SAU. ARUNA WIFE OF ARVIND NAIK Vs. KANAIYYA SON OF MAROTI KONGRE
HIGH COURT OF BOMBAY
Sau. Aruna Wife Of Arvind Naik
Kanaiyya Son Of Maroti Kongre
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A.S. Chandurkar, J. -
(1.) The Applicants who are the original defendants in Regular Civil Suit No. 102 of 2014 have challenged the order passed by the trial Court whereby it has been held that the Civil Court has jurisdiction to entertain the suit.
(2.) The facts relevant for adjudicating the challenge as raised in the Civil Revision Application are that Applicant No.1 was initially the owner of field Survey Nos. 82 to 92 of village Kawadshi. Out of these survey numbers, the Applicant No.1 retained Survey No. 92 and sold the other survey numbers to the applicant nos. 2 to 5. There was some dispute with regard to right of way and hence the applicants herein filed proceedings before Naib Tahsildar for removing the obstruction caused by the non-applicant no.3. The Naib Tahsildar after calling the report of the Talathi passed an order on 7th January, 2013 and by invoking jurisdiction under Section 21 (2) of the Mamlatdars' Courts Act, 1906 [for short, "the said Act"] directed the non-applicant no.3 to remove the obstruction. Being aggrieved, the Non-applicant nos. 1 to 3 filed an appeal before the Sub-Divisional Officer who dismissed the same on 24th September, 2013. The further appeal filed by them before the Additional Collector was also dismissed on 29th May, 2014. Thereafter, the non-applicant nos. 1 to 3 filed a Civil Suit praying that the order passed by the Naib Tahsildar on 7th January, 2013 be declared as void and without jurisdiction. Further prayer for grant of injunction was also made. In this suit, the applicants moved an application under section 9A of the Code of Civil Procedure, 1908, stating therein that in view of the provisions of Section 143 of the Maharashtra Land Revenue Code, 1966 [for short, "the Code"], the jurisdiction of the Civil Court was barred. This application was opposed by the non-applicant nos. 1 to 3 and by the impugned order this objection has been overruled. Being aggrieved, this Civil Revision Application has been filed.
(3.) Shri V.G. Palshikar, learned counsel for the applicants, submitted that in view of provisions of Section 143 of the Code, two remedies were available to the aggrieved party. After an order is passed by the Tahsildar under Section 143 (1) of the Code, the same can be subjected to appeal and revision under the Code or within a period of one year from the order of the Tahsildar, a Civil Suit can be filed. The said remedies are exclusive to each other. He submitted that in the present case, the non-applicant nos. 1 to 3 having availed the remedy of appeal and revision, the Civil Suit as filed by them was barred under provisions of Section 143 (5) of the Code. In that regard, he placed reliance upon judgment of learned Single Judge in Krushna Damaji Choudharianother v. Addl. Commissioner, Nagpur Divisionothers [2012 (1) Mh. L.J. 795]. It was thus submitted that though the remedy of appeal and revision came to be invoked by the said non-applicants and having failed therein, the suit came to be filed subsequently which course was not permissible. He, therefore, submitted that the trial Court ought to have upheld the objection as raised to the jurisdiction of the Civil Court.;
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