Gujarat High Court
Khimjibhai Merambhai Gabu vs Deputy Collector, Botad on 3 September, 2021
Bench: Sangeeta K. Vishen
C/SCA/12352/2021 ORDER DATED: 03/09/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12352 of 2021
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KHIMJIBHAI MERAMBHAI GABU
Versus
DEPUTY COLLECTOR, BOTAD
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Appearance:
MS MEGHA JANI(1028) for the Petitioner(s) No. 1
for the Respondent(s) No. 2
ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP(99) for the
Respondent(s) No. 1
DHRUV TOLIYA(9249) for the Respondent(s) No. 3,4,5,6
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CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
Date : 03/09/2021
ORAL ORDER
1. Ms.Megha Jani, learned advocate appearing for the petitioner submitted
that the respondent Nos.3 to 6, have filed the suit before the Mamlatdar, inter
alia, praying for opening of the way and removal of the impediment and the
Mamlatdar, vide order dated 31.05.2021, allowed the suit. Being aggrieved,
the petitioner had preferred a revision application before the Deputy Collector,
who while not entertaining the revision, confirmed the order dated 31.05.2021
of the Mamlatdar.
2. It is submitted that the prerequisite of filing of the suit is to mention the
date on which the cause of action arose; however, a bare perusal of the plaint,
reflects that no date has been mentioned except stating that before 8 to 10
days, the respondents were obstructed from entering their fields. The said
statement in the plaint is not in conformity with the requirement as envisaged
in clause (d) of Section 7 of the Mamlatdars' Courts Act, 1906 (hereinafter
referred to as "the Act"). In support of such contention, reliance is placed on
the judgment in the case of Badi Husenbhai Alibhai v. Deputy Collector
reported in 2018 SCC OnLine Guj 3496. This Court has held and observed that
the requirement of Section 7, are mandatory in nature and that the plaint must
C/SCA/12352/2021 ORDER DATED: 03/09/2021
disclose the date on which cause of action arose. It has also been held that if
the plaintiff has not disclosed the date of cause of action in the plaint and if it
is uncertain as to whether the suit was filed within the prescribed period of
limitation or not, the provisions of Section 9 of the Act, comes into picture
which, requires the plaintiff to be examined on oath so as to enable the
plaintiff to correct the insufficient data, which is mandatory as per Section 7. It
is submitted that despite there was non-observance of clause (d) of Section 7
of the Act, the plaintiff was not examined on oath by the Mamlatdar and
therefore, the plaint suffers from the infirmity.
3. It is further submitted that the panchnama was prepared without
informing the petitioner. In fact, the panchas have later on also filed affidavits
inter alia, declaring that the facts have not been properly recorded in the
panchnama. The petitioner was called for recording of the statement and his
statement was recorded by the Circle Officer which also is not as per the
requirement of the Act. Therefore, the authorities concerned i.e. the
Mamlatdar and Deputy Collector have committed errors in passing the orders.
4. On the other hand, Mr.Dhruv Toliya, learned advocate submitted that
the respondent Nos.3 to 6 have executed the Sale Deed in the year 2000 which
indicates that there is a way available from the Survey No.11 of the plaintiff,
for reaching the field of the respondents. Whereas, Sale Deed in favour of the
petitioner was executed on 08.03.2002 that would be subsequent to the Sale
Deed of the respondent No.6. In the said Sale Deed also there is a mention of
the way for approaching the fields of the respondents. While inviting the
attention to the Rectification Sale Deed dated 16.07.2019, it is submitted that
surprisingly, after a span of almost 18 years, Rectification Deed has been
executed indicating that owing to the mistake the road (Gada Marg) has been
shown and the same should not be treated to be in existence. It is submitted
that it is unbelievable that why Rectification Deed would be executed almost
after 18 years. It is also submitted that there exists a way which is, a paag
dandi from the main road going through the Survey No.11 and reaching the
C/SCA/12352/2021 ORDER DATED: 03/09/2021
Survey Nos. 8 paiki 1, 8 paiki 2, 8 paiki 3 and 8 paiki 4 and therefore, no error
has been committed by the Mamlatdar so also the Deputy Collector.
5. Heard learned advocates appearing for the respective parties.
6. Prima facie, it appears that the plaint was not in conformity with the
requirement of provisions of clause (d) of Section 7 of the Act. Further, the
requirement of Section 9 has also not been observed by the Mamlatdar.
7. Having regard to the submissions made by the learned advocates for the
respective parties, issue notice, returnable on 24.09.2021.
8. Direct service is permitted.
(SANGEETA K. VISHEN, J)
RAVI P. PATEL
