Gujarat High Court
Kanjibhai Godadbhai Chaudhary vs Virsang Fuljibhai Chaudhary on 9 January, 2023
Bench: A.S. Supehia
C/SCA/11040/2022 JUDGMENT DATED: 09/01/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11040 of 2022
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 2 of 2022
In R/SPECIAL CIVIL APPLICATION NO. 11040 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA Sd/-
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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KANJIBHAI GODADBHAI CHAUDHARY
Versus
VIRSANG FULJIBHAI CHAUDHARY
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Appearance:
MR R G CHAUDHARY(6428) for the Petitioner(s) No. 1
MR JAL UNWALA, SENIOR ADVOCATE WITH MS TEJAL A VASHI(2704)
for the Respondent(s) No. 1,2,4
for the Respondent(s) No. 3
MR NIKUNJ KANARA, AGP for the Respondent(s) No. 5,6
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 09/01/2023
ORAL JUDGMENT
1. Rule. Learned advocate Ms.Vashi waives
service of notice of rule for and on behalf of
the respondent Nos.1, 2 and 4. The writ petition
is decided finally today.
C/SCA/11040/2022 JUDGMENT DATED: 09/01/2023
2. The present writ petition has been filed
seeking quashing and setting aside of the order
dated 21.03.2022 passed by the Prant Officer,
Kheralu, Dist.Mehsana in Revision Application
No.1 of 2021 and 23.09.2021 passed by the
Mamlatdar, Kheralu, Dist.Mehsana in Suit Case
No.1 of 2021, whereby the application of the
petitioner has been rejected seeking removal of
the wall constructed by the private respondents.
3. It is the case of the petitioner that the
private respondents have constructed a wall,
which has restricted ingress and egress from the
plot or house of the petitioner to his
agricultural fields. Accordingly, the petitioner
filed an application dated 25.01.2021 (Annexure-
I) before the Executive Magistrate being Suit
Case No.1 of 2021 seeking declaration against the
private respondents to demolish the wall
constructed in the path of the land bearing
Survey No.973, which belongs to him. By the
impugned order dated 23.09.2021, the application-
suit of the petitioner was rejected by the
Mamlatdar by observing that there is no cause of
action specified in the suit since no date with
regard to such construction of wall has been
specified in the suit. Being aggrieved, the
petitioner challenged the same by way of a
revision application before the Prant Officer,
C/SCA/11040/2022 JUDGMENT DATED: 09/01/2023
Kheralu, which was also rejected by the impugned
order dated 21.03.2022 and it was observed that
the petitioner can seek remedy by instituting a
civil suit.
SUBMISSIONS:
4. Learned advocate Mr.Chaudhary appearing for
the petitioner has submitted that both the
impugned orders are required to be quashed and
set aside since the petitioner is restricted from
using his agricultural land by constructing a
wall by the respondents in the land bearing
Survey No.973. It is submitted that initially,
the land bearing old Survey No.383/1 (new Survey
No.973) belonged to the private respondents,
including father of the petitioner however,
thereafter it was sold behind the back of the
petitioner by them. It is submitted that for all
these years in fact, one Shamalbhai Fuljibhai
Chaudhary, who became the owner and occupier of
the land bearing old Survey No.383(new Survey
No.972) allowed him to use a way however, since
he refused to do so, the petitioner instituted a
suit against the respondents with a prayer to
demolish the said wall and allow to use his
agricultural field from way of the land bearing
Survey No.973.
C/SCA/11040/2022 JUDGMENT DATED: 09/01/2023
4.1 Learned advocate Mr.Chaudhary has placed
reliance on the judgement of this Court in the
case of Vallabhbhai Vastabhai Kukadiya Vs. Deputy
Collector, Botad, 2022 (2) GLH 469 and has
submitted that the Mamlatdar was required to
verify all the aspects and by appreciating the
subjective satisfaction of the evidence, the
application of the petitioner was required to be
decided however, the same has been rejected and
further, in the revision application, the
revisional authority has also fallen in error by
confirming the said order.
5. Per contra, learned senior advocate Mr.Unwala
has submitted that the impugned orders do not
require any interference since initially, the
suit, which has been instituted before the
Mamlatdar, itself is barred by the limitation as
provided under sub-section (3) of Section 5 of
the Mamlatdars' Courts Act, 1906 (for short "the
Act"). It is further submitted that in fact, the
cause of action has arisen when one Shamdaji
Fuljibhai Becharbhai has refused the access of
way to the fields of the petitioner and instead
of instituting the suit against him, the
petitioner has sought to embroil the private
respondents in the proceedings. He has further
submitted that the petitioner can redress his
grievances by instituting a civil suit before the
Civil Court so that appropriate evidence with
C/SCA/11040/2022 JUDGMENT DATED: 09/01/2023
regard to the ownership of the land in question
can be examined. Thus, it is submitted that the
writ petition may not be entertained.
CONCLUSION:
6. It is an established fact that the petitioner
instituted a suit under the provision of Section
5(2) of the Act seeking demolition of the wall
constructed by the private respondents
restricting ingress and egress of the petitioner
to his fields i.e. the land bearing Survey
No.975.
7. The facts which are emerging from the order
dated 23.09.2021 are that the petitioner filed
the suit before the Mamlatdar under the provision
of section 5 of the Act. The same was registered
as Case No.1 of 2021. After the parties were
given an opportunity of hearing and after
examination of oral and documentary evidence, the
Mamlatdar Court rejected the suit by observing
the ground of limitation, non-joinder of parties
and also by observing that the petitioner has an
alternative way to approach this land.
8. It is the case of the petitioner, as recorded
in the impugned orders that the land bearing
survey no,.975 was being used by his father and
seven other persons. The petitioner has asserted
that the right to way to his land of survey
C/SCA/11040/2022 JUDGMENT DATED: 09/01/2023
no.973 was through the land of survey no.975. In
support of his case, the petitioner had placed
reliance on the map and 7/12 extract. It is
alleged by him that the lands bearing survey
nos.974 and 975 have been illegally sold by Vela
Virsing to the respondent no.1 Virsang Fuljibhai
Chaudhary. It is asserted by the petitioner that
he is the co-owner of the land of survey no.975
and the respondents have illegally constructed
the wall denying the access to his field. It is
also alleged by him that the Talati- cum-Mantri
has illegally mutated the entry in favour of the
respondents by forging the record of the
panchayat and hence, he has registered a criminal
complaint against the private respondents and the
Talati. In response to the aforesaid averments in
the plaint, the respondents have stated that they
are the rightful owner of the land of survey
no.975, which has been sold to them vide a
registered sale deed dated 23.06.2010, and they
have been enjoying the said land since last 11
years. It is also asserted by them that the wall
in question has been constructed before 11 years,
and before that there was fencing on the land.
9. In the impugned order dated 23.09.2021, it is
specifically recorded that after the deposition
of respondent no.3 was recorded on 06.07.2021,
the petitioner was given an opportunity to
present his witness however, since he did not
C/SCA/11040/2022 JUDGMENT DATED: 09/01/2023
present any witness, the Mamlatdar Court had
called for a report from the Talati, which was
produced on 19.07.2021, wherein the Talati has
also produced the panchnama in which it is
reported that the petitioner has an alternate way
to go from the Government road to his field. It
is also observed that the suit is barred by
limitation since the petitioner has not mentioned
the specific date on which the alleged wall was
constructed.
10. Being aggrieved by the aforesaid order, the
petitioner filed a revision application under
section 23(2) of the Act, which has been rejected
by the Prant Officer by observing that the
dispute can be resolved in a better way by the
Civil Court. It is also recorded in the order
that the petitioner has already instituted a
civil suit for cancellation of the sale deed
before the Civil court.
11. At this stage, it would be apposite to refer
to Section 5(3) and (4) of the Act, which reads
as under:
"SECTION 5 : Powers of Mamlatdars' Courts
(1) Every Mamlatdar shall preside over a Court, which
shall be called a Mamlatdars' Court, and which shall,
subject to the provisions of sections 6 and 26 , have
power, within such territorial limits as may from time to
time be fixed by the State Government,-
(a) to remove or cause to be removed any
impediment, erected otherwise than under due
C/SCA/11040/2022 JUDGMENT DATED: 09/01/2023
authority of law, to the natural flow in a defined
channel or otherwise of any surface water naturally
rising in or falling on any land used for
agriculture, grazing, trees or crops, on to any
adjacent land, where such impediment causes or is
likely to cause damage to the land used for such
purpose or to any such grazing, trees or crops
thereon;
(b) to give immediate possession of any lands or
premises used for agriculture or grazing, or trees,
or crops, or fisheries, or to restore the use of
water from any well, tank, canal or water-course
whether natural or artificial used for agricultural
purposes to any person who has been dispossessed or
deprived thereof otherwise than by due course of
law, or who has become entitled to the possession
or restoration thereof by reason of the
determination of any tenancy or other right of any
other person, not being a person who has been a
former owner or part-owner, within a period of
twelve years before the institution of the suit of
the property or use claimed, or who is the legal
representative of such former owner or part-owner:
Provided that, if in any case the Mamlatdar
considers it inequitable or unduly harsh to
remove or cause to be removed any such
impediment or, to give possession of any such
property or to restore any such use to a
person who has become entitled thereto merely
by reason of the determination of any such
tenancy or other right, or if it appears to
him that such case can be more suitably dealt
with by a Civil Court, he may in his
discretion refuse to exercise the power
aforesaid, but shall record in writing his
reasons for such refusal.
(2) Power to issue injunction.-The said Court shall also,
subject to the same provisions, have power within the
said limits, where any impediment referred to in sub-
section (1) is erected, or an attempt has been made to
erect it. or], when any person is otherwise than by due
course of law disturbed or obstructed, or when an attempt
has been made so to disturb or obstruct any person, in
the possession of any lands or premises used for
agriculture or grazing, or trees, or crops, or fisheries,
or in the use of water from any well, tank, canal or
water-course, whether natural or artificial, used for
agricultural purposes, or in the use of roads or
customary ways thereto, to issue an injunction to the
C/SCA/11040/2022 JUDGMENT DATED: 09/01/2023
person erecting or who has attempted to erect such
impediment, or causing, or who has attempted to cause,
such disturbance or obstruction, requiring him to refrain
from erecting or attempting to erect any such impediment
or from causing or attempting to cause any further such
disturbance or obstruction.
(3) Suits to be filed within six months.-No suit shall be
entertained by a Mamlatdar's Court unless it is brought
within six months from the date on which the cause of
action arose.
(4) Cause of action.-The Cause of action shall be deemed
to have arisen on the date on which the impediment to the
natural flow of surface water or the dispossession,
deprivation or determination, of tenancy or other right
occurred, or on which the impediment, disturbance or
obstruction, or the attempted impediment or disturbance
or obstruction, first commenced.
Explanation.-The exercise by a joint owner of any
right which he has over the joint property is not a
dispossession, or disturbance of possession of the
other joint owner or owners within the meaning of
this section.
Illustration I A lets B his field to cultivate for
a specific period of one or more years. B refuses
to resign possession after the expiration of that
period. A can sue for possession in the Mamlatdar's
Court at any time within 6 months from the date of
the expiration of the said period, unless B is a
person who has been a former owner or part-owner
within a period of twelve years before the
institution of the suit of the property, or who is
the legal representative of such former owner or
part-owner.
Illustration II B is a yearly tenant of A, who
gives him a notice to vacate, as he is bound to do
in accordance with the law relating to the
termination of an annual tenancy before the end of
the then current year of tenancy. At the
commencement of the next year B refuses to vacate.
A can sue B in the Mamlatdar's Court at any time
within six months from the commencement of that
year, unless B is a person who has been a former
owner or part-owner within a period of twelve years
before the institution of the suit of the property,
or who is the legal representative of such former
owner or part-owner.
C/SCA/11040/2022 JUDGMENT DATED: 09/01/2023
Illustration III A allows B the use of water from
his well, or from his water-course, for a specific
period, at the expiration of which B continues to
take water from the well or water-course without
A's consent. A may sue B in the Mamlatdar's Court
at any time within six months from the said period
to obtain an injunction to stop B from taking the
water, unless B is a person who has been a former
owner or part-owner within a period of twelve years
before the institution of the suit of the use of
the water, or who is the legal representative of
such former owner or part-owner.
Illustration IV A and B hold lands adjacent to a
PAT or PH ANS or similar artificial water-course
which has hitherto been exclusively used by B. A
draws water therefrom. B may sue in the Mamlatdar's
Court at any time within six months from the date
on which A commences to take the water, for an
injunction to prevent A from so doing."
12. The provisions of Section 5(3) of the Act
mandates that no suit shall be entertained by the
Mamlatdar's Court which is brought after six
months from the date, on which the cause of
action arose. Section 5(4) stipulates that the
cause of action, which shall be deemed to have
been arisen on the date on which any impediment
or disturbance or obstruction is made by any
person.
"SECTION 7 : Suits commenced by plaint
All suits under this Act shall be commenced, by a
plaint, which shall be presented to the Mamlatdar in
open Court by the plaintiff, and which shall contain the
following particulars :-
(e) the circumstances out of which the cause of action
arose; and
(f) a list of the plaintiff's documents, if any, and of
his witnesses, if any, showing what evidence is required
from each witnesses, and whether such witnesses are to be
C/SCA/11040/2022 JUDGMENT DATED: 09/01/2023
summoned to attend, or whether the plaintiff will produce
them on the day and at the place to be fixed under
section 14.
SECTION 9 : Examination of plaintiff on oath
Where the plaint does not contain the particulars
specified in section 7 or is unnecessarily prolix, the
Mamlatdar shall forthwith examine the plaintiff upon oath
and ascertain from him such of the particulars specified
in section 7 as are not clearly and correctly stated in
the plaint and shall reduce the examination to writing in
the form of an endorsement on or annexure to the plaint
which shall thereupon be deemed to be part of the plaint.
Where the plaintiff requires time to obtain any of the
particulars specified in sectioAn 7 0, the Mamlatdar
shall grant him such time as may under all the
circumstances appear reasonable."
13. In the present case, it is recorded in the
impugned order dated 23.09.2021, that after the
plaint was registered, the same was kept for
hearing for the respective parties on 30.03.2021,
and further time was granted to both the parties
to produce necessary evidence in support of their
case and the matter was kept on 26.04.2021,
17.06.2021, 06.07.2021 and 17.07.2021. It is also
recorded that the evidence of respondent no.3 on
06.07.2021, the petitioner was given an
opportunity to present any witness, but he did
not chose to do so, hence the report of Talati
was called for. The Talati in his report has
opined that the petitioner has an alternative
route to access his agricultural field. In the
writ petition, the petitioner has not even
remotely alleged any violation of the provision
of section 9 of the Act. Neither before this
C/SCA/11040/2022 JUDGMENT DATED: 09/01/2023
Court nor before the authorities below, the
petitioner has mentioned the date on which the
wall has been constructed by the respondents. On
the contrary, it is revealed that the cause of
action, as mentioned by the petitioner, has
arisen when one Shamdaji Fuljibhai Becharbhai has
refused the access of way to the fields of the
petitioner. The petitioner was never using the
way on which he is alleging the construction of
wall. It is the case of the petitioner that he
has the way from the plot which belongs to the
petitioner, and except that he has no other way
to go to his field. In these circumstances, the
impugned orders cannot be quashed.
14. Even if it is assumed that the Mamlatdar
Court has not followed the procedure prescribed
under section 9 of the Act, then also in the
first instance the plaintiff or the applicant has
to establish the fact that the provisions of the
Act are applicable to him. The petitioner has
specifically mentioned before the authorities
that he has instituted a civil suit challenging
the sale deed in favour of the private
respondents. The petitioner has also instituted
criminal proceedings against the Talati and the
petitioner alleging forgery. The private
respondents before the authorities have
specifically contended that they have purchased
the land bearing survey nos.974 and 975 vide a
C/SCA/11040/2022 JUDGMENT DATED: 09/01/2023
registered sale deed dated 23.06.2010, and they
have been enjoying the said land since last 11
years. It is also asserted by them that the wall
in question has been constructed before 11 years
and before that the fence was in existence. Thus,
the provision of section 5 of the Act cannot be
invoked on the land of the rightful owner unless
the case falls under the illustrations prescribed
below Section 5 of the Act. There was no
understanding between the petitioner and the
private respondents to allow him to use the
passage through the plot owned by them. Till the
petitioner is able to establish in a civil court
that the private respondents are not the rightful
owners of the land or the sale deed in their
favour is set aside by the civil court, he cannot
assert his way through their land. Thus, the
institution of the suit by the petitioner against
the private respondents alleging construction of
wall by them in the land bearing survey No.975 is
ill-conceived since it is the specific case of
the private respondents before the Court below
that they are the rightful owner of the land and
after purchasing the said land they had
constructed the wall. The petitioner has been
unable to establish the period from which he has
been using the said passage which went through
the land of the private respondents. Thus, in
absence of any specific date mentioned in the
plaint or before this Court, I am of the
C/SCA/11040/2022 JUDGMENT DATED: 09/01/2023
considered opinion that the Mamlatdar, while
rejecting the application of the petitioner by
the impugned order dated 23.09.2021 has neither
committed any illegality or perversity by
rejecting the suit for the reason as assigned
therein that the petitioner has not given any
specific date indicating the cause of action nor
the Prant Officer has committed any infirmity in
rejecting the revision application. As stated
hereinabove, the cause of action, as stated by
the petitioner, has only arisen, when Shri
Shamdaji Fuljibhai Becharbhai has refused the
right of way to him.
15. The judgement, upon which the reliance is
placed by the learned advocate Mr.Chaudhary would
not apply in the facts of the present case since
in the present case, the private respondents have
asserted that the land in question in which the
petitioner is seeking right to way belongs to
them. Even otherwise, in the writ petition, no
averments are made about violation of any
provision of section 9 of the Act. As observed,
hereinabove, till the petitioner establishes his
right on the land in question, he cannot claim
right of way through it. The private respondents
can always undertake necessary construction on
the land which belongs to them. It is interesting
to note that the petitioner has instituted the
suit by alleging that the land of Survey No.975
C/SCA/11040/2022 JUDGMENT DATED: 09/01/2023
was of joint ownership, which is illegally sold
to the private respondents. If the case of the
petitioner is accepted, then it would be hit by
the explanation to Section 5 of the Act, which
stipulats that the exercise by a joint owner of
any right, which he has over the joint property,
is not a dispossession or disturbance of
possession of the other joint owners within the
meaning of Section 5 of the Act. Be that as it
may, since the petitioner has already instituted
a civil suit for cancelling the sale deed, this
Court is restraining itself from expressing
anything more in the matter.
16. Under the circumstances, the writ petition
fails legal scrutiny. Hence, the same is
rejected. Rule is discharged.
17. As a sequel, the connected civil application
also stands disposed of.
Sd/-
(A. S. SUPEHIA, J)
NVMEWADA
