1. By this revision under section 115 of the Code of Civil Procedure, 1908 (hereinafter referred to as “the Code”), the revisionists (original defendants) have challenged the order dated 21.3.2011 passed by the Assistant Collector, Patan in Revision Application No.3 of 2011 whereby, he has rejected the revision filed by the revisionists and has confirmed the order dated 29.6.2010 passed by the Mamlatdar, Harij in Mamlatdar Case No.2 of 2009.
2. The respondent No.1 – original plaintiff instituted a suit in the Court of the Mamlatdar, Harij under section 5(2) of the Mamlatdars’ Courts Act, 1906 (hereinafter referred to as “the Act”) contending that the plaintiff was the owner of land bearing survey No.592/p/37, situated in the sim of village Vansa which he was cultivating for several years. The said survey number belonged to the plaintiff from the time of his ancestors. That the survey No.592/p is a huge area having several sub-survey numbers. That the defendants were jointly holding land bearing survey No.592/p/33 since the time of their ancestors. It was the case of the plaintiffs that for the purpose of going to the plaintiff's survey No.592/p/37, the plaintiff had to pass through the way passing near the boundary of the defendants' land bearing survey No.592/p/33. That the defendants with a view to prevent the plaintiff from going towards Roda, had on 21.7.2009, that is one month prior thereto, planted a hedge of cactus and closed the plaintiff's way, hence, he was not in a position to go to his land bearing survey No.592/p/37. The plaintiff, accordingly, prayed that the defendants be directed to open the way passing through their land bearing survey No.592/p/33.
3. Pursuant to the institution of the suit by the plaintiff, the Mamlatdar, Harij issued notices to the defendants and after recording the depositions of the witnesses of the plaintiff as well as the defendants, and after examining the documentary evidence on record, found that there was a way in existence for the purpose of going to Roda, which was passing through land bearing survey No.592/p/33 belonging to the defendants and that the defendants had obstructed the same. The Mamlatdar, accordingly, held that there was a way passing through the land bearing survey No.592/p/33 of the defendants for the purpose of going to the plaintiff's land bearing survey No.592/p/37 and ordered the defendants not to prevent the plaintiff along with his plough, bullock-cart etc. from passing through the said way.
4. Being aggrieved, the revisionists-defendants went in revision before the Assistant Collector, Patan under section 23(2) of the Act. The Assistant Collector, after considering the submissions advanced on behalf of the respective parties, perusing the documentary evidence on record and considering the depositions of the witnesses and the reasons assigned by the Mamlatdar for passing the impugned order, was of the view that no way could be said to be passing through the Vahola (rivulet) and Bhekhad (ravines) for the purpose of going to the field. He, accordingly, did not find any reason for interfering with the order passed by the Mamlatdar and rejected the revision, which has given rise to the present revision under section 115 of the Code.
5. Mr. P. P. Majmudar, learned advocate for the revisionists assailed the impugned order passed by the Assistant Collector, submitting that the said order is not a reasoned order inasmuch as, there is nothing in the impugned order to show that the Assistant Collector has independently apply his mind to the controversy in issue. Referring to the impugned order, it was submitted that the entire findings recorded by the Assistant Collector is in four lines whereby, he has recorded that he has perused the papers, considered the submissions as well as the depositions of the parties. It was submitted that the only reason assigned by the Assistant Collector is that there could be no way passing through the canals and ravines. It was submitted that the Assistant Collector having failed to apply his mind to the evidence on record and having failed to record independent findings on the merits of the case, the impugned order deserves to be quashed and set aside as being a non- reasoned order and the matter deserves to be remanded to the Assistant Collector for deciding the same afresh.
6. On the merits of the case, it was submitted that the only evidence led by the plaintiff was by way of depositions of two witnesses who had deposed that there was a way passing through the land. It was submitted that in contradiction to the depositions of the witnesses of the plaintiff, the defendants had examined five witnesses in support of their case. However, the Mamlatdar had chosen to ignore the depositions of the defendants' witnesses as not being relevant and had placed reliance upon the depositions of the two witnesses examined by the plaintiff. It was submitted that the plaintiff had not produced any documentary evidence on record to demonstrate that there was a way in existence over the land of the defendants. It was submitted that by merely placing reliance upon a tracing of a map and the depositions of the plaintiff's witnesses, the Mamlatdar had held that there was a way passing through the land of the defendants. It was submitted that the aforesaid evidence laid by the plaintiff cannot be said to be sufficient evidence so as to establish existence of the way. Under the circumstances, in the absence of proper evidence being adduced by the plaintiff, the Mamlatdar was not justified in holding that there was a way passing through the land of the plaintiff and the Assistant Collector was not justified in confirming the same.
7. Inviting attention to the order passed by the Mamlatdar under section 5 of the Act, it was submitted that the Mamlatdar has declared that there is a way passing through the land of the defendants. It was submitted that such a declaration can only be given by a civil court and as such, the Mamlatdar could not have given such a declaration. It was urged that the findings of the Mamlatdar would come in the way of the defendants in the civil suit instituted by them against the plaintiff.
8. Referring to the affidavit-in-reply filed by the respondent No.1, it was pointed out that the defendants had instituted a suit against the plaintiff for a permanent injunction restraining the present plaintiff from using the suit way. Considering the nature of the dispute between the parties, the respondent-plaintiff ought to have approached the civil court for the purpose of seeking the relief which he has prayed for in the suit under the Mamlatdar Courts Act. It was, accordingly, submitted that the Assistant Collector having failed to exercise the jurisdiction vested in him by properly examining the facts of the case, the impugned order is required to be quashed and set aside and the matter is required to be remanded to the Assistant Collector for deciding the same afresh.
9. In support of his submissions, the learned advocate placed reliance upon the decision of this court in the case of Kiritsinh Dharamvirsinh v. Kalubhai Shardulbhai and others, 2006 (3) GLR 2031, for the proposition that ultimately, the parties can always resort to civil proceedings for getting their rights declared by filing appropriate civil suit. So far as the proceeding under the Act is concerned, it is a summary proceeding in nature.
10. Opposing the revision, Mr. Mahendra Patel, learned advocate for the respondent submitted that the order passed by the Assistant Collector as well as the order passed by the Mamlatdar, have been made after duly considering the facts of the case, the evidence on record and circumstances of the case, as well as the settled position of law. It was urged that the impugned orders being just, legal and proper, do not call for any interference by this court. It was submitted that the plaintiff had adduced sufficient evidence in support of his case. It was submitted that the Mamlatdar had recorded the plaintiff's deposition as well as the deposition of Thakor Jakhtaji Joitaji as well as statements of the revisionists herein and their witnesses, and after considering the facts, evidence and the circumstances of the case, had allowed the proceedings. It was contended that the Mamlatdar as well as the Assistant Collector having recorded concurrent findings of fact, in the absence of any jurisdictional error, there is no warrant for interference in exercise of powers under section 115 of the Code.
11. In the backdrop of the facts and contentions noted hereinabove, it may be germane to refer to the order passed by the Mamlatdar under section 5(2) of the Act. The Mamlatdar, in the impugned order, has referred to the deposition of the plaintiff Thakor Meruji Jakhtaji wherein he has stated that the defendants have closed the way and that there is no other way for approaching his land. It has been further observed that in the cross-examination, nothing contrary has been elicited by the defendants. The Mamlatdar has also referred to the deposition of Thakor Jakhtaji Joitaji who has admitted that there was a way passing through the land of the defendants, which was being used by the plaintiff. The said witness has stated that an ordinary person would have the knowledge that since the vahola (rivulet) consists of ravines, bullock-carts and ploughs cannot pass through the same and as such, it is natural that there is no way passing through the same. Insofar as the deposition of the witnesses examined by the defendants is concerned, the Mamlatdar has recorded that witness, Thakor Ramaji Manaji had clearly admitted that there was a way passing through which was being used by the plaintiff. That witness Thakor Jayantiji Manaji examined by the defendants had also stated that upon the field of Thakor Paruben Kurshiji being purchased, the way had been closed. Thus, the said witness, in his cross-examination, has clearly admitted that the defendant No.1 had closed down the way through which the plaintiff was passing. Insofar as the witness Nandaben Manaji Thakor is concerned, the Mamlatdar took note of the fact that she was not a resident of village Kalvan. Similarly, witness Thakor Arjanji Khumanji has stated that the way of the plaintiff was not passing through the defendants' land, however, he has not stated as to from which way the plaintiff was normally passing. The Mamlatdar has further observed that the said witness was a relative of the defendants and as such, was deposing in their support. Similarly, in the case of witnesses Thakor Mafaji Bajuji, Thakor Chanduji Mulaji and Thakor Dineshji Sursangji, the Mamlatdar has observed that they have stated that there was no way passing, however, none of them have stated as to from which way the plaintiff could reach his field. The Mamlatdar was also of the view that the said witnesses, who were related to the defendants, were merely deposing in their favour. The Mamlatdar after considering the depositions of the said witnesses, as well as tracing of the map which indicated that there was a way passing through the land of the defendants, came to the conclusion that there was a way passing through the land of the defendants bearing survey No.592/p/33 for the purpose of going to the plaintiff's land bearing survey No.592/p/37 and accordingly, restrained the defendants from preventing the plaintiff from using the said way.
12. The Assistant Collector, in the impugned order, has referred to the submissions advanced on behalf of the respective parties and has after going through the documentary and oral evidence, concurred with the findings recorded by the Mamlatdar and has observed that there could be no way passing through the vahola (rivulet) and bhekhad (ravines) and did not find reason to interfere with the order passed by the Mamlatdar.
13. It is true that the Assistant Collector has not given detailed reasons for coming to the conclusion that there was a way passing through the plaintiff's land. However, on a perusal of the impugned order, it cannot be said that the same is a totally unreasoned order. The Assistant Collector has referred to the facts of the case as well as the submissions advanced on behalf of the respective parties, and has concurred with the findings recorded by the Mamlatdar. It is settled legal position that when a superior authority concurs with the findings recorded by the lower authority, it is not necessary to again reiterate the entire discussion. The Assistant Collector having agreed with the findings recorded by the Mamlatdar, it cannot be said that the impugned order is an unreasoned order. Besides, it may be noted that the Assistant Collector was exercising powers of revision under section 23(2) of the Act. This court in the case of Kiritsinh Dharamvirsinh v. Kalubhai Shardulbhai and others (supra), held that in a revision against an order passed by the Deputy Collector, this court is required to see whether the order passed by the Deputy Collector suffers from any jurisdictional error. The court observed that the powers of revision under section 23 of the Act available with the Deputy Collector is much wider than the power of revision available to this court under section 115 of the Code.
14. In the facts of the present case, insofar as the impugned order passed by the Assistant Collector is concerned, no jurisdictional error has been pointed out by the learned advocate for the revisionists so as to warrant exercise of powers under section 115 of the Code. All that is stated is that the said order is an unreasoned order and that the Assistant Collector has not independently applied his mind to the evidence on record. As already noted hereinabove, the Assistant Collector, though very briefly, has given reasons for confirming the order passed by the Mamlatdar. In the circumstances, it cannot be said that the order passed by the Assistant Collector is an unreasoned order so as to call for intervention in exercise of powers under CRA/152/2011 10/10 JUDGMENT section 115 of the Code.
15. Insofar as the apprehension that the Mamlatdar having declared that the suit way is in existence, which according to the learned advocate, may come in the way of the defendants in the civil suit instituted by them is concerned, it may be germane to refer to the provisions of section 22 of the Act and more particularly to the proviso thereto, which lays down that in any subsequent suit or other proceeding in any civil court between the same parties or other persons claiming under them, the Mamlatdar's decision respecting the possession of any property or the enjoyment of any use or respecting the title to or valuation of any crop dealt with under the proviso to sub- section (1) of section 21, shall not be held to be conclusive. Under the circumstances, when the Act itself contemplates that the findings recorded by the Mamlatdar cannot be conclusive in a civil suit instituted between the same parties, the apprehension voiced is without any basis.
16. In the light of the above discussion, in the absence of any jurisdictional error in the impugned order passed by the Assistant Collector, no case is made out so as to call for intervention in exercise of powers under section 115 of the Act. The revision, therefore, fails and is, accordingly, dismissed.
[HARSHA DEVANI, J.] parmar*