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Gujarat High Court
Bhaskarbhai vs By on 30 November, 2011
Author: Harsha Devani,
  
 Gujarat High Court Case Information System 
    
  
    

 
 
    	      
         
	    
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CRA/173/2011	 29/ 29	JUDGMENT 
 
 

	

 

IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
 

 


 

CIVIL
REVISION APPLICATION No.173 of 2011
 

 
 
For
Approval and Signature:  
 
HONOURABLE
MS. JUSTICE HARSHA DEVANI
 
 
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1
		
		 
			 

Whether
			Reporters of Local Papers may be allowed to see the judgment?
		
	

 
	  
	 
	  
		 
			 

2
		
		 
			 

To
			be referred to the Reporter or not?
		
	

 
	  
	 
	  
		 
			 

3
		
		 
			 

Whether
			their Lordships wish to see the fair copy of the judgment?
		
	

 
	  
	 
	  
		 
			 

4
		
		 
			 

Whether
			this case involves a substantial question of law as to the
			interpretation of the constitution of India, 1950 or any order
			made thereunder?
		
	

 
	  
	 
	  
		 
			 

5
		
		 
			 

Whether
			it is to be circulated to the civil judge?
		
	

 

 
=========================================


 

BHASKARBHAI
LAKSHMISHANKER MEHTA - Applicant(s)
 

Versus
 

PRAVINBHAI
MOHANBHAI ZALAVADIYA & 24 - Opponent(s)
 

========================================= 
Appearance: 
MR
SHAKTI S JADEJA for
Applicant(s): 1, 
MR SANDEEP N BHATT for Opponent(s): 1 - 19. 
MR
BIPIN BHATT, ASSISTANT GOVERNMENT PLEADER for Opponent(s): 24, 25
 
=========================================
 
	  
	 
	  
		 
			 

CORAM
			: 
			
		
		 
			 

HONOURABLE
			MS. JUSTICE HARSHA DEVANI
		
	

 

 
 


 

Date
: 30/11/2011 

 

 
CAV
JUDGMENT 

1. By this application under section 115 of the Code of Civil Procedure, 1908 (the Code), the applicant has challenged the order dated 20th July, 2011 passed by the Deputy Collector, Rajkot in Revision Case No.1/2011 as well as order dated 30th April, 2011 passed by the Mamlatdar, Padadhari, district Rajkot in Mamlatdar's Court's Case No.4/2009.

2. The facts of the case as appearing in the memorandum of the application are that one Maganbhai Nanjibhai Zalavadiya filed an application before the Mamlatdar, Padadhari seeking directions against the applicant and other defendants not to restrain the original plaintiffs from passing through the land situated on Survey No.135 paiki 2, village Targhadi, taluka Padadhari, district Rajkot which land is of the ownership of the applicant. By an order dated 16th October, 2009, the Mamlatdar granted an ex parte injunction and directed the applicants and others not to obstruct the plaintiffs from passing through the disputed way ("Gaada Marg") till the final disposal of the case and further directed them to maintain status quo. The applicant alongwith other defendants filed their detailed reply to the aforesaid suit contending that the disputed "gaada marg" never existed on the land of the applicant. In the said case, the original defendants, including the applicant and the original plaintiff Maganbhai Zalavadiya, filed a settlement purshis before the Mamlatdar in the month of August, 2010 wherein it was inter alia stated that there does not exist any disputed way (gaada marg) on the land of the applicant. The original plaintiff Maganbhai Zalavadiya also filed an affidavit on oath for withdrawing the case, inter alia stating that the disputed way does not pass through the lands of the applicant and that the original plaintiff Maganbhai Zalavadiya was under a wrong impression as regards the same. The applicant and the other defendants filed an application on 19th October, 2010 alongwith the aforesaid affidavit requesting the Mamlatdar that since the original plaintiff Maganbhai Zalavadiya has filed the aforesaid affidavit for withdrawal, the case may be disposed of. Thereafter on 2nd November, 2010, twenty one persons including the respondents No.1 to 19 herein filed an application before the Mamlatdar raising certain objections against the affidavit filed by Maganbhai Zalavadiya and stated that they are desirous to proceed with the case. On notices being issued by the Mamlatdar, two of the aforesaid persons namely one Shri Viralbhai Laljibhai Busa and Hira Ranchhodbhai vide communication dated 12th November, 2010 and 15th November, 2010 stated that they were not aware about the aforesaid suit before the Mamlatdar and that they are not even aware about how they were joined as plaintiffs in the case and that do not have any dispute with the applicant and other defendants. On 19th November, 2010, the applicant and other defendants made an application stating that the aforesaid case was filed by persons who do not even happen to be the neighbours of the applicant nor do they even have any land nearby the land of the applicant and that the said persons are wrongly added as plaintiffs, and accordingly, requested the Mamlatdar to make verification of the said persons in presence of the applicant. Pursuant to the said application, the Mamlatdar did not call any of the aforesaid persons for their verification.

2.1 One Harijan Kamabhai Lakhabhai, the erstwhile owner of the lands of the applicant, had instituted a suit being Special Civil Suit No.68/1998 before the concerned civil court at Rajkot against the father of the applicant and opponents No.20 to 23, that is, the original defendants No.1, 2. 4 and 5 for a declaration and injunction and for cancellation of the sale deed dated 24th September, 1996 which was executed in favour of the father of the applicant in respect of the land in question. The said suit came to be dismissed by a judgment and decree dated 30th January, 2010 passed by the learned Additional Senior Civil Judge, Rajkot.

2.2 The applicant alongwith others had instituted a suit being Regular Civil Suit No.920/2002 before the competent civil court at Rajkot against Maganbhai Nanjibhai Zalavadiya, that is, the original plaintiff and others for a declaration and permanent injunction that the defendants have no right, title or interest in the land in question situated at Survey No.135 of village Targhadi. The suit came to be allowed by a judgment and decree dated 22nd December, 2009 whereby it was decreed that the applicant and others are the owners and occupiers of the land situated at Survey No.135 paiki admeasuring acres 5 - 35 gunthas situated at village Targhadi and that Maganbhai Zalavadiya does not have any right, title or interest in the same. Maganbhai Zalavadiya was also ordered not to enter the land of the applicant and others.

2.3 The applicant herein challenged the proceedings before the Mamlatdar by way of a writ petition being Special Civil Application No.6356/2011. However, during the pendency of the said proceedings, the Mamlatdar, Padadhari passed a final order on 30th April, 2011 allowing the suit of the plaintiffs. BY an order dated 12th May, 2011 passed in the said writ petition, the applicant was permitted to withdraw the writ petition with liberty to approach the Deputy Collector for filing revision application under section 23 of the Act. It was further ordered that status which was prevailing on that day should prevail for a period of 15 more days to enable the petitioner (applicant herein) to approach the Deputy Collector. Thereafter the applicant and the opponents No.20 to 23 made a revision application as well as a stay application before the Deputy Collector on 20th May, 2011. Since the revision and stay application could not be taken up due to non-availability of Deputy Collector, Rajkot, upon expiry of 15 days since the status quo order of 15 days granted by the High Court had expired, the contesting respondents demolished the compound wall and gate of the applicants on 12th June, 2011 and also damaged the grass on the land of the applicant and made kutcha road on the said land. It appears that the applicant has also lodged a complaint before the concerned police station in respect of the same.

2.4 Thereafter, the applicant preferred another writ petition before this court being Special Civil Application No.7933/2011 seeking a direction to the Deputy Collector to decide the revision application of the applicant as early as possible which came to be disposed of by a judgment and order dated 1st July, 2011 with certain directions to the Deputy Collector. Pursuant to the directions issued by the court, the Deputy Collector decided the revision by an order dated 20th July, 2011 whereby he rejected the revision. Being aggrieved, the applicant has filed the present revision challenging the above referred orders passed by the Deputy Collector as well as by the Mamlatdar.

3. Mr.

Shakti Jadeja, learned advocate for the applicant vehemently assailed the impugned orders, submitting that the same are in breach of the provisions of the Mamlatdars' Courts Act, 1906 (the Act) as well as in breach of the principles of natural justice. Inviting attention to the provisions of section 7 of the Act, it was pointed out that a plaint presented before the Mamlatdar under the said provision is required to contain the details as enumerated thereunder. Emphasis was laid on clause (d) of section 7 of the Act, namely, "the date on which the cause of action arose". Referring to the plaint, it was pointed out that the plaint is totally silent as regards the date on which the cause of action arose.

3.1 Attention was also invited to the provisions of section 8 of the Act, to submit that when a petition not in the form of a plaint is presented to the Mamlatdar and the subject matter thereof appears to fall within the scope of section 5, the Mamlatdar shall explain to the person presenting the petition the nature of the reliefs afforded by the Act and shall inquire whether the petitioner desires to obtain relief thereby. If the petitioner expresses a desire so to obtain relief, the Mamlatdar shall endorse the desire on the petition which shall thereupon be deemed to be a plaint presented under section 7. It was submitted that even if section 8 of the Act is invoked, the Mamlatdar has to first ascertain as to whether the same would fall within the scope of section 5 of the Act.

3.2 Inviting attention to the provisions of section 5 of the Act and more particularly to sub-section (3) thereof, which mandates that 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, it was submitted that unless the date on which the cause of action arose is stated in the plaint or by the plaintiff on oath, it is not possible to ascertain as to whether the suit has been brought within six months from the date on which the cause of action arose. It was submitted that in the facts of the present case, the date on which the cause of action arose having not been mentioned either in the plaint or on oath, the requirements of section 5 of the Act are not satisfied and as such, the Mamlatdar could not have acted upon the said plaint. It was further submitted that even under the provisions of section 9, in case the plaint does not contain the particulars mentioned in section 7 or is unnecessarily prolix, the Mamlatdar is required to examine the plaintiff on oath and ascertain from him such of the particulars specified in section 7 as are not clearly and correctly stated in the plaint and to reduce the same in writing in the form of an endorsement as provided under the said provision. It was submitted that from the record of the case, there is nothing to indicate that the plaintiff has been examined on oath as contemplated under section 9 of the Act so as to ascertain from him the particulars specified in section 7 of the Act. It was submitted that in the circumstances, in the absence of any mention as regards the date of cause of action either under section 7 or section 8 or section 9 of the Act, the suit itself was not competent as the same did not satisfy the requirements of section 5 of the Act.

3.3 Attention was also invited to the impugned order passed by the Mamlatdar, to submit that the entire basis of the order passed by the Mamlatdar is the deposition of the original land owner from whom the applicant had purchased the land in question and who had an axe to grind against the applicant as he had earlier lost in civil proceedings instituted by him against the applicant. It was submitted that the Mamlatdar has further placed reliance upon two measurement sheets prepared by the District Inspector of Land Records (D.I.L.R.) without giving the applicant any opportunity of cross-examining him in respect thereof. It was submitted that the applicant was also not granted any opportunity of cross-examining the original land owner in respect of his deposition. It was, accordingly, submitted that the impugned order passed by the Mamlatdar is clearly in breach of the principles of natural justice.

3.4 Referring to the impugned order passed by the Deputy Collector, it was submitted that the Deputy Collector has also placed reliance upon the deposition of the original land owner and the measurement sheets of the D.I.L.R. That the Deputy Collector has further placed reliance upon an order passed by the Taluka Panchayat granting permission for laying down a pipeline to a third party without giving the applicant any opportunity to deal with the same. It was submitted that in the circumstances, both the impugned orders being contrary to the provisions of the Act as well as in breach of the principles of natural justice, deserve to be quashed and set aside.

3.5 Inviting attention to the plaint, it was pointed out that the suit had been instituted by one Maganbhai Nanjibhai Zalavadiya and others. Except for Maganbhai Nanjibhai Zalavadiya, the name of no other plaintiff was mentioned in the cause title. In the circumstances, it is not possible to ascertain as to who were the other plaintiffs in the said suit. Inviting attention to the affidavit made by Maganbhai Nanjibhai Zalavadiya dated 18th October, 2010 (Annexure 'D' to the application), it was pointed out that Maganbhai Nanjibhai Zalavadiya, the original plaintiff had settled the matter with the applicant herein and had stated that he does not desire to proceed further with the suit. It was submitted that subsequently, an application came to be made on behalf of twenty one persons before the Mamlatdar, stating that the suit had been filed in a representative capacity by fifteen to twenty one persons and that they were not agreeable to the settlement arrived at between Maganbhai Nanjibhai Zalavadiya with the applicant. It was submitted that acting upon the said application made by twenty one persons, out of whom, two persons had denied having made any such application, the Mamlatdar had passed the impugned order. It was submitted that in the absence of any other plaintiff being named in the original suit, it was not permissible for the Mamlatdar to permit other unnamed plaintiffs to come on record in the said suit. It was submitted that if at all the respondents No.1 to 19 desired to institute a suit, they ought to have instituted a separate suit. However, the suit in which no other plaintiffs except Maganbhai Nanjibhai Zalavadiya had been named could not have been continued by the respondents No.1 to 19. It was submitted that in the circumstances, the impugned orders passed by the Mamlatdar as well as the Deputy Collector suffer from the infirmity of lack of any named plaintiffs inasmuch as the original plaintiff had not pressed the application.

3.6 The learned advocate further submitted that the applicant had filed an application before the Mamlatdar to call upon the respondents No.1 to 19 for verification of the plaint, however, the Mamlatdar had proceeded further to decide the main suit on merits without considering the application made by the applicant.

4. Mr.

Sandip Bhatt, learned advocate for the respondents vehemently opposed the application and supported the impugned orders. Inviting attention to the impugned orders passed by the Mamlatdar as well as the Deputy Collector, it was pointed out that there was, in fact, a cart-road existing on the land of the applicant and that upon closure of the said road, undue hardship was being caused to the respondents No.1 to 19 and others. It was further submitted that on 16th October, 2009, the Mamlatdar had granted injunction against the applicant herein, restraining him from preventing the original plaintiff and others from passing through the disputed way. That, however, the applicant in breach of the said order, had again constructed a compound wall and had closed down the public cart-road shown in the map of the D.I.L.R.

4.1 Inviting attention to the original plaint, it was pointed out that in the cause title itself, various survey numbers were referred to, hence, though other agriculturists on whose behalf the plaint had been filed, were not named therein, it was possible to ascertain their identity as the survey numbers of their lands were mentioned. At this juncture, it may be noted that the learned advocate, however, was not in a position to co-relate the respondents No.1 to 19 with the survey numbers stated in the cause title of the plaint.

4.2 Mr.

Bhatt placed reliance upon the decision of this High Court in the case of Desai Navinkant Kesarlal v. Prabhat Kabhai, 1968 GLR 694, for the proposition that the procedure of the Mamlatdars' Courts Act and particularly under sections 8, 9, 10 and others, clearly show that an obligation actually is cast under those provisions on the Mamlatdar not to throw away even a plaint meant to be under the Mamlatdars' Courts Act, if it does not comply with all the formalities of the plaint as required under the Act, but to himself look into it and give an opportunity to the party coming for relief to put it in order and this is so even as regards the want of verification or incorrect verification. It was submitted that even in case there is some lacuna in the plaint filed by the plaintiff, there is an obligation cast upon the Mamlatdar to comply with the provisions of sections 8 and 9 of the Act to ensure that the deficiencies in the plaint are met with. It was submitted that in the circumstances, merely because the plaint does not indicate the date of cause of action, does not mean that the plaint is required to be summarily rejected.

4.3 Mr.

Bhatt further placed reliance upon the decision of this High Court in the case of Kiritsinh Dharamvirsinh vs. Kalubhai Shardulbhai & Ors., 2006 (3) G.L.R. 2031, for the proposition that the jurisdiction under section 115 of the Code is very limited. Unless the order passed by the Deputy Collector suffers from the error of jurisdiction, the court is not required to interfere with the same. Ultimately, the parties can always resort to civil proceedings for getting their rights declared by filing appropriate civil suit. It was submitted that in the circumstances, the order passed by the Deputy Collector is not required to be interfered with by this Court in its limited jurisdiction even if it is found that the Deputy Collector may not have given satisfactory reasons while deciding the revision application. Reliance was also placed upon the decision of a Division Bench this High Court in the case of Kanbi Devji Valji vs. Kanji Shamji Shivji, 1977 G.L.R. 309, wherein it has been held that on a correct interpretation of section 5(2) read with section 19(4) of the Act, the Mamlatdar acting under section 5 of the Act has power to restore the use of the road or customary way by ordering removal of an obstruction caused to the use thereof which may amount to total deprivation of the use of the road or customary way. Such an order cannot be said to be in excess of the power conferred on the Mamlatdar under section 5(2) of the Act. It was submitted that the Mamlatdar in the facts of the present case upon carrying out site inspection as contemplated under section 19 of the Act has found that there was a way passing through the suit land and as such, there is no warrant for intervention by this court.

5. From the facts noted hereinabove, it is apparent that initially a suit being Mamlatdars' Court's Case No.4/2009 came to be instituted by Maganbhai Zalavadiya and others. A perusal of the cause title of the plaint indicates that except for Maganbhai Zalavadiya, no other plaintiff is named therein. The said Maganbhai Zalavadiya filed an affidavit on oath withdrawing the case, interalia, stating that the disputed cart-way does not pass through the lands of the applicant. In the said proceedings, the respondents No.1 to 19 herein and two others moved an application objecting to the withdrawal of the suit stating that the suit had been instituted in a representative capacity on behalf of 15 to 20 persons and that though Maganbhai Zalavadiya had stated that he did not want to proceed further with the suit, the remaining 15 to 20 land owners were not agreeable thereto and had not put their signatures thereon. It was further stated that the said persons had not withdrawn the suit and that the interim relief was continuing despite which the defendants, that is, the applicant and the respondents No.20 to 23 herein had again constructed the compound wall and had closed down the way which was shown by the D.I.L.R. as a public cart-way and had disobeyed the stay order granted by the court and committed contempt thereof. It was, accordingly, prayed that necessary steps be taken in accordance with law.

6. Pursuant to the said application, the Mamlatdar by his order dated 30th April, 2011 allowed the suit and directed the defendants to keep the suit way open and not to create any obstacles thereon.

7. In the aforesaid backdrop, it may be germane to refer to the provisions of Section 5 of the Act, which insofar as the same is relevant for the purpose of the present revision reads as under:

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,-

to remove or cause to be removed any impediment, erected otherwise than under due authority of law, to the natural low 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 to cause damage to the land used for such purpose or to any such grazing trees or crops thereon;

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 a person who has been a former owner or part-owner within a period of 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 part-owner:

Provided that, if in any case the Mamlatdar considers it inequitable or unduly harsh 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.

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 sub-section (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 to disturb or obstruct any person, in the possession 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 water-course, 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.

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.

Cause of action. -

The cause of action shall be deemed to have arisen on the date on which 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.

Explanation.

- The exercise by a joint owner of any right which he has over the joint property is not a dispossession, or disturbance of possession of the other joint owner or owners within the meaning of this section.

8. A plain reading of sub-section (3) of section 5 of the Act makes it clear that the Mamlatdar is prohibited from entertaining a suit unless it is brought within six months from the date on which the cause of action arose. Cause of action has been defined under sub-section (4) of section 5 to mean the date on which the impediment to the natural flow of surface water or the dispossession or the deprivation or the determination of tenancy or other right occurred, on which the impediment, disturbance or obstruction, or the attempted impediment or disturbance or obstruction first commenced. The Mamlatdar while exercising powers under section 5 of the Act is required to act within the scope of the said provision. Thus, the condition precedent for exercise of powers under section 5 of the Act is that the suit should have been brought within a period of six months from the date on which the cause of action arose. Thus, the date on which the cause of action arose is an important factor for the purpose of determining the jurisdiction of the Mamlatdar to entertain a suit under section 5 of the Act. The facts of the present case are, therefore, required to be examined in the light of the aforesaid statutory provision. It would, therefore, be necessary to advert to the contents of the plaint. In the plaint it is stated that the plaintiffs are agriculturists holding lands in the sim of Targhadi village of Padadhari Taluka and the plaintiff No.1 has cultivable land bearing revenue survey No.27/2 and other plaintiffs have other survey numbers. That the defendants have closed down the tractor/cart way used by them for the purpose of going to and fro with their agricultural implements to the lands of their ownership. That survey No.135 p.2 is new tenure land and since years, a way was passing therein which has been illegally closed by them. It is further stated therein that despite it being apparent that for the purpose of going to the revenue survey numbers of the plaintiff at village Targhadi, there is a cart-way passing inside both the boundaries of the defendants' land bearing revenue survey No.135 p.2. For years together, the plaintiffs have been passing through the said lands for agricultural purposes which the defendants have unauthorisedly closed down. Except for the said way, there is no other way through which the plaintiffs can approach their agricultural lands alongwith their agricultural implements and as such their right of way has been taken away. Hence the plaintiffs are not in a position to access the agricultural lands of their ownership and that the defendants are restraining the plaintiffs from passing through the said way. It is further stated therein that if the plaintiffs are not in a position to carry on agricultural activities in their agricultural lands, they are likely to suffer irreparable injury which cannot be compensated in terms of money and that they are suffering immensely on account of the way through which they had access to their agricultural fields having been closed down. That the applicants are carrying on their livelihood on the basis of the yield obtained from their agricultural fields and that the defendants have closed down the way of going to their agricultural fields alongwith their agricultural implements. That since the time of the erstwhile State, the plaintiffs had a right to pass through the said way, however, the defendants have taken the law in their hands and with the help of head strong persons have closed down the way and are trying to create obstacles. The plaintiffs have, accordingly, prayed for an interim injunction restraining the defendants from creating obstructions on the way or putting up any construction thereon and for removing the construction put up by them and for restraining the defendants from putting up a steel gate. It is further stated therein that the defendants are headstrong persons and have been threatening the agriculturists holding lands in the neighbourhood and then harassing the agriculturists by filing false cases and have also cheated the original land owner. These, in sum and substance, are the averments made in the plaint. On a plain reading of the averments made in the plaint, it is apparent that it is not possible to ascertain the date of cause of action therein. There is not even a whisper in the entire plaint as to the date on which the cause of action had arisen nor is it possible to ascertain the same from the averments made in the plaint. Except for general averments made in the plaint, to the effect that the defendants have closed down the way, there is nothing therein to indicate as to since when, the way had been closed.

9. For the purpose of invoking section 5 of the Act, a basic ingredient which is required to be satisfied is that the suit should have been brought within a period of six months from the date when the cause of action arose. In the facts of the present case, it is apparent that there is nothing in the plaint which is indicative as to when the cause of action arose so as to enable the Mamlatdar to ascertain as to whether the suit has been brought within the period specified in sub-section (3) of section 5 so as to vest in him the jurisdiction to exercise powers under section 5 of the Act.

10. At this juncture, it may be pertinent to refer to the provisions of sections 7, 8 and 9 of the Act. Section 7 of the Act is titled "Suits commenced by plaint"

and prescribes the particulars which are required to be stated in the plaint. The contents of the plaint, interalia, as laid down under section 7 are "(d) the date on which the cause of action arose".

Thus, one of the mandatory particulars required to be stated in the plaint is the date on which the cause of action arose. In the facts of the present case, the said date is conspicuously missing. Section 8 of the Act which is titled "Informal petitions to be treated as plaints"

provides that where a petition not in the form of a plaint is presented to the Mamlatdar and the subject matter thereof appears to fall within the scope of section 5, the Mamlatdar shall explain to the person presenting the petition the nature of the reliefs afforded by the Act, and shall inquire whether the petitioner desires to obtain relief thereby. If the petitioner expresses a desire so to obtain relief, the Mamlatdar shall endorse the desire on the petition which shall thereupon be deemed to be a plaint presented under section 7. In the facts of the present case, the petition does not meet with all the requirements of the plaint as contemplated under section 7 of the Act inasmuch as the name, age, religion, caste, profession and place of abode of each of the plaintiffs is not stated therein. The cause title reads thus: "Shri Maganbhai Nanjibhai Zalavadiya and other agriculturists, residents of Targhadi, taluka Padadhari, district Rajkot." Thus, the details of the other agriculturists who are stated to be plaintiffs are not mentioned in the plaint. Moreover, the date on which the cause of action arose is also not mentioned therein.

11. Section 9 of the Act which is titled "Examination of plaintiff on oath"

is relevant for the present purpose. The said provision lays down that where the plaint does not contain the particulars specified in section 7 or is unnecessarily prolix, the Mamlatdar shall forthwith examine the plaintiff on oath and ascertain from him such of the particulars specified in section 7 as are not clearly and correctly stated in the plaint and shall reduce the examination to writing in the form of an endorsement on or annexure to the plaint which shall thereupon be deemed to be part of the plaint. Where the plaintiff requires time to obtain any of the particulars specified in section 7, the Mamlatdar shall grant him such time as may under all circumstances appear reasonable. Thus, in the facts of the present case, since the plaint did not contain the particulars specified in section 7, the Mamlatdar was required to resort to the provisions of section 9 of the Act and examine the plaintiff on oath and ascertain from him such particulars specified in section 7 as are not clearly and correctly stated in the plaint. In the facts of the present case, there is nothing to infer that the Mamlatdar has carried out any such exercise. Thus, the deficiency in the plaint remained as such without the names of the other plaintiffs coming on record and without the date on which the cause of action arose being stated therein.

12. From the cause title of the plaint, it is apparent that there is only one named plaintiff, viz., Maganbhai Nanjibhai Zalavadiya who, as noted hereinabove had stated that there was no way passing through the lands of the defendants and had sought permission to withdraw the suit. In the said suit, the respondents No.1 to 19 moved an application objecting to the withdrawal of the suit stating that the suit was filed in a representative capacity and that they wanted to continue with the same. Though it is true that the plaint has been filed by Shri Maganbhai Nanjibhai Zalavadiya and other agriculturists, at the cost of repetition, it may be stated that none of the agriculturists are named therein. Moreover, even from the application moved by the said respondents, there is nothing to show how they were the persons referred to in the cause title of the plaint, viz. that they are the persons holding the survey numbers mentioned in the cause title of the plaint. Thus, the only named plaintiff has chosen not to prosecute the proceedings any further whereupon the respondents No.1 to 19 have come into the picture and have stated that they are not agreeable to the withdrawal of the suit. On behalf of the applicant, it has been stated that in the absence of any named plaintiffs, it was not permissible for the Mamlatdar to entertain the application made by the respondents No.1 to 19 and permitting them to continue with the suit, whereas on behalf of the respondents, it has been stated that the survey numbers of the other agriculturists has been stated in the cause title and as such, it is possible to determine as to who are the plaintiffs. In this regard, as noted earlier it has nowhere come on record as to which are the survey numbers of the lands owned and occupied by the respondents No.1 to 19. In the absence of such exercise being conducted by the Mamlatdar or such particulars coming on record, it is difficult to understand as to why the Mamlatdar had permitted the respondents No.1 to 19 to prosecute the suit proceedings without they being either named or without anything being brought on record to indicate that they are the agriculturists in respect of whom the suit had been instituted in a representative capacity.

13. Apart from the fact that the Mamlatdar has entertained the suit at the instance of persons who were not named as plaintiffs, the question as to the exercise of jurisdiction under section 5 of the Act would clearly arise inasmuch as the date on which the cause of action arose can, in no manner, be ascertained from the record of the case. The plaint is totally silent as regards the date of cause of action. Neither is the date of the cause of action stated in the plaint nor has the Mamlatdar resorted to provisions of section 9 of the Act and sought such particulars by examining the plaintiff on oath. Thus, in the absence of a mandatory requirement namely, the date on which the cause of action arose, having come on record, the ingredients of section 5 of the Act are clearly not satisfied, inasmuch as, it cannot be stated that the suit had been brought within a period of six months from the date on which the cause of action arose. In the absence of the provisions of section 5 of the Act being satisfied, the Mamlatdar had no jurisdiction to entertain the suit under the said provision and to grant any relief thereon. The Deputy Collector was, therefore, not justified in upholding the order passed by the Mamlatdar.

14. Besides, a perusal of the impugned order passed by the Mamlatdar indicates that the basis of the order of the Mamlatdar is the deposition of the erstwhile owner from whom the applicant has purchased the land in question. In this regard it may be noted that it has come on record that there was litigation between the plaintiff and applicant herein wherein the erstwhile land owner had failed. Thus, the sole evidence which has come on record is in the nature of the deposition of a disgruntled person who had an axe to grind against the applicant herein. Besides except for the oral say of the erstwhile owner, no documentary evidence had been produced by him to show that a cart-way was passing through the suit land. The Mamlatdar has also placed reliance upon the measurement sheets produced by the District Inspector of Land Records (DILR). However, the applicant has not been given an opportunity to cross-examine the DILR in respect of the said maps.

15. The Deputy Collector in the impugned order has apart from the aforesaid evidence on which reliance had been placed by the Mamlatdar, also placed reliance upon an order of the Taluka Panchayat granting permission for laying down a pipeline to a third party. However, the applicant had not been given any opportunity to deal with the same. In the circumstances, the Mamlatdar has placed reliance upon documentary evidence in the nature of the measurement sheets produced by the DILR without affording any opportunity to the applicant to cross-examine the concerned officer, whereas the Deputy Collector has also placed reliance upon additional evidence in the nature of an order passed by the Taluka Panchayat granting permission to lay down a pipeline, without furnishing a copy thereof to the applicant and without giving any opportunity to deal with the same. Thus, both, the Mamlatdar as well as the Deputy Collector have placed reliance upon evidence without giving an opportunity to the applicant to deal with the same, which is clearly in breach of the principles of natural justice.

16. On behalf of the respondents No.1 to 19, Mr. Sandip Bhatt, learned advocate placed reliance upon the decision of this High Court in the case of Kiritsinh Dharamvirsinh vs. Kalubhai Shardulbhai & Ors. (supra) for the proposition that the jurisdiction under section 115 of the Code is very limited. Unless the order passed by the Deputy Collector suffers from an error of jurisdiction, the court is not required to interfere with the same. It was contended that in the facts of the present case, the order passed by the Deputy Commissioner does not suffer from any jurisdictional error so as to warrant interference. However, the said contention does not merit acceptance. In the facts of the present case, it is apparent that the order passed by the Deputy Collector suffers from a jurisdictional error inasmuch as the plaint itself does not refer to any date on which the cause of action arose and as such, in the absence of the provisions of sub-section (3) of section 5 of the Act being satisfied, the Mamlatdar did not have the jurisdiction to entertain a suit under section 5 of the Act. This court in the case of Kiritsinh Dharamvirsinh v. Kalubhai Shardulbhai (supra), has held that the object of granting order under section 5 of the Act is to see that the possession is restored in favour of the plaintiff if the cause of action arose within six months and to remove obstruction in the right of way, if alleged to have been made by the defendants by which an agriculturist may not be allowed to pass through a field or land.

In the present case, as noticed hereinabove, there is nothing to indicate that the cause of action arose within six months so as to enable the Mamlatdar to exercise powers under section 5 of the Act. It is settled legal position that the proceedings under the Act are in the nature of summary proceedings and that ultimately the parties can always resort to civil proceedings for getting their rights declared by filing appropriate civil suit.

17. Mr. Bhatt had also placed reliance upon the decision of a Division Bench of this High Court in the case of Kanbi Devji Valji vs. Kanbi Shamji Shivji (supra) for the proposition that on a correct interpretation of section 5(2) read with section 19(4) of the Act, the Mamlatdar acting under section 5 of the Act has power to restore use of the road or customary way by ordering removal of an obstruction caused to the use thereof which may amount to total deprivation of the use of the road or customary way. Such an order cannot be said to be in excess of the power conferred on the Mamlatdar under section 5(2) of the Act. In the opinion of this court, reliance placed upon the aforesaid decision is misconceived inasmuch as there is no dispute in the present case as regards the power of the Mamlatdar to restore use of the road or customary way by ordering removal of an obstruction caused to the use thereof. The issue involved in the instant case is as to whether the Mamlatdar has the jurisdiction to entertain a suit wherein it was not possible to ascertain as to whether the cause of action had arisen within the time specified under sub-section (3) of section 5 of the Act and as to whether when the only named plaintiff sought withdrawal of the suit stating on oath that there was no way passing through the applicant's land, the Mamlatdar could have proceeded further with the suit at the instance of other persons claiming to be plaintiffs in the suit without carrying out verification of their names or other details as required under section 7 of the Act.

18. Mr.

Bhatt has also placed reliance upon the decision of this High Court in the case of Desai Navinkant Kesarlal v. Prabhat Kabhai (supra) for the proposition that sections 8, 9 and 10 of the Act clearly show that an obligation actually is cast under those provisions on the Mamlatdar not to throw away even a plaint meant to be under the Mamlatdars' Courts Act, if it does not comply with all the formalities of the plaint as required under that Act, but to himself look into it and give an opportunity to the party coming for relief to put it in order and this is so even as regards the want of verification or incorrect verification. The said decision also would not come to the aid of the respondents No.1 to 19, inasmuch as the Mamlatdar in the present case has not discharged the obligation cast upon him under sections 8, 9 and 10 of the Act and has passed orders without the requirements of section 5 of the Act being satisfied. In the present case, it has come on record that despite the fact that the applicant herein has called upon the Mamlatdar to get the verification of the respondents No.1 to 19 being done, the Mamlatdar without taking any such action had passed the impugned order allowing the suit under section 5 of the Act.

19. In the light of the aforesaid discussion, this court is of the view that the Mamlatdar was not justified in proceeding further in exercise of powers under section 5 of the Act without first ascertaining as to whether the requirements of section 5 have been satisfied. Since the date when the cause of action arose had not been stated in the plaint as required under section 7 of the Act, the Mamlatdar ought to have resorted to the provisions of section 9 and examined the plaintiff on oath to ascertain the correct facts. However, without carrying out any such exercise and ascertaining as to whether the suit was brought within the period prescribed under sub-section (3) of section 5 of the Act, the Mamlatdar has proceeded further to grant the relief prayed for by the plaintiff. Moreover, the original plaintiff, who is the only named plaintiff, has chosen to withdraw the suit. The Mamlatdar has however, continued with the suit at the instance of the respondents No.1 to 19 without carrying out any verification whatsoever as to how the respondents No.1 to 19 could be stated to be plaintiffs in the said suit in the absence of their names or addresses being reflected therein. No exercise appears to have been conducted to ascertain as to whether the respondents No.1 to 19 are in fact the persons owning and occupying the survey numbers mentioned in the cause title of the plaint. In the absence of any such exercise being carried out, the Mamlatdar was not justified in permitting the respondents No.1 to 19 to prosecute the suit which the only named plaintiff sought to withdraw. This is so because if the respondents No.1 to 19 were not plaintiffs in the original suit, in a case where there is a prescribed period of limitation, permitting unnamed persons to come on record and prosecute the suit would act to the prejudice of the defendants inasmuch as persons who had not filed the suit within the period of limitation are permitted to come on record much thereafter to prosecute a suit which would have been time barred at their instance. Moreover, as already noted hereinabove, in the absence of the date on which the cause of action arose, the basic requirements of sub-section (3) of section 5 of the Act are not satisfied and as such, the Mamlatdar had no jurisdiction to entertain the suit under section 5 of the Act. The Deputy Collector was, therefore, not justified in confirming the order passed by the Mamlatdar.

20. Moreover, both the courts below were not justified in placing reliance upon the deposition of the erstwhile owner of the land owned by the applicant (as he had an axe to grind against the applicant) in the absence of any supporting documentary evidence having been produced in support of his say. Both the courts below were also not justified in placing reliance upon evidence in the nature of measurement sheets, maps and order of the Taluka Panchayat, which the plaintiff was not given an opportunity to deal with, rendering the impugned orders bad on the ground of being violative of the principles of natural justice. The impugned orders, therefore, cannot be sustained.

21. For the foregoing reasons, the revision succeeds and is accordingly allowed. The impugned order dated 20th July, 2011 passed by the Deputy Collector, Rajkot in Revision Case No.1/2011 (Annexure 'O') as well as the order dated 30th April, 2011 passed by the Mamlatdar, Padadhari, district Rajkot in Mamlatdars' Court's Case No.4/2009 (Annexure 'K') are hereby quashed and set aside. Rule is made absolute accordingly with no order as to costs.

( Harsha Devani, J. ) hki     Top