Saturday, 4 July 2015

Whether remedy of civil suit is available to raise dispute regarding right of way from boundary of other field?



The   contention   of   Shri   Ghuge,   the   learned 
counsel for the applicants is that, there is no right of way 
available to the respondent nos. 3 to 10 from the Dhura of 
Gat No. 62.   Shri Ghare, the learned counsel appearing for 
the respondent nos. 3 to 10 invited my attention to Section 
22 of the Mamlatdar's Courts Act,   and submitted that the 
remedy of civil suit is available to raise a dispute regarding 
right of way over the boundary of Gat No. 62 and he submits 
that any observation regarding right of way by the authorities 

below in the impugned order would naturally not come in 
the way of the Civil Court in dealing with the aspect of the 
matter. 
In view of this, it is open for the applicants to file 
a civil suit raising all disputes regarding the right of way or 
the alternate way and claim appropriate decree or the orders 
and no interference is called for in the orders impugned in 
this   civil   revision   application. 

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


CIVIL REVISION APPLICATION NO. 140/2011
Shankar Govindrao Sarnaik,


...VERSUS...
Sub Divisional Officer,



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CORAM: R. K. DESHPANDE, J.

DATE    : 17   JANUARY, 2012
 th 

Citation; 2012(3) ALLMR669

Heard   Shri   Ghuge,   the   learned   counsel   for   the 
applicants,     Smt.   K.R.Deshpande,   learned   AGP   for   Respondent   Nos. 
1 and 2 and Shri Ghare, the learned counsel for the respondent nos. 3 
to 10.

2]

The   Tahsildar   exercising   the   jurisdiction   under 
Section 5 of the Mamlatdar's Courts Act, 1906, has directed 
removal of obstruction on the Dhura of Gat No. 62 owned by 
the applicants.   This order has been maintained in appeal. 
Shri   Ghuge,   the   learned   counsel   for   the 
3]
Hence this civil revision application.
applicants has basically raised two contentions.  (i) That the 
spot inspection reports of Talathi and Naib Tahsildar has not 
been taken into consideration by the authorities below and 
(ii)     that   the   applicants   have   not   been   permitted   to   cross 
examine  the  respondents/plaintiffs.   He, therefore, submits 
that the order passed by the authorities below are vitiated 
and hence liable to be set aside. 
4]
With the assistance of the learned counsel for the 
parties,   I have gone through the reports of the Talathi and 
the Naib Tahsildar and the Roznama, to judge the challenges 

raised.   The spot inspection reports of Talathi and the Naib 
Tahsildar indicates the creation of obstruction on the Dhura 
of   Gat   No.   62.       The   applicants   were   at   liberty   to   cross 
examine the respondents/plaintiffs, however, without raising 
any   objection,   the   applicants   entered   the   witness   box, 

deposed and also submitted for cross examination.  They are 
also cross examined.   In view of this, no fault can be found 
with   the   orders   passed   by   the   authorities   below,   directing 
removal of obstruction.
5]
The   contention   of   Shri   Ghuge,   the   learned 
counsel for the applicants is that, there is no right of way 
available to the respondent nos. 3 to 10 from the Dhura of 
Gat No. 62.   Shri Ghare, the learned counsel appearing for 
the respondent nos. 3 to 10 invited my attention to Section 
22 of the Mamlatdar's Courts Act,   and submitted that the 
remedy of civil suit is available to raise a dispute regarding 
right of way over the boundary of Gat No. 62 and he submits 
that any observation regarding right of way by the authorities 

below in the impugned order would naturally not come in 
the way of the Civil Court in dealing with the aspect of the 
matter. 
In view of this, it is open for the applicants to file 
6]

a civil suit raising all disputes regarding the right of way or 
the alternate way and claim appropriate decree or the orders 
and no interference is called for in the orders impugned in 
this   civil   revision   application.   In   the   result,   Civil   Revision 
Application is dismissed. No orders as to costs.
JUDGE

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