DHANIBEN Vs. UMESHBHAI KALIDAS ACHARYA

JUDGEMENT

(1.) Ms. Lilu K. Bhaya, learned Counsel for the petitioners; none for the respondents No. 1 and 2 though name of Shri Suresh M. Shah is shown on the board; Shri L.R. Pujari, learned AGP for the respondents No. 3 and 4.

(2.) The short facts necessary for disposal of the present writ application are that Megha Jiva and Galaba Pacha, land owners of Block No. 26 admeasuring 1 acre and 35 gunthas sold the said land to Maniben Kalidas Acharya, the mother of the respondents No. 1 and 2 on 26.7.63. Block No. 25 [original Survey No. 28] of village Saklana is owned and possessed by the present petitioners. In the sale deed executed in favour of Maniben Kalidas Acharya, vendor had made an endorsement and a recital to read that they have a right of way to reach to Block No. 26 from Block No. 25 belonging to the petitioners. Thereafter, the land was succeeded by the respondent No. 1 Umeshbhai Kalidas Acharya and respondent No. 2 Vishwanath @ Mangeshbhai Kalidas Acharya. The said two persons filed an application before the Mamlatdar under Section 5[2] of the Mamlatdar Courts Act [II of 1906] making a complaint that the present petitioners had caused hindrances in their right of way, therefore appropriate orders be passed. Present petitioner appeared as defendant and filed his written statement. It was submitted by him that Megha Jiva and Galaba Pacha never exercised their right of way and simple statement in the sale deed would not serve the case and cause of the vendees. It was submitted that Megha Jiva and Galaba Pacha were not using the same way to approach their field. Question of jurisdiction of Mamlatdar Courts Act was also raised. After recording the evidence and hearing the parties, the Mamlatdar in Case No. 2/98, vide his order dated 10.1.99 granted the application cum suit filed by the respondents and directed the present petitioner to remove the thorns etc. which had been put on the way. Being aggrieved by the said order, the present petitioner Mihor Chelabhai Kalubhai [since deceased] filed revision application No. 3/99 [Mamlatdar Courts Act], which was heard and dismissed by the Deputy Collector on 6th July, 1999. The petitioners are now before this Court.

(3.) Learned Counsel for the petitioners submits that a statement made in the sale deed would not confer any right upon the vendees to cross through the land belonging to the present petitioners. Her submission is that something more than a recital in the sale deed was required. She also submitted that the Mamlatdar under Section 5[2] of the Mamlatdar Courts Act was only entitled to issue an injunction and could not issue directions to the present petitioner to remove blockades. Her submission is that authorities travelled beyond their jurisdiction and passed illegal order.