Whether civil court has jurisdiction to grant a relief touching an order passed by the Tahsildar under section 5(2) of the Mamlatdar’s Courts Act, 1906?

  So far as the aspect regarding the jurisdiction of civil court to grant a relief touching an order passed by the Tahsildar under section 5(2) of the Act, true it is that an order of the Mamlatdar in such a proceeding is revisable under section 23(2) of that Act. However, conspicuously, section 22 of the Act clearly declares that any decision or order passed by the Mamlatdar would be subservient to the decision of a competent civil court in a proceeding preferred before it. Section 22 of the Act reads thus :-

“22. Subject to the provisions of section, 23 sub-section (2), the party in favour of whom the Mamlatdar issues an order for removal of an impediment of the party to whom the Mamlatdar gives possession or restores a use, or in whose favour an injunction is granted, shall continue to have the surface water upon his land flow unimpeded on to adjacent land or continue in possession or use, as the case may be, until otherwise decreed or ordered, or until ousted, by competent Civil Court:
Provided, firstly, that nothing in this section shall prevent the party against whom the Mamlatdar's decision is passed from recovering by a suit in a competent Civil Court mesne profits for the time he has been kept out of possession of any property or out of enjoyment of any use :
Provided, secondly, that in any subsequent suit or other proceeding in any Civil Court between the same parties, or other persons claiming under them, the Mamlatdar's decision respecting the possession of any property or the enjoyment of any use or respecting the title to or valuation of any crop dealt with under the proviso to sub-section (1) of section 21, shall not be held to be conclusive.”
A bare perusal of the provision would clearly indicate that irrespective of the decision of the Mamlatdar under section 5(2), a party may approach a civil court and obtain any relief even contrary to the decision of the Mamlatdar setting it at naught.  {Para 14}

Bombay High Court

JUSTICE MANGESH S. PATIL

Digambar S/o. Vitthal Kale & Ors. Vs. Vasant S/o Kacharu Kale & Ors.

SECOND APPEAL NO. 111 OF 2017

11th January 2022

Citation: 2022 NearLaw (BombayHC Aurangabad) Online 24

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Whether Civil suit can be registered even if application for condonation of delay is not decided?

Thus, the decision of the Tahsildar can be challenged by filing the 
civil   suit   and   if   the   civil   suit   is   “instituted”   under   Section   143(5)   of   the 
Maharashtra Land Revenue Code challenging the Tahsildar's decision, then the 
decision of the Tahsildar cannot be challenged in appeal or revision under the 
provisions of the Maharashtra Land Revenue Code.  The word “institute” as per 
Black's Law Dictionary means “to begin or start; commence.”     Thus, the bar 
under Section 143(5) of the Maharashtra Land Revenue Code to file an appeal 
or revision under the provisions of the Maharashtra Land Revenue Code would 
apply   only   if   the   civil   suit   has   been   “instituted”   under   Section   143(4)   of   the 

Maharashtra Land Revenue Code which means that if the civil suit is filed.   In 
the present case, the civil suit having been filed after the period of limitation, the 
application praying for condonation of delay was filed.   It is established practice 
that until the delay is condoned, the civil suit is not registered and the civil Court 
cannot look into the civil suit.   In these facts, it cannot be said that the civil suit 
was “instituted” by the respondent no.5 and his wife as per Section 143(5) of the 
Maharashtra Land Revenue Code.  Consequentially, the bar created by Section 
143(4) of the Maharashtra Land Revenue Code for filing of the appeal or revision 
to challenge the decision of the Tahsildar will not apply.  In these facts, it cannot 
be said that the civil suit was instituted as per Section 143(4) of the Maharashtra 
Land Revenue Code, 1966. 
Shri Mirza, the learned advocate for the petitioners submits that the 
application   filed   by  the   respondent  no.5   and   his  wife  under  Section  5   of  the 
Limitation Act is a part and parcel of the civil suit and therefore, it has to be 
treated that the civil suit was instituted as contemplated by Section 143(4) of the 
Maharashtra Land Revenue Code.   The submission as made on behalf of the 

petitioners   is  misconceived   and   contrary   to   the   established   principles   of  law. 
The application praying for condonation of delay can never be part and parcel of 
the   civil   suit   and   the   civil   suit   is  not   registered   until   and   unless   the   delay   is 
condoned.   It is the settled law that Court gets its jurisdiction to entertain and 
decide the proceedings before it, only after the delay is condoned and till that 
time the Court does not get the jurisdiction to entertain the proceedings. 


 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.2977/2012

Shri Nago Hari Zangte,  Vs State of Maharashtra, 

   
CORAM  :  Z.A. HAQ, J.
DATE  :     17.11.2014
Citation; 2015(3) MHLJ 381 Bom

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What are powers and duties of Tahsildar while executing partition decree?

If an agricultural land is to be partitioned, the partition will have to be made normally by measurement and the measurement is done by Cadestral Surveyor. When Tahsildar or any other Officer subordinate to the Collector is entrusted with the job of execution of partition decree or directs the District Inspector of Land Record or any officer subordinate to him to measure the land and submit a report proposing the partition, such Cadestral Surveyor or the measurement officer is nothing more than a Commissioner appointed under Order 26, Rule 13 of the Code of Civil Procedure. Report of the measuring officer is to be considered by the Tahsildar or the officer executing the partition under section 54 and he has to apply his mind. Tahsildar is not merely a Post Office whereby the communicate of the Collector is to be sent to the District Inspector of Land Record. For the purposes of execution of a partition decree involving an estate subjected to the land revenue, Tahsildar steps into the shoes of the Civil Court executing the decree. Therefore, such officers are under a bounden duty to apply their mind to report about the proposed partition and they cannot refuse to exercise the jurisdiction vested in them. It is true that normally a report of the Commissioner in a partition decree need not be interfered into because the report is based on local enquiry. But the jurisdiction vested in the Court which is in the cases like the case at hand, is with the Tahsildar or the Revenue Officer and this jurisdiction cannot be delegated to the measuring Inspectors. In the instant case, I find that the Tahsildar simply said that he had no powers to do anything. Therefore, he had failed to exercise jurisdiction vested in him by law. He should have considered the objections of the petitioner on merit and given a decision. Since the Tahsildar which is the first Court which was compertent to consider the objections of the petitioner has failed to exercise the jurisdiction vested in him, it would not be necessary to direct the petitioners to avail of the remedy of second appeal to the Collector to which he would otherwise entitled to. It is necessary to direct the Tahsildar to consider the objections put forth by the present petitioner.

Bombay High Court

Khajabhai S/O. Abdula Sahab ... vs Mohammed Ishaq S/O. Abdullasaheb ... on 12 July, 1991

Equivalent citations: 1991 (3) BomCR 581992 (1) MHLJ262

Bench: N Chapalgaonker

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Whether civil court has jurisdiction if revenue officer purports to do an act or pass an order which is invalid?

Property - Order of Tahsildar - Jurisdiction of Civil Court - Sections 11, 13 and 14 of Bombay Revenue Jurisdiction Act, 1876; Section 247 of Maharashtra Land Revenue Code and Maharashtra Land Revenue Rules - Whether suit framed by Plaintiff challenging the order of Tahsildar is barred under Section 11 of the Act of 1876 though the said order is appealable - Held, order of Tahsildar enhancing the non-agricultural charges is without jurisdiction - Section 11 will not be a bar in entertaining suit filed by Plaintiff before Civil Court - Reference petition disposed.Where the revenue officer purports to do an act or pass an order which is invalid, his action does not operate to raise a bar under Section 11 of the Act of 1876.

Bombay High Court

Gopinath Ganpatrao Pensalwar vs State Of Maharashtra And Anr. on 6 October, 2006

Hon'ble Judges/Coram:
Lodha R.M., Bobde S.A. and Deshmukh S.B., JJ.

Citation: 2006(6)ALLMR504, 2006(6)BomCR6, 2007(1)MhLj819

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