KIRITSINH DHARAMVIRSINH Vs. KALUBHAI SHARDULBHAI

JUDGEMENT

(1.) By filing this Revision Application, the petitioner, original plaintiff, has challenged order dated 15-10-1998 passed by Deputy Collector, Palitana in Revision Application No. 2 of 1997-1998. By the said order, the Deputy Collector, Palitana has allowed the Revision Application filed by the original defendants-respondent Nos. 1 and 2 herein.

(2.) The proceedings arises out of the Mamlatdar's Courts Act, 1906 (hereinafter referred to as 'the Act'). The petitioner herein instituted proceedings before the Mamlatdar under the Act being Case No. 1 of 1995-1996. It was the case of the petitioner herein that he is holding lands bearing Survey Nos. 164, 172 and 173 at village Langala and respondent Nos. 1 and 2 are holding lands bearing Survey Nos. 165, 174 and 175 at the same village. It was the case of the petitioner that there is a 'Vahera' (water-course) flowing through the lands held by the respondents and the petitioner and even his predecessor-in-title were assessing Survey Nos. 164, 172 and 173 through the water course. However, on account of some dispute, the respondents closed the way through the water-course. The petitioner therefore filed Suit No. 1 of 1995-1996 before the Mamlatdar under Sec. 5 of the Act contending that the water-course being Government land, the petitioner has right of way to go to his lands through the water course. The Mamlatdar passed an order on 26-7-1996 holding that the petitioner has right of way through the water-course to go to his lands. The respondent Nos. 1 and 2 preferred Revision Application No. 1 of 1996-1997 before the Deputy Collector, Palitana under Sec. 23 of the Act. On 23-12-1996, the Deputy Collector remanded the matter the Mamlatdar for deciding the issues raised by him in his order. Upon the matter being so remanded, the Mamlatdar held further inquiry and passed an order on 5-9-1997 to the effect that the petitioner has right of way through the water course. The Mamlatdar found that the respondents have not produced any evidence about the actual measurement of their lands and the respondents have encroached the Government water-course land and cultivated the said land. Thus, the Mamlatdar by his order dated 5-9-1997 declared that the petitioner herein has a right of way through the water-course for going to his lands. Against the said order, the respondent Nos. 1 and 2 again preferred Revision Application No. 2 of 1997-1998 under Sec. 23 of the Act challenging the order dated 5-9-1997 passed by the Mamlatdar. The Deputy Collector, Palitana heard the Revision Application and allowed it by his judgment and order dated 15-10-1998. The Deputy Collector found that the plaintiff has failed to prove that he has got right or way through the disputed water course. (It appears, through mistake, the Deputy Collector in his order has described the petitioner herein as "prativadi" (defendant). The Deputy Collector found that the petitioner herein has not lead any evidence to prove that he has right of way through the disputed land. The Deputy Collector also found that there is no evidence by way of District Land Revenue Officer's measurement record whether the disputed land was 'Vahera' (water-course) land or ownership land. The Deputy Collector also found that there is another way available to the petitioner to reach his land. On these grounds, the Deputy Collector, by his order dated 15-10-1998 allowed the Revision filed by the respondents herein. Being aggrieved by the said judgment and order, the petitioner-original plaintiff has preferred this Revision Application under Sec.115 of the Civil Procedure Code.

(3.) It is required to be noted that in this Revision Application, this Court is required to see whether the order passed by the Deputy Collector suffers from any jurisdictional error. It is also required to be noted that so far as the power of revision under Sec. 23 of the Act available with the Deputy Collector is much wider than the power of revision available to this Court under Sec. 115, C.P.C. Section 23 of the Act reads as under :