MOTIRAM RAIBHANJI NIGHOT Vs. HARISHCHANDRA GOVINDRAO AADINE

JUDGEMENT

(1.) By this petition, the petitioner impugns the order passed by Tahsildar / Mamlatdar on 25.3.2003 as also the order passed by the Additional Commissioner, Amravati Division, Amravati on 17.4.2004 dismissing the revision filed by the petitioner and upholding the order passed by the Mamlatdar directing the petitioner to remove the encroachment on the suit way and permitting the respondent no.l to 4 to use the suit way.

(2.) The petitioner is the owner of land gat no.238, admeasuring 0.82 R . Respondent no. 1 to 4 are the owners of gat no.253 to 256. On 24.1.2003, the respondent no.l to 4 made an application before the Tahsildar under section 5 of the Mamlatdar Courts Act stating therein that they have a right of way over the field gat no.238 and 239 belonging to the petitioner. The respondent no. 1 to 4 sought a direction to the petitioner to remove the encroachment on the way of the Mandir and to their fields, as the same was obstructed by the petitioner. By the impugned order dated 25.3.2003 the Tahsildar allowed the application by considering the material on record. The Tahsildar came to the conclusion that the respondent no.l to 4 had a right of way to approach their field through the field of the petitioner and the petitioner was directed remove the encroachment on the suit way. The order passed by the Tahsildar on 24.3.2003 was challenged by the petitioner before the Additional Collector, Amravati Division, Amravati. The Additional Collector, however, by order dated 3.10.2003 rejected the appeal filed by the petitioner and upheld the order passed by the Tahsildar. The orders passed by the Tahsildar and the Additional Collector were challenged by the petitioner in a revision before the Additional Commissioner, Amravati Division, Amravati. The revision was however, dismissed by the impugned order dated 17.4.2004. The petitioner has impugned all these three orders by filing the present writ petition.

(3.) Mrs. A. A. Joshi, the learned counsel for the petitioner submitted that the Tahsildar was not justified in granting the right of way which was not even sought by respondent no.l to 4. The learned counsel for the petitioner submitted that in the application filed before the Mamlatdar, the respondent no.1 to 4 had sought a way to the Mandir and the Tahsildar carved out a new way and granted it to the respondent no. 1 to 4. The learned counsel for the petitioner then submitted that the Tahsildar failed in his duty in conducting the trial as the Tahsildar had not issued any witness summons and had not permitted the petitioner to tender oral evidence in the matter before granting of right of way through the property of the petitioner. The learned counsel for the petitioner submitted that the Tahsildar ought to have given an opportunity to the petitioner to lead the evidence and then only the order ought to have been passed by the Tahsildar. The learned counsel for the petitioner relied on an unreported decision of this court dated 13.1.2004 in Writ Petition no.4548/2003 to substantiate her submissions.