AI Structured Summary
Not yet generated for this judgment
Judgment
The present petition is directed against order dated 26th August, 2016 passed by Deputy Collector, Palanpur in Revision Application No.07 of 2016 under Section 23 of the Mamltdar Courts Act.
The order which was in revision before the Deputy Collector was dated 08th June, 2016 passed by Mamlatdar, Palanpur in Suit No.02 of 2016 which was instituted by the present petitioner-plaintiff and allowed by the Mamlatdar. The revisional authority upset the order of the Mamlatdar.
In the suit instituted under Section 5 of the Mamlatdar Courts Act, 1906, it was the case of the petitioner-plaintiff that he was the owner of land bearing survey No.208 (old No.323) of Village Jasleni, Taluka Palanpur. For going to the said land, the plaintiff had been using way which was passing through land bearing survey No.233 (old No.356) owned by the respondents. It was the case that though approach to the plaintiff''s land was from the said land of the respondents and that the plaintiff was in use of the said way since years, respondent Nos.1 and 2 created obstruction in the way, because of which on and from onward 08th December, 2015, plaintiff was prevented from using and approaching the road for ingress and outgress to his field.
3.1 The Mamlatdar followed the procedure under the Act, took evidence of both the sides and allowed the suit directing the way to going to the field of
the plaintiff which was passing parallel on the Eastern corner of the land of the defendant shall be kept open and the obstruction created in the way shall be removed. The private respondents herein-the defendants were restrained from interfering with the use of the said way by the plaintiff. The order dated 08th June, 2016 passed in the suit as above was taken in the Revision by the other side. The Revision was allowed by the Deputy Collector & Revisional Authority, which led the petitioner-plaintiff to file the present petition.
3.2 This Court considered the case prima facie on 17th November, 2016 and issued Rule. The order of the Deputy Collector dated 26th August, 2016 impugned was stayed observing that having regard to the clear findings recorded by the Mamlatdar on the basis of the evidence and having regard to the consideration of Panchnama by the Mamlatdar, there was a little ground with the Deputy Collector to reverse the order.
Heard learned advocate Mr.Dipen Chaudhari for the petitioner, learned Assistant Government Pleader Mr.Manan Mehta for respondent Nos.3 and 4 whereas learned advocate Mr.S.P. Majmudar for respondent Nos.1 and 2.
Having heard learned advocates for the parties and having carefully considered the material on record and in that light having gone through the order of the Mamlatdar and the impugned order, it transpires that Mamlatdar, on consideration of the
other evidence as well as Panchnama, came to a clear conclusion that the way as referred to and claimed by the plaintiff was in existence and there were physical marks about the existence of such way. The Mamlatdar visited the place and on inspection and on the basis of the Panchnama prepared by the Circle Officer in presence of Panchas recorded that on the Eastern corner (shedhe) of the defendants'' filed No.233, fence was erected. On the Western side of the fence, a way was passing through North to South which was old Gadawaad on which tractors and other vehicles could pass. It was recorded that the physical indications were available at the place about the existence and use of the way. About the obstruction it was recorded that defendants had kept their cattle and a Dhaliya (small hut type shed) was also constructed. It was further recorded that towards the Eastern side of the Dhaliya, the boundary of plaintiff''s survey Nos.210 and 208 was starting. At that place also, physical marks were found indicating that there was a way. The claim of the plaintiff about existence and use of way was thus fortified by said aspects.
5.1 The findings recorded by the Mamladar were based on Panchanama that there was physical indication about the actual use of way which was in existence for ingress and outgress from the field at Survey No.208 to the field at Survey No.233. In Revision, the Deputy Collector reversed the order on the ground that the map of the District Inspector of Land Records did not indicate the way which was found by the Mamlatdar in his order to be in existence and is used by the
petitioner herein. The Panchnama recorded by the authority was unequivocal and clear which further suggested the actual use of way by the plaintiff. The petitioner-plaintiff further produced photographs to depict the obstruction, which too remained in the realm of undisputed position.
5.2 The main contention of the respondents to support the order of the revisional authority was that the Panchnama was prepared when the respondents were not present. In other words, it was the contention that when the Panchnama was in absence of the respondents, it could not have formed basis for the order of the Mamlatdar reciting that the defendants- respondents herein were intimated personally through Peon of the Gram Panchayat about drawing of Panchanama asking them to remain present at the place, yet they did not remain present. There is nothing to disbelieve the say of the authority that the defendants were given intimation. When they were informed about the preparation of Panchnama and were requested to remain present and yet defendants chose not to remain present, they could not complain subsequently. Not only that, in course of the proceedings of the suit also, as recorded by the Mamlatdar, right from the inception of the proceedings till the conclusion, the defendants have not raised any objection about the Panchnama having been prepared and did not ask for preparing fresh Panchnama. The conduct of the defendants would estopped them from contending otherwise at the later stage.
5.4 Even otherwise, Panchnama was not the only evidence which persuaded the Mamlatdar to pass the order in the suit in favour of the plaintiff- petitioner. There were several evidence before the Mamlatdar including the evidence of respondent No.2. His evidence on oath and his cross-examination formed the basis of reasoning of the Mamlatdar. The respondent No.2 admitted that he had planted khila in his survey number after the petitioner instituted the suit. Copy of the said evidence forms part of the record of the petition. Therefore, the obstruction in the way was rightly held established. The Mamlatdar had before it set of evidence which he cumulatively considered and reached the conclusion about the closure of the way by the defendants which were used by the plaintiff for ingress and outgress.
5.5 The petitioner-plaintiff would successfully prove his case within the four corners of the provisions of the Mamlatdar Courts Act by establishing that on the date of filing of suit, he was using the way in question for going to and coming from his agriculture field and that he was prevented by the other side by creating obstruction. The Deputy Collector exercising his revisional powers had limited scope, yet on the spacious ground of non-availability of map of the land record authority, he disregarded the otherwise cogent findings based on evidence reached by the Mamlatdar. It was an error of law committed by the revisional authority. The impugned order is rendered liable to be interfered with by this Court on all the aforesaid counts.
5.3 A reliance was placed in the decision of this Court in Raisinh Dhirajsinh Boradhara v State of Gujarat [2006(1) GCD 36] to submit that in that case the Court held that Panchnama recorded in absence of could not have been relied on. In the said case, the Panchnama was prepared without intimation. As noticed above, in the present case, the defendants were intimated yet they did not remain present and at the subsequent stage when the opportunity was available, they did not raise any objection about the Panchnama, thereby waiving their right.
For the foregoing reasons, the petition is allowed. Impugned order dated 26th August, 2016 passed by the Deputy Collector in Revision Application No.07 of 2016 is hereby set aside. As a result of which, the order of the Mamlatdar dated 08th June, 2016 allowing the Suit of the petitioner-plaintiff shall hold the field. It is, however, clarified that the present order and the observations therein are in the context of the provisions of the Mamlatdar Courts Act only and it is left open to the parties to approach the Civil Court to ascertain and establish their respective rights.
Rule is made absolute accordingly.
Direct service is permitted.