PATHAN MUKHATYARKHAN AJAMKHAN Vs. PATHAN USMANKHAN REHMATKHAN

JUDGEMENT

(1.) This revision application has been filed under sec. 115 of the Code of Civil Procedure against the orders passed in the first instance by the Mamlatdar and in revision by the Deputy Collector under the provisions of the Mamlatdars Courts Act 1906 (Bombay Act No. II of 1906). The petitioner in this revision application is the original defendant and the respondent is the original plaintiff. In 1963 the plaintiff filed a suit in the Court of the Mamlatdar Mehsana under the provisions of sec. 5 of the Mamlatdars Courts Act complaining of an obstruction created in an alleged public way and the plaintiff contended that he had a right to pass along that public way; but because of the hedge put up by the defendant that right of his was obstructed. The plaintiff is the owner of survey No. 338 of Tundali village in Mehsana Taluka; whereas the defendant is the owner of survey No. 337 of the same village and the plaintiff contended in his plaint that between survey Nos. 337 and 338 there was a public `Nelia along which he had a right to pass in order to approach his own survey No. 338. The Mamlatdar exercising the powers under the Mamlatdars Courts Act heard the matter and he came to the conclusion that the `Nelia between survey Nos. 337 and 338 was a public `Nelia and he held that there was a public road in the shape of this Nelia on the northern side of survey No. 337 that is between the two survey numbers. It appears that after the suit was filed two successive Mamlatdars who were seized of the matter inspected the disputed site and the Notes made by them on the map were to the effect that there was a Nelia between survey Nos. 337 and 338. It appeared that the conclusion of the Mamlatdar was that the defendant had closed the road of the plaintiff by removing the hedge and cultivating the Nelia. Thereupon he passed the following order:- The defendant should open the Nelia which is to the north of survey No. 337 and he should immediately open the road of the plaintiff for having access to his survey No. 338 and the defendant should immediately remove whatever obstruction he might have put up to that right of way. In thismatter an order in Schedule C as mentioned in sec. 21(2) should be issued to the defendant and intimation should be sent to the Circle Inspector to enforce the order. In pursuance of this judgment of the Mamlatdar an order was issued to the following effect to the defendant:- You Pathan Mukhtyarkhan Ajamkhan who are defendant herein are informed......... in the occupation of the plaintiff there is survey No. 338 of Tundali village. It is being shown in the records in the plaintiffs name as the occupant and you are creating an obstruction therein. Hence you are informed that you should not create any obstruction in the abovementioned property in the occupation of the plaintiff nor should you make any disturbance therein. To the north of survey No. 337 there is a `Nelia. That `Nelia should be opened. The right of way for access to survey No. 338 of the plaintiff has been closed. That road should be immediately opened and whatever obstruction has been created should be immediately removed. This order will remain in force until an order of a Court of competent jurisdiction alters the above order. A copy of this order was sent to the Circle Inspector Jotana for making the necessary arrangement in connection with the order.

(2.) Against this judgment and order of the Mamlatdar a revision application was preferred under sec. 23 of the Mamlatdars Courts Act to the Collector and the revision application was disposed of by the Prant Officer Mehsana. The Prant Officer did not assign any reasons but has merely mentioned After perusing the papers it appears that Mamlatdar Mehsana has followed the procedure prescribed by law and hence there is no reason to revise the order of the Mamlatdar. The result therefore is that this application is rejected. The reason why he found that the procedure prescribed by law had been followed by the Mamlatdar has not been mentioned by the Prant Officer.

(3.) The powers of the Mamlatdar functioning under the Mamladars Courts Act 1906 hereinafter referred to as the Act are to be found in sec. 5. Under sub-sec. 5(1) of the Act the Mamlatdar has the power under clause (a) to deal with impediments erected otherwise than under due authority of law to the natural flow in a defined channel or otherwise of any surface water. Under clause (b) he has the jurisdiction to give immediate possession. of any lands or premises used for agriculture or grazing to any person who has been dispossessed or deprived thereof otherwise than by due course of law. It was not the case of the plaintiff that there was any impediment to natural flow of any surface water nor was it his contention that he was deprived of possession of any agricultural land and therefore the case of the plaintiff would not fall under either of the two clauses of sub-sec. (1) of sec. 5 of the Act. Sub-sec. (2) of sec. 5 confers power on the Mamlatdar to issue injunction. Under sub-sec. (1) the Mamlatdar can remove the impediment or cause the same to be removed and in the case of dispossession can give immediate possession; whereas under subsec. (2) the Mamlatdar can only issue an injunction requiring the person concerned to refrain from doing one or the other thing mentioned in the section. In light of the facts of this particular case. the relevant provisions of sub-sec. (2) read as follows:-