1. The petitioner is the original plaintiff of Regular Civil Suit No. 314/2009 instituted in the Court of Principal Senior Civil Judge, Bhavnagar. Challenge in this petition is to the order dated 20th August 2011 passed in Misc. Appeal No. 65/2010 by the learned 5th (Adhoc) Addl. District Judge, Bhavnagar dismissing the appeal and thereby confirming the order of the learned Principal Civil Judge in the following factual background.
2. The petitioner instituted the said suit for declaration and permanent injunction to the effect that respondent No. 5 has no right to carry carts/vehicles through his land being agricultural land bearing survey No. 4/1 admeasuring 3 acres 18 gunthas.
3. As it emerges from the record, Khodabhai Valabhai was the grandfather of the petitioner who purchased the agricultural land bearing survey Nos 4/1 and 4/2 district Bhavnagar, subdistrict : Gariyadhar, village Bhandaria from Devabhai Amrabhai by sale deed dated 11th May 1959. After the death of Khodabhai Valabhai, names of his three sons namely Shri Arjanbhai Khodabhai, Shri Jivabhai Khodabhai and Shri Kalabhai Khodabhai were mutated in the revenue records. The father of the present petitioner, Arjanbhai Khodabhai inherited 3 acres 18 gunthas land from survey No. 4/1 paiki.
4. Devabhai Amrabhai was holding another land being the land bearing survey No. 4 paiki 3 vighas. On 20th March 1961. he sold his land to Khodabhai Ramabhai Kalabhai sold his part of land from survey No. 4 paiki, 2 acres to respondent No. 5 on 21st February 1989. It is the say of the petitioner that respondent No. 5 does not derive any right of way over the property of the petitioner by any statement made by him being the third party.
5. Under section 5 of the Mamlatdar Courts Act right of way was permitted by Mamlatdar under the said statute. The said order according to the petitioner is being based on the fiscal entry with fine say that the provisions of the Mamlatdar Act are not determinative of civil rights of the parties.
6. Learned advocate Mr Shah has agreed that the proceedings of Mamlatdar's Court Act have not been challenged. Since there is no remedy except preferring the writ petition. However, the injunction has been refused only on the ground of order passed by the Mamlatdar Court in the proceedings before it. He sought to rely essentially on the decision reported in 2006 GLR 2031. According to the learned advocate for the first time in the registered sale deed executed by Ramabhai Kalabhai in favour of respondent No. 5, there is reference of right of way which is the subject matter of appreciation. It is insisted that an alternative way, exists and therefore also, the way in question cannot be claimed.
7. Learned advocate Mr. Trivedi urged this Court not to interfere in this petition as there are concurrent findings of two Courts. He heavily relied upon the decision of this Court rendered in the case of Sarabji Derabji Vesuna Vs. Nanjibhai Jirabhai Umarigar reported as 2001(3) GLH pg 759 wherein it has clearly held that whenever the party approaches the Civil Court for injunction for protecting his rights and if dispute, till such filing was adjudicated by Mamlatdar Court under section 5 of the said Act, till the stage of injunction application, ordinarily the Civil Court should respect such findings of the Mamlatdar Court.
8. Learned advocate Mr. Shah has not disputed this ratio. However, he sought to advance the say that in any such circumstance, the burden is required to be discharged by the party and so in the instant case the ratio of this decision would have no bearing on the case.
It would be apt to reproduce Section 5 of the Mamlatdar Courts Act are as follows.
5. Powers of Mamlatdars Courts: (1) Every Mamlatdar shall preside over a Court, which shall be called a Mamlatdar's 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 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 j 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 twelve years before the institution of the suit of the property or use claimed, or who is the legal representative of such former owner of party owner:
Provided that, if in any case the Mamlatdar considers it inequitable or unduly harash (to remove or course 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 is 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 subsection (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 as to disturb or obstruct any person, in the procession 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 watercourse, whether natural or artificial used for agricultural purposes or in the use of roads or customary ways thereto to issue an injunction to the person (erecting or who has attempted to erect such impendment, 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) Suit 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 wich 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.”
9. It is undisputed fact that the decision of the Mamlatdar Court's Act cannot come in the way of adjudicating civil rights of the parties before the Civil Courts. For a limited purpose of clearing the obstructions Mamlatdar's Court adjudicates disputes when preferred within six months. And therefore ordinarily at the time of hearing the notice of motion unless the positive findings are dislodged no disturbance can be made by this Court in the position existing as per the Mamlatdar Court's Order at the time of hearing the notice of motion.
9.1 This Court in the decision rendered in cases of Kureshi Hussainbhai Motibhai & Ors. Vs. Saiyad Sidar Kesharbhai & Ors., reported in 1985(1) GLR 139 and in case of Gandabhai Dalpatbhai Patel V.s State of Gujarat & Ors., reported in XLVI (2) GLR 1370 have made it amply clear that Mamlatdar Court's decision cannot be determinative of rights of the parties to be necessarily adjudicated by the Civil Courts. Hence, in the authority relied upon shall need to be reviewed along with these two judgments.
10. When order of both the Courts are examined, in the aforementioned price they clearly reveal prima facie case of respondent No. 5. The balance of convenience is held to be in favour of respondent of No. 5. No jurisdictional error is pointed out by the petitioner for this Court to interfere with the said findings.
11. Independently examining the issue it can be noted that by way of registered sale deeds the grandfather of the petitioner purchased the land from one Devanbhai Amarabhai in the year 1959, and in the year 1961, there is a reference of the way. Of course there appears that different reference of right of way and the clear particulars are missing in the family partition. However, Parcel of the land being 4 acres when was transferred on sale to Ramabhai Kalabhai. he sold it to respondent No. 5 in the year 1989. For the first time document mentions right of way, However, if there is an absence of such way in the family partition of the year 1976 and subsequent transfers in favour of Kala koda and thereafter in favour of Ramabhai Kalabhai but that may not ipso facto indicate clear absence of such way. Moreover, when the dispute was taken to the Court of Mamlatdar for the first time in the recent past by preferring the case No. 7/07 under section subclause (1) of 5 of the Mamlatdar Court Act, it reveals that the petitioner herein had closed the right of the respondent No. 5 on dated 7th November 2007 and therefore, the party approached Mamlatdar Court for removing the obstruction. Meaning thereby that upto the year 1989, there was no impediment but such question of obstruction arose on 7th November 2007 and there was thoroughfare from the land of the petitioner. Again availability of the alternative way which is as per the map from long route to reach the main highway that ipso facto cannot entitle the party to have the right of way, if, there exists none. Admittedly, the alternative route is very long route. Be that as it may, suffice to hold that at the interim stage no case is made out by the petitioner to interfere with the order impugned. Resultantly this petition fails and stands dismissed.
(Ms. Sonia Gokani,J.) mary//