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IN THE HIGH COURT OF BOMBAY
Milind N Jadhav, J.
Ashok Devman Gangurde - Appellant
Versus
Dagu Chiman Gangurde And Others - Respondent
Writ Petition No. 9825 of 2019
Decided On : 02-07-2020
res judicata - Land Dispute - Mamlatdars' Courts Act, 1906, Section 5, Section 23 - The court discussed the application of res judicata and constructive res judicata in a land dispute case under the Mamlatdars' Courts Act, 1906. The judgment highlighted the principles of res judicata and its applicability to the case, emphasizing that a fresh round of litigation between the same parties and for the same cause of action was not permissible under the same provisions.
Fact of the Case:
The petitioner challenged a judgment and order passed by the Deputy Collector, Sub-Division, Chandwad, Dist. Nashik, regarding a land dispute between the petitioner and respondent No. 1. The dispute involved the existence of a road and the obstruction of the road by the petitioner, which led to legal proceedings under the Mamlatdars' Courts Act, 1906.
Finding of the Court:
The court found that the impugned order suffered from non-application of mind to the relevant facts and material evidence, and that the order was not based on a correct appreciation of the evidence on record. The court also noted that the respondents failed to address the earlier proceedings and attempted to suppress material facts from the court. The court concluded that the impugned order was not within the jurisdiction of the Deputy Collector and quashed the order, confirming the earlier order passed by the Tahsildar.
Issues: The issues involved the application of res judicata and constructive res judicata to the land dispute case, the non-application of mind by the Deputy Collector in the impugned order, and the attempt to suppress material facts by the respondents.
Ratio Decidendi: The court's decision was based on the principles of res judicata and constructive res judicata, the non-application of mind by the Deputy Collector, and the attempt to suppress material facts by the respondents.
Final Decision: The impugned order was quashed and set aside, and the earlier order passed by the Tahsildar was confirmed. The interim relief granted earlier was vacated, and the parties were directed to bear their own costs. Respondent Nos. 1.1 to 1.3 were given liberty to pursue remedy available to them in law.
JUDGMENT
Milind N Jadhav, J. - Rule.
2. Rule is made returnable forthwith. Heard finally with consent of the parties.
3. This petition has been filed by the petitioner under the provisions of Article 227 of the Constitution of India challenging the judgment and order dated 19.7.2019 passed by Deputy Collector, Sub-Division, Chandwad, Dist. Nashik (respondent No. 10 ) in RTS Revision No. 91 of 2018.
4. Brief facts, necessary for appreciation of the controversy between the parties are as under:-
4.1 In the year 1974, under the consolidation scheme, there was exchange of land amongst various members of the Gangurde family and the petitioner and respondent No. 1 became entitled to Gat Nos. 36 & 37 and 34 & 74 respectively.
4.2 It is contended by respondent No. 1 that since then a road has been in existence as approach road to Gat No. 74 through the aforesaid Gat Nos. which belong to the petitioner and respondent No. 1. It is further contended that by virtue of sale deed dated 16.12.1988, respondent No. 1 has purchased Gat No. 37 from one Chimma Shivram Gangurde and by another sale deed of even date, the father of the petitioner has sold certain land. It is the contention of respondent No. 1 that in both the aforesaid sale deeds, there is a mention of the aforesaid approach road to the western side bandh which runs from north to south (hereinafter for brevity sake, referred to as the 'north south road'. According to respondent No. 1, to the western side of Gat Nos. 36 and 37, the above north south road still exists. The petitioner obstructed this north south road sometime in 1998 and respondent No. 1 was constrained to file vahivat application dated 1.12.1998 before respondent No. 8 - Tahsildar, Chandwad, Dist. Nashik for seeking removal of obstruction under the provisions of Section 5 of the Mamlatdars' Courts Act, 1906 (hereinafter referred to as "the said Act".
4.3 Respondent No. 1 filed Vahivat Case No. 3/98 on 1.12.1998 and impleaded several family members of Gangurde family who were the owners of various adjacent and neighboring plots of land near the north-south road stated above.
4.4 On 2.4.1998, Tahsildar, Chandwad issued notice to the concerned parties and carried out panchnama i.e. personal inspection on the spot and recorded the statement of panchas (witnesses) that no road existed at the said spot. Based on the above inspection report, respondent No. 8 - Tahsildar, Chandwad dismissed Vahivat Case No. 3/98 filed by respondent No. 1.
4.5 Being aggrieved, respondent No. 1 filed Revision Application bearing No. 4/98 before respondent No. 9 - Sub-Divisional Officer, Malegaon, District Nashik under Section 23 of the said Act. The Sub-Divisional Officer Malegaon dismissed the Revision Application on 29.4.1999. Against this dismissal, respondent No. 1 did not file any appeal / revision or writ petition.
4.6 Respondent No. 1 filed Vahivat Case No. 19/2018 before respondent No. 8 - Tahsildar, Chandwad, Dist. Nashik seeking right of way to Gat No. 34 through Gat Nos. 36, 37, 38, 74 and 75 of Mouje Kalamdare, Taluka Chandwad. Respondent No. 1 is the owner of Gat Nos. 34 and 74. Petitioner is the owner of Gat Nos. 36 and 37. Gat No. 38 is commonly owned and cultivated by respondent No. 1 and some other members of the Gangurde family.
4.7 In the above background after a lapse of 20 years, respondent No. 1 once again filed Vahivat case bearing No. 19/18 in respect of the same cause of action which was subject matter of Vahivat Case No. 3/98.
4.8 Respondent No. 8 Tahsildar, Chandwad after perusing the documentary evidence pertaining to Vahivat Case No. 3/98, the panchnama recorded therein and other relevant papers, came to the conclusion that Vahivat Case No. 19/2018 was barred by the principles of res judicata. Therefore, by order dated 24.7.2018, respondent No. 8 dismissed Vahivat Case No. 19/2018.
4.9 Being aggrieved, respondent No. 1 filed RTS Revision Application No. 91/2018 before respondent No. 10 i.e Dy. Collector, Sub Division
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