1.00. Present Civil Revision Application under section 115 of the Code of Civil Procedure has been preferred by the petitioners - original respondents to quash and set aside the impugned order passed by the Mamlatdar, Pardi in Mamlatdars' Courts Act Case No.11 of 2011 dtd.22/3/2012, by which the petitioners herein are restrained from obstructing the original applicants from using the disputed way, from the land of the petitioners to go to their land, which was alleged to have been closed as well as the impugned order passed by the revisional authority - Dy.Collector, Pardi in Mamlatdars' Courts Act Revision Application No.2 of 2012, by which the revisional authority has dismissed the said revision application confirming the order passed by the Mamlatdar, Pardi.
2.00. Mr.Rushabh Shah, learned advocate appearing on behalf of the petitioners has vehemently submitted that as such there was no right of way. It is submitted that even the learned Mamlatdar, had not followed the procedure as required under section 19/20 of the Mamlatdars' Courts Act, 1906 (Bombay Act No.II of 1906) and the order was not declared in presence of the parties.
2.01. Mr.Rushabh Shah, learned advocate appearing on behalf of the petitioners has further submitted that as such there are standing trees on the disputed way and therefore, as such there was no right of way and therefore, the Mamlatdar ought not to have passed the impugned order.
2.02. Mr.Rushabh Shah, learned advocate appearing on behalf of the petitioners has further submitted that as such the order passed by the Mamlatdar was malafide and in fact the petitioners submitted application before the Collector to transfer the case from the court of the Mamlatdar.
By making above submissions, it is requested to admit/allow the present Civil Revision Application.
3.00. Heard Mr.Shah, learned advocate appearing on behalf of the petitioners and considered the impugned orders passed by the authorities below.
4.00. At the outset, it is required to be noted that there are concurrent finding of facts recorded by both the courts below holding that the original applicants had a right of way which had been closed. As observed and held by the learned Single Judge of this Court in the Case of Kiritsinh Dharamvirsinh Versus Kalubhai Shardulbhai & Others, reported in 2006 (3) GLR 2031, proceedings arising out of the Mamlatdars' Courts Act are summary in nature. Even otherwise, this Court has limited jurisdiction under section 115 of the Code of Civil Procedure against the orders passed by the Mamlatdar and Dy.Collector and therefore, this Court is not required to interfered with the order passed by the Dy.Collector, unless it has been found that the Dy.Collector has committed an error of jurisdiction. As observed and held by this Court in the aforesaid decision, ultimately the parties can always resort to civil proceedings for getting their rights declared by filing appropriate Civil Suit. Under the circumstances, if the petitioners herein are aggrieved by the orders passed by the Mamlatdar as well as the Dy.Collector, in that case, they can always resort to civil proceedings for getting their rights declared by filing appropriate Civil Suit.
4.01. Now, so far as the contention on behalf of the petitioners with respect to non-compliance of section 19/20 of the Mamlatdars' Court Act i.e. in not declaring the order by the Mamlatdar in presence of the parties is concerned, on the aforesaid ground, order passed by the Mamlatdar confirmed by the Dy.Collector is not required to be quashed and set aside.
4.02. Now, so far as the contention on behalf of the petitioners that in the disputed way there are standing trees which might be damaged and/or cut is concerned, it will always be open for the petitioners to contend before the Mamlatdar while implementing the impugned orders that the old standing trees may not be cut.
4.03. Even otherwise, there are concurrent finding of facts recorded both the courts below which are not required to be interfered with by this Court in exercise of powers under section 115 of the Code of Civil Procedure.
4.04. With these, present Civil Revision Application is dismissed with an observation that as and when any substantive suit is filed by the petitioners, the same shall be considered in accordance with law and on merits. In the facts and circumstances of the case, there shall be no order as to costs.
[M.R. SHAH, J.] rafik Top