KANBI DEVJI VALJI Vs. KANBI SHAMJI SHIVJI

JUDGEMENT

(1.) This revisional application which arises from an order passed by the Mamlatdar of Bhuj exercising powers under the Mamlatdars Courts Act 1906 (hereafter referred to as the Act) and confirmed in revision by the Deputy Collector Bhuj has been referred to this Division Bench by the learned Single Judge because the learned Judge found conflict between a decision of the Bombay High Court reported as BHAU MANGESH WAGLE V. AHMEDBHOY HABIBBHOY 8 BOMBAY LAW REPORTER 312 and the decision of a learned Single Judge of this High Court reported as MUKHATYARKHAN AJAMKHAN V. USMANKHAN 14 GUJARAT LAW REPORTER 607 The dispute referred centers round the question whether in exercising the powers under sec. 5(9) of the Act the Mamlatdar can order removal of the obstruction complained of by the plaintiff before him ? For this purpose relevant facts may be stated.

(2.) The petitioner in this revisional application is the original defendant against whom proceedings under the Act were taken before the Mamlatdar by the present opponent as plaintiff complaining of obstruction on April 2 1967 in plaintiffs way through defendants; land for going to plaintiffs field. The land concerned in this case is Survey No. 7 of which northern portion belonged to the defendant and southern portion belonged to the plaintiff. The plaintiffs case is that since ancient times there is in existence a way for approaching his southern portion from the western Shedha of the northern portion belonging to the defendant; and that for the first time an obstruction was made by the defendant in plaintiffs user of the said way. Complaining of this obstruction the plaintiff filed a suit under sec. 5 Of the Act on June 13 1967 before the Mamlatdar. The learned Mamlatdar after framing statutory issues and deciding them in plaintiffs favour held the way alleged by the plaintiff proved and directed that the obstruction caused in the use of this way should be removed and the way should be made open. He further directed that the defendant should not obstruct the plaintiff in passing to and fro along this way from plaintiffs field. This decision was given by the Mamlatdar on May 30 1973 The defendant preferred a revisional application against this decision being application No. 6 of 1973 to the Deputy Collector. The learned Deputy Collector by his order dated April 20 1974 dismissed the revisional application and confirmed the aforesaid order of the Mamlatdar. Being aggrieved by this order in revision passed by the Deputy Collector original defendant approached this Court in revision under sec. 115 of the Code of Civil Procedure.

(3.) The question as aforesaid is whether the Mamlatdar had jurisdiction or power to order removal of the obstruction in the. present case ? In Mukhtyarkhans case (supra) the learned Single Judge came to the con- clusion that the Mamlatdar had no jurisdiction to issue any order directing removal of the obstruction or an order causing the obstruction to be removed; and if the Mamlatdar directed the defendant to remove the obstruction he was acting thereby outside the four corners of the juris- diction conferred upon him under sec. 5(2) of the Act. The learned Single Judge for arriving at this conclusion relied on the language of sec. 5(2) of the Act. He also considered the provisions of clause (a) of sub-sec. (1) of sec. 19 and observed in that connection that that clause deals with the points to be decided by the Mamlatdar at the hearing and does not deal with the powers of the Mamlatdar to pass an appropriate Order. Then the learned Judge referred to sec 21(2) of the Act and form C in which an order of injunction would be issued These provisions coupled with other relevant provisions of the Act may now be reproduced.