Whether civil court has jurisdiction to decide correctness of findings recorded by Mamlatdar's court?

In my considered opinion, as this contention is not raised either before the Trial Court or before the Appellate Court and it is raised for the first time before this Court, it cannot be considered in writ jurisdiction. Even if this Court considers the same, it being a point of law, it cannot be upheld. Firstly, because, to operate any order or finding as res judicata, the parties to both the proceedings must be the same. Here in the case, admittedly, Respondent No. 1 was not a party to the proceedings before the Mamlatdar's Court. Secondly, once it is held that, Civil Court has jurisdiction to decide the correctness of the finding recorded by the Mamlatdar's Court, there is no question of res judicata operating in such case.

IN THE HIGH COURT OF BOMBAY

Civil Writ Petition No. 1826 of 2018

Decided On: 23.03.2018

 Vasudev Pandharinath Raikar Vs. Manoj Mohan Dalvi and Ors.

Hon'ble Judges/Coram:

Dr. Shalini Phansalkar Joshi, J.

Citation: 2018(4) MHLJ 927

Print Page

Whether order of Mamlatdar court can be challenged before civil court?

 I have gone through the provision of Section 5 of the
Mamlatdars' Courts Act.   The proviso below sub­section (1) of
Section 5 of the said Act empowers the Mamlatdar to refuse to
exercise the power under the said provision if it appears to him
that such a case can be more suitably dealt with by the Civil
Court.  Though there is a revision provided under Section 23 of
the said Act to challenge the order passed by the Mamlatdar

under Section 5, the Act nowhere attaches finality either to the
order passed under Section 5 by the Mamlatdar on merits or to
the order passed in revision under Section 23 of the said Act.  In
the absence of such finality being attached to the order passed
under the Act, the jurisdiction of the Civil Court cannot be held
to   be   impliedly   barred   merely   because   the   Act   provides   a
separate   machinery  for   getting   the   grievance   redressed.     The
ouster of the plenary jurisdiction of Civil Court cannot be readily
interfered and such jurisdiction remains intact and available to
be exercised either against the order under Section 5 or against
the order of revision under Section 23 of the said Act.  
8. The learned counsels appearing for the parties could not
bring   to   my   notice   any     express   provision   creating   bar   of
jurisdiction of the Civil Court to entertain, try and decide the suit
challenging either the order passed under Section 5 or under
Section 23 of the Mamlatdars' Courts Act.  In a given case, a Civil
Court may refuse to grant relief on the ground that the remedy of
revision under Section 23 of the said Act is not exhausted, but

that is not the mandate which the Civil Court is required to
observe.  The lower Appellate Court has, in terms, recorded the
finding that when the order passed by the Mamlatdar is without
following the procedure, it cannot come in the way of the Civil
Court to decide the substantive rights of the parties. The view
taken cannot be faulted with.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Second Appeal No.386 of 2003
Mohommad Khan s/o Rahim Khan,
V
 Shri Shankar s/o Maroti Dhage,

Coram : R.K. Deshpande, J.

Dated :   8­-3-­2017
Citation: 2017(3) ALLMR380

Print Page

When jurisdiction of civil court is barred for deciding issue of being agriculturist for purchase of land?

Thus, both on principle and on authority there is no escape from the conclusion that where in a suit properly constituted and cognizable by the Civil Court upon a contest an issue arises which is required to be settled, decided or dealt with by a competent authority under the Tenancy Act, the jurisdiction of the Civil Court to settle, decide or deal with the same is not only ousted but the civil Court is under a statutory obligation to refer the issue to the competent authority under the Tenancy Act to decide the same and upon the reference being answered back, to dispose of the suit in accordance with the decision of the competent authority under the Tenancy Act.

If plaintiff sued for specific performance of a contract for sale of agricultural land governed by the provisions of the Tenancy Act in the Civil Court and the defendant appeared and raised a contention that in view of the provisions contained in s. 63 of the Tenancy Act the plaintiff being not an agriculturist he is barred from purchasing the land, the issue would arise whether the plaintiff is an agriculturist. Such an issue being within the exclusive jurisdiction of the Mamlatdar, it is incumbent upon the Civil Court to refer the issue to the competent authority under the Tenancy Act and the civil Court has no jurisdiction to decide or deal with the same. That issue arises in the suit from which the present appeal arises and both the trial Court and the High Court were in error in clutching at a jurisdiction which did not vest in them and, therefore, on this ground alone this appeal will succeed.
Supreme Court of India

Gundaji Satwaji Shinde vs Ramchandra Bhikaji Joshi on 5 December, 1978

Equivalent citations: 1979 AIR 653, 1979 SCR (2) 586

Bench: Desai, D.A.

Print Page

Whether Civil court can rely on declaration of customary rights given by Mamlatdar?

The certificate in question does not appear to be one issued after due enquiry on the basis of plaint presented to Mamlatdar by any of the parties. More over, Section 5(2) empowers the Mamlatdars to issue orders of injunction and not declarations regarding the customary rights. Thus, the action of Mamlatdar in issuing such a certificate is ex-facie illegal and beyond the scope of his powers as conferred by relevant provision. In fact, on reference to Proviso to Section 5(1), it can be seen that Mamlatdar, instead of issuing injunction or directing removal of impediment and obstruction, has powers, for the reasons to be recorded by him, to refuse to interfere in the matter and leave the parties to approach the Civil Court. There is nothing in this provision enabling the Mamlatdar to certify and thereby declare the rights of parties of customary routes/ways. The trial Court, therefore, committed material irregularity in relying upon a piece of evidence, which was ex-facie illegal.

Bombay High Court

Union Of India (Uoi) And Ors. vs Maruti Madhav Kerulkar And Ors. on 6 February, 2002

Equivalent citations: 2003 (2) BomCR 177, 2002 (4) MhLj 73

Bench: N Dabholkar

Print Page

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, V Sub Divisional Officer,
CORAM: R. K. DESHPANDE, J.

DATE    : 17   JANUARY, 2012
Citation; 2012(3) ALLMR669

Print Page