
A) Civil Procedure - Res Judicata - Dismissal for Default - A second application for right of way under Section 5 of the Mamlatdars' Courts Act, 1906 is barred by res judicata when the first application was dismissed for default, as the dismissal operates as a final order. The principle of res judicata applies to proceedings under the Act. (Paras 6-8)
B) Mamlatdars' Courts Act, 1906 - Jurisdiction - Section 5 - Right of Way - The Tahsildar/Mamlatdar has no jurisdiction to entertain a second application for right of way after the first application was dismissed for default, as the dismissal constitutes a final adjudication. The subsequent order granting right of way is without jurisdiction and liable to be set aside. (Paras 6-8)
C) Mamlatdars' Courts Act, 1906 - Revision - Section 23 - Sub Divisional Officer - The Sub Divisional Officer erred in dismissing the revision against the order granting right of way, as the Tahsildar lacked jurisdiction to entertain the second application. The revisional authority ought to have set aside the order. (Paras 6-8)
Issue of Consideration
Whether a second application for right of way under Section 5 of the Mamlatdars' Courts Act, 1906 is maintainable when the first application was dismissed for default, and whether the Tahsildar had jurisdiction to entertain the second application.
Final Decision
The High Court allowed the writ petition, quashed the order dated 12/10/2010 passed by the Tahsildar and the order dated 6/9/2008 passed by the Sub Divisional Officer, and set aside the right of way granted to respondent no.1.
Law Points
- Res judicata
- Jurisdiction of Mamlatdar
- Section 5 Mamlatdars' Courts Act 1906
- Section 23 Mamlatdars' Courts Act 1906
- Right of way
- Dismissal for default
- Second application barred
Case Details
2011 LawText (BOM) (07) 89
Writ Petition No.1447 of 2011
Mr. Abhijit Deshpande for petitioner, Mr. A.D. Thakre for respondent no.1, Mr. C.N. Adgokar, Addl. Govt. Pleader for respondent nos.2 and 3
Prakash Manikrao Vighe, The SubDivisional Officer, Morshi, The Mamlatdar (Tahsildar) Morshi
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Nature of Litigation
Writ petition under Articles 226 and 227 of the Constitution of India challenging orders granting right of way under the Mamlatdars' Courts Act, 1906.
Remedy Sought
Petitioner sought quashing of the order dated 12/10/2010 passed by the Tahsildar granting right of way through his field and the order dated 6/9/2008 dismissing his revision.
Filing Reason
Petitioner challenged the grant of right of way through his field to respondent no.1, arguing that the second application was barred by res judicata as the first application was dismissed for default.
Previous Decisions
First application for right of way filed on 10/1/1991 was dismissed for default on 27/3/1991. Second application filed on 18/6/2002 was rejected by Naib Tahsildar on 18/6/2002, but on appeal, Sub Divisional Officer remanded the matter on 31/7/2003. Tahsildar then granted right of way on 12/10/2010. Revision against that order was dismissed on 6/9/2008.
Issues
Whether the second application for right of way under Section 5 of the Mamlatdars' Courts Act, 1906 was maintainable after the first application was dismissed for default.
Whether the Tahsildar had jurisdiction to entertain the second application and grant the right of way.
Submissions/Arguments
Petitioner argued that the dismissal of the first application for default operated as a final order and barred the second application under res judicata.
Respondent no.1 contended that the dismissal for default did not constitute a final adjudication and the second application was maintainable.
Ratio Decidendi
The dismissal of the first application for default under the Mamlatdars' Courts Act, 1906 operates as a final order and bars a second application for the same relief on the principle of res judicata. The Tahsildar lacked jurisdiction to entertain the second application, and the subsequent orders granting right of way are without jurisdiction and liable to be set aside.
Judgment Excerpts
The above petition filed under Articles 226 and 227 of the Constitution of India takes exception to the order dated 12/10/2010 passed by the Tahsildar/Mamlatdar, Morshi in exercise of the power under Section 5 of the Mamlatdars’ Courts Act, 1906, by which order the right of way through the field of the petitioner has been granted to the respondent no.1.
It appears that the respondent no.1 along with his brother had filed an application before the Tahsildar, Morshi on 10/1/1991 stating that the petitioner has obstructed the right of way leading to their fields. ... It is an undisputed fact that the said application came to be dismissed for default on 27/3/1991 by an order passed by the Naib Tahsildar.
Despite the said application for removal of the obstruction filed by him being dismissed, the respondent no.1 again filed a second application for grant of way on 18/6/2002 to the Tahsildar, Morshi.
Procedural History
The respondent no.1 filed an application for right of way on 10/1/1991, which was dismissed for default on 27/3/1991. A second application was filed on 18/6/2002, rejected by Naib Tahsildar on 18/6/2002. On appeal, Sub Divisional Officer remanded on 31/7/2003. Tahsildar granted right of way on 12/10/2010. Petitioner's revision was dismissed on 6/9/2008. Petitioner then filed the present writ petition on 15/7/2011.
Acts & Sections
- Mamlatdars' Courts Act, 1906: Section 5, Section 23
- Constitution of India: Article 226, Article 227
