Gujarat High Court
Jamatsing Kalusing Thakor & vs Mamlatdar - Datiwada & 14 on 18 January, 2017
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/513/2016 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 513 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE N.V.ANJARIA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ? No
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of
the judgment ? No
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of No
India or any order made thereunder ?
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JAMATSING KALUSING THAKOR & 1....Petitioner(s)
Versus
MAMLATDAR - DATIWADA & 14....Respondent(s)
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Appearance:
MR TUSHAR CHAUDHARY, ADVOCATE for the Petitioner(s) No. 1 - 2
MR ROHAN YAGNIK, AGP for the Respondent(s) No. 2
DS AFF.NOT FILED (N) for the Respondent(s) No. 1
MR HIMANSU M PADHYA, CAVEATOR for the Respondent(s) No. 3 - 13
NOTICE SERVED BY DS for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 18/01/2017
CAV JUDGMENT
Page 1 of 7
HC-NIC Page 1 of 7 Created On Thu Jan 19 00:47:10 IST 2017 C/SCA/513/2016 CAV JUDGMENT Heard learned advocate Mr.Tushar Chaudhary for the petitioners, learned Assistant Government Pleader Mr.Rohan Yagnik for the first and second respondents, whereas learned advocate Mr.Himansu Padhya for respondent Nos.3 to 13.
2. The petition arises from the orders passed by the competent authorities under the Mamlatdars' Courts Act, 1906 pursuant to application/suit instituted by the respondents herein under Section 5 of the Act. The Mamlatdar, Dantiwada, by his order dated 30th September, 2015 passed in the said proceedings, allowed the plea of the plaintiffs- private respondents herein, and directed to remove obstruction and keep open the way for ingress and outgress from agricultural land, survey No.222 Paiki. The petitioners-defendants preferred Revision Application against the said order under Section 23 of the Act, which came to be dismissed by the Deputy Collector, Dhanera-the Revisional Authority.
3. The original plaintiff No.1 happens to be the owner of Survey Nos.219 Paiki 1, 222 Paiki 1/Paiki 1 and Survey No.222 Paiki 1/Paiki 1 and Survey No.222 Paiki 2 whereas plaintiff No.2 owns land Survey No.219 Paiki 5/Paiki 1 and Survey No.222 Paiki 1/Paiki 2 at Village Bhakhar Moti, Taluka Dantiwada, Banaskantha. By instituting Case No.05 of 2015 before the Mamlatdar under Section 5(2) of the Mamlatdars' Courts Act, 1906, the case pleaded by the plaintiffs was that their agricultural fields were of ancestral ownership, Page 2 of 7 HC-NIC Page 2 of 7 Created On Thu Jan 19 00:47:10 IST 2017 C/SCA/513/2016 CAV JUDGMENT and the defendants-petitioners had purchased land Survey Nos.163 Paiki 1/Paiki 1, 163 Paiki 1/Paiki 2 as also Survey Nos.220/Paiki 1 and 220/Paiki 2. It was stated that for entering the fields of plaintiffs, a way was passing from damar road going between Bhakhar to Kheda, from South-East corner of Survey No.157 and further travelling to the Southern side of the agricultural fields of defendants bearing aforesaid Nos.163 Paiki 1/Paiki, 163 Paiki 1/Paiki1, Survey No.220/Paiki 2 and Survey No.220/Paiki 1. It was claimed that the said way was a public way and was in use since time immemorial. As per the case of the plaintiffs, the existence of the said way was shown in the map and further that the way was used by the owners of other agricultural fields bearing Survey Nos.221, 222, 223, 225, 217, 218 and 219. It was stated that the plaintiffs were also regularly using the said way for carrying their cattle, bullock-cart, tractors and other agricultural equipments.
3.1 It was stated that since 20th May, 2015, defendants had dug out the way and had closed the same by erecting wire fencing, because of which the plaintiffs were prevented from using the way and their reaching agricultural fields. It was stated that there was no other way and way which was in-use and in- existence, was obstructed by the defendants- petitioners herein.
3.2 The defendants contested the suit and denied the claim. It was stated that the plaintiffs had never been using the way as claimed and there were no marks Page 3 of 7 HC-NIC Page 3 of 7 Created On Thu Jan 19 00:47:10 IST 2017 C/SCA/513/2016 CAV JUDGMENT on the way to suggest that plaintiffs were taking agricultural equipments by using the road.
4. Learned advocate for the petitioners submitted that the authorities committed an error in relying upon Panchnama. He submitted that the Mamlatdar failed to appreciate the materials on record in proper perspective and that the statement of Sarpanch could not have been relied on. It was contended that the Mamlatdar further erred in relying on Rojkam dated 17th June, 2015 purportedly signed by one Vaghela Ashoksinh and Bharatsinh. It was sought to be suggested that the plaintiffs were not using the way.
4.1 On the other hand, learned advocate for the private respondents supported the impugned orders. He relied on decision in Beleview Associations Vs Ambalal Hirabhai Prajapati [2006 91) GLH 424], to submit that the Mamlatdar had powers to remove the obstruction when such obstruction resulted into deprivation of going to the agricultural fields for cultivation. It was held that when the way leading to agricultural land was closed by way of encroachment, Mamlatdar was justified in passing order of removal of obstruction, virtually of the nature of restoring the situation.
5. Having examined the facts, having gone through the impugned orders as well as having considered the submissions of both the sides, the following aspects emerged on the basis of which the Page 4 of 7 HC-NIC Page 4 of 7 Created On Thu Jan 19 00:47:10 IST 2017 C/SCA/513/2016 CAV JUDGMENT Mamlatdar passed the order allowing suit of the plaintiffs-(i) The Mamlatdar personally carried out spot inspection on 17th June, 2015, (ii) In the said spot inspection it was noticed that between land bearing Survey Nos.220 and 221, in particular in the strip of land between said two survey numbers, Bajari was grown and the said crop was sown and grown only on the limited part of the land which was used as a way passing in-between the said two survey numbers, (iii) A way existed between land Survey No.220 Paiki and Survey No.221 Paiki, (iv) The said way was obstructed and closed before 15 days from the date of spot inspection, (v) As per the statement of the Sarpanch of the village recorded by the authority, the way was passing between the said two survey numbers and there was no other way which can be used to go to the plaintiffs' agricultural fields, (vi) Measurement of Survey Nos.220 and 221 was carried out in which it was detected that owner of Survey No.220 had encroached 289 Sq. Meters which was part of the way in Survey No.221. The owner of Survey No.220 had further broken open the fencing and had merged land of Survey No.220 with other field, (vii) Mamlatdar carried out Rojkam and prepared measurement-sheet which recorded encroachment and the act of encroachment by the other side as above.
5.1 The Mamlatdar in his order recorded that public way leading to Survey No.222 Paiki was passing through the field Survey No.163 to go further between land Survey No.221 Paiki and 220 Paiki. It is noticeworthy that the case of the defendants was that Page 5 of 7 HC-NIC Page 5 of 7 Created On Thu Jan 19 00:47:10 IST 2017 C/SCA/513/2016 CAV JUDGMENT the plaintiffs used to drive vehicles in drunken condition on the way claimed by them and used to broke the pillars which had been causing great loss to them and for that reason, they had prevented them. This defence, in indirect way, suggested that the way was in existence and was used by the plaintiffs. The Revisional Authority re-visited the findings of the Mamlatdar. It was noted by the Deputy Collector- Revisional Authority that Mamlatdar had addressed communication dated 05th August, 2015 to the District Inspector of Land Records and that measurement was carried out. The measurement-sheet was demonstrative of existence of way going between Survey Nos.220 and 221, after passing through the fields of the defendants and finally leading to the agricultural fields Survey No.222. The Panchnama was recorded by the authority.
5.2 It is not disputed that the Mamlatdar taken out spot inspection, measurement was undertaken through competent authority, Panchnama was made and the statements of owners of the nearby lands were also recorded including the statement of the Sarpanch. From all these evidence, the authorities appreciated the fact that the way as claimed by the plaintiffs was in existence and in use, and the same was obstructed by the act and conduct of the defendants.
6. Learned advocate for the petitioners tried to submit that Panchnama was wrongly relied on as it was not signed by the petitioners. In other words, it was contended that Panchnama ought not to have been Page 6 of 7 HC-NIC Page 6 of 7 Created On Thu Jan 19 00:47:10 IST 2017 C/SCA/513/2016 CAV JUDGMENT relied on. As noted above, there were other relevant evidence and material on the basis of which the authority concluded in favour of the plaintiffs.
6.1 Whether a particular evidence was taken into account or ought to have been taken into account along with other evidence and in what way it ought to have been taken into account, is also a question in the realm of appreciation of evidence. The weight of evidence is part of appreciation of evidence. Therefore when other overwhelming evidence was on record, by contending that particular evidence was not taken into account, the petitioners only wanted the Court to enter into the prohibited arena of appreciation of evidence, which is not the function of writ court. Entering into the aspect of appreciation of evidence is not permissible, so long as the findings are not perverse. The authorities properly weighed the total evidence and on the basis of cumulative reading of the evidence arrived at finding of fact that the way was in existence. The conclusion was supported by other relevant materials and in no way perverse, rather entirely reasonable and proper. The concurrent orders were found to be eminently just and proper.
7. No case is made out for interference. Petition is liable to be dismissed and is hereby dismissed. Notice is discharged.
(N.V.ANJARIA, J.) Anup Page 7 of 7 HC-NIC Page 7 of 7 Created On Thu Jan 19 00:47:10 IST 2017