Back
HIGH COURT OF BOMBAY
SHARMILA U. DESHMUKH, J
SAHEBRAO DATTU MANE AND OTHERS – Appellant
Versus
THE STATE OF MAHARASHTRA AND OTHERS – Respondent
WRIT PETITION NO.7978 OF 2019
For the Appellants/Petitioners: Mr. Manoj Shinde, Mr. Ramesh V. Naiknavare
For the Respondents: Mr. S. S. Dande, Mr. Narsing B. Jadhav
Doctrine of Merger does not apply when previous order did not decide merits, confirming finality of trial court's decree for restoration.
Headnote:(A) Maharashtra Land Revenue Code, Section 143 - Doctrine of Merger - The order dated 10.06.2019 allowed restoration of suit lands to original status. Petitioners claimed no adequate access road to the lands. The trial court's decree, which had been validated through the appellate process, is affirmed. (Paras 1, 2, 8, 12)
(B) Doctrine of Merger - The petitioners' argument regarding merger was rejected as the Court's previous order did not adjudicate on merits. (Paras 10, 11)
Facts of the case:
The petitioners, agriculturists, sought an approach road through their fields, which had been declared illegal by the trial court, affecting access to their lands.
Findings of Court:
The executing court rightly permitted restoration of lands as per the previous decree.
Issues: The applicability of the Doctrine of Merger and the legality of the trial court's decree.
Ratio Decidendi: The court ruled that the trial court's findings remained binding as they had attained finality, and the Doctrine of Merger was not applicable due to the lack of a merits-based decision in prior proceedings.
Result: Writ Petition is dismissed.
| Table of Content |
|---|
| 1. petitioners challenged previous orders regarding access to their lands. (Para 1 , 2) |
| 2. arguments presented regarding legal interpretations of orders. (Para 6 , 7 , 10 , 11) |
| 3. court affirms prior decrees' finality, rejecting merger doctrine. (Para 8 , 12) |
FINAL ORDER:-
1. The petitioners are aggrieved by the order dated 10.06.2019 passed by the Joint Civil Judge, Senior Division, Osmanabad in R.D. No.382/2015, whereby the liberty was given to the decree holders to restore the suit lands to its original status, as sought for by the decree holders, who are respondent nos.3 to 10 herein.
2. Shorn off unnecessary details, the facts of the case are as under:
The petitioners are agriculturists residing at village Panwadi and Ter and their agriculture land is at village Mohtarwadi, Tq. and Dist. Osmanabad. Due to non-availability of access road to their fields, an application came to be filed before the Tahsildar under Section 143 of the Maharashtra Land Revenue Code (for short ‘ MLRC ’) and pursuant to the spot inspection drawn on 18.12.2010, the Tahsildar passed an order dated 19.05.2011 directing the opening of a cart way on the boundaries of the block nos.128, 129, 130, 135, 136, 149 to 156 and 127.
Aggrieved by the order dated 19.05.2011 passed by the Tahsildar, the present respondent nos.3 to 10 filed a suit for declaration, injunction and restoration of suit bandh to its original status and for compensation. It was the case of the respondents in the suit that there was a cart way from Northern side of Gut Nos.160 and 161, which was being used by the petitioners as an approach way to their fields and also the petitioners had an approach way through the bandh situated on the fields bearing Gut Nos.122, 123 and 128 and also an access road in the form of the kachcha road.
It was the case of the respondents that, although the petitioners had different approach ways, an application was made before the Tahsildar making a grievance that the old approach way has been closed, which by the order dated 19.05.2011 the Tahsildar issued a direction to clear the same. The suit bearing RCS No.174/2011 was partly decreed and it was declared that the order dated 19.05.2011 issued by the Tahsildar for creating road on the suit bandh situated on the fields of respondent nos.3 to 10 is illegal and the petitioners be directed to restore the suit bandh within a period of two months, while perpetually restraining the Petitioners from using the suit bandh as an approach way or for any other purpose as well as from creating any permanent or semi-permanent road thereon.
Appeal bearing RCA No.15/2013 against the judgment and decree dated 05.12.2011 was filed before the Appellate Court, which came to be dismissed on 13.03.2015, as against which a Second Appeal No.480/2015 was preferred in this Court by the petitioners. During the hearing of the Second Appeal No.480/2015, it was pointed out that, the appellants therein had initiated appropriate proceedings after the decision of the Appellate Court in the year 2015, as such, this Court by order dated 10.02.2016 observed, as the appellants appeared to have taken recourse to an avenue, this Court did not deem it fit to proceed with the Second Appeal and it was open for the parties to take up all such contentions before the concerned authority. By order dated 10.02.2016, the Second Appeal was disposed of, as being not entertained, however, the parties were directed to maintain status quo till the decision of the application before the Tahsildar.
On 21.11.2017, the application filed by the petitioners before the Mamlatdar under Section 5 of the Mamlatdars’ Courts Act, 1906 came to be allowed and it was directed that no obstruction should be caused on the existing road situated near the lands bearing Gut Nos.123, 126, 127, 149, 160 and 161. Parallel execution proceedings were initiated by the respondents seeking to execute the order dated 05.12.2012 passed in RCS No.174/2011 in which the impugned or
