Important Point: Existence of jurisdiction has to be presumed and not the bar.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.

1. The Trial Court dismissed Regular Civil Suit No.66 of 1998 for grant of declaration that the order dated 23-6-1998 passed by the Mamlatdar under Section 5 of the Mamlatdars' Courts Act, 1906 granting right of way to the defendant No.1 is bad in law and, therefore, the defendant No.1 be restrained from approaching his field from the northern boundary of the plaintiff's field Gat No.47/1 of Village Jalka Jagtap, as per the said order. The lower Appellate Court has allowed the appeal and set aside the decision of the Trial Court. The lower Appellate Court grants a declaration that the defendant No.1 has no right to go to his land by and from over the northern dhura of the field of the plaintiff and from inside the field. It restraints the defendant No.1 from approaching his field by or from near the northern dhura of the field of the plaintiff. The map at Exhibit 56 is treated to be the part and parcel of the decree. The original defendant No.1 is, therefore, before this Court in this second appeal.

2. On 26-8-2003, this Court passed an order as under :-

“Admit.

Ground Nos.(a), (b) and (c) of the amendment application shall be treated as substantial questions of law.

Adinterim stay of the judgment of the lower appellate court.

Rule on stay. Returnable in four weeks.”

3. The substantial questions of law in Ground Nos. (a), (b) and (c) are reproduced below:-

“(a) Whether the learned lower appellate Court was justified in not framing a specific issue with respect to jurisdiction of the Civil Court to entertain civil suit, inter alia, challenging me order passed under the Mamlatdar Courts Act, 1906, especially in view of the provision under section 23 of the said Act?

(b) Whether civil suit lies against the order passed by the Mamlatdar's Court under the Mamlatdar Courts Act, 1906?

(c) Even if it is held that the civil suit lies, inter alia, challenging the order passed under the Mamlatdar Courts Act, 1906, whether the learned lower appellate Court was justified in considering the entire controversy afresh?”

4. The undisputed factual position is that the Mamlatdar, in exercise of his jurisdiction conferred by Section 5 of the Mamlatdars' Courts Act, passed an order on 23-6-1998 directing removal of obstruction and granting right of way to the plaintiff from the northern dhura of the defendant No.1 to approach his field. Two questions were involved before the Trial Court-

(i) as to the jurisdiction of the Civil Court to entertain, try and decide the suit challenging the order passed by the Mamlatdar under Section 5 of the Mamlatdars' Courts Act, and

(ii) as to the correctness and validity of the order passed by the Mamlatdar on merits along with the adjudication on the question of right of way of the parties, as claimed. The Trial Court recorded the finding that the Civil Court has jurisdiction to entertain, try and decide the suit and it confirmed the validity of the order passed on 23-6-1998 by the Mamlatdar. The suit filed was dismissed.

5. In appeal, the lower Appellate Court concurs with the finding of the Trial Court that the Civil Court has jurisdiction to entertain, try and decide the suit challenging the validity of the order passed by the Mamlatdar after rejecting the contention that unless a remedy of revision provided under Section 23 of the Mamlatdars' Courts Act is availed of, the suit would not be entertained. The lower Appellate Court holds that the plaintiff has established that the defendant No.1 has no right to pass through the northern boundary of the field of the plaintiff either from inside or from outside. It holds that the order of the Mamlatdar is not correct, legal and proper. It has passed a decree accordingly in appeal in favour of the plaintiff.

6. In fact, the question of jurisdiction of the Civil Court to entertain, try and decide the suit challenging the order passed under Section 5 of the Mamlatdars' Courts Act is no longer res integra in view of the decision of the learned Single Judge of this Court in