1. The present Civil Revision Application u/s.115 of the Code of Civil Procedure has been preferred by the petitioners herein - original opponents to quash and set aside the impugned order dated 21/11/2010 passed by the Mamlatdar, Chikhli u/s.5 of the Mamlatdar Courts Act as well as the impugned order dated 17/10/2011 passed by Deputy Collector, Chikhli in Mamlatdar Courts Act Revision Case No.2 of 2011.
2. That the respondents herein - original applicants submitted application before the Mamlatdar, Chikhli under the Mamlatdar Courts Act claiming right of way from the land bearing Block Nos.443 and 175 situated at Village: Jogwad, Taluka: Chikhli alleging inter-alia that land bearing Block Nos.443 and 175 are joint ownership of the petitioners and respondents and they are in possession of the their respective shares as per partition and cultivating their respective lands. It was alleged that the right of way to reach to their lands from the land bearing Block Nos.443 and 175 has been closed by the petitioners herein - original opponents. That on appreciation of evidence, Mamlatdar, Chikhli vide order dated 21/11/2010 has directed the petitioners herein - original opponents to open the way and permitted the respondents herein - original applicants to go to their respective agricultural lands from the land bearing Block Nos.443 and 175. That the Mamlatdar, Chikhli also passed an order that the parties to act as per the decision, which may be delivered by learned Civil Court.
Being aggrieved by and dissatisfied with the impugned order dated 21/11/2010 passed by Mamlatdar, Chikhli in Mamlatdar Courts Act Case No.3 of 2007, the petitioners herein - original opponents preferred Mamlatdar Court Act Revision Case No.2 of 2011 before the Deputy Collector, Chikhli, who vide impugned order dated 17/10/2011 has dismissed the said Civil Revision Application confirming the order passed by Mamlatdar, Chikhli and also observing that the parties to act as per the decision, which may be taken by learned Civil Court in Regular Civil Suit No.10 of 2008.
Being aggrieved by and dissatisfied with the impugned orders passed by the Mamlatdar, Chikhli as well as Deputy Collector, Chikhli, the petitioners herein - original opponents have preferred the present Civil Revision Application u/s.115 of the Code of Civil Procedure.
3. Mr.Deep D. Vyas, learned advocate appearing on behalf of the petitioners herein - original opponents has vehemently submitted that both the authorities below have materially erred in granting the reliefs, which were not even prayed. It is submitted that the order passed by the Mamlatdar, Chikhli confirmed by the Deputy Collector, Chikhli is contrary to the evidence on record. It is submitted that as such both the authorities have erred in exercising the powers beyond scope of jurisdiction. In the Mamlatdar Courts Act, the Mamlatdar is only entitled to issue injunction and could not issue direction to the respondents to measure the land and divide the way thereafter. By making above submissions, it is requested to admit/allow the present Civil Revision Application.
4. The present Civil Revision Application is opposed by Mr.Harnish Darji, learned advocate appearing on behalf of the respondents herein - original applicants. It is submitted that as such there are concurrent findings of facts given by both the Courts below directing the petitioners herein - original opponents to open the way, which has been closed by them and permitting the respondents herein - original applicants to go to their lands from the land bearing Block Nos.443 and 175. It is submitted that even both the Courts below have specifically observed that the same shall be subject to ultimate outcome of the Civil Suit and the parties to act as per the same. Therefore, relying upon decision of this Court rendered in the case of Kiritsinh Dharamvirsinh V/s. Kalubhai Shardulbhai & Ors. reported in 2006(3) GLR 2031, it is requested to dismiss the present Civil Revision Application.
5. Heard advocates appearing on behalf of the respective parties at length and considered the impugned orders passed by both the Courts below.
6. At the outset, it is required to be noted that the petitioners herein and respondents herein are brothers and there is a dispute with respect to division of the land bearing block Nos.443 and 175, for which, Regular Civil Suit No.10 of 2008 is already pending before Civil Court. The dispute is with respect to right of way claimed by the respondents herein - original applicants to go to their agricultural land (part of land bearing block No.175). It is required to be noted that the respondents herein - original applicants had right of way to go to their field from the land bearing Block No.175, which is in occupation and possession of the petitioners herein. From the map, it appears that land bearing Block No.175, which is in possession of the petitioners is in between Block No.175 (part) occupied by the respondents herein - original applicants and, therefore, the original applicants have claimed right of way from the land bearing block No.175 (part), which is in occupation and possession of the petitioners herein, which was already in existence and which has been closed by the petitioners herein. Under the circumstances and considering the map, which has been produced by the learned advocates appearing on behalf of the respective parties and on appreciation of evidence, when both the Courts below have passed the impugned orders under the Mamlatdar Courts Act subject to intimate outcome of the Civil Suit and directing the parties to act as per decision, which may be delivered by the Civil Suit, it cannot be said that both the Courts/authorities below have committed an error in passing the impugned orders.
7. In the case of Kiritsinh Dharamvirsinh (supra), while considering the order passed u/s.5 of the Mamlatdar Courts Act, learned Single Judge has observed that the proceedings under Section 5 of the Mamlatdar Courts Act are summary proceedings and remedy is to file Civil Suit. In the said decision, it is specifically observed by learned Single Judge that in exercise of its very limited jurisdiction u/s.115 of the Code of Civil Procedure, this Court is not required to interfere with the order passed by Deputy Collector and it is further observed that ultimately the parties can always resort to civil proceedings for getting their rights declared by filing appropriate civil suit.
8. Under the circumstances and more particularly when both the Courts below have passed orders directing the parties to act as per the decision that may be taken by Civil Court in Regular Civil Suit No.10 of 2008, no case is made out to interfere with the impugned orders passed by both the Courts below in exercise of powers u/s.115 of the Code of Civil Procedure.
9. In view of the above and for the reasons stated hereinabove, the Civil Revision Application fails and the same deserves to be dismissed and is accordingly dismissed.
[M.R.SHAH,J] *dipti ML> Top