DIGAMBAR Vs. VASANT

JUDGEMENT

(1.) Heard both sides at the admission stage.

(2.) Some of the defendants, who are aggrieved by the concurrent findings of the Courts below, whereby the suit filed by the respondent no. 1 declaring that the order passed by the respondent no. 3 - Tahsildar in a proceeding under sec. 5(2) of the Mamlatdar 's Courts Act, 1906 (for short "the Act ") is null and void and granting perpetual injunction restraining them from creating any way or cart track through his property being a portion admeasuring 4 Acres situated in the north-east corner of the land Gat no. 51, has been decreed.

(3.) The learned Advocate for the appellants would vehemently submit that since the respondent no. 1 had appeared in the proceedings under sec. 5(2) of the Act, he is not entitled to assail the judgment and order passed therein by a separate suit when a separate remedy is provided to challenge that order by way of revision under sec. 23(2) of the Act. The learned advocate would further submit that both the Courts below have grossly erred in appreciating the facts, circumstances and evidence on the record. He would advert to the topography demonstrated by a rough sketch in the memo of the second appeal at page number 10, to precisely point out the matter in controversy. He would submit that the fact regarding existence of the two roads and a streamlet which divide and run east-west across the entire land Gat no. 51 was specifically admitted by the respondent during his testimony. Right in the teeth of such admission, both the Courts below ought to have held that the way, as was being claimed by the appellants before the Tahsildar was, in fact, in existence. Being a public road, no such declaration or injunction could have been granted by the Courts below. Though the respondent no. 1 is banking upon the judgment and decree passed in an earlier suit being R.C.S. 1349 of 2001 dtd. 27/3/2006, the appellants were not party to that suit. Noting this fact, the Tahsildar had refused to give any importance to the judgment even though it was in respect of the very same cart way that is being claimed by the appellants in the present dispute. That was not a judgment in rem and would not bind the appellants. The learned Advocate, therefore, submits that substantial questions of law, as mentioned in the appeal memo arise and even otherwise both the Courts below having reached the conclusions perversely, the second appeal be admitted.