Gujarat High Court
Radhuben Jafarkhan Sipahi vs State Of Gujarat on 22 January, 2025
Author: Sunita Agarwal
Bench: Sunita Agarwal
NEUTRAL CITATION
C/LPA/213/2022 ORDER DATED: 22/01/2025
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MFIN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 213 of 2022
In
R/SPECIAL CIVIL APPLICATION NO. 13177 of 2020
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In
R/LETTERS PATENT APPEAL NO. 213 of 2022
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RADHUBEN JAFARKHAN SIPAHI & ORS.
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR SHIVAM MAJMUDAR for MR NK MAJMUDAR(430) for the Appellant(s) No.
1,2,3
MS HETAL PATEL ASSISTANT GOVERNMENT PLEADER for the Respondent (s)
No. 4.
MR.DIPEN F CHAUDHARI(6740) for the Respondent(s) No. 6
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CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA
AGARWAL
and
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
Date : 22/01/2025
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL)
Heard the learned counsel for the parties and perused the
record.
2. The instant appeal is directed against the judgment and order
dated 02.02.2021 passed by the learned Single Judge whereby the
writ petition challenging the order dated 12.05.2020 passed by the
Mamlatdar, Palanpur in Remand Case No. 4/19 Vashi 974-975 as also
the order dated 09.09.2020 passed by the Deputy Collector in
Revision Case No. 2 of 2020, affirming the order of the Mamlatdar,
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were subjected to challenge.
3. The original petitioners claim to be owner and occupier of the
agricultural land bearing Survey No. 122 situated at Village
Dhanadha, Taluka - Palanpur, District Banaskantha. It seems that the
plots lying on the Western side of Survey No. 122; namely lands
bearing Survey Nos. 132 paiki 2 and 133 paiki 2 were sold by the
original owner to the respondent no. 6 by way of a registered sale
deed dated 09.09.2016. It was the case of the petitioners before the
learned Single Judge that there did not exist any road having access
to Survey No. 132 paiki 2 and 133 paiki 2 at the time of execution of
the sale deed from the agricultural land of the petitioners, namely
Survey No. 122. However, in the sale deed executed by the original
owner, a way was wrongly shown passing through the Survey No.
122 to reach the aforesaid plots sold to respondent no. 6, namely
Revenue Survey No. 132 paiki 2 and 133 paiki 2.
3.1. The submission of the learned counsel for the petitioners is
that the Mamlatdar and the Deputy Collector after remand had
committed an illegality in ignoring the previous orders wherein
categorical findings were returned by the Deputy Collector to
examine evidence to find out as to whether there existed a way on
the date of execution of the sale deed, i.e. on or before 09.09.2016 to
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access to Revenue Survey No. 132 paiki 2 and 133 paiki 2 from
Survey No. 122. The sole basis of grant of right of way by the
Mamlatdar and the Deputy Collector was the panchnama drawn on
15.11.2019 prepared on the basis of the statement made by certain
persons. We may note that the panchnama dated 15.11.2019
prepared by the Mamlatdar is not on record. However, from the
findings returned by the Mamlatdar in the order impugned dated
12.05.2020, it may be pertinent to note that the panchnama recorded
that there existed a traditional Kachha road for access to the land in
question from the North of Survey No. 125, further leading to the
South of pakka road of Dhandha-Jalotra passing from the midst of
Survey No. 127 and Survey No. 125, further leading to the West and
thereafter towards North of Survey No. 122 and towards South from
midst of Survey No. 127.
3.2. The order further records that the occupiers of Survey Nos.
132 paiki and 133 paiki were doing cultivation in their lands by using
the said Kachha road. The wire fencing was erected at the site by the
owner of Survey No. 127 by obstructing the public road which had
been removed with their consent. However, the owner of Survey No.
122 (the petitioner herein) had merged the Kachha road in the land
of their survey number which has resulted in total closure of the
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Kachha road for the last two years. The Mamlatdar further records
that the original owner of Revenue Survey Nos. 132 and 133 had no
alternative road to access the remaining agricultural land owned by
them after sale.
3.3. It is further noted by the Mamlatdar that the panchnama has
been prepared by the Deputy Collector, Palanpur in the remand case
wherein fact of existence of the disputed road has been noted.
However, no measurement sheet has been produced by the parties.
The statement is that the remaining land after purchase by the
plaintiffs from the original owner of Survey Nos. 132 and 133 lying
with the original owners and that the original owners were using the
disputed road to access to their farm as per the details in the report.
However, neither the owners of Revenue Survey No. 125, 127 nor
the original owners of Revenue Survey No. 132 paiki and 133 paiki,
sold in part in favour of respondent no. 6, had been joined in the
proceedings before the Mamlatdar. The record indicates that inspite
of the objections raised by the petitioners herein, namely owners of
the Revenue Survey No. 122, none of the owners of the plots through
which the road was allegedly passing through had been joined as
party in proceedings. Interestingly, the Mamlatdar had rejected the
contention of the petitioners on the premise that it is the plaintiff
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who can decide as to whom to join as party in the proceedings,
drawn by him.
4. We may further record that in the order dated 12.05.2020
passed by the Mamlatdar, it is recorded that the plaintiff has not
submitted any supporting evidence in support of their submissions
and the support to the claim of the plaintiff can be drawn from the
statement made in the original claim and the statement made by the
opponent in the proceedings of spot inspection made by the Deputy
Collector, Palanpur in the remand case.
5. Taking note of the above, we may record that the Mamlatdar
had committed a grave illegality in ignoring the fact that when it has
come to his knowledge that there existed a Kachha road which was
passing from the midst of other plots such as Survey No. 127 and
Survey No. 124 and was leading to the West going towards the North
of Revenue Survey No. 122 and further towards the South from the
midst of the Revenue Survey No. 127, all the owners of the aforesaid
plots were required to be joined as party in the proceedings. The
failure of the original plaintiff/respondent herein in joining necessary
and proper party in the matter where the factum of existence of the
way on the date of execution of the sale deed i.e. 09.09.2016 was
required to be adjudicated, would lead to the dismissal of the
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application itself. Even otherwise, under the provisions of Section
18(2) of the Mamlatdars' Courts Act, 1906, it is open for the
Mamlatdar to add any party at any stage of proceedings, in addition
to the party appearing before him, as may be made necessary, in
order to enable him to effectively and completely adjudicate upon the
issues, either as the plaintiff or defendant, as the circumstances of
the case may require.
5.1. In our considered opinion, the order passed by the Mamlatdar
dated 12.05.2020 is in complete ignorance of the provisions of the
Mamlatdars' Courts Act, 1906. The objections raised by the
petitioners, opposite party before the Mamlatdar, namely the owner
of Revenue Survey No. 122 with regard to non-joinder of the
necessary party was required to be adhered to keeping in mind of the
provisions of Section 18 of the Mamlatdars' Courts Act, 1906.
5.2. We may further record that no evidence has been discussed in
the order of the Mamlatdar to the effect that there existed a way to
access the portion of Survey No. 132 paiki and 133 paiki purchased
by the plaintiff/respondent herein from the original owners, which
was passing through Survey No. 122 or there was a Kachha road
passing towards the North of Survey No. 122 which has been merged
by the petitioners in their plot. No measurement has been carried out
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of Survey No. 122 as also the adjoining plots to ascertain the
existence of the way, nor any such finding has been recorded in the
order of the Mamlatdar. In absence of any evidence brought on
record by the plaintiff that there did exist a way on the date of the
execution of the sale deed dated 09.09.2016, which was running
towards the North of Revenue Survey No. 122, the statement made
in the sale deed about the existence of the way could not have been
treated as a gospel truth by the learned Single Judge, as has been
recorded in the judgment impugned.
5.3. We may further record from the order passed by the Deputy
Collector dated 09.09.2020 that all these aspects of the matter have
been conveniently ignored by the Deputy Collector while confirming
the order dated 12.05.2020 passed by the Mamlatdar. A blanket
finding has been returned to the effect that the road for entering into
the Revenue Survey No. 132 p and 133 p was existing in Survey
No.122 before purchase of the portion of the said plots by the
plaintiff/respondent herein and the said road has been merged by the
owner of the Revenue Survey No. 122 in his plot. The findings
returned by the Deputy Collector that there does not exist an
alternative road and the sale deed of the suit land executed by the
original owner in favour of the plaintiff indicated the existence of the
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road is without any cogent evidence on record.
6. We may further record that the plaintiff had purchased only a
portion of Revenue Survey No. 132 paiki and 133 paiki vide
registered sale deed dated 09.09.2016 and as is evident from the
order passed by the Mamlatdar, the original owners/vendors of the
said sale deed are still occupying the remaining portion of the said
plots. They are necessary and proper party to be joined in the
proceedings drawn by the plaintiff, the owners of purchased portion
of the Revenue Survey No. 132 p and 133 p who had acquired right
in the said land vide sale deed dated 09.09.2016.
6.1. The main issue for consideration before the Mamlatdar, would
be as to whether there did exist a way as on 09.09.2016, on the date
of the execution of the sale deed of a portion of the plots bearing
Revenue Survey No. 132 paiki and 133 paiki in favour of the plaintiff.
The parties are at liberty to bring their evidence before the
Mamlatdar in order to enable him to adjudicate the said issue,
inasmuch as, the way cannot be created only by making an assertion
in the sale deed. The evidence are required to be led by the plaintiff
to establish that there did exist a way on the date of execution of the
sale deed i.e. 09.09.2016 in order to support the statement made in
the sale deed.
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7. For the aforesaid, we find that the learned Single Judge has
committed an error of law in ignoring the above relevant aspects of
the matter and in dismissing of the writ petition only on the premise
that concurrent findings of fact have been returned by two revenue
authorities, which cannot be interfered within the scope of the writ
jurisdiction. From the facts noted above, perversity in the findings
returned by the Mamlatdar and the Deputy Collector in passing the
order under Section 5 of the Mamlatdars' Courts Act, 1906 is writ
large on the face of the record. We therefore, set aside the judgment
and order dated 02.02.2021 passed by the learned Single Judge as
also the orders passed by the revenue authorities, i.e. the order
dated 12.05.2020 passed by the Mamlatdar, Palanpur in Remand
Case No. 4/19 Vashi 974-975 and the order dated 09.09.2020 passed
by the Deputy Collector in Revision Case No. 2 of 2020. The matter is
remanded back for fresh consideration, keeping in mind of the
observations made herein above.
7.1. We direct the Mamlatdar to ensure that all necessary and
proper parties, who are owners of the adjoining plot nos. 125, 127,
124, the portion of plot no. 132 paiki and 133 paiki and all others
who may throw light on the claim of the parties shall be required to
be joined as necessary and proper parties, in order to ensure that
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the dispute with respect to the right of the way as shown in the sale
deed dated 09.09.2016, is effectively and completely adjudicated on
all issues.
7.2. The parties are at liberty to file their evidence before the
Mamlatdar in the proceedings which is to be drawn afresh, from the
stage of filing of the application on 12.07.2017, itself. A decision
strictly in accordance with the law shall be taken by the Mamlatdar
after giving due notice and opportunity to all parties concern, by
passing a reasoned and speaking order, preferably within a period of
two months from the date of receipt of the copy of this order. The
party aggrieved shall be at liberty to avail further remedy under the
Mamlatdars' Courts Act, 1906.
8. At this juncture, on the request made by the learned counsel
for the respondent/original plaintiff that the status-quo as on date be
directed to be maintained, suffice it to say that it is open for the
respondent to move a proper application before the Mamlatdar along
with the copy of this order within a period of two weeks from today.
On such application being filed, the Mamlatdar would be at liberty to
pass an appropriate order after giving due notice and opportunity to
all concerning parties.
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9. With the aforesaid observations and directions, the present
appeal stands disposed of.
Consequently, the connected Civil Application for stay also
stands disposed of.
(SUNITA AGARWAL, CJ )
(PRANAV TRIVEDI,J)
phalguni
