1. Rule was granted in this matter on 19th April, 2011. Except respondent no. 3, all other respondents are served. The learned AGP appears for respondent no.1. Shri Kotwal, Advocate with Shri Jain, Advocate, appears for respondent NO. 2. The learned counsels appearing for the parties submit that the respondent no. 3 though not served, is not the contesting party and hence, the decision of the matter need not wait for him.

2. The respondent no. 2 filed an application before the Tahsildar, claiming right of way over the boundaries of field Survey No. 427 and 429. The respondent no. 2 is the owner of survey No. 424, whereas the petitioners are owner of survey no. 429. The petitioners had objected to the right of way claimed by the respondent no. 2. The Tahsildar, Hinganghat treated this to be an application under Section 143 of the Maharashtra Land Revenue Code (for short MLR Code) and accordingly registered the same as Case No. 12/LND 30/2006. After enquiry, an order came to be passed on 10th August, 2006, holding that there exists a right of way for the respondent no. 2 from the boundaries of Survey No. 427 and 429. The Tahsildar passed further order directing removal of obstruction and to clear southern road for use of it, by the respondent no.2.

3. This order was the subject matter of challenge before the Sub Divisional Officer, (“SDO”) Hignanghat. The SDO recorded the finding that there subsists a way on the boundaries of Survey No. 427 and 429, however, the finding is recorded that the said way was not available to the respondent no. 2. The SDO also recorded the finding that there exists an alternate way for respondent no. 2 and on this ground, the order of Naib Tahsildar was set aside by an order dated 16th October, 2006.

4. The respondent no. 2 preferred an appeal before the Additional Collector, Wardha. By an order dated 21st August, 2010, he has set aside the order of SOD and restored the order of Naib Tahsildar, passed on 10/08/2006. The revision preferred by the petitioners before the Additional Commissioner challenging the order of the Additional Collector was also dismissed by order an dated 20th November, 2010. Hence this writ petition.

5. Shri Thakare, the learned counsel appearing for the petitioners does not dispute that under Section 143 of the MLR Code, it is open for the Tahsildar to make an enquiry into and decide the claim by persons holding land in a survey number to a right of way over the boundaries of other survey numbers. He submits that the order of the Tahsildar to the extent it declares that there subsist a way over the boundaries of Survey Nos. 427 and 429 cannot be faulted with. He, however, submits that under Section 143 of the MLR Code, there is no power conferred upon the Tahsildar to pass an order of removal of obstruction. He has relied upon the decision of the learned Single Judge of this Court reported in 2002 (4) Mh.L.J. 73 [Union of India and others vrs. Maruti Madhav Kerulkar and others] wherein it has been held that such power is conferred upon the Mamlatdar under Section 5 of the Mamlatdars Courts Act, 1906. He, therefore, submits that there is a bar of jurisdiction created under the Mamlatdars Courts Act and hence, such a power could not have been exercised under Section 143 of MLR Code.

6. The learned counsel Shri Kotwal appearing for the respondent no. 2 has, however, disputed the contention raised on behalf of the petitioners. He has urged that the power under Section 143 of MLR Code and Section 5 of the Mamladars Courts Act can be exercised by the same authority i.e. the Tahsildar. He submits that the application filed by the respondent no.2 was essentially under Section 143 of MLR Code read with Section 5 of the Mamlatdars Courts Act. According to him, though Section 143 of the MLR Code does not confer power upon the Tahsildar to remove the obstruction, such power can be exercised by invoking Section 5 of the Mamlatdars Courts Act. He has relied upon the decision of thi