VILLAGE PANCHAYAT Vs. WASUDEO RAMCHANDRAJI MOHOD

JUDGEMENT

(1.) ApplicantVillage Panchayat, Antora, the original defendant in the Regular Civil Suit No. 2/2011 has put to challenge the order dated 22.09.2011 (below Exh.1) passed by learned Civil Judge, Junior Division Ashti, with a further prayer to dismiss the Suit as not maintainable.

(2.) The applicantVillage Panchayat Antora is governed by the provisions of the Maharashtra Village Panchayats Act (hereinafter referred to as "the said Act " in short). The nonapplicants filed RCS No.2/2011 in the Court of Civil Judge, Jr. Dn. Ashti and challenged the letter dated 17.02.2011 and notice dated 26.04.2011 and resolution of Gram Sabha dated 25.04.2011 and 26.04.2011 as illegal, null and void, without jurisdiction and also sought permanent injunction from damaging/ demolishing the construction over the suit site. In the Suit, the non applicants stated that Plot No. 127 in Ward No.2 village Antora admeasuring 45 x 45 is owned by them and they are in possession since 1962 with mutations in their name with Village Panchayat, Antora. None objected to their possession. On 22.12.2010 they submitted an application with map for proposed construction of a house and since there was no communication from the applicantVillage Panchayat about acceptance or rejection of permission to make construction from 22.02.2011 to 23.04.2011 there was a deemed permission for construction upon completion of two months statutory period. The nonapplicants were allotted Plot No.127 in the year 1962 by Bajrang Housing Cooperative Society for construction of a house and thus they were the owners of Plot No.127. There being a deemed permission as aforesaid, the attempt to demolish their house as per notices and resolutions under challenge was illegal. The suit was accompanied by injunction application and the trial Court had ordered status quo. The applicantvillage Panchayat, after appearance in the Civil Court, filed a preliminary objection to the maintainability of the suit on the ground that the Maharashtra Village Panchayats Act at least insofar as Sections 52 and 53 are concerned, provide for specific remedy and, therefore, the jurisdiction of the Civil Court was barred. It was also stated in the reply that there is no sanction to Plot No.127 at Antora by any authority or by the Gram Panchayat and not a single document was placed on record about the ownership or possession of the nonapplicants and it was for the first time in the year 1994 mutation in the Gram Panchayat record was shown as Kuccha Kotha and nothing more. But then that was an encroachment and, therefore, when the application was received by the applicantGram Panchayat with proposed construction map, the non applicants were called upon to produce original documents and title documents of the suit property etc, but not a single document was ever produced. According to the applicants, there is no residential Plot No.127 allotted to the nonapplicants/plaintiffs and though by letter dated 17.02.2011 the nonapplicants were called upon to produce the original documents they could not do so and hence there was no question of deemed sanction. The trial Court, thereafter, decided to frame and tried the preliminary issues in view of the objections raised by the applicants and, accordingly, the following three preliminary issues were framed :

(3.) The parties were directed to lead evidence on the aforesaid preliminary issues and, accordingly, in all five witnesses were examined and crossexamined on the preliminary issues. The trial Judge upon hearing the evidence and the counsel for the parties, held that the Civil Court has jurisdiction to entertain the suit and, thus, answered the preliminary issues accordingly. Hence the present Civil Revision Application.