CAV Order

1. By way of filing present petition under Articles 226 and 227 of the Constitution of India, the petitioners have assailed the order dated 29.12.2023 passed by the Mamlatdar, Vav in the proceedings initiated under Section 5 of the Mamlatdars' Courts Act (it shall hereinafter be referred to as the 'Act' for short) and order dated 23.04.2024 passed by the Deputy Collector, Tharad in revision application, whereby the order passed by the Mamlatdar has been upheld.

2. The facts of the case of the petitioners can be summarized in a nutshell as under:

          2.1. It is the case of the petitioners that the private respondents herein - original plaintiffs have preferred a suit under Section 5 of the Act before the Mamlatdar, Vav, inter alia praying that the petitioners - original defendants may be restrained from obstructing the plaintiffs from using the disputed way which is being used by them since last many years for the purpose of reaching to their agricultural field. It is the case of the plaintiffs that they are the owners and occupiers of land bearing Survey No.110 (old Survey No.39) situated at village Joradiyali, whereas, the defendants are the owners and occupiers of land bearing Survey Nos. 135 Paiki 1 (old Survey No.98/5) and 135 Paiki 2 (old Survey No.98/5) situated at village Takhatpura and plaintiffs are using the disputed way which is passing through the agricultural field of the defendants. That before about 10 days from the date of filing the suit, the defendants have obstructed the plaintiffs from using the disputed way, which is the only access for ingress and egress to their agricultural field. The plaintiffs, therefore, instituted a suit under Section 5 of the Act before Mamlatdar, Vav, inter alia, praying for permanent injunction.

          2.2. Pursuant to the institution of the suit, the Mamlatdar, Vav instructed the Circle Officer, Tundav to carry out the Panchnama and accordingly a Panchnama has been carried out by the Circle Officer in presence of both the parties. That after appreciating and considering the materials as well as documents, the Mamlatdar, Vav has allowed the said suit and directed the defendants not to obstruct the plaintiffs from using the disputed way, which is merged by the defendants with their agricultural field.

          2.3. Being aggrieved by and dissatisfied with the said order, the defendants - petitioners herein have filed a revision before the Deputy Collector, Tharad. However, the said revision also came to be rejected. Hence, the petitioners have preferred present petition.

3. Heard learned advocate Mr. Karathiya for the petitioners, learned advocate Mr. Nishit Gandhi for private respondents and learned AGP Ms. Surbhi Bhati for respondent Nos. 4 and 5.

4. Learned advocate Mr. Karathiya for the petitioners submits that the petitioners are the original defendants, whereas, private respondents herein are the original plaintiffs. He submits that petitioners are the owners and occupiers of land bearing Survey No.135 paiki 1 (old survey no.98/5), situated within the periphery of village Takhatpura, whereas, respondents are the owners and occupiers of land bearing Survey No.110, situated within the periphery of village Joradiyali .

5. Learned advocate Mr. Karathiya further submits that present petition is filed essentially on two major grounds; (1) that the suit is filed by the respondents - original plaintiffs much after the period of limitation which is prescribed in the Act itself. He has read the provisions of Section 5(3) of the Act and submitted that the suit is required to be filed within a period of six months from the date on which the cause of action arose. He submits that the cause of action mentioned in the suit prima facie seems to be illusory one, as no specific date is mentioned by the plaintiffs. He submits that the plaintiffs have come with the specific case that 10 days before the filing of the suit, the cause of action has arisen. However, the record shows and suggests quite different story. He submits that during the course of cross-examination of the plaintiff, he has very categorically stated that the disputes have been cropped up by and between the parties before one to one and half years (12 to 18 months) from the date of institution of the suit and criminal proceedings have been instituted by the plaintiffs against the defendants. He submits that said set of documents and materials available on record crystallizes the position of fact that on 15.12.2022 the disputes have been cropped up between the parties, due to which, a criminal complainant as well as chapter case came to be registered against the petitioners by the private respondents, whereas, suit is filed on 18.07.2023. Therefore, there is gross delay in preferring the suit and as per the statutory provisions of the Act itself, if any suit is filed after lapse of period of six months from the date on which the cause of action arose, in that event, the suit is not required to be entertained by the Mamlatdar. Despite the documents and materials showing the aforesaid glaring aspects were placed on record, the Mamlatdar has allowed the suit filed by the respondents. He further submits that in fact on the basis of initiation of the proceedings under the provisions of Section 107 of the Code of Criminal Procedure, the Executive Magistrate concerned has recorded the statement of the petitioner No.1, wherein, he has stated in a very categorical manner that whatever impediment generated by him for obstructing the private respondents herein has already been removed and earlier position of the field has already been restored by him. The said statement was recorded on 19.12.2022 and thereafter the petitioners have not created any impediments upon the pathway of the private respondents and therefore by no stretch of imagination it can be said that the suit proceedings have been initiated within the prescribed period enumerated in the statute itself. He further submits that he has already produced a copy of map of village Takhatpura which crystallizes the position of fact that an alternative way is already in existence, which is used and utilized by the respondents since last many years. The said way is already in existence, despite that, with a sole intent to harass the petitioners, the respondents have instituted a suit and sought a way from the middle of the field of the petitioners by creating a new story. The said fact is also fortified from the inter se communication made between the TDO, Vav and Deputy Collector, Tharad. He has drawn the attention of this Court to a letter dated 03.02.2025 addressed by the Taluka Development Officer, Vav to the Deputy Collector, Tharad, inter alia, specifically stating that the way is already open and no impediment is created by anyone and the work of tar road is in progress. Moreover, the way which is claimed by the plaintiffs is not at all in existence and the said fact is verified from the village map as well as village form 7 & 12. He has tendered the said letter across the Bar, which is directed to be taken on record. He submits all those facts are clearly found out from the documents and materials available on record, despite that, the Mamlatdar has allowed the suit of the respondents by passing the impugned order, which was subsequently confirmed by the Deputy Collector in revision application. Therefore, the orders passed by the revenue authorities are required to be quashed and set aside by allowing present petition.

6. Learned advocate Mr. Karathiya further submits that the way mentioned in the map is already open but instead of using and utilizing the said way, the respondents are claiming a way from middle of the field of the petitioners and the said way is not at all found in the village map and by way of instituting the suit, respondents have tried to mislead the authority concerned. He further submits that for the purpose of opposing present proceedings, a detailed reply is filed by the respondents, wherein, they have come with the case that the suit is preferred well within the time prescribed in the Act itself by specifically stating that in fact at earlier point of time, petitioners have tried to block the pathway of the respondents, due to which, disputes have been cropped up and ultimately criminal complaint has been registered and thereafter the said way was opened.

7. Learned advocate Mr. Karathiya further submits that in fact the statement of the petitioner No.1 was recorded by the Executive Magistrate wherein he has very categorically stated that the earlier position has already been restored by the petitioners and thereafter the said way has not been blocked by the petitioners. He has read the cross-examination of the plaintiffs and submitted that in the cross- examination, the plaintiff has admitted that the villagers are trying to settle the dispute between the parties since last one to one and half years. Thus, the averment made in the memo of the suit that before about 10 days from the date of filing of the suit, the cause of action has arisen, is not believable and therefore solely on this ground, the suit of the plaintiffs ought to have been dismissed by the Mamlatdar. He further submits that during the course of his cross-examination, one of the plaintiffs has also admitted that there is another alternative way. However, despite admission on the part of one of the plaintiffs that before about one to one and half years, the villagers have tried to settle the dispute between the parties, by ignoring the statutory period prescribed for institution of suit in the Act itself, the Mamlatdar has allowed the suit. Hence, the said view taken by the Mamlatdar is against the statutory provisions of the Act itself and therefore the order passed by the Mamlatdar, which is confirmed by the Deputy Collector is required to be set aside.

8. Learned advocate Mr. Karathiya further submits that another reason for which the suit of the plaintiffs ought not to have been entertained by the Mamlatdar is to the effect that at the time of institution of the suit, the plaintiffs have suppressed material facts about filing of a complaint against the petitioners as well as the fact of recording of statement by petitioner No.1 before the Executive Magistrate in the proceedings initiated against the petitioners under Section 107 and 151 of the Code of Criminal Procedure. He submits that the plaintiffs have not disclosed those material facts only with a sole intent to mislead the revenue authorities.

9. Learned advocate Mr. Karathiya further submits that it is well settled that the proceedings which are initiated under the provisions of the Act are quasi judicial proceedings where the provisions of the Civil Procedure Code are not applied in stricto sensu manner but the mandatory requirement of the statute is required to be followed in stricto sensu manner and if the plaintiff failed to mention a particular date on which the cause of action has arisen, in that event, the suit is not required to be entertained solely on the basis of principle of law of limitation prescribed in the statute itself. The said timeline is required to be strictly adhered with by the revenue authority at the time of deciding the suit. Learned advocate Mr. Karathiya has heavily put reliance upon Sections 5, 6 and 7 of the Act and submitted that a specific date about the occurrence of the cause of action has not been stated in the memo of the suit and during the course of cross- examination, original plaintiff has specifically admitted that the dispute regarding right of way has been started before one to one and half years from the date of institution of the suit itself and therefore the said admission on the part of one of the plaintiffs is self-sufficient ground to reject the suit of the plaintiff. In support of his submissions, he has heavily put reliance upon the following decisions of this Court and submitted that said decisions are squarely applicable to the facts of the present case.

          (1) In Badi Husenbhai Alibhai since Decd. Through Legal Heirs v. Deputy Collector, reported in 2018(0) AIJEL-HC-240396; and

          (2) In Patel Somabhai Jesangbhai v. Patel Nikulbhai Naranbhai, reported on 2022(0) JX (Guj.) 1513.

10. On the other hand, learned advocate Mr. Nishit Gandhi appearing for the private respondents - original plaintiffs has objected present petition with vehemence and forcefully submitted that orders passed by the Mamlatdar as well as Deputy Collector are just, fair and legal and based upon the sound principle of law and therefore those orders are not required to be interfered with by this Court. He submits that the scope of interference of this Court in the matter of concurrent findings of fact is very limited. He further submits that so far as the contention of the petitioners that TDO, Vav addressed a letter to the Deputy Collector, Tharad, inter alia, stating that the way is open and not blocked by any villagers and in fact the way which is sought for by the plaintiffs is not at all in existence, is concerned, he submits that if the Hon'ble Court would make cursory glance upon the contents of the said letter coupled with the map of the village, in that event, it would have been found out that in fact the contents of the said letter support the case of the respondents - original plaintiffs. In the said letter it is specifically stated that from the southern side of the field of the petitioners, a kachha road, which was opened by the Mamlatdar by way of passing an order, is already in existence. There is also a way in the southern-eastern boundary of the field of the petitioner which starts from village Takhatpura and leading towards village Panesada where the construction work of tar road is going on and on the eastern side of the road, there exists land bearing survey No.133 of Harijan Mohanbhai Bhojabhai and after 7 feet from the road, in souther side of land bearing Survey No.135 Paiki (land of the petitioners), land bearing Survey No.134 of the ownership of Chaudhary Navalben Mulubhai is situated. Thus, the factual aspects narrated in the letter of the TDO crystallize the position of fact that on the southern side of agricultural field of the petitioners, a road is in existence, which is opened by the Mamlatdar by way of passing an order and this is the precise issue which is pending before this Court. He submits that if the Hon'ble Court would make cursory glance upon the subject of the said letter, in that event, it would have been found out that the Deputy Collector, Tharad has written a letter to the TDO, Vav for the purpose of removing the obstructions from the road connecting two villages.

11. Learned advocate Mr. Gandhi further submits that petitioners have emphatically submitted that the respondent has admitted during the course of his cross-examination before the Mamlatdar that disputes arose between the parties before about one to one and half years and therefore the suit cannot be said to have been filed within the period prescribed in the statute itself and therefore the Mamlatdar ought not to have entertained the suit. He has read the cross- examination of the respondent - plaintiff and submitted that a pertinent question is asked to the respondent and in reply respondent has admitted that before about one to one and half years from the date of institution of the suit, the villagers have tried to resolve the disputes between the parties. Thus, on the basis of the said admission on the part of the plaintiff, the suit of the plaintiff cannot be said to be barred by the period of limitation prescribed in the statute itself. He submits that the plaintiffs have made a specific averment in the suit itself that the cause of action has arisen before about 10 days from the date of institution of the suit.

12. Learned advocate Mr. Gandhi has drawn the attention of this Court to the village map, which is placed on record, and submitted that if the Court would make cursory glance upon the village map, in that event, it would have been found out that the way which is sought by the plaintiffs is very much in existence, which was blocked by the petitioners and before passing the orders, the revenue authorities have verified those particular facts. He further submits that after the institution of suit by the plaintiffs, a Panchnama as well as Rojkam have been carried out by the concerned revenue authority in presence of the petitioners. Thus, it cannot be said that before passing the order, the Mamlatdar has not followed the statutory procedure of law. He submits that before arriving at the conclusion, the Mamlatdar has also verified all the documents and materials including the Panchnama, Rojkam, village map as well as statements of the villagers and after appreciating and considering all the materials, Mamlatdar jumped to the conclusion that the petitioners have obstructed the right of way of the respondents by removing the thorn fence and merging the road into their agricultural field. He submits that in the Panchnama, it is specifically stated that before about 15 days, the road is blocked by the petitioners. The said panchnama is prepared in presence of the petitioners.

13. Learned advocate Mr. Gandhi further submits that the petitioners have raised a ground regarding suppression of material facts by the plaintiffs at the time of institution of suit. On the contrary, petitioners have suppressed the fact before this Court that one chapter case is registered against them wherein statement of the petitioner No.1 has been recorded by the Executive Magistrate, wherein, he has admitted that he would not create any hindrance in the right of way of the plaintiffs in future. Despite that, before about 10 days from the date of institution of the suit, the petitioners have merged the way, which was used and utilized by the respondents, into their agricultural field by removing thorn fence. He further submits that statements of neighbours have been recorded wherein they have very categorically stated that the way in question has been blocked by the petitioners. He further submits that another Panchnama was also prepared by the Mamlatdar in presence of the parties by paying surprise visit and after recording the statements of the neighbours, the Mamlatdar has formed an opinion that the way in question has been blocked by the petitioners by removing thuhar/thuwar (thorn) plants and merging the way with their land and by doing so, petitioners have tried to create an impression that the said way is not in existence and the portion of way is part of his field.

14. Learned advocate Mr. Gandhi further submits that in fact before about one to one and half years, the petitioners have blocked the right of way of the respondents and at that relevant point of time, the petitioners had beaten the respondents and their relatives and therefore they were constrained to register FIR against the petitioners. Thereafter, charge-sheet came to be filed and trial has already been commenced, wherein some of the persons have been convicted by the learned Trial Court. He has already produced a copy of the order of the conviction passed by the learned Trial Court. He further submits that one of the witnesses in the deposition recorded by the Mamlatdar has stated on oath that petitioners have removed thuhar plants and merged the way with their land and due to the registration of the FIR and initiation of the proceedings under section 107 of the CrPC, the petitioners have opened the said way at that relevant point of time but just before 10 days from the date of institution of the suit, once again petitioners have tried to create impediment upon the said way. Thus, after considering the overall materials and/or documents, the Mamlatdar has passed the order, which is confirmed by the Deputy Collector and therefore there is no error of law and/or facts apparent on the face of the record, which warrants any interference at the hands of this Hon'ble Court. He, therefore, urges that the petition may be dismissed.

15. Learned AGP Ms. Bhati appearing for the respondent Nos. 4 and 5 authorities has adopted the arguments canvassed by learned advocate Mr. Gandhi for the private respondents and submitted that the revenue authorities have not committed any error of law and/or facts while passing the impugned orders and therefore the petition being devoid of merits is required to be dismissed.

16. Having heard learned advocates for the parties and having considered the materials placed on record, it transpires that the private respondents herein have filed a suit under Section 5 of the Act before the Mamlatdar, Vav, inter alia, praying for permanent injunction against the petitioners by restraining them from obstructing the private respondents herein to use the way in question and for removing the obstructions/impediments created by the petitioners over the said way. Pursuant to the institution of the said suit, the Mamlatdar assigned the work of carrying out spot inspection and Panchnama of the place to the Circle Officer, Tundav. Accordingly, the Circle Officer and Talati-cum-Mantri have carried out Panchnama in presence of both the parties, wherein, it is specifically stated that before about 15 days, the way in question has been blocked and no other alternative way is there to go to the land bearing Revenue Survey No.110 (land of the plaintiffs). It is also found out from the record that Rojkam is also carried out. After appreciating and considering the materials available on record including the Panchnama, Rojkam, statement of the witnesses, village map, etc., the Mamlatdar has passed the impugned order, whereby, he has directed the petitioners herein to remove the obstructions and open the way for the use of the plaintiffs. Being aggrieved by the said order, petitioners herein have preferred revision before the Deputy Collector. However, the said revision also came to be rejected. Hence, present petition is preferred.

17. The present petition is filed mainly on the ground that though the plaintiffs have averred in the memo of the suit that before about 10 days from the date of institution of the suit, the cause of action has arisen, but in fact during the course of cross- examination of one of the plaintiffs, he has admitted that the disputes have been cropped up between them before about one to one and half years. Hence, the cause of action mentioned in the suit is not believable. I have also gone through the cross- examination of one of the plaintiffs, which is placed on record. It transpires that the said plaintiff has admitted during the course of his cross-examination that the villagers have tried to resolve the dispute which is going on between the parties since last one to one and half years. However, on the strength of said affirmative answer given by one of the plaintiffs during the course of cross-examination conducted by the counsel of the defence, to the question put to him, it cannot be said that there is admission on the part of the plaintiffs because at the time of appreciating the said evidence other surrounding circumstances are also required to be seen and it is the settled proposition of law that evidence led before the authority concerned is to be read as a whole and it cannot be read as a piecemeal. Admittedly, herein this case on hand, it is the case of the plaintiffs from very inception that before about one to one and half years (12 to 18 months) from the date of institution of the suit, disputes have been cropped up by and between the parties and at that relevant point of time Chapter Case as well as FIR have been registered by the plaintiffs against the defendants and at that relevant point of time due to intervention of the villagers, settlement has been arrived at and statement of petitioner No.1 has been recorded, wherein, he has specifically stated that whatever impediments generated by the petitioners have been removed and the original position of the way has been restored by the petitioners. Therefore, at the time of considering and appreciating the evidence, all the documents and materials available on record as well as surrounding circumstances are required to be seen. Thus, the suit of the plaintiffs cannot be said to have been filed beyond the period of limitation prescribed in the statute itself. Moreover, the plaintiffs have specifically stated in the memo of the suit itself that the cause of action has arisen before about 10 days from the date of institution of the suit and the said fact is also fortified from the Panchnama of the place, which has been carried out by the Circle Officer and Talati- cum-Mantri in presence of both the parties. Thus, in the opinion of this Court, the averment made by the plaintiffs in the suit is corroborated by other piece of evidence as well. Hence, the said contention raised by the petitioners is not required to be accepted.

18. Moreover, another ground which is sought to be canvassed by learned advocate for the petitioners is that at earlier point of time, disputes have been cropped up between the parties and plaintiffs have filed one Chapter Case against the petitioners, wherein, the Executive Magistrate concerned has recorded the statement of the petitioner No.1 and at that relevant point of time, petitioner No.1 has already stated before the Executive Magistrate that whatever obstructions/impediments created by the petitioners have been removed and earlier position of the way has been restored and said fact is also fortified from the communication addressed by the TDO, Vav to the Deputy Collector, Tharad. However, at the time of filing the suit, the said important aspect has not been disclosed by the plaintiffs. Thus, there is suppression of material facts on the part of the plaintiffs with a sole intent to misguide the revenue authorities concerned. Learned advocate for the petitioners has also relied upon one communication entered into by and between the TDO, Vav and Deputy Collector, Tharad. However, if the contents of the said letter are to be seen, in that event, it would have been found out that the TDO, Vav has specifically stated about existence of way, which was ordered to be opened by the Mamlatdar by way of passing an order. Thus, on the contrary, the said letter supports the case of the original plaintiffs - private respondents herein. So far as the suppression of material facts by the respondents at the time of filing the suit is concerned, learned advocate Mr. Gandhi for the private respondents has submitted that on the contrary petitioners have suppressed the materials facts before this Court and they have not disclosed the fact of initiation of proceedings under Section 107 of CrPC by the respondents against the petitioners. It is also the case of the petitioners that one alternative way is also in existence and plaintiffs were using that way. However, it is pertinent to note that the Panchnama, which is carried out in presence of both the parties, does not support the case of the petitioners about existence of an alternative way for the respondents herein to reach to their agricultural land. Moreover, it is well settled that suit of the plaintiffs cannot be rejected on the ground of existence of an alternative way.

19. I have also perused the documents placed on record from which it transpires that the petitioners have removed the thuhar plants (which are generally used for making the boundary of the land) and thereby merged the way in question with their land and tried to create an impression that in fact there was no way and plaintiffs sought a right of way from their agricultural field. The Mamlatdar as well as Deputy Collector have appreciated and considered all the materials and thereafter passed the impugned orders. The scope of interference of this Court in the matter of concurrent findings of fact recorded by the Court/Authority is very limited. I have also gone through the decisions upon which reliance is being placed by learned advocate for the petitioners. I am in complete agreement with the ratio laid down in the said decisions but they would not be of any help to the petitioners, considering the facts of the present case.

20. In view of the aforesaid discussion, the petition being devoid of merit, is required to be rejected. Accordingly, petition stands rejected. Notice discharged.