PUNDLIK BALKRISHNA PATIL Vs. ARUN SHANKAR PATIL

JUDGEMENT

(1.) This revision application has been filed against the order passed by the learned District Judge, Buldana on 11-8-1982 dismissing the appeal which the present applicants had preferred against the order passed by the trial Court on 30-4-1982 granting temporary injunction in favour of the present non-applicants, restraining the applicants from obstructing them in the user of their way to their field bearing S. No. 31/3 which belongs to the applicants, for going to field S. No. 31/1, which belongs to the non-applicants. The suit has been tiled by the present non-applicants against the applicants for declaration that they have a right of way to approach their field S. No. 31/1 through the field S. No. 31/3, belonging to the applicants and for a permanent injunction restraining them from obstructing this way. At the same time an application for temporary injunction pending the suit was filed which, as said above, was allowed by the trial Court.

(2.) Mr. V. M. Kulkarni, the learned counsel for the applicants, challenged the Impugned order of the appellate Court on three counts. He firstly submitted that the non-applicants had already initiated proceedings under the Mamlatdars' Courts Act which were pending at the time when the suit was filed. According to Shri Kulkarni, if those proceedings were pending, in which the non- applicants had claimed some relief which they are claiming in the present suit, the trial Court should have refrained from proceeding with the suit. Mr. Kulkarni secondly submitted that both the Courts below have not taken into consideration the fact that in the sale-deed dated 16-9-1952, under which the original owner, namely Surajmal had sold the field S. No. 31/3 to Vishwanath, who is predecessor-in-title of the applicants, no mention has been made of the way through S. No. 31/3, though in the sale-deed executed by Surajmal on the same day in respect of field S. No. 31/1 such a mention has been made by interpolation of a line in the recitals of the sale-deed. Mr. Kulkarni submits that absence of such recital in the sale-deed executed by Surajmal in favour of Vishwanath ought to have been given due weight by the Courts below and non-consideration of this aspect seriously affects the decision. Thirdly Mr. Kulkarni submits that no public documents have been produced to show that the way existed through field S. No. 31/3 for approaching field S. No. 31/1. According to him, normally if there is a right of way through the field, there would be a mention of it in the relevant revenue records.

(3.) Mr. Khapre, the learned counsel for the non-applicants, raised preliminary objection to the maintainability of the revision application on the ground that the order of the trial court was appealable order and if that was so, the present revision application would be barred under sub-section (2) of Section 115 of the Code of Civil Procedure (hereinafter referred to as 'the Code'). For this proposition he relies on the decision of a Learned Single Judge of the Madhya Pradesh High Court in Ramdeen v. Ramswaroop, 1981 MPLJ 575. Sub-section (2) of Section 115 of the Code states that the High Court shall not, under Section 115, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto. The plain reading of this sub-section would indicate that the party will not be entitled to invoke the revisional jurisdiction of the High Court against an order if an appeal lies against such an order either to the High Court or to any subordinate Court. In other words, no revisional proceedings can be taken up in the Court under Section 115 of the Code against a decree or an order which is appealable. Now the present revision application has been filed against the order passed by the learned District Judge in an appeal against the order passed by the trial Court under Order 39, Rules 1 and 2 of the Code. What is challenged before this Court is not the order of the trial Court but the order of the appellate Court. In fact, the order of the trial Court has merged in the order of the appellate Court. Now appeal was filed before the learned District Judge under the provisions of Order 43. No second appeal is permitted against the decisions from appeals preferred under Order 43. In short, therefore, the order which has been passed by the learned District Judge in this case is not appealable order and if that is so, revision application would not be barred under sub-section (2) of Section 115 of the Code as urged by Mr. Khapre.