Babubhai Ramjibhai Kedva vs Nagarbhai Bhikhabhai Kedva
2023 Latest Caselaw 2802 Guj

     C/LPA/475/2023                              ORDER DATED: 06/04/2023




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/LETTERS PATENT APPEAL NO. 475 of 2023
         In R/SPECIAL CIVIL APPLICATION NO. 10864 of 2022
                                  With
            CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
            In R/LETTERS PATENT APPEAL NO. 475 of 2023
==========================================================
                     BABUBHAI RAMJIBHAI KEDVA
                                 Versus
                   NAGARBHAI BHIKHABHAI KEDVA
==========================================================
Appearance:
MR SP MAJMUDAR(3456) for the Appellant(s) No. 1,2,3,4,5
for the Respondent(s) No. 1,2,3,4,5,6,7
==========================================================
  CORAM:HONOURABLE THE ACTING CHIEF JUSTICE MR. JUSTICE
           A.J.DESAI
           and
           HONOURABLE MR. JUSTICE BIREN VAISHNAV

                          Date : 06/04/2023

                            ORAL ORDER

(PER : HONOURABLE THE ACTING CHIEF JUSTICE MR. JUSTICE A.J.DESAI)

[1.0] By way of present appeal under Clause 15 of the Letters Patent, the appellants herein - original respondent Nos.3 to 7 have challenged an oral judgment dated 15.02.2023 passed by the learned Single Judge in Special Civil Application No.10864 of 2022 by which the learned Single Judge has quashed and set aside the order passed by the Deputy Collector and matter is remanded to the Mamlatdar Court to undertake fresh proceedings keeping in mind the provisions more particularly Section 19 of the Mamlatdars' Courts Act, 1906 (hereinafter referred to as "Act, 1906").

[2.0] Learned advocate Mr. S.P. Majmudar appearing for the

C/LPA/475/2023 ORDER DATED: 06/04/2023

appellants has taken us through the observations made by the learned Single Judge in paragraph 10 of the impugned oral judgment and would submit that though the learned Single Judge has factually held in favor of the present appellants, the order passed by the Deputy Collector on merits is quashed and set aside. He, therefore, would submit that the Letters Patent Appeal be allowed and the oral judgment passed by the learned Single Judge be quashed and set aside.

[3.0] We have heard learned advocate Mr. S.P. Majmudar appearing for the appellants.

It appears from the record that the parties are fighting with regard to land in question under the provisions of the Act, 1906. The order dated 21.02.2022 passed by the Mamlatdar in Mamlatdar Courts' Act Case No.1/2022 filed by the appellants herein was challenged by the present appellants before the Deputy Collector by way of filing Revision Application No.6/2022 seeking right of way. It appears that the said revision application was accepted in favor of the present appellants vide order dated 25.05.2022 however, the private respondents challenged the said order before the learned Single Judge on the ground that the proceedings were initiated ex parte.

[3.1] Having gone through the impugned judgment passed by the learned Single Judge, we are in complete agreement with the observations made by the learned Single Judge in paragraphs 11, 12, 13, 14, 15, 16 and 17 of the impugned judgment.

[3.2] The learned Single Judge finally allowed the petition by

C/LPA/475/2023 ORDER DATED: 06/04/2023

making following observations in paragraph No.10 of the impugned judgment.

"10. I have also perused the order passed by the Mamlatdar dated 21.02.2022. A bare perusal of the aforesaid order reveals that it is bereft of material particulars and even the panchnama is not appropriately considered. There are no findings given by the Mamlatdar in the order dealing with the contention raised by the petitioners or the respondents hence, being aggrieved, the private respondent Nos.3 to 7 filed a revision application before the Deputy Collector being Revision Case No.6 of 2022. The Deputy Collector by a comprehensive order, after examining the documents produced therein including the measurement sheet of the DILR as well as the revenue records has set aside the order passed by the Mamlatdar Court. It is pertinent to note that the Deputy Collector in his order has specifically recorded that there is no mention of the panchnama which was undertaken by the Mamlatdar Court. After making such observation and recording definite findings on the documents produced by the private respondents, the revision application has been allowed. In the considered opinion of this Court, if the higher authority or the Deputy Collector has found the procedure adopted by the Mamlatdar Court being defective in nature and de hors the statute, the appropriate approach which is required to be adopted by the Deputy Collector is to remand the matter to the Mamlatdar, so that the facts

C/LPA/475/2023 ORDER DATED: 06/04/2023

of the panchnama and the documents, on which the reliance is placed by the Deputy Collector, while allowing the revision application could have been examined by the Mamlatdar Court by leading evidence."

[4.0] We are in complete agreement with the observations made by the learned Single Judge and we do not find any reason to interfere with the same. Hence, present Letters Patent Appeal is dismissed. It is expected that the learned Mamlatdar concerned shall decide the case at the earliest.

In view of dismissal of Letters Patent Appeal, no order is required to be passed in Civil Application and is disposed of accordingly.

(A.J. DESAI, ACJ)

(BIREN VAISHNAV, J.)

Ajay