Gujarat High Court
Patel Shardaben Baldevbhai vs Dashrathbhai Kalidas Patel on 8 November, 2022
Author: A.Y. Kogje
Bench: A.Y. Kogje
C/SCA/9418/2018 ORDER DATED: 08/11/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9418 of 2018
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PATEL SHARDABEN BALDEVBHAI & 1 other(s)
Versus
DASHRATHBHAI KALIDAS PATEL & 1 other(s)
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Appearance:
MR YV BRAHMBHATT(206) for the Petitioner(s) No. 1,2
MR. JAYNEEL PARIKH, AGP, for the Respondent(s) No. 2
MR VASANTS SHAH(810) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
Date : 08/11/2022
ORAL ORDER
[1] This petition under Articles 226 and 227 of the Constitution of India is filed by the petitioners against by the order dated 07.07.2017 passed by the Mamlatdar, Kalol in the proceedings initiated under Section 5(2) of the Mamlatadars' Courts Act, (for short "the Act"), which came to be confirmed by the Deputy Collector vide order dated 08.02.2018 by which the order of the Mamlatdars' Court was confirmed.
[2] Learned advocate Mr. Y.V.Brahmbhatt appearing for the petitioners submitted that the respondent No.1 had no right to claim a way from the land belonging to the petitioners and despite by creating a false ground of an existence of way and being used it for long time, the application has been filed before the Mamlatdars' Courts. It is submitted that even from the pleadings made by the respondent No.1 before the Mamlatdars' Court, ingredients for invoking Section 5 of the Act are not made out.
[2.1] Learned advocate for the petitioners took this Court to the history regarding agricultural land bearing survey No.104/new block Page 1 of 5 Downloaded on : Sun Dec 25 05:48:23 IST 2022 C/SCA/9418/2018 ORDER DATED: 08/11/2022 No.118 of village Mokhasan, which is in the possession of the respondent No.1, and on the northern side of the said land, there is an agricultural land of the petitioners being survey No.105/new block No.119. Learned advocate for the petitioners submitted that the Mamlatdars' Court has come to a erroneous finding without recording of any evidence. It is submitted that had the evidence been recorded, the petitioners would have got a chance of cross- examination of the witnesses of the respondent and therefore, the proceedings carried out by the Mamlatdar cannot be termed to be conclusive insofar as the right of way is concerned. It is further submitted that the right that is claimed by the petitioners is of the nature of civil right/easmentary right for which the Mamlatdar Court will not have any jurisdiction and therefore, proper remedy for the respondednt No.1 was to approach the Civil Court with suit for permanent injunction to assert his easmentary right. Learned advocate also submitted that the respondent No.1 has failed to make out a case that the alleged obstruction by the petitioners was within the period of six months from the date on which the suit was filed before the Mamlatdars's Court and therefore, the application filed before the Mamlatdars' Court ought not to have been considered on the ground of being made beyond limitation and therefore, the Mamlatdar had no jurisdiction to try the case beyond the period of prescribed limitation.
[3] Learned advocate for the respondent has opposed the grant of petition by submitting that the petitioners were aware of the usage of 15 feet way which was used by the respondent No.1 since time immemorial and the same was being used for the purpose of carrying out agricultural activity. It is submitted that the respondent No.1 was using that way for the purpose of ingress and outgress of Page 2 of 5 Downloaded on : Sun Dec 25 05:48:23 IST 2022 C/SCA/9418/2018 ORDER DATED: 08/11/2022 his agriculture, equipment, cattle and the agricultural field workers. It is submitted that the issue was brought before the local body consisting of the senior people of the village and there the compromise was arrived at, wherein for the purpose of using way, a specific amount of Rs.40,000/- was paid and therefore, the petitioners cannot be permitted to back out. A reference is made to a document dated 10.05.2004 on Rs.20/- stamp paper, where the petitioners had received in installment total amount of Rs.40,000/- for the purpose of usage of the way. Learned advocate submitted that it was clearly averred in the application under Section 5 of the Act that earlier there was no interference with the usage by the petitioners, but since since last six months, the petitioners are interfering and hence, such application was filed.
[4] The Court has heard learned advocates for the parties and perused the documents placed on record. The matter pertains to claim of pathway width of 15 feet located in village Mokhasan, Taluka: Kalol, District: Gandhinagar, wherein the respondent No.1 (original plaintiff) was in occupation of agricultural land bearing survey No.104/New block No.118 through succession and an adjacent agricultural land bearing survey No.105/new Block No.119 belonging to the petitioners (original defendants) and from the western side of the aforesaid land of the petitioners, 15 feet wide road was passing leading to the agricultural field of the respondent No.1.
[5] The Mamlatdar Court in exercise of its powers passed an order dated 07.07.2019, confirming the existence of the way of 15 feet wide road between the aforesaid plots of land and directed the respondent No.1 to keep such way open. It appears that the petitioners therefore, filed revision application under Section 23 of Page 3 of 5 Downloaded on : Sun Dec 25 05:48:23 IST 2022 C/SCA/9418/2018 ORDER DATED: 08/11/2022 the Act before the Prant Officer, which in turn has confirmed the order of the Mamlatdar.
[6] The Court has examined the documents on record and find that the finding given by the both the authorities are concurrent in nature and are based on the evidence and are justified. The Court finds that both the Courts below have taken into consideration the document which as executed in connection with 15 feet pathway for which there was monetary transaction and a document was executed on 10.05.2004 between the concerned parties and accordingly, an amount of Rs.40,000/- appears to have been paid. The Court has gone through such document which is signed by one Baldevbhai Patel and Manishaben Baldevbhai Patel and was witnessed by Mahendrabhai Patel.
[7] In view of the aforesaid, there is a documentary evidence which was rightly appreciated by both the Courts below. Moreover, the Court has also considered the panchnama prepared by Talati- cum-Mantri of Mokhasan alongwith Circle Officer of Nardipur and the site verification which was recorded in the panchnama showed the existence of such pathway. Moreover, panchnama is also supported by the statement of the neighbours which were also recorded during the proceedings and support the case of the respondent No.1 herein regarding existence of pathway and utilization of the same. Obviously, there were also certain witnesses who have sated that there was no way in existence, still as the finding of fact is given concurrently by both Mamlatdar Court as well as Prant Officer by relying upon cogent evidence in this regard. The Court is not inclined to interfere with such concurrent finding. With regards to the issue raised by the petitioners regarding the cause being beyond the period of six months, it would be appropriate to mention Page 4 of 5 Downloaded on : Sun Dec 25 05:48:23 IST 2022 C/SCA/9418/2018 ORDER DATED: 08/11/2022 that in the very application under Section 5(2) of the Act, the respondent No.1 has clearly averred that for a period of six months, an interference of usage of way was there at the behest of petitioners, while there is no such clear document and there being nothing contrary to such contention brought on record by the petitioners, the Court is inclined to hold that the proceedings initiated by the respondent No.1 were within the period of limitation and the Mamlatdar Court was justified in accepting such proceedings.
[8] In view of the aforesaid, no case is made out for interference of the concurrent finding both by the Mamlatdar and Prant Officer and hence, the petition deserves to be and the same is hereby dismissed.
(A.Y. KOGJE, J) SIDDHARTH Page 5 of 5 Downloaded on : Sun Dec 25 05:48:23 IST 2022